Family and Matrimonial Law - SCJ

The parties are parents of a child.

The respondent father previously initiated a Motion to Change seeking unsupervised access and reduced child support, which was ultimately withdrawn with a consent order for no access and increased support.

The remaining issues of enforcement of prior court orders regarding joint debts and costs proceeded to a trial of an issue.

The court granted judgment to the applicant mother for $1,700 for payments made on a joint student line of credit and awarded her $43,000 in costs for the Motion to Change, with $25,000 enforceable through the Family Responsibility Office.

In a family law trial concerning whether two young children should be returned to Dubai, the respondent mother brought an application to adduce expert opinion evidence from a psychotherapist.

The proposed evidence concerned the potential emotional and psychological impact on infants separated from their primary caregiver.

The applicant father opposed the admission of the evidence.

Following a voir dire, the court applied the test for expert evidence and found the proposed expert was properly qualified and capable of giving fair, objective, and non-partisan evidence.

The court granted the application, permitting the expert to testify strictly on the potential impact of separation from a primary caregiver, but prohibited her from opining on the specific attachment of the children to either parent.

The child protection agency brought a summary judgment motion seeking Crown wardship of a young child without access.

The parents opposed the motion and sought the child’s return to their care under supervision, arguing that factual disputes required a full trial.

The court held that there was no genuine issue requiring a trial, emphasizing the child’s serious prior neglect, extensive parental history of child protection involvement, missed access visits, and inability to address the child’s special needs.

Applying the best‑interests factors under the Child and Family Services Act, the court concluded that permanency planning was required and that Crown wardship was appropriate.

The court further held that the parents failed to establish that access would be meaningful and beneficial to the child or that it would not impair adoption prospects.

During a family law proceeding, the responding spouse convened a teleconference to address disclosure issues arising from a prior consent order requiring financial disclosure.

The other party had failed to produce several required documents, including tax returns, proof of business income, and bank and credit card statements.

The court rejected the request for a 30‑day extension, noting the party could have complied with the prior order by providing an affidavit detailing efforts to obtain the documents and authorizing third parties to produce them.

The court ordered compliance within two weeks and granted leave to the other party to bring a motion to strike pleadings on financial issues if disclosure was not provided.

On urgent interim motions concerning custody of a young child following the parties’ recent separation, the applicant sought sole interim custody and supervised access for the respondent based on allegations of abuse.

The respondent denied the allegations and sought an equal parenting arrangement and permission for travel with the child.

The court emphasized the principle that interim custody motions generally preserve the pre‑separation status quo absent compelling evidence justifying change.

Given conflicting affidavit evidence and the parties’ prior shared caregiving arrangement, the court declined to grant sole custody and instead ordered joint custody with an alternating parenting schedule.

The court also permitted travel with the child and directed that the child attend the previously agreed French pre‑school program.

At a trial management conference in a family law property dispute between former common-law partners, the applicant sought a declaration of constructive trust over the respondent’s property and retroactive rent for a residence he rented during their relationship.

The applicant failed to comply with prior disclosure orders and failed to obtain a valuation report that met the court’s earlier directions.

The court exercised its authority under the Family Law Rules to give directions following the adjournment of the conference caused by the applicant’s non-compliance.

The court prohibited the applicant from relying on the deficient valuation and granted the respondent leave to bring a motion for summary judgment or, alternatively, security for costs.

Costs of the wasted appearance were awarded against the applicant.

The court addressed a recurring procedural issue concerning the inclusion of annual financial disclosure provisions in child support orders.

The court examined the distinction between the Federal Child Support Guidelines under the Divorce Act and the Ontario Child Support Guidelines under the Family Law Act.

It held that the mandatory annual disclosure requirement in s. 24.1 of the Ontario Guidelines applies only to child support orders made pursuant to the Family Law Act and should not be inserted into orders made under the Divorce Act.

Where parties have already agreed to an annual disclosure regime in minutes of settlement, inclusion of the statutory anniversary-date disclosure clause is unnecessary.

The court signed the final order without reference to s. 24.1 because the parties’ settlement already provided detailed disclosure provisions.

The applicant sought an annulment on the basis that the individual who solemnized the marriage was not authorized under the Marriage Act.

The court considered the curative provision in s. 31 of the Marriage Act, which validates a marriage solemnized in good faith if the parties intended to comply with the Act, were not legally disqualified from marrying, and lived together and cohabited as a married couple after the ceremony.

Although the parties lived in different countries and spent limited time physically together due to immigration and visa constraints, the evidence showed they maintained a genuine marital relationship and cohabited during several visits.

The court found that the statutory requirements of s. 31 were met and that the marriage was therefore valid despite the officiant’s lack of authority.

The request for an annulment was dismissed.

In a child protection proceeding, the society brought a motion under s. 74(3) of the Child and Family Services Act seeking production of a psychological assessment report prepared regarding a parent.

The parent had initially consented to the assessment but later withdrew consent for the society to obtain the report.

The court held that the statutory threshold for production—whether the record may be relevant to the proceeding—was not onerous and was met because the report was prepared specifically to assess the parent’s mental health and its impact on parenting.

The parent filed no evidence opposing production or supporting redactions.

The court ordered the assessor to produce the report and permitted disclosure to counsel, subject to statutory confidentiality restrictions.

An estate trustee brought a motion seeking authorization to set aside estate funds to pay anticipated legal fees incurred in defending a surviving spouse’s claim for equalization of net family property.

The respondent argued that the trustee should personally fund the litigation because he was also a beneficiary and the estate assets might be insufficient to satisfy a potential equalization payment.

The court reaffirmed the long‑standing principle that trustees are entitled to indemnification from estate assets for reasonably incurred legal expenses in the administration and defence of the estate, including litigation expenses.

The existence of a co‑existing interest as beneficiary did not defeat the trustee’s right to indemnity.

The court authorized $100,000 to be set aside from the estate for legal fees subject to oversight and without prejudice to the respondent’s right to challenge reimbursement at trial.

In a child protection proceeding under the Child and Family Services Act, the court considered a motion supported by the society and the mother to place two children in the mother’s temporary care subject to society supervision.

The children had previously been placed in the father’s care and later in society care due to ongoing parental conflict and emotional harm concerns.

Updated therapeutic evidence indicated the children now felt safe in the mother’s home and that the mother had taken meaningful steps to address prior issues.

The court found the risk of emotional harm had subsided and ordered the children returned to the mother under an interim supervision order with structured access for the father and mandatory therapeutic involvement.

The matter was scheduled for review to monitor compliance and the children’s adjustment.

In a child protection proceeding arising from a high-conflict custody and access dispute, the court determined costs following an earlier order granting the father unsupervised access to the children.

The father sought substantial indemnity costs of $22,000 against the mother, while the mother argued for no costs or that the issue be reserved.

Applying rule 24 of the Family Law Rules and recognizing that the usual presumption of costs does not apply in protection cases, the court considered the parties’ conduct, the limited success achieved, and the modest means of both parents.

Although the father obtained some success on the access issue, both parties had engaged in past unreasonable conduct contributing to the conflict.

The court awarded a modest costs amount payable at the conclusion of the protection proceeding.

Following dismissal of a motion to change support due to the responding party’s failure to provide court‑ordered financial disclosure, the court determined costs.

The successful party sought over $14,000 attributable to the motion, relying in part on an alleged offer to settle.

The court declined to apply the automatic cost consequences of the Family Law Rules because the offer was not produced and the arrears calculations were acknowledged to be inaccurate.

While the responding party’s failure to disclose financial information was found to be unreasonable, it did not amount to bad faith.

Applying the principle of reasonableness and considering partial success obtained on some issues, the court fixed costs at $6,500 inclusive of HST and disbursements and ordered the amount enforceable as a support order.

Prospective adoptive parents sought custody of a newborn child whom they had taken into their care shortly after birth in Nunavut pursuant to an informal arrangement with the biological parents.

The court raised serious concerns about the irregular process, including lack of personal service, absence of corroborating evidence confirming the biological parents’ identities, incomplete police record checks, and insufficient information regarding a prior child protection investigation.

The court also noted potential legal issues under the Child and Family Services Act regarding private placement of a child for adoption by non‑relatives.

Given the child was already residing in Ontario and decisions were required for the child’s care, the court granted interim interim custody on a without prejudice basis.

The applicants were ordered to obtain additional documentation, effect proper personal service on the respondents, and provide corroborating evidence from the Children’s Aid Society before the matter could proceed.

Following an interim family law motion regarding custody and access, the court determined costs.

The applicant sought over $32,000 in full recovery costs after obtaining an interim joint custody order with a parenting schedule primarily placing the children with her and permitting one child to attend school in a new location.

The respondent argued for no costs due to divided success.

The court held the applicant achieved some success and was presumptively entitled to costs, but rejected allegations of bad faith and found both parties contributed to excessive costs through voluminous affidavit material and litigation conduct.

Applying the principle of reasonableness and proportionality under the Family Law Rules, the court found the amount claimed to be disproportionate and reduced costs substantially.

The applicant brought a motion to impute income to the respondent for purposes of calculating child support and section 7 expenses for seven children.

The respondent operated a corporation and claimed minimal personal income, but provided incomplete and inadequate financial disclosure.

The court examined corporate bank deposits, director’s fees, retained earnings, and unsupported corporate deductions, and applied s. 18 of the Federal Child Support Guidelines to determine whether corporate funds were available for support.

Finding that the respondent failed to justify the deductions or demonstrate that corporate income was unavailable, the court imputed income of $164,525.

Retroactive child support was ordered along with proportional section 7 expense contributions and full recovery costs due to the respondent’s failure to provide proper disclosure.

On a motion and cross-motion in a long-term marriage, the applicant sought interim spousal support, arrears, disclosure orders, and preservation of property.

The respondent disputed the amount of interim support and sought to sever the divorce from corollary issues.

Applying the Spousal Support Advisory Guidelines and considering the respondent’s true available income including grossed-up corporate earnings, the court fixed interim spousal support at $25,187 per month.

Retroactive support was ordered from January 1, 2012, and disclosure obligations were imposed on the respondent.

The court also granted an order preventing depletion of property and severed the divorce from the remaining issues.

Following the breakdown of a marriage, the applicant sought sole custody of three children and child support from the respondent, while the respondent sought continuation of a joint custody arrangement previously ordered by consent.

The court considered the parties’ inability to communicate, the respondent’s inconsistent exercise of parenting time, and the applicant’s role as the primary caregiver, including responsibility for a child with Type 1 diabetes.

Applying the best interests of the children and the principles governing joint custody, the court held that joint custody was inappropriate where the parents lacked effective communication and cooperation.

The court granted the applicant sole custody with structured access to the respondent.

The court declined to impute income to the respondent for child support under s. 19(1)(a) of the Child Support Guidelines due to credible evidence of disability and financial hardship, and expunged arrears while granting leave to renew the support claim if circumstances changed.

The applicant sought a divorce, equalization relating to a condominium property in China, and access.

The respondent brought a cross-application seeking child support and arrears.

The court found no evidentiary basis that the applicant had any interest in the foreign property and dismissed the equalization claim.

Income was imputed to the applicant for certain years due to evidence of undeclared business income, and retroactive child support arrears were ordered from the date of separation together with ongoing support and contributions to extraordinary expenses.

The child protection agency brought a summary judgment motion seeking a protection finding and Crown wardship of a child with severe autism and developmental delay under the Child and Family Services Act.

The mother consented to the order while the father opposed the motion and sought a trial and return of the child to his care.

The court found overwhelming evidence that the child required highly structured, specialized care and that the father’s mental health history, alcohol misuse, lack of cooperation with the agency, absence of meaningful contact with the child, unstable housing, and failure to present a viable care plan created a real risk of harm if the child were returned to his custody.

Applying the summary judgment test under the Family Law Rules, the court concluded there was no genuine issue requiring a trial.

The child was declared in need of protection and made a Crown Ward with parental access at the agency’s discretion.