Robert Shawyer

The respondent father brought a motion to contest the Ontario court's jurisdiction over the applicant mother's claims for custody and child support, arguing the child was habitually resident in Iraq.

The father had allegedly abducted the child during a vacation to the Middle East and failed to attend the case conference as ordered.

The court applied the hybrid approach to habitual residence and found the child was habitually resident in Ontario.

The father's motion was dismissed, his pleadings were struck for failing to obey court orders, and the mother was granted temporary custody and leave to proceed to an uncontested hearing.

The respondent sought costs of over $16,000 for several case conferences and a motion for the sale of the matrimonial home.

The applicant, who was later represented by the Public Guardian and Trustee, had failed to attend conferences and her former counsel caused undue delay.

The court awarded the respondent $4,000 in costs payable by the applicant for the conferences and motion preparation, and $1,500 payable personally by the applicant's former counsel for unnecessary attendances caused by her delay and unresponsiveness.

The appellant father appealed a decision ordering ongoing and retroactive child support for an adult child with severe disabilities.

The appellate court upheld the finding that the child qualified for support under s. 31 of the Family Law Act because her participation in an adapted educational program constituted full-time education in light of her medical limitations.

The court also upheld the retroactive support award based on the father’s blameworthy conduct in failing to disclose income increases, consistent with the principles in DBS v. SRG.

However, the court held that the impact of the adult child’s Ontario Disability Support Program benefits on the quantum of support had not been properly analyzed and required further evidentiary consideration.

That issue was remitted to the Ontario Court of Justice for determination while the remainder of the appeal was dismissed.

In a family law appeal concerning child support for an adult child with significant health issues, the respondent sought to raise a constitutional challenge to s. 31 of the Family Law Act for the first time on appeal.

The challenge alleged unequal treatment between children of unmarried parents under the Family Law Act and children of married parents under the Divorce Act.

The court considered the test governing whether new constitutional issues may be raised on appeal, including whether there was a sufficient evidentiary record, whether the issue had been omitted for tactical reasons, and whether injustice would result from refusing to hear it.

The court found that the issue was foreseeable, that a sufficient factual foundation existed, and that the delay was largely attributable to representation issues.

The respondent was therefore permitted to raise the Charter issue and the appeal was directed to proceed with further case management.