Family and Matrimonial Law - ONSCDC

The appellants filed notices of appeal in the Divisional Court from a Family Court order that granted sole decision-making responsibility, child support, and a $452,000 equalization payment, and declared a fraudulent conveyance.

The respondent moved to dismiss the appeals for lack of jurisdiction.

The Divisional Court held that under section 19 of the Courts of Justice Act, it lacked jurisdiction because the equalization payment exceeded $50,000 and the order was made under both the federal Divorce Act and the provincial Family Law Act.

The appeals were dismissed without prejudice to the appellants proceeding in the Court of Appeal.

The appellant's children were brought to a place of safety by the Children's Aid Society.

The protection application was later withdrawn and the parties reached an agreement.

The appellant subsequently brought a motion for a declaration that the CAS acted unlawfully by not obtaining a warrant, and sought costs.

The motion judge declined to rule on the warrant issue and declined to order costs.

The appellant appealed.

The Divisional Court dismissed the appeal, finding no error in the motion judge's discretionary decision to decline declaratory relief or in her application of costs principles.

The appellant appealed a Small Claims Court decision striking out his negligence claim against the Family Responsibility Office (FRO).

The appellant alleged that FRO was negligent in handling his child support payments and reporting him to a credit bureau, arguing FRO owed him a duty to reply to his correspondence.

The Divisional Court upheld the Deputy Judge's finding that FRO did not owe a duty of care to the appellant, applying the Cooper v. Hobart framework.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed a motion judge's order finding him in contempt of a final parenting order.

The motion judge had temporarily reduced the appellant's parenting time until he complied with the order, which the appellant argued was an impermissible variation.

The Divisional Court dismissed the appeal, finding that the motion judge had jurisdiction to make a temporary variation to facilitate compliance.

The court also upheld the contempt findings regarding unilateral medical decisions and withholding the children, and rejected the appellant's claims of procedural unfairness.

The appellant appealed an order for the partition and sale of a home jointly owned with her elderly mother.

The appellant argued the mother had gifted her interest in the home and that the order was interlocutory, requiring leave to appeal.

The Divisional Court held that an order for sale under the Partition Act is a final order, meaning no leave was required.

On the merits, the court found no palpable and overriding error in the application judge's conclusion that the mother retained an interest in the property and that the sale was not oppressive.

The appeal was dismissed.

The appellant father appealed a case management judge's decision to adjourn a contested motion brought by the Office of the Children's Lawyer until a recusal motion could be heard.

The case management judge had determined the recusal motion was too long to be heard during COVID-19 protocols, resulting in legal paralysis for the family.

The Divisional Court allowed the appeal, finding the situation inappropriately left the children in limbo, and directed the Regional Senior Judge to appoint a temporary case management judge until the recusal motion is decided.

The moving party, the 19-year-old daughter of the appellant, brought a motion to be added as a party to her mother's appeal of an extended society care order and access order regarding her two younger siblings.

The court dismissed the motion to intervene in the appeal of the care order, finding she had no legal interest and her position would mirror the appellant's.

However, the court granted her leave to intervene solely on the issue of the access order, as the trial judge had awarded her access, giving her a legal interest in that specific issue.

The applicant sought judicial review of a Superior Court judge's decision regarding the form of an order in a family law proceeding.

The Divisional Court considered whether to dismiss the application under Rule 2.1.01(1) of the Rules of Civil Procedure as frivolous, vexatious, or an abuse of process.

The court dismissed the application, noting that judicial review is not available to review decisions of Superior Court judges and that the applicant's proper recourse was an application for leave to appeal, which had already been dismissed.

The mother brought a motion for a stay of an order varying an interim parenting schedule pending her motion for leave to appeal.

The motion judge had varied the schedule to increase the father's parenting time based on observations from a Section 30 assessment report.

The Divisional Court applied the three-part test for a stay and found that the mother failed to demonstrate a serious issue to be tried, as the motion judge's discretionary decision was well-founded and did not conflict with established case law.

The court also found no irreparable harm to the child and that the balance of convenience favoured the new schedule.

The motion for a stay was dismissed.

The moving party appealed a joint custody order to the Divisional Court.

The Divisional Court quashed the appeal for want of jurisdiction, noting that jurisdiction lies with the Court of Appeal under s. 6(1)(b) of the Courts of Justice Act.

The court declined to transfer the appeal to the Court of Appeal under s. 110, finding little apparent merit to the appeal based on the deferential standard of review for custody orders.

Furthermore, the court noted that both parties sought to introduce fresh evidence regarding post-trial events, making a variation application based on a material change in circumstances a more appropriate remedy than an appeal.

The appellant appealed an order dismissing his motion to vary a final child support order and rescind arrears.

The original order imputed an income of $30,000, but the appellant provided uncontradicted evidence that he had not held employment since 1998 due to severe depression and was receiving disability benefits.

The Divisional Court found that the motions judge made a palpable and overriding error by ignoring this material change in circumstances and relying on the respondent's unsworn statements.

The appeal was allowed, arrears were reduced to $15,240, and ongoing support was reduced to $161 per month.

The moving party husband sought leave to appeal an interim spousal support order made under the Divorce Act.

He argued that the Divorce Act provided an appeal as of right, rendering the provincial requirement for leave inoperative due to paramountcy.

The Divisional Court rejected this argument, finding that the Divorce Act itself incorporates provincial appellate procedures.

Applying the test for leave to appeal an interlocutory order, the court found no conflicting decisions and no good reason to doubt the correctness of the interim support order, which appropriately considered the parties' lavish lifestyle and the husband's high income.

The motion for leave to appeal was dismissed.

The respondent husband sought leave to appeal a temporary order requiring him to pay $2,700 per month in child and spousal support based on an imputed income of $60,000.

The husband argued the support amounts significantly exceeded the Child Support Guidelines and Spousal Support Advisory Guidelines for that income level, and that the motion judge improperly relied on previous 'without prejudice' consent orders.

The court granted leave to appeal, finding good reason to doubt the correctness of the order and that the issues were of sufficient importance.

The court also granted a partial stay, reducing the ongoing support obligations pending the appeal, provided the husband paid the arrears.

The appellant mother appealed a summary judgment order making her child a Crown ward.

The motion judge had found no genuine issue for trial regarding whether it was in the child's best interests to return to the mother's care, given the mother's health issues and inability to provide a stable environment.

The Divisional Court dismissed the appeal, finding ample evidence of the Society's efforts to assist the family and no adequate plan from the mother to care for the child.

Fresh evidence filed on appeal did not raise a triable issue.

The appellant brought a motion to set aside a Registrar's order dismissing his appeal for delay.

The appellant, who was self-represented, failed to perfect his appeal within the prescribed 30-day period after being granted leave to appeal.

Applying the tests from Scaini and Viola, the court found the delay was not extensive, the appellant had a settled intention to appeal, and the appeal had merit.

Although the court rejected the appellant's explanation for the delay, it concluded the justice of the case demanded setting aside the dismissal on terms.

The motion was granted on the condition that the appellant perfect the appeal within 10 days and pay $3,000 in costs to the respondent.

The husband appealed a trial judgment ordering him to pay $12,000 in lump sum spousal support and to return property to his former wife following a very brief marriage.

The Divisional Court found the trial judge erred by failing to relate the support amount to the wife's actual needs and by ordering the return of property that was not claimed in the pleadings.

The appeal was allowed, the lump sum support was reduced to $4,800, and the order for the return of property was deleted.

The Children's Aid Society applied for judicial review of a decision by the Child and Family Services Review Board, which found it had jurisdiction to hear a review of the Society's decision to remove a child from foster parents.

The foster parents had been fostering with a view to adopt, but the Society failed to complete the formal statutory requirements for an adoption placement, including registering the placement and notifying the child's Band.

The Divisional Court held that the judicial review was not premature given the urgency of the child's permanency planning.

The Court quashed the Board's decision, finding that without the formal statutory requirements being met, the child was not legally 'placed for adoption' under the Child and Family Services Act, and therefore the Board lacked jurisdiction to hear the matter.

The appellant brought a motion to adjourn the appeal in order to obtain a transcript of a trial management conference.

The Divisional Court denied the motion, noting that a court reporter is only present at such conferences when a litigant is unrepresented, and a transcript cannot be ordered without the conference judge's permission.

The court held that granting an adjournment based on the mere hope of obtaining permission made no sense.

Furthermore, the relevant rule only contemplates transcripts of oral evidence, which was not given at the conference.

The appellant corporation, KPM, appealed an order of the case management judge denying it leave to bring a motion to remove itself as a party to a long-standing family dispute.

KPM argued the order was made summarily without an opportunity to be heard.

The Divisional Court dismissed the appeal, finding that the case management judge was entirely familiar with the reasons for adding KPM as a party to facilitate property valuation, and was entitled to deal with the request expediently.

The reasons for KPM's inclusion as a party remained extant.

The appellant mother appealed a motion judge's order varying child support and dismissing her claim for retroactive support.

The Divisional Court allowed the appeal, finding the motion judge made palpable and overriding errors in applying the 40% shared custody rule without a trial, improperly averaging the father's income over five years under section 17(1) of the Guidelines, and dismissing the retroactive support claim.

Applying the Supreme Court's decision in D.B.S., the Court awarded the mother $40,879.73 in retroactive child support dating back to her effective notice in 2001.