Sandra J. Meyrick

In a highly contentious family law matter involving child custody and support, the trial judge appointed two amicus curiae—one for the self-represented mother and one for the father after his counsel withdrew due to non-payment of fees.

The Crown appealed the amicus appointments.

Although the appeal became moot when the trial concluded with both amicus participating, the Court of Appeal issued a comprehensive judgment establishing principles governing amicus appointments in private family law cases.

The court held that the trial judge erred in principle by appointing the mother's former counsel as amicus (injecting adversarial elements inconsistent with amicus's impartial role) and by appointing a second amicus (contrary to principle in family law contexts).

The court emphasized that amicus appointments should be rare, essential to adequate discharge of judicial functions, and subject to clear, detailed orders specifying the scope of duties.

This appeal concerned the trial judge's decision to appoint two amici curiae in a highly contentious and complex family law trial involving interjurisdictional issues.

The applicant mother was self-represented and exhibited emotional instability, while the respondent father's counsel was removed due to lack of funds.

The Attorney General of Ontario, as intervenor, moved to set aside the amici orders, arguing they constituted a de facto appointment of state-funded counsel.

The trial judge dismissed that motion, and this court upheld that decision.

The court found the appointment of amici was essential for the judge to discharge judicial functions, stabilize proceedings, and ensure a fair trial, consistent with established legal principles.

The amici's roles were distinct from traditional counsel, as they could not be dismissed by the parties and were not obligated to follow their instructions, primarily serving the court's needs.

The applicant father sought joint custody and increased access, while the respondent mother sought sole custody, opposed increased access, and requested a change of the children's surname, retroactive child support, and special expenses.

The court granted joint custody, maintained the current access schedule for one year with leave to reapply for increased access, ordered the children's surname to be hyphenated (Cuthbert-Nolis), and partially granted retroactive child support and special expenses based on imputed income for a period of the father's intentional unemployment.

The court found both parents' credibility suspect due to mutual animosity and exaggeration.

The respondent amicus brought a motion for leave to include the trial judge's final decision as fresh evidence in the appeal record, and for leave to serve the respondent with appeal documents by email.

The Ministry of the Attorney General, appealing the trial judge's earlier refusal to set aside the amicus appointments, opposed the fresh evidence request.

The court granted the uncontested request for email service.

However, applying the Sengmueller test, the court dismissed the request to admit the trial decision as fresh evidence, finding it would not likely be conclusive of an issue in the appeal.

Following a 12-day family law trial primarily focused on the children's estrangement from the applicant father and the respondent mother's mobility claim to Arizona, both parties sought costs.

The court found that success on the parenting issues was divided, as the father did not achieve a custody reversal and the mother was not permitted to move.

Neither party was found to have acted in bad faith or to be markedly more reasonable on the parenting issues, resulting in no costs awarded for that portion.

However, the mother was more successful and reasonable regarding the financial issues, particularly the valuation of the father's professional building.

The court awarded the mother $20,000 in costs inclusive of disbursements and HST for the financial issues.

The parties separated after a high-conflict marriage.

The children resided primarily with the mother and became estranged from the father.

The father sought a 90-day custody reversal to repair the relationship, alleging parental alienation, while the mother sought to relocate with the children to Arizona.

The court found the children were unjustifiably rejecting the father and that the mother had failed to facilitate their relationship.

The court denied the custody reversal but ordered joint custody with a strict access schedule for the father, and denied the mother's mobility application.

The court also resolved financial issues, valuing the father's professional building at $600,000 and ordering him to pay retroactive and ongoing child and spousal support.

This was a family law costs endorsement following an urgent motion concerning restoration of possession of a home and primary care of a child.

The applicant had been substantially successful on the underlying motion, and the court held that the respondent had acted unreasonably and in bad faith by advancing unsupported allegations of criminal misconduct and mental unfitness and by unreasonably opposing the motion.

Applying Rule 24 of the Family Law Rules, the court considered success, complexity, party conduct, counsel rates, time spent, comparable awards, and proportionality.

The court awarded full recovery costs of $20,000 inclusive of HST and disbursements, with pre-judgment interest at 3% from April 17, 2014.

The appellant appealed a trial decision regarding spousal support, arguing the trial judge erred in applying the rule against double recovery, imputing income, and weighing medical evidence.

The Divisional Court dismissed the appeal, finding the trial judge properly applied the Boston principle in light of the parties' separation agreement and the appellant's reckless depletion of assets.

The court also upheld the imputation of $5,000 in annual income due to the appellant's poor financial decisions and found no error in the trial judge's treatment of the medical evidence.

The applicant mother was arrested and removed from her home following an altercation with the respondent father, who claimed she assaulted him.

The mother brought an urgent motion to dispense with a case conference, seeking exclusive possession of her solely-owned home and temporary sole custody of their one-year-old child.

The court found that the circumstances, including the mother's removal from her home and separation from her child based on an uncorroborated complaint, justified dispensing with the case conference.

The court granted the mother exclusive possession of the home, finding the father's constructive trust claim unsubstantiated, and awarded her temporary sole custody of the child with a detailed access schedule for the father.

The moving party father brought a motion to terminate child support, incurring nearly $400,000 in legal fees, which was ultimately dismissed.

The responding party mother, who was largely self-represented but utilized unbundled legal services, sought costs.

The court found the father's conduct unreasonable and disproportionate to the financial issues at stake.

The court awarded the mother $90,000 in costs, recognizing the need to compensate self-represented litigants and those using limited scope retainers to ensure access to justice.

The respondent was awarded costs of the appeal fixed at $5,000, inclusive of disbursements and GST.

The appellant appealed the dismissal of his application for shared joint custody of a pet dog named Tuxedo.

The Family Court judge had dismissed the application at a case conference, finding that the case did not warrant a full trial and was a waste of court resources.

The Court of Appeal agreed, holding that the case conference judge was entitled to conclude the claim would likely fail on jurisdiction and merits, and dismissed the appeal under Rule 16(12)(c)(iv) of the Family Law Rules as a waste of time.

The mother and two children travelled from Greece to Ontario for a vacation.

The mother subsequently decided to remain in Ontario and commenced a custody application.

The father brought an application under the Hague Convention for the return of the children to Greece, their habitual residence.

The mother argued that the father had consented to or acquiesced in the children's retention in Ontario under Article 13(a) of the Hague Convention.

The applications judge found that the father had not consented or acquiesced, and ordered the children returned to Greece.

The Court of Appeal dismissed the mother's appeal, affirming that acquiescence requires clear and cogent evidence of unequivocal subjective consent, which was not established on the facts.

On a chambers motion arising from a family appeal, the court granted a stay of the underlying judgment pending the hearing of the appeal.

The stay was made subject to strict conditions, including prompt perfection, expedited hearing, interim unsupervised access for one week per month in the Greater Toronto Area, and release of $17,000 from joint securities to the respondent wife.

Costs of the application were reserved to the panel hearing the appeal.