Paul J. Henderson

This decision follows a 13-day trial regarding the breakdown of a six-year marriage with no children, focusing on property division and damages arising from domestic violence.

The court addresses claims for constructive and resulting trusts, the characterization of family advances as loans or gifts, equalization of net family property, post-separation adjustments, and damages for family violence.

The court finds that the applicant is entitled to a 50% interest in both properties by way of constructive trust, that certain family advances were loans and others gifts, and awards damages for family violence.

A permanent restraining order is also granted.

The Children's Aid Society applied under s. 161 of the Child, Youth and Family Services Act, 2017, to commit the child, A.R.P., to a secure treatment program for 180 days due to severe mental health issues, high-risk behaviours, and a history of self-harm and substance abuse.

The child, represented by the Office of the Children's Lawyer, opposed the application.

The court found that all six criteria under s. 164(1) of the CYFSA were met, including the child suffering from a mental disorder (FASD, intellectual disability, borderline personality disorder), having caused or attempted serious bodily harm within 45 days and 12 months of the application, and that the proposed secure treatment program was effective, appropriate, and the least restrictive option given the child's complex needs and lack of success with less restrictive alternatives.

Following the death of the children's mother, both the biological father and the stepfather brought motions seeking primary care of the four children.

The court found that the mother's death constituted a material change in circumstances but determined it was in the children's best interests to remain in the primary care of their stepfather, who provided stability and support alongside the maternal grandparents.

The biological father's request for primary care was dismissed, but his parenting time was increased.

The applicant mother brought a motion seeking permission to relocate the parties' five-year-old child from London to Stayner, Ontario, due to financial hardship and eviction.

The respondent father objected to the move.

The court applied the provisions of the Children's Law Reform Act and the Plumley factors for interim mobility.

Finding that the child spent the vast majority of time with the applicant, the burden of proof shifted to the respondent to show the move was not in the child's best interests.

The court concluded the respondent failed to meet this burden, noting the applicant's compelling financial reasons and the benefits of family support in Stayner.

The motion was granted on a temporary basis, with the applicant responsible for transportation for the respondent's parenting time.

The applicant sought child support, property division (equalization or constructive trust), and divorce, while the respondent challenged the validity of their marriage.

The trial ended abruptly due to the respondent's disruptive conduct.

The court found the respondent's credibility lacking.

The court determined the marriage was valid under the Marriage Act, R.S.O. 1990, c.

M.3, applying the principles from Lalonde v. Agha.

The court imputed income for child support and ordered retroactive child support.

It also found a constructive trust in favour of the applicant for 50% of the property sale proceeds due to her contributions and the respondent's unjust enrichment, and ordered adjustments for advances, a second mortgage, and costs.

The respondent sought to retroactively vary child support and claim an overpayment due to a material change in circumstances (disability).

The court found no effective notice of the change prior to the formal motion.

Despite the agreed material change, the court exercised its discretion under the Colucci and D.B.S. factors, denying the retroactive reduction and repayment due to the respondent's blameworthy conduct, lack of disclosure, and the hardship it would cause the children and recipient.

The existing child support order was varied prospectively as agreed by the parties.

The respondent sought a temporary order for spousal support, which the applicant opposed, arguing it was a variation of an existing interim order requiring a material change in circumstances.

The court determined that the initial consent order for spousal support was a "first temporary order" or "interim interim order" made without prejudice, intended for review upon better income information, rather than an order meant to carry until trial.

Given the significant discrepancy between the applicant's initially disclosed income and his expert-evaluated income, the court found that the material change test did not apply.

The court used the applicant's 2021 income of $373,532 and the respondent's zero income for SSAG calculation, and ordered the applicant to pay $8,570 per month in spousal support, effective June 1, 2023, but declined to make the order retroactive to January 1, 2022, leaving that for trial.

This family law motion addresses conflicting requests regarding the matrimonial home, spousal support, child support, and an advance for legal expenses.

The applicant sought the sale of the matrimonial home and spousal support, while the respondent sought exclusive possession and child support.

The court ordered the sale of the matrimonial home, finding the respondent failed to discharge the onus to prevent sale, despite concerns for the children's mental health.

An advance of $40,000 from sale proceeds was granted to the applicant for legal fees.

The court ordered the applicant to pay child support based on the Federal Child Support Guidelines table amount due to insufficient evidence for a s. 3(2)(b) analysis.

Spousal support was ordered for the applicant at the high end of the Spousal Support Advisory Guidelines range, considering the long marriage, career trajectories, and unequal childcare responsibilities.

The court adjudicated issues of parenting time and child support, including arrears and a claim of undue hardship, following a trial.

Joint decision-making and primary residence with the applicant were ordered by consent.

The court established a specific parenting time schedule for the respondent.

The respondent's claim of undue hardship under section 10 of the Child Support Guidelines was denied, as the court found his circumstances did not meet the high threshold of exceptional, excessive, and disproportionate hardship.

Child support arrears were calculated and ordered, and ongoing support was set, with the eldest child's support terminating on a specified date.

The applicant father sought a temporary order to vary a final parenting order, requesting a change in the children's primary residence from the respondent mother to himself.

The Office of the Children's Lawyer supported the father's motion, citing chronic dysfunction and conflict in the mother's household impacting the children's well-being.

The court applied the two-stage test for varying parenting orders, including the stringent threshold for temporary variations of final orders, and found a material change in circumstances.

Giving significant weight to the children's clear and consistent views, the court determined that changing primary residence to the father was in the children's best interests to address the intolerable situation and prevent further harm.

The Director, Family Responsibility Office (FRO), sought an order to release $38,203.40 in garnished inheritance funds to satisfy child support arrears owed by the payor.

The payor acknowledged arrears but requested the court exercise equitable jurisdiction to reduce the garnishment amount to $25,000 and propose a repayment plan for the outstanding balance.

The court dismissed the payor's request for a repayment plan as it was not formally brought by motion.

The court found the payor's arguments regarding "reassessments" disingenuous, noting his failure to pay proper support and increase in income without corresponding support adjustments.

The court emphasized the child's right to support and the payor's obligation.

The payor's dispute was dismissed, and the release of the full garnished amount was ordered.

The father brought a motion to dismiss a child protection application on the basis that a customary care agreement had been signed by the parents, the First Nation, and the Children's Aid Society.

A former foster parent brought a cross-motion to be added as a party to the proceeding.

The court granted the father's motion, emphasizing that customary care is the preferred approach for Indigenous children and that the agreement was valid and in the child's best interests.

The former foster parent's motion was dismissed as adding her would cause undue delay and conflict in a resolved proceeding.

The Children's Aid Society brought a temporary care hearing concerning the placement of two young children who were taken to a place of safety after their mother passed away.

Two competing plans for permanent care were presented: one by the children's maternal aunt residing in Georgia, and another by a police officer who responded to the initial call and his spouse.

The Society supported the maternal aunt's plan.

The court evaluated both plans, finding them both to be of high quality.

Ultimately, the court determined that it was in the children's best interests to be placed in the temporary care and custody of their maternal aunt, emphasizing the statutory preference for placement with a relative and the familial continuity she could provide.

The respondent father brought a motion to change a 2000 child support order, seeking to terminate support for his adult son who receives ODSP benefits.

The applicant mother sought retroactive and ongoing child support.

The court found that the son, who has ADHD and a learning disability, qualifies as a 'child' under the amended section 31 of the Family Law Act, and that the amendment applies retroactively to his 18th birthday.

The court ordered retroactive child support from 2015 to 2018 due to the father's increased income and failure to disclose, and ordered ongoing support under section 3(2)(b) of the Child Support Guidelines, taking into account the son's ODSP benefits and the parents' means.

The Children's Aid Society of London and Middlesex brought an application concerning the child V., who was found in need of protection.

The dispositional hearing considered three options: return to the mother (D.P.), placement with the father (T.M.), or custody to the non-parent caregiver (M.B.), who had cared for the child since six weeks old.

The court dismissed the mother's claim due to her non-participation and risk of harm.

It also dismissed the father's claim, finding his parental connection did not grant him a special advantage over the child's best interests, and noted his inconsistent access efforts.

Custody was awarded to M.B., emphasizing the child's psychological bond and the importance of continuity of care.

The mother was granted supervised access, and the father was granted reasonable access, including alternate weekends and summer weeks.

The applicant brought a motion to change a previous child support order, seeking to terminate child support for Julia, obtain repayment for orthodontic expenses, fix arrears, amend a prior order, impute income to the respondent for s. 7 expenses, and claim retroactive/prospective child support for Anna.

The respondent sought retroactive child support adjustment and payment of s. 7 expenses.

The court found a change in circumstances, dismissed the retroactive claim for Anna, and imputed income to the respondent equivalent to the applicant's for the purpose of equally sharing Julia's s. 7 and post-secondary education expenses.

The applicant was found to owe the respondent retroactive child support after credits.

This case involved a child protection application by the Children's Aid Society.

The court granted summary judgment, finding the child in need of protection, despite the mother's cousin (SD2) not consenting.

The parents (SD1 and N.C.) consented to joint custody with the father having primary care.

The court then addressed SD2's separate motions for a s. 54 assessment and for access to the child.

Both of SD2's motions were dismissed.

The court found that an assessment was not necessary as there was abundant, consistent, and independent medical evidence, along with the Society's extensive history with SD2, indicating medical child abuse.

Furthermore, the court determined that it was not in the child's best interests for SD2 to have any access, citing the clear causal connection between SD2's care and the child's declining health, and the potential negative impact on the mother's development.

Following a family law trial involving spousal support, retroactive support, and property equalization, the court determined the quantum of costs.

The successful party sought costs exceeding $99,000 relying on settlement offers and Rules 18 and 24 of the Family Law Rules.

The court held that the requirements of Rule 18(14) were not met because earlier offers had been withdrawn and the final offer was not clearly more favourable than the judgment regarding property.

However, the offers remained relevant under Rule 18(16) and the court also considered the reasonableness of the parties’ conduct, disclosure delays, and the complexity of income and valuation issues.

Balancing these factors, the court awarded $85,000 in costs plus disbursements and HST.

Temporary care hearing under the Child and Family Services Act concerning two children previously found in need of protection.

The children had been apprehended after allegations of sexual impropriety against the father and a breach of a supervision order prohibiting his contact with the children.

The court found reasonable grounds to believe the children were at risk of harm but concluded the risk could be adequately managed through a supervision order.

Given the father’s relocation and the availability of supervision by the society, the court ordered that the children be returned to the mother’s care under society supervision with discretionary supervision of the father’s access.

In a custody and access proceeding, the father brought a motion to transfer the case from London to Brampton after relocating with the children.

The court considered whether the “preponderance of convenience” under s. 21.11(3) of the Courts of Justice Act favoured transferring the matter from the Family Court jurisdiction in London to a court without Family Court jurisdiction.

Although the children had been living with the father in the Toronto area, the court held the application was properly commenced in London due to the ongoing child protection context and the children’s conditional residence tied to the London court’s jurisdiction.

The moving party failed to demonstrate that convenience strongly favoured transfer.

Access to justice concerns, including the respondent’s financial limitations and Legal Aid representation, and the need for timely resolution in the children’s best interests weighed against transfer.