Family and Matrimonial Law - SCJ

This is a family law case involving former spouses, Dr. K (applicant) and Ms. H (respondent), and their two daughters.

This was the second trial, following a previous decision that set aside their separation agreement and established the separation date.

The court determined child support, spousal support, equalization payment, and the disposition of the matrimonial home.

The court imputed income to both parties for support purposes, granted Ms. H's claim for a resulting trust over the matrimonial home, and dismissed Dr. K's claim for occupation rent.

The court also addressed the issue of security for support payments given Dr. K's relocation to New Zealand and conflicting information regarding his income and tax residency.

Further steps were ordered for a final determination on the vesting order and tax deductibility of spousal support.

The parties separated in 2011 after a 16-year marriage.

The applicant sought equalization of net family property, retroactive child support, and Section 7 expenses.

The respondent sought to set aside a term of their separation agreement regarding the matrimonial home and claimed he had overpaid child support.

The court dismissed the respondent's request to set aside the agreement and the applicant's claims for post-separation expenses.

The court imputed income to the respondent due to his intentional underemployment and failure to provide financial disclosure.

The respondent was ordered to pay an equalization payment of $77,732.51, Section 7 expenses of $45,684.63, and retroactive child support based on the imputed income.

The applicant mother brought a motion to change seeking sole decision-making and a week-about parenting schedule.

The respondent father sought sole decision-making, reduced parenting time for the mother, child support adjustments, a restraining order, and a declaration that the mother is a vexatious litigant.

The court found a material change in circumstances due to the mother's escalating confrontational behavior, failure to follow court orders, and inappropriate social media posts.

The court awarded sole decision-making to the father, reduced the mother's parenting time to every second weekend, imputed income to the mother for child support purposes, granted a restraining order, and declared the mother a vexatious litigant.

The Children's Aid Society brought a motion for a temporary care and custody order regarding two children, aged 12 and 14 months.

The children had been removed from the mother's care following incidents of domestic violence and substance abuse, and placed with relatives.

The mother sought the return of the children.

The court found that the parents had repeatedly breached voluntary services agreements and that there was a risk of harm to the children if returned to the mother's care.

The court ordered that the children remain in their current placements.

The applicant sought costs of $34,160 on a full recovery basis against a third-party witness who unsuccessfully opposed a motion to be questioned prior to trial.

The third party argued he was a non-party and sought his own costs.

The court found the third party was a party for the purposes of the motion under the Family Law Rules and that the applicant was the successful party.

Applying principles of proportionality and considering the respective offers to settle, the court awarded the applicant costs fixed at $10,000.

The Children's Aid Society of Ottawa brought a motion for summary judgment on a status review application, seeking an extended society care order for a two-year-old child with a plan for adoption.

The mother, who struggled with addiction and mental health issues, did not respond to the motion.

The court granted the extended society care order, finding no genuine issue for trial.

The court also determined that the order could not be silent on access, as requested by the Society, and instead explicitly ordered no access for either parent, while leaving open the issue of the child's access to her sibling and maternal grandparents.

The Appellant, Houssein Awada, appealed an arbitration award concerning net family property (NFP) equalization and income imputation for child and spousal support.

Mr. Awada argued that two properties (Laurier Avenue and Palmerston Drive) were held in trust for his brother and should not be included in his NFP, and that the Arbitrator erred in calculating his 2016 income and in not imputing a higher income to the Respondent, Sheryl Kristy O’Connell.

The court upheld the Arbitrator's findings on all issues, applying a standard of review of correctness for questions of law and palpable and overriding error for questions of mixed fact and law.

The court found no errors in the Arbitrator's assessment of evidence, credibility, or the imputation of income, emphasizing deference to the Arbitrator's findings.

The Respondent Father brought a motion seeking unsupervised access to his two young children, while the Applicant Mother brought a cross-motion for sole custody and continued supervised access.

The court granted the Father unsupervised access, to be implemented gradually, finding no evidence to support the Mother's safety concerns regarding the Father's and his family's medical conditions or housing.

The Mother's request for interim sole custody was denied, with the court preferring to leave the final custody determination to a trial judge to avoid prejudging the issue.

Costs for the motion and cross-motion were awarded to the Father.

The applicant brought a motion seeking extensive disclosure of the respondent's medical and personal records, alleging mental health issues.

The respondent opposed, arguing the requests were irrelevant, privileged, and constituted a fishing expedition.

The court dismissed the applicant's motion, finding no evidence to support the mental health allegations, inferring an element of retaliation given the timing of the requests after criminal charges were laid against the applicant, and concluding the requests were overly broad.

The court awarded $5,000 in costs to the respondent, payable by September 30, 2017, or offset against future financial claims.

The Children's Aid Society of Ottawa brought a motion to set aside an order extending time for the respondent mother, I.C., to perfect her appeal of a Crown Wardship order, and to dismiss the appeal for delay.

The court reviewed the factors for extending time to perfect an appeal, including the length and explanation for delay, prejudice to the respondent, and the merits of the appeal, as established in *Paulsson* and *Monteith*.

The court deferred to the discretion of the previous judge who granted the extension, finding no reason to interfere.

The motion by the Children's Aid Society was dismissed, and I.C.'s appeal was not dismissed for delay, with new peremptory timelines set for its perfection and hearing.

The applicant mother unilaterally removed the children from the matrimonial home and took them to a shelter, alleging abuse.

The respondent father brought an urgent motion for interim parenting orders.

The court granted the father exclusive possession of the matrimonial home, ordered equal week-on/week-off parenting time, and appointed a psychologist to conduct an assessment under s. 30 of the Children's Law Reform Act, with the father paying initially.

The court also ordered interim child support of $1,000 per month from the father to the mother and struck inadmissible evidence from both parties' affidavits, including unsworn letters, hearsay summaries, and references to settlement discussions.

In the context of a motion to change custody and access, the respondent requested an order under section 137(2) of the Courts of Justice Act to publish the court's forthcoming decision using initials for the parties, children, and witnesses.

The applicant consented to the request.

The court noted the high-conflict nature of the proceedings and the vulnerability of the children, who were already exhibiting signs of emotional distress.

The court granted the order, finding it necessary to protect the children from future emotional harm and to preserve their privacy and dignity, without stifling public comment on the issues.

The applicant sought retroactive and ongoing spousal support pursuant to the Spousal Support Advisory Guidelines despite a separation agreement that effectively eliminated further support through a net disposable income formula tied to child support payments.

Applying the two‑stage test in Miglin v. Miglin, the court examined both the circumstances surrounding the agreement’s formation and whether its continued enforcement remained consistent with the objectives of the Divorce Act.

The court concluded that enforcement of the agreement would be unconscionable because it failed to recognize the applicant’s compensatory and non‑compensatory entitlement arising from career sacrifices, primary caregiving responsibilities, and health issues.

The court found that the parties could not reasonably have contemplated that the agreement would eliminate ongoing spousal support once the respondent regained stable employment.

The court therefore overrode the relevant provisions of the separation agreement and fixed mid‑range SSAG spousal support retroactive to March 1, 2012, while extending the termination date of support.

In a child protection proceeding, the applicant society sought summary judgment under Rule 16 of the Family Law Rules.

A preliminary issue arose regarding whether courts hearing such motions may exercise the expanded fact‑finding powers available under Rule 20.04(2.1) and (2.2) of the Rules of Civil Procedure following the Supreme Court of Canada’s decision in Hryniak v. Mauldin.

The court held that Rule 16 does not confer jurisdiction to weigh evidence, assess credibility, or draw inferences in the same manner as the civil rules because the legislature has not amended the family rules to provide those powers.

The Hryniak “cultural shift” applies only to the extent of interpreting existing jurisdiction broadly, but it does not create new fact‑finding powers absent legislative authorization.

Accordingly, summary judgment motions in family and child protection matters under Rule 16 are limited to determining whether a genuine issue requiring a trial exists based solely on the evidentiary record.

The court addressed costs arising from prior family law endorsements ordering disclosure relating to the respondent’s income and business interests for purposes of spousal support and equalization.

The applicant successfully obtained disclosure from the respondent and a related corporation concerning valuation and financial records.

The court held that the disclosure should not have been resisted and emphasized the importance of full financial disclosure in family proceedings.

Applying the Courts of Justice Act and Rule 24 of the Family Law Rules, the court awarded substantial costs to the applicant.

Costs were fixed at $30,000 payable forthwith, jointly and severally by the respondent and the non-party corporation.

Following a high-conflict separation, the parties proceeded to trial over custody and parenting arrangements for their young child after earlier attempts at mediation, arbitration, and consent agreements failed.

The court reviewed extensive evidence including an investigation by the Office of the Children’s Lawyer, communications between the parties, and the history of litigation.

The court found the parties incapable of effective communication and concluded that joint custody or divided decision‑making would not be in the child’s best interests under the Divorce Act and the Children’s Law Reform Act.

The mother was found to be the more credible witness and her parenting decisions were determined to be child‑focused.

The court therefore ordered sole custody to the mother with a structured parenting schedule for the father and detailed provisions governing communication, decision‑making, and exchanges.

The applicant mother brought a motion seeking to vary a prior access order, requesting supervised access, disclosure of the respondent father's mental health records, and restraining relief due to concerns about the father's deteriorating mental health and erratic behaviour.

Evidence showed the father had a prior psychiatric diagnosis, had ceased medical treatment, failed to cooperate with child protection agencies, and engaged in behaviour raising concerns about the child's safety.

The court found a material change in circumstances under s. 29 of the Children's Law Reform Act and concluded that unsupervised access was no longer in the child's best interests.

The court ordered supervised access at the mother's discretion pending a mental health evaluation, granted a restraining order regarding the child's school and daycare, and imposed restrictions preventing the father from commencing further proceedings without leave under s. 140 of the Courts of Justice Act.

Following a prior finding of contempt of court in a family law proceeding, the court conducted a sanctions hearing to determine the appropriate penalty.

The respondent had failed to comply with prior court orders, including disclosure obligations and payment of previously ordered costs.

The court imposed a short custodial sentence for contempt and ordered payment of outstanding and new costs.

The court further directed that the respondent’s pleadings would be automatically struck if costs were not paid within the specified time and ordered completion of remaining disclosure.

The applicant brought contempt motions alleging that the respondent failed to comply with disclosure obligations and misled the court regarding ownership of property pledged as security for child support arrears.

The court applied the established three‑part test for civil contempt, requiring a clear and unequivocal order, deliberate breach, and proof beyond a reasonable doubt.

Evidence showed the respondent had sold the property more than a year before representing to the court that he still owned it and agreeing to secure support payments with it.

The court found that the respondent deliberately misled the court and failed to comply with the order securing child support.

A finding of contempt was entered and a separate hearing on sanctions was scheduled.

Following a motion for spousal support and a cross‑motion regarding the release of proceeds from the sale of the matrimonial home, the court determined the issue of costs.

Both parties had served Offers to Settle addressing different aspects of the dispute, but neither offer was accepted.

The applicant sought substantial indemnity costs on the basis that the court’s decision matched her offer.

The court held that the applicant was not entitled to elevated costs because she could have resolved the cross‑motion by accepting the respondent’s offer and because portions of her offer addressed relief not sought in her motion.

Costs were fixed in a reduced amount after considering the Family Law Rules.