Family and Matrimonial Law - SCJ

A family law trial concerning parenting arrangements for two children following a separation marked by significant domestic violence perpetrated by the father against the mother.

The trial addressed custody, access, decision-making authority, child support, spousal support, and property equalization.

The court found that despite the father's loving parenting abilities when regulated, his extensive history of violence, criminal conduct, substance abuse, emotional dysregulation, and inability to gain insight into his behavior made him unsuitable for primary care.

The mother was granted primary residence and sole decision-making authority.

The father was granted regular unsupervised parenting time with structured exchanges and a restraining order was imposed to protect the mother from ongoing harassment and emotional abuse.

The respondent mother brought a motion to set aside two default judgments made after she absconded with the parties' children to Kenya in breach of a court order.

The mother claimed she fell ill in Kenya and lost access to communication, leading to her default.

The court rejected her explanation as implausible and found she intentionally ignored the court process.

Applying the test for setting aside a default judgment, the court concluded the mother failed to provide a plausible excuse, and setting aside the orders would cause substantial prejudice to the applicant father and undermine the administration of justice.

The motion was dismissed.

The mother brought a cross-motion for temporary custody, child support, and further questioning of the father, while the father sought to amend his pleadings.

The court granted the father leave to amend his pleadings and granted the mother temporary custody on consent.

On the issue of child support, the court found the father was intentionally unemployed and imputed an annual income of $100,000, reducing his previous $150,000 salary to account for the economic impact of the COVID-19 pandemic.

The court also ordered the father to attend up to six hours of further questioning.

The plaintiff, Jennifer Horrocks, brought an ex parte motion for leave to register certificates of pending litigation against properties sold by the defendant, Bruce McConville, and related corporate entities.

The plaintiff alleged these sales were fraudulent conveyances designed to defeat her family law claims for equalization and support.

The court granted the motion, finding a high probability of the plaintiff recovering judgment in the main family law action, sufficient evidence of intent to defeat creditors based on several 'badges of fraud,' and that the balance of convenience favored issuing the certificates to prevent further disposition of assets to bona fide purchasers without notice.

The mother (M.W.) appealed a summary judgment decision that placed her child (M.N.D.) in the custody of the father (M.S.) with discretionary access for the mother.

The appeal court admitted fresh evidence regarding the mother's ongoing non-cooperation with the Children's Aid Society (CAS) and her failure to comply with court orders concerning her other children.

The court dismissed the appeal, finding no palpable and overriding errors in the motions judge's factual findings or application of law regarding summary judgment and status review applications.

The fresh evidence further confirmed the appropriateness of the original decision, emphasizing the child's best interests and the need for permanence.

The father applied for sole custody, child support, and an order regarding the mother's access rights.

The mother had a history of child abuse and involvement with the Children's Aid Society, and had not seen the children in over two years following a public altercation with the father.

The court granted sole custody to the father, finding it in the children's best interests.

The court ordered a graduated access schedule for the mother, beginning with supervised visits.

Additionally, the court imputed an annual income of $26,000 to the mother, who was unemployed by choice, and ordered her to pay $391 per month in child support.

This family law trial involved five and a half years of bitter litigation between the self-represented applicant (Galina) and respondent (Robert) concerning child support, spousal support, section 7 expenses, custody, and access.

The court found the applicant to be an unreliable and confrontational witness who intentionally interfered with the respondent's access to the children and engaged in malicious behavior, including public disparagement.

The respondent was found to be credible and cooperative.

The court made findings on income imputation for both parties, calculated retroactive and ongoing child and spousal support, and determined section 7 expenses.

Spousal support was ordered to terminate in July 2020, taking into account significant overpayments by the respondent.

The court also established a parallel parenting regime for the youngest child, granting the respondent sole decision-making authority over education and extracurricular activities, and control over the child's passport.

This endorsement resolves a preliminary objection regarding the participation of foster parents, D.T. and S.C., in a motion to add prospective kin placement D.M. and R.A. as party respondents in a child protection application.

The court examined the definition of 'hearing' under the Family Law Rules and the Courts of Justice Act, concluding that an interlocutory motion constitutes a 'hearing,' thereby entitling the foster parents to participate.

A procedural endorsement in a family law motion to change where the originally scheduled hearing dates conflicted with the judge’s schedule.

Following a conference call with counsel and consultation with the trial office, the court vacated the previously scheduled dates and set new hearing dates.

The motion was directed to be heard in Brampton.

The judge noted that although not formally seized of the matter, it was anticipated that he would hear the motion.

The respondent father obtained an Ontario divorce order after the parties’ separation and ongoing international custody dispute involving their child, who had been retained in Poland by the mother.

The mother moved to set aside the divorce order on the basis that it was granted before the expiry of the 60‑day period to file an answer under the Family Law Rules.

The court acknowledged the procedural irregularity but held that the moving party remained in contempt of prior Ontario orders requiring the return of the child and production of medical records.

The court found it would be an abuse of process to allow the motion while the contempt continued and where the practical effect would facilitate further defiance of the Ontario custody order.

The motion was stayed pending the mother purging her contempt and the matter was referred for possible international judicial communication with Polish courts.

A support payor brought a motion to change seeking termination or suspension of child support following a motor vehicle accident that aggravated a shoulder injury and allegedly prevented employment.

The court found the accident constituted a material change in circumstances under s. 17 of the Divorce Act but concluded the payor remained intentionally under‑employed for much of the period after the accident.

The court granted a six‑month grace period suspending child support but maintained the previously imputed income and reinstated ongoing support thereafter.

Arrears were fixed and security was granted through a lien registered against the payor’s real property.

Requests to vest the property in the recipient and to restrict future motions were denied as disproportionate or unsupported.

The moving party sought a reduction of substantial spousal support arrears and a decrease in ongoing support obligations following a long-term marriage.

He relied on fluctuating income, health issues, and employment changes as a material change in circumstances and proposed reduced arrears and lower monthly support.

The responding party opposed the motion, citing the moving party’s history of non-disclosure, failure to comply with court orders including life insurance and medical coverage, and prior unsuccessful variation attempts.

The court found no material change in circumstances and determined that rescinding arrears would be unjust given the moving party’s repeated non‑compliance.

The motion to reduce arrears and ongoing support was dismissed.

The applicant mother brought a motion seeking reversal of a prior custody order and a no-contact order against the respondent father, together with orders requiring participation in a reunification program.

The respondent brought a motion to set aside parts of a prior consent order directing attendance at the program.

The court found that the program involved a lengthy process with extensive decision‑making authority delegated to its director and that there was no independent or peer‑reviewed evidence of its efficacy.

The judge held that the court could not cede its statutory responsibility to determine the best interests of the children to a program lacking evidentiary support.

The respondent’s motion to vacate portions of the July 4, 2013 order was granted and the applicant’s motion was dismissed.

Following a successful motion to strike the opposing party’s pleadings, the respondent sought substantial indemnity costs on the basis that the applicant had acted unreasonably and in bad faith.

The court found the conduct approached but did not cross the threshold of bad faith, particularly considering the party was self‑represented.

The court also considered the losing party’s financial circumstances and the potential impact of a large costs award on the ability to meet support obligations.

Applying principles recognizing the relevance of a party’s ability to pay, the court reduced the requested amount and ordered a modest costs award.

The court further declined to permit enforcement through the Family Responsibility Office because the motion primarily concerned issues other than child support.

The court determined costs following earlier motions concerning an interim variation of a child support order and a stay of a motion to change.

The respondent’s motion for interim relief was dismissed, while the applicant was partially successful on her motion to stay the respondent’s motion to change.

The court found the respondent’s conduct unreasonable due to persistent failures to provide adequate financial disclosure and failure to approach the court with clean hands.

Although the applicant sought costs approaching full indemnity, the court noted no Rule 18 offer to settle had been served and reduced the award accordingly.

Costs were fixed at $3,500 inclusive of HST and disbursements and ordered payable forthwith as a support order under the Family Responsibility and Support Arrears Enforcement Act.

The payor spouse applied to vary a spousal support order following voluntary retirement at the earliest eligible pension date, asserting health concerns and reduced income constituted a material change in circumstances.

The court held the applicant failed to establish that the retirement was medically necessary or supported by medical or vocational evidence.

Under s. 17(4.1) of the Divorce Act, the applicant bears the burden of proving a material change that was not reasonably foreseeable when the original order was made.

The court found the retirement was voluntary and unsupported by independent evidence, and therefore not a material change warranting variation.

The original support order was reinstated with a right of review when the applicant reaches the previously anticipated retirement age.

A custody and access motion concerning two children following the parties’ separation.

The respondent sought joint custody in order to participate in decision‑making, while the applicant sought sole custody due to ongoing conflict and inability to cooperate.

The court considered the children’s views and wishes through submissions from the Office of the Children’s Lawyer and assessed the parents’ ability to communicate and make joint decisions.

Finding that the parties could not cooperate sufficiently to support joint custody, the court granted sole custody to the applicant with consultation rights to the respondent.

A structured access regime was ordered, including midweek access, with the older child permitted discretion regarding time spent with the respondent.

Former unmarried partners disputed beneficial ownership of a house and family farm that had been transferred into joint title during their relationship.

The applicant argued the respondent held her registered interest in trust and that title had been transferred only to protect her anticipated financial contributions.

The court applied resulting trust, constructive trust, and unjust enrichment principles following Kerr v. Baranow and Pecore v. Pecore.

It concluded the transfers were not intended as a gift of beneficial ownership and that the respondent held title in trust for the applicant subject to compensation for her financial and labour contributions.

Title was ordered vested in the applicant upon payment of a monetary award reflecting the respondent’s contributions.

Following multiple attendances in a family law proceeding concerning support and property division after a long marriage, the court addressed costs arising from motions primarily related to financial disclosure.

The applicant spouse had brought motions seeking disclosure, spousal support, and advances on equalization, arguing that the respondent had delayed providing necessary financial information, including business valuations and income analysis relating to corporate interests.

The court found the respondent had failed to provide timely and adequate disclosure, causing unnecessary delay and requiring the applicant to bring motions to compel compliance.

Although the applicant did not obtain the exact relief requested in earlier motions, the court concluded the motions were necessary and that the applicant was more successful overall.

Costs of $20,000 were awarded to the applicant payable forthwith.

Following a seven‑day family law trial addressing equalization, spousal support, child support, section 7 expenses, and custody, the court determined costs under Rule 24 of the Family Law Rules.

Success at trial was mixed; however, the applicant achieved greater overall success, including on equalization and entitlement to ongoing spousal support and retroactive child support.

The court also considered the respondent’s conduct, including advancing irrelevant evidence that extended the length of the trial, though acknowledging the challenges faced by a self‑represented litigant.

Balancing the mixed results and the factors under Rule 24(11), the court awarded partial costs to the applicant.

The respondent was ordered to pay $8,500 in costs as support.