Family and Matrimonial Law - SCJ

The court considered a motion by the plaintiff to strike portions of the defendant’s statement of defence and counterclaim in a property dispute.

The court found that much of the defendant’s pleading was irrelevant, scandalous, or pleaded evidence rather than material facts, and that it amounted to an abuse of process.

The court struck numerous paragraphs and ordered the defendant to serve and file a fresh, compliant pleading, with the process to be supervised by the court.

This decision addresses a 35-year marital history between Lana Morris and Joseph Morris, culminating in their separation and subsequent family law litigation.

The court resolves complex property, equalization, and tort claims, including the valuation and division of pensions, vehicles, and business assets, as well as claims for damages arising from domestic violence.

The court finds that the parties were not living separate and apart during the disputed years, includes the value of the NH pension in the equalization calculation, and awards general and aggravated damages for tortious conduct.

The court also grants a permanent restraining order and provides detailed directions on costs.

The parties, who separated in 2010, have been engaged in high-conflict litigation for over a decade.

The father brought a motion to change seeking sole decision-making and shared parenting time, alleging the mother was engaging in parental alienation and failing to address the children's therapeutic and educational needs.

The mother sought to retain sole decision-making and suspend the father's parenting time based on the children's stated preferences not to see him following a mental health crisis involving the older child.

The court found the mother in contempt for failing to facilitate parenting time but declined to force the 15-year-old child to attend visits.

The court ordered the 13-year-old child to attend reunification therapy with the father.

The court also imputed income to the mother for the purpose of sharing special and extraordinary expenses, finding her intentionally under-employed.

The respondent wife sought summary judgment to dismiss the applicant husband's application to set aside a separation agreement.

The husband's application sought to set aside the agreement based on non-disclosure, lack of understanding, and unconscionability, and sought relief related to parenting, support, and property equalization.

The court dismissed most of the husband's claims, including setting aside the agreement from its inception, varying a prior parenting order, and property equalization (due to limitation period and lack of merit).

However, the court found a genuine issue requiring a trial regarding whether the support provisions of the separation agreement resulted in unconscionable circumstances under s. 33(4) of the Family Law Act.

The husband failed to attend the motion despite multiple warnings.

This endorsement addresses the sole remaining issue in a family law trial: whether to impose a publication ban and a sealing order on the court file, and whether to dispense with notice to the media.

The underlying proceeding was a motion to change brought by the father, involving allegations of sexual abuse against the children by a third party.

The court applied the three-prerequisite test from Sherman Estate v. Donovan to the open court principle, finding that court openness posed a serious risk to the children's privacy and dignity due to the sensitive nature of the sexual abuse details.

The court concluded that a sealing order and publication ban were necessary and proportionate, outweighing the negative effects on the open court principle.

The court also exercised its discretion to dispense with the requirement to provide notice to the media, emphasizing the children's best interests.

The mother brought an urgent motion to determine the children's schooling for the 2020-2021 academic year during the COVID-19 pandemic.

The father sought to have the children continue with virtual learning, while the mother requested they attend a French-language school in person.

The court found no medical reason to keep the children home and determined that in-person learning at a public French-language school was in their best interests, given their academic needs, language proficiency, and the mother's logistical constraints.

The applicant sought an urgent hearing for a temporary restraining order during the COVID-19 pandemic.

The court, acting as Triage Judge, determined the matter appeared urgent but emphasized the need for strict compliance with special service rules for the underlying application, particularly given the quasi-criminal nature of a restraining order.

The court ordered the application to be issued and properly served before further review for a teleconference hearing.

Following a motion to change, the self-represented applicant father sought costs of $1,200 for his time spent attending court.

The respondent mother did not file responding submissions.

The court applied the principles from Fong v. Chan, noting that self-represented litigants must demonstrate an opportunity cost by foregoing remunerative activity to recover costs for their time.

As the applicant provided no evidence of lost income or opportunity cost, the court declined to award costs to either party.

The applicant brought a motion to vary a prior spousal support order to continue support in accordance with the Spousal Support Advisory Guidelines and to obtain retroactive support after the respondent ceased payments when the prior order allowed either party to seek variation.

The respondent argued his obligation terminated automatically and opposed retroactive support due to delay in bringing the motion.

The court found the interpretation issue moot but held it had jurisdiction under the Divorce Act to vary support retroactively.

Medical evidence established the applicant was unable to work due to health issues, constituting a material change in circumstances.

Ongoing support was ordered at the low range of the SSAG and made retroactive, with arrears payable by installments.

A self-represented mother brought a motion seeking sole custody of the parties’ child and an order permitting the child’s relocation from Ontario to Alberta.

The father opposed the motion and brought his own motion seeking custody.

The court held that the competing affidavit evidence and significant factual disputes required determination at trial, particularly regarding the child’s best interests and credibility issues.

The child had been residing with the father for approximately three years following the mother’s move to Alberta after a mental health crisis.

The court declined to disrupt the status quo on an interim basis and ordered that the child continue to reside with the father pending trial or further court order.

Following a family law trial addressing child support and section 7 expenses, the parties were unable to agree on costs.

Each party sought costs and relied on their respective success at trial and alleged unreasonableness by the other.

The court considered the presumption of costs to the successful party under Rule 24 of the Family Law Rules, the divided success achieved on the issues, the parties’ settlement offers under Rule 18, and the parties’ conduct during litigation.

The court found that both parties had achieved some success and had also behaved unreasonably throughout the proceeding.

In light of divided success and mutual unreasonable conduct, the court ordered that neither party pay costs.

On a motion for interim child support, the court considered whether a payor parent who received income from a wholly owned corporation through dividends rather than salary should have income adjusted for child support purposes.

After applying Schedule III s. 5 of the Federal Child Support Guidelines, the court held that a further adjustment under s. 19(1)(h) was appropriate because dividend income taxed at a lower rate did not fairly reflect the payor’s resources.

The court relied on authorities addressing income derived from wholly owned corporations and the need for consistent treatment between salaried earners and corporate payors.

Income was therefore grossed up beyond the actual dividend received to approximate the payor’s available income.

The court also rejected the payor’s claim that parenting time exceeded 40% and ordered interim child support and arrears.

Following a multi-day family trial addressing custody, access, equalization, child support, spousal support, retroactive support, and related financial issues, the court determined costs after written submissions.

The applicant was found to be the successful party under Rule 24 of the Family Law Rules.

The court considered the parties’ settlement offers and litigation conduct, finding the respondent’s settlement positions on child and spousal support unreasonable and noting delays in financial disclosure.

Full indemnity costs were awarded to the applicant, subject to excluding time related to a prior interim motion, and the respondent was ordered to pay fixed costs totaling $29,692.61.

The applicant brought a summary judgment motion in a family law proceeding seeking determinations relating to custody, access, child support, equalization, and distribution of matrimonial home proceeds following separation.

The court severed the divorce claim from the corollary relief and proceeded with summary judgment under the Family Law Rules.

Custody of the children was granted to the applicant based on the best interests of the children and the parties’ poor relationship, which undermined the feasibility of joint custody.

The respondent was granted supervised access for three months followed by unsupervised access similar to the pre‑existing arrangement.

Ongoing child support was ordered based on the respondent’s income along with retroactive child support, equalization adjustments, and distribution of sale proceeds of the matrimonial home.

Following a motion in a family law proceeding where the respondent successfully obtained an order referring the matter to mediation/arbitration and appointing a parenting coordinator, the court addressed the issue of costs.

The successful party sought $2,500 on a partial indemnity basis, but the notice of motion had requested only $1,500.

The court held that a costs award should not exceed the amount requested in the notice of motion.

Given that a pending arbitration would determine whether the successful party was in arrears, the court ordered costs of $1,500 payable only upon the arbitrator’s award or other resolution of the matter.

Following a family law motion in which the respondent was found to have breached a prior court order requiring cooperation with a reintegration program, the court addressed the issue of costs.

The moving party sought full recovery costs alleging unreasonable conduct and bad faith, while the responding party argued no costs should be awarded and sought costs relating to an adjournment.

The court found the moving party had been successful on the most important issue, namely the finding of breach of the court order.

While rejecting the claim for full recovery costs and excluding work related to unrelated issues, the court fixed a fair and reasonable amount payable by the unsuccessful party.

Child protection proceeding under the Child and Family Services Act where the applicant society sought a Crown wardship order with a view to adoption for a young child who had been in foster care with paternal relatives for more than two years.

The court found the child to be in need of protection due to earlier neglect, poor parental decision‑making, and developmental concerns.

However, the evidence showed significant improvement by the mother, including stable housing, consistent participation in services, and successful unsupervised access visits.

Applying the CFSA principle that the least intrusive order consistent with the child’s best interests must be made, the court concluded Crown wardship was premature.

The child was returned to the mother’s care under a 12‑month supervision order with detailed conditions and continued oversight by the society.

A mother appealed a child protection summary judgment that found the child to be in need of protection and placed the child in the care of a child protection society as a Crown ward with no access for the purpose of adoption.

The appellant argued that the motion judge erred in concluding there was no genuine issue requiring a trial, misapprehended the evidence under s. 37(2) of the Child and Family Services Act, and erred in denying access under s. 59(2.1).

The court held that the motion judge correctly applied the summary judgment test under rule 16 of the Family Law Rules and carefully reviewed extensive largely unopposed evidence demonstrating significant parenting risks and inability to meet the child’s needs.

Fresh evidence regarding the mother’s updated plan of care did not sufficiently address the safety concerns identified in the original decision.

The court deferred to the motion judge’s findings and upheld the Crown wardship and no‑access order.

Following the breakdown of a long marriage in which the parties jointly operated a highly successful real estate partnership, the applicant sought retroactive and ongoing spousal support.

The respondent unilaterally terminated the partnership, retained all commission income earned in 2011, and diverted partnership records and client lists, significantly impairing the applicant’s ability to continue in the business.

Although the applicant later chose to pursue a less profitable clothing business, the court held she was not entitled to ongoing spousal support because she voluntarily left a lucrative career in which she had demonstrated strong earning capacity.

However, the court found that transitional support was warranted due to the respondent’s unilateral termination of the partnership and the immediate economic disadvantage suffered by the applicant.

Lump‑sum transitional spousal support of $200,000 was ordered, along with ancillary orders relating to corporate asset distribution and trust funds for potential tax liabilities.

The applicant brought an uncontested motion to change seeking termination of existing child and spousal support orders made following divorce.

The court reviewed the parties’ financial circumstances, including the respondent’s unemployment following the collapse of the family business and his reliance on RRSP withdrawals while retraining for new employment.

The court held that one adult child remained a "child of the marriage" due to mental health difficulties and ongoing dependency.

Spousal support and child support obligations were not terminated but were reduced to nominal amounts given the respondent’s limited present income, while support for another adult child was terminated.