Family and Matrimonial Law - ONCA

The Court of Appeal for Ontario allowed the appeal of A.A. regarding the return of her child to Bangladesh under the Children’s Law Reform Act (CLRA) while refugee applications were pending.

The court found that the motion judge erred by failing to consider the impact of the outstanding refugee claims, the allegations of domestic violence, and the potential for serious harm to the child if returned.

The decision clarifies that the existence of a refugee claim does not automatically stay CLRA proceedings but is a significant factor in the analysis.

The matter was remitted for a new hearing.

The Court of Appeal for Ontario quashed Hui Shang’s appeal from an order of the Superior Court of Justice, Family Court, dated March 19, 2024.

The order, which resolved legal issues in accordance with Minutes of Settlement, was made under the provincial Family Law Act.

The Court held that, pursuant to section 19(1) of the Courts of Justice Act, any appeal from such an order must be brought to the Divisional Court, not the Court of Appeal.

This is a panel review of a single judge's order dismissing a motion to stay a return order for an infant child to Bangladesh, pending appeal.

The Court of Appeal majority granted the review, set aside the stay dismissal, and granted a stay of the return order.

The majority found that the single judge erred in principle by giving insufficient weight to the serious issue of the relationship between the Children's Law Reform Act and pending refugee claims, and by misapplying the irreparable harm and balance of convenience tests, particularly regarding the child's best interests and the potential loss of refugee status.

The dissenting judge argued that the majority conducted a de novo review rather than applying deference to the single judge's discretionary order.

The mother (J.M.) sought to appeal an interim order concerning the child's vaccination, which directed immunization and compliance with COVID-19 vaccine recommendations, granting the father (B.S.) sole decision-making power if parties failed.

She moved for an extension of time to appeal and to transfer the appeal from the Divisional Court to the Court of Appeal, arguing the vaccination order was a final order under the Divorce Act.

The Court of Appeal dismissed both motions, holding that the vaccination order was interlocutory, not final, despite its irreversible practical effect.

The court clarified that jurisdiction for appeals of interlocutory orders under the Divorce Act lies with the Divisional Court, requiring leave.

The appellant appealed a divorce order, arguing improper service of the Notice of Application and alleging the divorce was fraudulent, relying on a signature comparison and postage irregularities.

The Court of Appeal found no credible evidence to support the appellant's claims of fraud or service issues, noting the signatures appeared similar and there was no support for postage irregularities.

The court also considered that the parties had been separated since 2014 and a prior order granted the respondent sole decision-making responsibility for the children.

The appeal was dismissed.

The appellant, Donavan Locke, appealed orders from the Superior Court of Justice dismissing his second and third actions (alleging deceit and conspiracy against his former common-law partner and her lawyers regarding a property transfer) and dismissing his own motions (including a constitutional question and criminal contempt).

The Court of Appeal found no errors in the motion judge's decision, affirming that summary judgment was appropriate due to the appellant's lack of evidence and damages.

The court also upheld the dismissal of the appellant's motions, noting the constitutional question was "ill conceived" and there was no basis for criminal contempt.

The appeal was dismissed, and the appellant was ordered to pay costs to each respondent.

This case involves an appeal and cross-appeal from trial orders concerning the equalization of net family property between former spouses.

Both parties, self-represented, challenged the trial judge's factual findings on asset valuation, debts, and trust account funds.

The Court of Appeal reiterated the significant deference owed to trial judges in family law financial disputes, particularly given the complex and inconsistent evidence presented at trial.

Finding no palpable and overriding errors in the trial judge's determinations, the court dismissed both the appeal and the cross-appeal, upholding the original equalization payment order.

The Court of Appeal for Ontario heard an appeal concerning a motion to change a divorce judgment.

The original judgment included a provision for increased spousal support upon default.

The motion judge had found no material change in circumstances but nevertheless varied the judgment by declaring the default provision an unenforceable penalty and reducing the interest on arrears.

The Court of Appeal held that a judge cannot vary a spousal support order under s. 17 of the Divorce Act without a material change in circumstances, as the common law rule against penalty clauses applies to contracts, not to court orders that have been consented to and incorporated into a judgment.

However, the court affirmed the motion judge's power to vary the post-judgment interest rate under the Courts of Justice Act, as this power is distinct from varying support provisions under the Divorce Act.

The appeal was allowed in part, reinstating the default support provision but upholding the revised interest rate.

The father sought a stay of a trial judgment that permitted the mother to relocate to California with their children and ordered the father to pay retroactive and ongoing child and spousal support.

The motion judge dismissed the father's request for a stay, finding that he failed to demonstrate a serious question for appeal or that the children would suffer irreparable harm if the stay was not granted.

The court emphasized that granting a stay would radically alter the children's established living arrangements and was not in their best interests, especially given the father's thin record and the trial judge's detailed findings.

The appellant, Seyar Khairzad, appealed a Superior Court order that dismissed his motion to change a consent decision-making and parenting time order and increased his child support.

He also sought leave to adduce fresh evidence.

The Court of Appeal dismissed the appeal, finding no material error in the motion judge's decision regarding decision-making responsibility or parenting time, noting the history of domestic violence and communication issues.

The court upheld the imputed income for child support due to the appellant's non-compliance with disclosure orders.

The motion for fresh evidence was also dismissed, as the evidence was either available at the original hearing or would not have affected the outcome.

Costs were awarded to the respondent.

The Children’s Aid Society brought a motion to quash a second appeal by the mother in a child protection matter.

The appeal concerned a temporary order that had since expired and was therefore moot.

The court found no reason to exercise its discretion to hear the appeal, as it would not advance the child's interests and ongoing factual issues belonged in the Ontario Court of Justice.

The motion to quash was granted.

The parties separated in 2004 and entered into a separation agreement in 2005 requiring the respondent to pay spousal support.

The agreement included a material change clause and a retirement adjustment clause.

Following the respondent's retirement in 2016, he brought a motion to reduce spousal support.

The trial judge reduced the support payable, declining to impute income based on a 2009 early pension payout or to immediately impute maximum LIRA withdrawals.

The appellant appealed, arguing the trial judge failed to address her economic hardship and misapprehended the evidence.

The Court of Appeal dismissed the appeal, finding no error in principle or significant misapprehension of the evidence in the trial judge's assessment of the parties' circumstances.

The appellant appealed the dismissal of her request for broad relief and the granting of child support by the application judge.

The appellant argued that the application judge lacked jurisdiction and erred in assessing the parties' requests.

The Court of Appeal dismissed the appeal, finding no merit in the jurisdiction argument and declining to find error in the application judge's assessment of the merits.

Costs were fixed at $7,500 inclusive of disbursements and relevant taxes.

The appellant appealed a trial judge's decision regarding child support, spousal support adjustment mechanisms, and reimbursement for home maintenance expenses.

The appellant sought an additional $50,000 in child support, $96,000 for her share of home maintenance expenses, and annual CPI adjustments to support.

The Court of Appeal upheld the trial judge's decision, finding the child support award complied with guidelines, the home expense allocation was fair given the appellant's residence and profit-sharing in the home sale, and the salary-based adjustment mechanism for spousal support was appropriate.

The court also rejected allegations of impropriety regarding counsel's contact with the Canada Revenue Agency and upheld the costs award.

A family law appeal concerning custody and child support.

The father defaulted on attending a case conference following a motor vehicle accident and was noted in default.

The trial judge granted the mother sole custody with access at her discretion and ordered child support based on the father's 2015 income retroactive to October 2011.

The father's motion to set aside the default judgment was dismissed at first instance.

On appeal, the court found the father had an arguable case on the issue of retroactive child support, as the trial judge may have failed to consider the father's significantly lower 2013 income when determining retroactive support.

The appeal was partially allowed.

The respondent brought a motion to quash an appeal on the ground that the order under appeal was interlocutory and not final, placing it outside the jurisdiction of the Court of Appeal.

The order arose from ongoing family law proceedings and required the appellant to make monthly spousal and child support payments, with a provision allowing the respondent to strike the appellant's pleadings on financial issues if payments were not made.

The appellant argued he could not pay and that the consequence clause created a "catch 22" preventing his participation in ongoing proceedings.

The Court of Appeal held that the order was interlocutory and quashed the appeal, finding the jurisdictional issue was plain and obvious.

The appellant appealed the order of a motion judge dismissing his motion on the grounds that he lacked standing due to non-compliance with an earlier order by Hebner J. The earlier order required the appellant to pay $17,803 by December 31, 2016, to bring his child support into good standing, failing which his Answer and affidavits would be struck.

The appellant failed to comply with the deadline and did not appeal the order.

Instead, he brought a motion to set aside the order before the motion judge.

The Court of Appeal dismissed the appeal, finding that Hebner J. properly applied the test for striking pleadings and that the motion judge correctly determined the appellant had no standing in the proceeding.

This is a costs endorsement following the dismissal of a review motion and appeals in a family law matter involving guardianship and estate issues.

The court awarded costs to the successful party, Michael Childs, on a partial indemnity basis.

The costs were to be paid from the assets of the incapable person (Eileen Childs) through her guardian, BMO Trust Company, with the amounts to be offset against any inheritance received by the unsuccessful parties.

The appellants appealed a trial judgment upholding a Sharia Law-based arbitration award rendered in Iran regarding a property dispute between brothers.

The trial judge found that the appellants had clearly agreed to be bound by the arbitrator's judgment, all four conditions for a binding Sharia Law ruling had been met, and the appellants were estopped from relitigating the same issues in Ontario.

The appellants argued the International Commercial Arbitration Act should apply, but the trial judge found the application was out of time and, in any event, there was no unfairness in the arbitral proceeding.

The Court of Appeal upheld the trial judgment, finding no error and deferring to the trial judge's factual findings.

The appellant corporation appealed an order requiring moneys to be paid into court in the context of matrimonial proceedings.

The Court of Appeal quashed the appeal for want of jurisdiction, finding the order was interlocutory because it did not finally determine the appellant's interest in the funds.

The appellant was granted an extension of time to seek leave to appeal to the Divisional Court.