Family and Matrimonial Law - SCJ

This case addresses two motions concerning a child's schooling for Junior Kindergarten and a revised parenting schedule.

The court rejected the mother's proposal for a private religious school due to insufficient admissible evidence and potential parental conflict, ordering the child to attend Annandale Public School.

Regarding parenting time, the court maintained the existing time allocation (approximately 60% with the mother, 40% with the father) but implemented a new bi-weekly schedule to reduce the frequency of exchanges, rejecting both parents' proposals for substantial changes.

The decision emphasized the child's best interests, particularly emotional and psychological well-being, and the importance of admissible evidence on motions.

The father brought a motion to change to enforce parenting time and a subsequent motion for interim primary care, which was dismissed.

He later withdrew his motion to change.

The court awarded the mother $22,500 in costs for the dismissed interim motion, finding she was the successful party.

However, the court ordered each party to bear their own costs for the withdrawn motion to change, finding the father acted reasonably in bringing it to enforce existing parenting orders after reconciliation counselling failed.

Following a successful motion by the respondent husband to vary and reduce his spousal support obligations, the parties made written submissions on costs.

The court found the respondent husband was the successful party and presumptively entitled to costs.

However, the court reduced his costs award because he engaged in unreasonable 'self-help' behaviour by unilaterally terminating all spousal support payments while his motion was pending.

The court awarded the respondent husband costs of $11,653.69 on a partial indemnity basis.

The applicant sought costs of $27,470.30 on a full indemnity basis following her success on a Motion to Change regarding parenting and child support.

The respondent opposed the costs award, citing inability to pay.

The court found the respondent engaged in unreasonable conduct by failing to make required disclosure, missing court appearances, and failing to narrow issues.

The court awarded the applicant $15,000 in costs, noting that inability to pay cannot shield a litigant who engages in unreasonable conduct that prolongs litigation.

The applicant mother brought a motion to change a 2017 final consent order regarding parenting, child support, and section 7 expenses.

The court found a material change in circumstances as the children were now primarily resident with the applicant.

The court granted the applicant final decision-making responsibility due to ongoing communication issues, while maintaining joint consultation.

The respondent was ordered to pay ongoing table child support and retroactive child support arrears of $20,915.68, as his failure to disclose income increases constituted blameworthy conduct.

The applicant's claim for section 7 expenses was dismissed due to insufficient evidence.

The applicant father brought a motion to change a 2016 access order to allow for unsupervised alternate weekend and mid-week access.

The respondent mother opposed the motion and sought retroactive child support.

The court dismissed the father's motion, finding he failed to establish a material change in circumstances as he had not addressed previous concerns regarding his reckless behaviour and substance abuse.

The court granted the mother's request for retroactive child support, ordering the father to pay support based on his income commencing March 1, 2016, as he had failed to disclose his income increases.

The defendants requested a review of the plaintiffs' statement of claim under Rule 2.1 of the Rules of Civil Procedure.

The plaintiffs' action sought damages against various entities involved in a prior child protection proceeding that resulted in their children becoming Crown wards.

The court found that the action was an impermissible attempt to relitigate issues already decided in the child protection proceeding.

The court dismissed the action in its entirety as an abuse of process.

The parties were scheduled for a settlement conference regarding equalization of net family properties and support.

Both parties filed extensive briefs but failed to comply with mandatory Family Law Rules regarding financial statements and net family property statements.

Both parties also claimed outstanding disclosure from the other.

The court held that a settlement conference is not the appropriate forum to resolve extensive disclosure disputes and that parties must come prepared and fully compliant with the rules.

The settlement conference was adjourned, with terms set for scheduling any future conference, including the requirement to resolve disclosure issues by motion first.

The applicant father initiated an urgent motion for access to his son after the respondent mother unilaterally relocated with the child without disclosing her whereabouts.

The court granted the father temporary supervised access, rejecting the mother's assertion of no access.

Given concerns regarding both parents' capacity, the Office of the Children’s Lawyer was ordered to intervene.

The court awarded the father fixed costs for an earlier appearance, finding the mother's conduct unjustified.

The applicant sought urgent relief for the resumption of access to his 7-year-old daughter after a 9-month cessation following a physical altercation during an access transition.

The respondent opposed, citing the child's trauma and anxiety, relying on reports from a pediatrician and social worker.

The court found the reports to be one-sided and unreliable, and criticized the respondent for obstructing mediation and failing to encourage access, deeming her actions a "wrongful retention" of the child.

The court ordered immediate daily virtual access and mandated mediation, with costs awarded against the respondent.

Following a successful motion by the applicant, the court determined the issue of costs.

The respondent had failed to make offers to settle, moved assets to family members, and deliberately provided inadequate disclosure.

The court found the respondent's conduct amounted to bad faith under Rule 24(8) of the Family Law Rules, which includes intent to conceal and inflict harm.

The respondent was ordered to pay the applicant's costs on a full indemnity basis in the amount of $39,000.

Following a lengthy marriage, the court determined divorce, retroactive and ongoing support, section 7 contributions, and equalization of substantial family property including U.S.-denominated pension and retirement assets.

The court imputed modest additional income to the applicant for two years only, fixed table child support for limited periods while the parties' adult children were home from university, and rejected several claimed post-secondary expenses as unreasonable or overreaching.

On equalization, the court valued disputed foreign pension assets, rejected various speculative discounts and penalties, and fixed a substantial equalization payment.

The court found compensatory and some non-compensatory entitlement to spousal support arising from the parties' marital roles, ordered retroactive support with a tax adjustment, applied set-off against child support obligations, and ordered ongoing indefinite monthly support reviewable on retirement.

The applicant father sought costs on a full indemnity basis following a successful interim motion for custody and access, claiming the respondent mother acted unreasonably.

The respondent argued she acted in the child's best interests and that the claimed costs were excessive.

The court found no reason to deviate from the presumption that the successful party is entitled to costs, but rejected the claim for full indemnity costs, finding the respondent's conduct did not warrant it.

The court determined the motion was straightforward and fixed costs at $2,500 plus HST.

The defendants, a treating psychologist and a children's aid society, brought motions under Rule 21 to strike the plaintiffs' statement of claim.

The plaintiffs' action arose from a child protection investigation and criminal charges based on allegations of abuse made by a child previously adopted by the plaintiffs.

The court struck the claim against the psychologist without leave to amend, finding she owed no duty of care to the parents of her patient and was statutorily obligated to report suspected abuse.

The court also struck the adult plaintiffs' claims in negligence and various intentional torts against the children's aid society defendants, finding no duty of care was owed to the parents during a child protection investigation.

Leave to amend was granted for claims of misfeasance in public office and Charter damages.

Following a family law trial where the applicant was successful, she sought substantial indemnity costs of $9,949 plus HST and disbursements.

The respondent did not make costs submissions.

The court found that while the respondent was unsuccessful, his position on equalization was not unreasonable given the unusual circumstances.

The court declined to award substantial indemnity costs and fixed costs at $3,500 inclusive, payable by the respondent at a rate of $300 per month.

The respondent husband sought leave to appeal an interlocutory order that dismissed his motion to sever his claim for divorce from the applicant wife's claims for corollary relief.

The motion judge had refused severance on the basis that the husband's failure to provide financial disclosure prejudiced the wife, and that severing the divorce could cause her legal disadvantage by terminating her rights under the Succession Law Reform Act in the event of his intestacy.

The court found no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the potential loss of estate rights and insurance coverage constituted valid legal disadvantages under Rule 12(6) of the Family Law Rules.

The motion for leave to appeal was dismissed.

The responding parent brought a motion seeking temporary sole custody, modification of the parenting schedule, and authority to register the parties’ four‑year‑old child in junior kindergarten.

The court held that the moving party had not demonstrated a material change in circumstances since the temporary parenting order, which had created a stable and functioning time‑sharing arrangement.

Given ongoing parental conflict and logistical challenges arising from the parties living in different parts of the city, the court concluded that neither parent should be granted sole temporary custody or authority to enroll the child in school.

The court determined that attendance at junior kindergarten was not mandatory and that, in the absence of parental agreement or a final custody determination, it was preferable that the child not attend school that year.

The motion to vary custody, school registration, and the parenting schedule was dismissed.

The applicant mother sought sole custody, child support, retroactive child support, and the right to obtain passports and travel with the children without the respondent father's consent.

The parties agreed on sole custody and ongoing child support based on the father's 2014 income.

The court denied the mother's request for unrestricted travel mobility due to concerns about safeguarding the father's access.

Given the father's limited past involvement and history, the court ordered a graduated access schedule starting with six months of supervised access.

The court also awarded retroactive child support of $10,276 for the period after the father obtained higher-paying employment, but declined to order contribution to extraordinary expenses as premature.

Following a successful motion setting aside a prior contempt order, the applicant sought full recovery costs of approximately $12,959.66.

The respondent argued that no costs should be awarded because the matter concerned setting aside a contempt finding and the respondent was required to attend to assist the court, or alternatively that the bill was disproportionate.

The court held that the applicant was completely successful and that the respondent could have consented or taken a non-opposition position to avoid the hearing.

Applying modern costs principles emphasizing partial indemnification, encouragement of settlement, and discouragement of unnecessary litigation, the court found full indemnity costs unwarranted but awarded partial costs.

Costs of $5,500 all inclusive were ordered payable by the respondent to the applicant.

Following a trial addressing custody, access, and child support, the court determined outstanding claims for special and extraordinary expenses under s. 7 of the Federal Child Support Guidelines.

The court found daycare expenses incurred due to the custodial parent’s employment qualified as s. 7 expenses but limited retroactive recovery where documentation had not been provided to the other parent in advance.

Partial retroactive contributions for proven daycare costs were ordered, and ongoing proportional payment of daycare expenses was established.

Claims for extracurricular activity costs, including swimming lessons and dance-related expenses, were dismissed because the expenses were not “extraordinary” within the meaning of s. 7(1.1) of the Guidelines and would reasonably be covered by the basic table amount of child support.