Family and Matrimonial Law - SCJ

The moving party sought to vary a final judgment for spousal support and reduce arrears, citing a material change in circumstances due to his retirement and reduced income.

The court found that both parties had reached the end of their working lives and were now reliant on government pensions, constituting a material change.

Applying the Spousal Support Advisory Guidelines to the parties' actual incomes from 2019 to 2022, the court recalculated the support obligations, credited the moving party against outstanding arrears, and terminated ongoing spousal support effective December 31, 2022.

The applicant father brought a motion under the Hague Convention for the return of his four-year-old daughter to the Azores, Portugal.

The respondent mother had travelled to Canada with the child for a temporary visit but refused to return, remaining in Canada with her new partner.

The court found that the child's habitual residence was Portugal, the father possessed and exercised rights of custody through his joint decision-making authority over overseas travel, and he had not acquiesced to the retention.

The court rejected the mother's defence that returning the child posed a grave risk of harm due to alleged domestic violence, finding her evidence lacked credibility and did not meet the stringent threshold.

The child was ordered returned to Portugal.

The mother brought a motion to change a 2012 joint custody order, seeking sole decision-making responsibility and primary residence of the 15-year-old child.

The child had experienced severe mental health struggles, including suicide attempts, and expressed a strong desire not to see the father due to his anger and controlling behaviour.

The father alleged parental alienation by the mother.

The court found a material change in circumstances and determined it was in the child's best interests to grant the mother sole decision-making responsibility.

The father's parenting time was ordered to occur only if initiated by the child, and he was prohibited from accessing the child's health and educational records without her consent.

The support payor brought a motion to set aside the registration in Ontario of a 2003 child support order and a 2007 variation order made in the Czech Republic.

The court found that the payor had proper notice and a reasonable opportunity to be heard for the 2003 order, and confirmed its registration.

However, as the payor did not receive notice of the 2007 variation proceedings, the registration of the 2007 variation order was set aside.

S.D. brought a motion for summary judgment seeking sole custody of the two children of the marriage and access for R.J. in accordance with the children's wishes.

The court reviewed R.J.'s history of mental illness, non-compliance with medication, and past violence towards one child, as well as the children's expressed preferences to live with S.D. and have supervised, limited contact with R.J. The court found no genuine issue requiring a trial for custody and access, concluding that it was in the children's best interests to grant S.D. sole custody and R.J. access consistent with the children's wishes, contingent on R.J.'s compliance with treatment.

The motion for partial summary judgment was allowed.

The respondent mother brought a motion to vary interim access, which was expedited.

Prior to the hearing, her counsel withdrew, and she appeared self-represented, seeking an adjournment to retain new counsel.

The applicant father sought make-up access for time denied.

The court addressed allegations by the respondent's former counsel that the applicant breached his criminal recognizance by serving documents.

The court found no breach, established detailed interim communication and service protocols to accommodate the bail conditions, and adjourned the access and costs issues to a later date to allow the respondent to retain counsel.

This is a costs ruling following an emergency motion where the Respondent Father (RF) successfully obtained an order for the children to be re-enrolled in their original schools and for Newmarket to be the appropriate forum.

The RF sought over $14,000 in costs.

The Applicant Mother (AM) opposed the costs, arguing for proportionality and citing an inability to pay.

The court found the AM's unilateral decision to change schools unwarranted but deemed the RF's requested costs grossly disproportionate.

The AM was ordered to pay $3,500 in fixed costs to the RF, inclusive of HST and disbursements.

The applicant, Patricia Anne Virc, brought a motion seeking to stay the respondent, Michael F. Blair's, Motion to Change an earlier spousal support order and requested security for costs.

The security for costs issue was resolved by agreement, with a certificate of pending litigation to be registered against the respondent's property.

The primary issue addressed was the appropriate jurisdiction for the Motion to Change, given the respondent's inconsistent residency claims and a history of problematic litigation conduct.

The court found the balance of convenience favored the applicant, who resided in Toronto, over the respondent, whose residency in Collingwood was questioned.

The court stayed the respondent's Motion to Change issued in Barrie, allowing him to re-file it in Toronto.

Costs were awarded to the applicant.

Following a six‑day motion to change in a family law matter where the father obtained sole custody of a child and termination of child support for another child, the court determined the issue of costs.

The successful party sought full indemnity costs based on an offer to settle and the other party’s alleged unreasonable conduct, including concealing the child and engaging in parental alienation.

The court found that although the result at trial was not more favourable than the offer to settle on all issues, the responding party’s conduct was unreasonable and persisted despite prior judicial warnings.

Considering Rule 24 of the Family Law Rules and the responding party’s limited financial means, the court concluded that substantial recovery of costs was warranted despite impecuniosity.

Costs were awarded to the successful party in the amount of $45,817.89.

A self-represented father brought a motion seeking termination or suspension of child support obligations, reallocation of payments applied by the Family Responsibility Office, reduction or elimination of arrears owed to the Ministry of Community and Social Services, and a restraining order against the mother.

The mother sought adjustment of arrears, reinstatement of child support for another child, spousal support, disclosure, and a restraining order.

The court determined that only one child remained entitled to ongoing support and fixed the payor’s income for guideline purposes.

Applying factors governing rescission of child support arrears and considering delay by the Ministry in enforcement and the payor’s financial circumstances, the court reduced arrears owed to the Ministry from over $25,000 to $5,000.

Requests for restraining orders were denied.

A parenting and support dispute following a brief trial between unmarried parents of a young child.

The father sought joint custody and liberal unsupervised access, while the mother sought sole custody and supervised access pending completion of counselling programs.

The court found the father had minimal involvement with the child, demonstrated aggressive behaviour, and failed to meaningfully participate in the child’s upbringing.

Sole custody was granted to the mother and the father’s access was ordered to be supervised pending completion of anger management and parenting programs.

The court also imputed income to the father under s. 19 of the Child Support Guidelines after finding he voluntarily left employment and failed to meet support obligations, ordering retroactive child support and ongoing payments.

Following an unsuccessful motion for leave to appeal and the abandonment of an urgent access motion, the parties disputed costs.

The father sought costs for both the leave motion and the abandoned emergency access motion on a partial indemnity basis.

The court held that although the leave motion was not unreasonable, the father was required to prepare for and respond to both proceedings and effectively prevailed.

Considering the circumstances and cost consequences of unsuccessful motions in family litigation, the court fixed costs in a reduced lump sum amount inclusive of disbursements and HST.

Following a six-day family law trial addressing custody, child support, spousal support, and property issues, the court determined costs after receiving written submissions from both parties.

Each side claimed to be the successful party and sought significant costs.

The court reviewed the divided success on issues including joint custody with primary residence to the respondent, denial of spousal support, partial success on child support claims, and property-related relief.

Applying the principles under the Family Law Rules and the Courts of Justice Act, the court concluded that success was mixed and that the conduct of both parties contributed to the litigation.

In the circumstances, the fair and reasonable result was for each party to bear their own costs.

Following family law motions in which success was divided between the parties, the court addressed the issue of costs.

The court found that neither party had behaved particularly reasonably during the proceedings.

Applying the discretionary principles governing costs in family law matters, the court declined to award costs to either side.

Each party was ordered to bear their own costs.

Family law trial addressing the date of separation, equalization of net family property, and entitlement to child and spousal support.

The court found the parties separated in February 2009 when the respondent informed the applicant the marriage was over while she was in Tanzania with the children.

Based on incomplete financial disclosure, the court calculated the parties’ net family properties and ordered an equalization payment to the applicant.

The court declined to impute income to the applicant under s.19(1) of the Child Support Guidelines, finding she was not intentionally under‑employed due to caregiving responsibilities and serious health issues.

Spousal support and set‑off child support were ordered, along with payment for extraordinary expenses.

In a child protection proceeding, the child’s maternal aunt brought a motion seeking to be added as a party and requesting the appointment of legal counsel for the child pursuant to s. 38 of the Child and Family Services Act.

The court held that the aunt was not a necessary party under the Family Law Rules and that her proposed parenting plan could be advanced through the mother without granting her party status.

The court emphasized that adding additional parties may cause unnecessary delay and is not generally contemplated under s. 39 of the Act.

However, the court found that legal representation for the child was desirable given the presence of competing parenting plans and the importance of ensuring that the child’s views and interests were adequately presented.

The motion to add the aunt as a party was dismissed, but the request for legal representation for the child was granted.

The applicant brought a motion to enforce a family arbitration award arising from minutes of settlement reached during mediation, while the respondent moved to set aside the settlement and award.

The respondent alleged she lacked the capacity to understand the agreement due to medication and anxiety during the mediation.

The court held that the respondent failed to establish incapacity or that the applicant had knowledge or constructive notice of any incapacity at the time of settlement.

The psychological evidence did not establish that the respondent was incapable of understanding the proceedings.

The court therefore enforced the arbitration award and dismissed the motion to set aside the minutes of settlement.

The appellant mother appealed a child protection order granting Crown wardship without access following summary judgment under the Child and Family Services Act.

She argued the motions judge failed to review video evidence of access visits and erred in not extending statutory timelines to permit reunification efforts.

The appeal judge reviewed the same evidentiary record and concluded that even accepting the video evidence as favourable to the mother, it did not address her ability to resume parenting within the statutory timelines.

The court found no palpable and overriding error, no procedural unfairness, and no misapplication of the law.

The appeal was dismissed and the Crown wardship order remained in place.

The appellant mother appealed an Ontario Court of Justice order granting Crown wardship of her child without access following summary judgment in child protection proceedings.

She argued the motion judge misapprehended the evidence regarding improvements in her parenting, failed to consider extending statutory timelines under the Child and Family Services Act, and gave insufficient weight to her efforts to complete counselling and parenting programs.

The Superior Court held that the motion judge carefully reviewed the evidence and made no palpable and overriding error.

The court found there was no evidence demonstrating that the appellant’s program participation translated into improved parenting capacity and that extending statutory timelines would not be in the child’s best interests.

The appeal was dismissed.

Following an eleven‑day custody and access trial, the applicant father was entirely successful and was awarded primary care of the children.

The court found that the respondent mother's conduct caused parental alienation, denied access, and unnecessarily prolonged the litigation.

Although the court declined to find bad faith under the Family Law Rules, it concluded the respondent had acted unreasonably and that the applicant had bettered his offer to settle.

Balancing the factors under Rule 24, the court ordered costs on a full recovery basis.

The respondent was ordered to pay legal fees, disbursements, and her unpaid share of parenting coordinator fees.