Family and Matrimonial Law - ONCA

The appellant father appealed a summary judgment order granting Crown wardship without access of his child to the Children's Aid Society.

The motion judge found no genuine issue for trial given the father's failure to address risks and lack of insight into his parenting deficiencies.

The appeal judge dismissed the appeal, and the father appealed to the Court of Appeal, tendering fresh evidence of his progress as a parent with a new child.

The Court of Appeal admitted the fresh evidence but dismissed the appeal, holding that the child's best interests required finality and a permanent adoptive home.

The appellant appealed an order of the Superior Court of Justice, Family Court, arguing that the motion judge misapprehended the Minutes of Settlement.

The Court of Appeal dismissed the appeal, finding no such misapprehension, and awarded costs of $5,000 to the respondent.

The appellant wife appealed a trial judgment finding that the respondent husband had a fifty percent beneficial interest by way of resulting trust in a property, and failing to order retroactive child support for a specific period.

The respondent cross-appealed the trial judge's decision to award no costs.

The Court of Appeal dismissed the appeal, finding no prejudice in the failure to plead resulting trust and no error in the trial judge's appreciation of the evidence regarding the property or child support.

The cross-appeal was also dismissed, as the offers to settle would not have affected the costs outcome.

The appellant appealed two orders: one dismissing his motion to vary child and spousal support, and another directing that support arrears be paid to the Family Responsibility Office from the proceeds of a property sale.

The Court of Appeal dismissed both appeals, finding that the variation motion was an abuse of process attempting to relitigate previously dismissed claims, and that the arrears order was based on uncontroverted evidence and had been consented to by the appellant's agent.

Costs were awarded to the respondent.

The Director appealed an order striking a committal provision from a temporary default order.

The Court of Appeal dismissed the appeal but confirmed that under s. 41(14) and 41(10) of the Family Responsibility and Support Arrears Enforcement Act, 1996, a court has the power to make a temporary order for support payments that includes a term directing the imprisonment of the payor upon failure to comply.

The Court emphasized that this power should be exercised cautiously and outlined procedural fairness requirements for unrepresented payors facing potential committal.

The parties entered into a pre-nuptial agreement one day before their wedding, agreeing to keep all real and personal property separate.

After a 17-year marriage, they separated and the wife successfully applied to set aside the contract at trial.

The husband appealed.

The Court of Appeal allowed the appeal, finding the trial judge erred in setting aside the contract based on an improper application of the test for misrepresentation, the absence of support provisions, and the retrospective application of section 56(4) of the Family Law Act.

A new trial was ordered.

The appellant mother appealed a Superior Court decision that overturned an Ontario Court of Justice placement order returning her twin boys to her care.

The children had suffered severe physical abuse by their father shortly after birth.

The Court of Appeal found that the appeal judge erred by conducting a de novo review and substituting his own factual findings without identifying a palpable and overriding error.

However, the Court of Appeal also found that the original placement judge failed to consider critical evidence regarding the mother's awareness of the abuse and failed to assess the risk of future harm.

The appeal was allowed, but a new placement hearing was ordered.

The appellant appealed a finding of civil contempt and a two-month term of imprisonment imposed for flagrant disregard of multiple court orders in a family law dispute.

The orders required him to pay funds into court, freeze accounts, and provide an accounting of dissipated funds.

The Court of Appeal confirmed it had jurisdiction, holding that a finding of contempt is a final order.

The court dismissed the appeal, finding the contempt finding amply supported by the record and the 60-day sentence fit given the appellant's deliberate breaches.

The husband and his new partner appealed orders requiring them to produce financial documents, and the husband appealed an order requiring him to pay special or extraordinary child support.

The husband's pleadings had previously been struck for failure to pay support, and he had made an assignment in bankruptcy.

The Court of Appeal quashed the husband's appeals, finding he was not entitled to participate under rule 10(5)(b) of the Family Law Rules, the orders were interlocutory, and the court exercised its discretion to decline to hear his appeals pending compliance with support obligations.

The court allowed the new partner's appeal, finding the disclosure order against her was overly broad, and varied it to limit production to financial transactions between her and the husband.

The parties executed a separation agreement containing an explicit release of spousal support and a provision for recalculating child support if the husband's income materially increased.

Years later, the wife sought spousal support after the husband's income increased significantly.

The trial judge implied a term requiring the husband to disclose income increases, linked it to the spousal support release, and awarded retroactive and future spousal support.

The Court of Appeal allowed the husband's appeal, holding that a term cannot be implied if it contradicts an express term of the agreement.

The implied obligation to disclose income for spousal support purposes contradicted the express release of spousal support.

The wife brought a motion to dismiss her husband's appeal of a divorce judgment on the basis that he had failed to pay monthly spousal support since the appeal was heard.

The husband argued his income had declined and his capacity to pay had eroded.

The Court of Appeal dismissed the motion without costs, noting that there were important issues to be decided in the appeal and that the court was releasing its judgment on the main appeal concurrently.

The appellant husband appealed a divorce judgment regarding pension valuation, investment ownership, spousal support, retroactive spousal support, matrimonial home valuation, and the terms of the equalization payment.

The Court of Appeal dismissed most grounds of appeal, finding no palpable and overriding error in the trial judge's determinations of spousal support, pension valuation, or property issues.

However, the Court allowed the appeal in part regarding retroactive spousal support, as the trial judge failed to advert to the governing considerations or explain the calculation, remitting this issue to the trial judge.

The Court also remitted the terms of the equalization payment and non-depletion order if the parties could not agree.

The appellant appealed a judgment of Justice Rogin dated October 31, 2002.

The Court of Appeal ordered the appeal adjourned sine die pending a reference to be made in relation to the matter.

The parties separated after a short marriage.

Prior to the marriage, the wife contributed significantly to the renovation of a property owned by the husband, which later became the matrimonial home and was held in joint tenancy.

The trial judge found the husband was unjustly enriched by the pre-marital contributions and awarded the wife monetary compensation, allowing her to deduct this amount from her net family property.

The trial judge also stated she would have ordered an unequal division of property if unjust enrichment was not found, and dismissed the wife's claim for spousal support.

The husband appealed the property issues, and the wife cross-appealed the support dismissal.

The Court of Appeal allowed the husband's appeal, finding that the calculation of net family property must be based on the date of separation, at which point the wife held a joint interest in the home and thus suffered no deprivation.

The Court also found an equal division of property was not unconscionable and dismissed the wife's cross-appeal for spousal support.

The mother, who was granted sole custody of the child, appealed the trial judge's refusal to permit her to relocate to Alberta with the child.

The Court of Appeal found that the trial judge erred by focusing solely on the mother's employment and the father's access, while disregarding the social, psychological, and emotional benefits of the move for the mother.

Applying the framework from Gordon v. Goertz, the Court held that the views of the custodial parent are entitled to great respect and that the move would enhance the best interests of the child by allowing the mother to regain stability and independence.

The appeal was allowed, permitting the mother to relocate to Calgary.

The appellant appealed a trial judgment ordering him to pay 12 years of child support arrears under a separation agreement.

He argued the trial judge erred in enforcing the agreement, calculating his rental income, and failing to apply the Child Support Guidelines.

The Court of Appeal upheld the arrears, finding the separation agreement remained enforceable and the claim was not barred by the Limitations Act.

However, the Court allowed the appeal in part, reducing the attribution of gross rental income from 70 percent to 40 percent, and ordering that post-secondary education expenses be allocated in accordance with s. 7 of the Guidelines.

The applicant children's aid society appealed a decision that set aside a trial judge's order in a child protection matter.

The appeal judge had found palpable and overriding error based on the trial judge's comments regarding an expert witness's demeanour.

The Court of Appeal allowed the appeal, finding that the appeal judge failed to read the trial judge's reasons as a whole.

The trial judge had placed her concerns about the expert's demeanour in context and provided positive reasons for relying on his evidence, which was supported by other accepted witnesses.

The trial judge's orders were restored.

The appellant appealed a judgment on the ground that the trial judge's intervention during the presentation of the case was so extensive that it resulted in a loss of jurisdiction.

The Court of Appeal agreed, finding that the trial judge dominated the presentation of evidence throughout the brief trial, with 101 interventions over 218 pages of transcript.

The appeal was allowed, the judgment and costs order were set aside, and a new trial was directed.

The appellant appealed an order finding him in contempt for failing to comply with interim child support, spousal support, and financial disclosure orders in a divorce proceeding.

The motions judge had ordered a warrant of committal for seven days and struck his pleadings.

The Court of Appeal dismissed the appeal, holding that while payment orders cannot be enforced by contempt proceedings under the Family Law Rules, the committal was properly based on the appellant's flagrant failure to comply with production orders.

The Court also found no error in the motions judge's exercise of discretion to strike the pleadings given the history of non-compliance.

In supplementary reasons regarding costs, the Court of Appeal considered offers to settle made by both parties.

Despite the appellant's success on the appeal, the court ordered no costs of the appeal because the respondent's offer to settle was almost identical to the appeal result.

For the application, considering the appellant's misconduct and the various offers, the court ordered no costs to either party up to November 1, 1999, and party-and-party costs to the respondent thereafter.