Robert A. Fernandes

The Court of Appeal for Ontario quashed the appeal of Michael Paul Duffy, finding that the order under appeal was interlocutory rather than final.

The order in question enforced a right of first refusal for the sale of the matrimonial home, as previously agreed in a consent order.

The court held that the order did not determine the substantive rights of the parties but merely implemented the final consent order, and thus an appeal lay to the Divisional Court with leave, not to the Court of Appeal.

Costs were awarded to Leona Duffy.

This high-conflict family law case involved two motions concerning the parenting arrangements for a child.

The respondent father sought a temporary order for primary residence due to alleged parental alienation by the applicant mother.

The applicant mother sought dismissal of the father's motion and an updated Office of the Children's Lawyer (OCL) report.

A critical material change in circumstances arose: the mother was in a relationship with a man recently convicted of child pornography possession and subject to a s.161 Criminal Code prohibition order.

The court found this constituted a compelling and exceptional material change, creating actual or potential harm to the child.

Consequently, the court granted the father's motion for temporary primary residence and sole decision-making responsibility, while allowing the mother unsupervised parenting time under strict conditions, including the prohibition of the convicted individual's presence during her parenting time.

The OCL was also requested to engage further services.

The appellant husband appealed an order for spousal and child support and equalization of property.

The appeal focused on the imputation of income to the appellant under s. 19 of the Federal Child Support Guidelines and the valuation of his business, VAMS Canada Inc. The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's credibility assessment, income imputation based on the respondent's expert evidence and the appellant's lack of disclosure, or the valuation of the business, including the treatment of shareholder loans and the use of different valuation methodologies.

The respondent father brought an urgent motion seeking a specified schedule of regular parenting time with the older child (I.A., age 11) following a criminal charge laid against the applicant mother.

The mother opposed the motion and sought to suspend access due to COVID-19 concerns and the child's alleged reluctance.

The court found that while the child's views must be considered, they cannot be determinative when a parent seeks to restrict access without compelling justification.

The court rejected both the mother's proposal for suspension and the father's proposal for the detailed OCL-recommended schedule, instead crafting a modified temporary order reflecting the unique circumstances of the pandemic while maintaining meaningful parent-child contact.

This corrigendum addresses mathematical corrections and clarifies child support issues arising from a prior trial judgment (2019 ONSC 5260) in a family law matter.

The court corrected date of marriage property values, adjusted equalization payments, and clarified retroactive spousal support calculations.

Crucially, it determined ongoing and retroactive child support, finding that the respondent had provided effective and formal notice of her claim in her answer.

The court applied the D.B.S. factors, concluding that the applicant's conduct, including misrepresenting income and benefiting from non-payment, justified a retroactive child support order, effective July 1, 2014.

The applicant father brought a motion to change a final order due to the respondent mother's consistent failure to facilitate access to their two children.

The court found overwhelming evidence of parental alienation by the mother, concluding that the children were suffering emotional abuse.

Consequently, custody of both children was transferred to the father, reunification therapy was ordered, and child support payments were suspended pending a review of the children's adjustment and the parties' financial situation.

The parties separated in 2011 after a long-term marriage.

The applicant wife sought retroactive and ongoing child and spousal support, equalization of net family property, and the continuation of a restraining order.

The court awarded retroactive child support for the period before the eldest child ceased being a child of the marriage.

The court also awarded compensatory spousal support, finding the wife was entitled to share in the husband's post-separation income increase due to the long-term nature of the marriage and her role in raising their special needs children.

The court calculated equalization and post-separation adjustments, resulting in a net payment owed by the wife from her share of the matrimonial home proceeds.

The restraining order was vacated as the circumstances no longer justified it.

The applicant mother brought a motion to change a consent custody order dated July 7, 2016, seeking to extend sole custody to include educational decisions, modify the parenting schedule, and address alleged non-compliance with child tax benefits and daycare costs.

The respondent father initially opposed the motion but later amended his response to argue material change based on ongoing conflict and communication difficulties.

The court found no material change in circumstances warranting variation of the custody and access provisions, as most disputed issues arose during litigation rather than before.

However, the court found that daycare expenses constituted a material change and ordered the father to contribute proportionately to Section 7 daycare costs.

The parties consented to modifications regarding holiday and special occasion scheduling.

Ana-Cristina Bors sought to re-open a previous motion to change a final custody and access order, requesting to introduce fresh evidence in the form of children's counselling progress reports.

The court declined to re-open the motion, finding that the proposed evidence was not sufficiently cogent to have changed the original outcome and that the reports were improperly obtained through unilateral action by Ana, undermining a prior court order for joint agreement on counselling.

The appellant, a self-represented litigant, appealed a trial judgment granting sole custody of three children to the respondent with specified access rights, ordering child support of $622 per month based on an imputed income of $31,600, and requiring an equalization payment of $211,220.17.

The appeal raised issues concerning access time for religious and festive occasions, the inclusion and valuation of a Pakistan pension for income imputation purposes, and the inclusion and valuation of Pakistan property and jewelry for equalization purposes.

The appellant also alleged trial judge bias.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors of fact and no evidence of bias.

A costs decision following contested motions for custody and access in a high-conflict family law matter.

The mother sought full recovery of costs at $13,079.75 after succeeding on her motion for sole custody and access.

The father argued the amount was excessive and claimed inability to pay.

The court awarded costs to the mother on a substantial recovery basis, finding the father's conduct was unreasonable, including filing disproportionate and voluminous material, and failing to make a reasonable settlement offer.

The court awarded $10,000 all-inclusive (fees plus HST and disbursements).

The applicant sought an order prohibiting the respondent from taking further steps in the proceeding, including his motion to set aside a previous order, until he paid $250,000 towards child support arrears or posted security.

The respondent argued he could not pay until he received his share of the proceeds from a court-ordered sale of a jointly owned property, which the applicant controlled.

The court found the record deficient and directed the applicant to provide a timetable for listing the property and the respondent to provide an updated financial statement before deciding the motion.

The appellant wife appealed a trial judge's decision on a change motion.

The Court of Appeal allowed the appeal in part, increasing the additional spousal support awarded by the trial judge due to the husband's early retirement and lump sum pension payout and other changed circumstances.

The court dismissed the wife's appeal challenging the denial of ongoing child support.

The parties were unable to agree on trial costs, and the court addressed this issue in a costs endorsement.

Appeal of a motion judge's decision on a change motion brought by the wife following the husband's early retirement and acceptance of an early pension payout.

The motion judge dismissed the wife's claim for child support for the youngest child and varied spousal support to $5,000 per month, significantly below the Spousal Support Advisory Guidelines range of $6,000 to $8,000 per month.

The Court of Appeal allowed the appeal in part, dismissing the child support claim but allowing the spousal support appeal.

The appellate court found the motion judge erred in departing from the Guidelines based on the "good luck" of the early pension payout and the wife's alleged financial mismanagement.

The court also found the motion judge misapprehended the Guidelines ranges and the parties' positions on the unequalized pension value.

The Court of Appeal substituted an award of $20,000 per month for 2012 and $8,500 per month for 2013, with future support calculated by deducting 31.78 per cent of annual pension payouts from the husband's line 150 income.

This endorsement addresses costs following an appeal hearing.

The court found that the respondent (husband) improperly proceeded with a Rule 14B motion, and the applicant (wife) unreasonably appealed a prior order.

Despite both parties seeking costs, the court determined that each party was responsible for their own legal expenses due to their respective unreasonable procedural actions that led to the appeal and its dismissal.

The appellant wife appealed a temporary order from the Ontario Court of Justice that refused to make a final order based on the parties' consent.

The lower court judge had declined to sign the final order due to serious allegations by the respondent husband of duress and fraudulent misrepresentation in obtaining the consent, and the need for the wife to file responding material.

The Superior Court dismissed the appeal, affirming the lower court's decision not to sign the final order and its directions for the matter to proceed in the Ontario Court of Justice to determine the consent's validity.

The court also upheld the admission of fresh evidence (email threads) on appeal, applying the R. v. Palmer test, finding it relevant to the service issue.

The applicant father and respondent mother disputed custody and access of their six-year-old son following their separation.

The father sought joint custody and maximum access, while the mother sought sole custody.

The court found that the parents lacked the ability to communicate effectively, making joint custody contrary to the child's best interests.

Sole custody was awarded to the mother.

The court ordered a generous access schedule tailored to the father's rotating shift work.

The father was also ordered to pay ongoing child support, retroactive child support, and a fixed monthly amount for section 7 extracurricular expenses.

The respondent mother brought a motion to change a joint custody order dated October 25, 2013, claiming a material change in circumstances had occurred.

The primary change cited was the death of the applicant father's parents and brother in a carbon monoxide poisoning incident on March 16, 2014.

The mother argued this loss of emotional and financial support, combined with the father's alleged breaches of the joint custody order (including unilateral daycare enrollment and failure to communicate), constituted a material change affecting the child's best interests.

The court found that while a change in circumstances had occurred, it did not materially affect the care of the young child, who had adapted well to daycare and whose father had demonstrated resilience and good judgment in managing the tragedy.

The motion was dismissed, and costs were awarded to the father.

The applicant mother brought a motion for interim child and spousal support.

The respondent father had recently left his high-paying job at his parents' business to become a commercial real estate agent, resulting in a significant drop in his reported income.

He also failed to comply with court orders requiring financial disclosure.

The court found the respondent was intentionally under-employed and imputed an income of $124,000 to him based on his past earnings.

The court imputed an income of $28,000 to the applicant.

The respondent was ordered to pay interim child support of $1,709 per month and interim spousal support of $1,876 per month, retroactive to January 2012.