Family and Matrimonial Law - SCJ

This family law trial addressed three main issues: the regular parenting schedule, the respondent's alcohol consumption during parenting time, and the children's contact with a third party.

The applicant sought an asymmetric shared parenting schedule, mandatory alcohol monitoring for the respondent, and restrictions on contact with Ms. Foy.

The court affirmed the existing equal-time parenting schedule, finding it promoted the children's best interests and stability.

It ordered the respondent to abstain from alcohol during parenting time and use an alcohol monitoring device for one year due to past breaches of court orders and lack of insight into the impact of his drinking.

The request for restrictions on contact with Ms. Foy was dismissed, as the court found it overreaching and lacking sufficient evidentiary basis, noting Ms. Foy was not a party to the litigation.

This decision arises from a Binding Judicial Dispute Resolution (BJDR) hearing in a family law matter, resolving outstanding issues between separated spouses.

The court adjudicated disputes concerning the treatment of cell phone payments as Section 7 expenses, the inclusion of a personal debt (Fairstone) in the applicant's net family property, the allocation of post-secondary education expenses for the eldest child, the payment schedule for retroactive child support, and claims for occupation rent and contributions to the matrimonial home.

The court found cell phones to be Section 7 expenses, disallowed the Fairstone debt due to insufficient evidence, ordered retroactive child support as a lump sum from trust funds, and awarded occupation rent to the respondent while crediting the applicant for her contributions to the matrimonial home.

Final orders were made regarding child support, spousal support, equalization, and parenting arrangements.

The applicants, a same-sex couple, sought a declaration of parentage and primary residence of a child born to the respondents.

The parties had an informal agreement that the applicants would raise the child, but the respondents sought the child's return after four months.

The court found that the statutory requirements for a declaration of parentage under s. 13 of the Children's Law Reform Act were not met, as there was no pre-conception intent for all four parties to be parents.

However, applying the best interests of the child test, the court granted the applicants primary residence and sole decision-making responsibility, with gradually increasing parenting time for the respondents.

The court determined costs following a case conference, a preservation motion, and a jurisdiction motion in a family law proceeding.

The respondent sought full indemnity costs, while the applicant argued he should not pay costs and sought his own costs, alleging bad faith by the respondent.

The court found that the applicant had acted in bad faith and abused the court's process by deceiving the court about his reasons for an adjournment.

The court awarded the respondent partial indemnity costs for the case conference, substantial indemnity costs for the preservation motion, and full indemnity costs for the jurisdiction motion, totaling $35,532.87.

The Mother brought a motion to find the Father in contempt for failing to comply with a 2018 court order requiring him to disclose his IP addresses, cell phone numbers, and email addresses.

The court found the Father in contempt, noting his intentional refusal to provide the IP addresses despite having the ability to do so.

After the Father failed to purge his contempt, the court imposed a $2,500 fine, ordered him not to denigrate the Mother online, dispensed with his consent for the Mother to obtain third-party disclosure regarding malicious online posts, and ordered him to pay $5,500 in costs.

The children's aid society brought a motion for summary judgment seeking an order for extended society care for two children, with access only to each other.

The mother opposed the motion, seeking the return of the children or placement with a friend or relative.

The court found no genuine issue requiring a trial, noting the mother's history of physical abuse, lack of insight, and failure to engage in programming.

The court granted the motion, ordering extended care for adoption and sibling access, finding it was the only prospect for a safe childhood.

The respondent mother brought an urgent motion to establish parenting arrangements for the parties' youngest child, Stewart, during the COVID-19 pandemic, after the applicant father unilaterally withheld access.

The court reaffirmed the presumption that existing parenting arrangements should continue, subject to public health directives, and found no valid reason for the father to deny access.

A temporary order was issued codifying the agreed-upon alternate weekend and mid-week access schedule for the mother, with make-up access to be resolved by counsel.

The order also included non-disparagement clauses and clarified transportation responsibilities.

Other claims, including interim custody, child support arrears, and costs, were deemed non-urgent.

This endorsement addresses the issue of costs following a three-day trial concerning child and spousal support.

Both parties sought costs from the other.

The court found mixed success on the substantive issues, including the imputation of income, retroactive and ongoing child support, section 7 expenses, retroactive and ongoing spousal support, and life insurance.

The court also considered the admissibility of settlement offers exchanged during a settlement conference, noting the conflict between Family Law Rules 17(23) and 18(16) regarding confidentiality.

Ultimately, finding no unreasonable behaviour or bad faith by either party and mixed success at trial, the court ordered no costs payable by either party to the other, emphasizing the principles of reasonableness and proportionality.

The children's aid society brought a motion for summary judgment in a status review application, seeking to place the child in the permanent custody of the paternal aunt with access to the mother.

The mother opposed the motion, seeking the return of the child to her care.

The court found no genuine issue requiring a trial regarding custody, as the mother's history of housing instability, contentious relationships involving domestic violence, and mental health concerns demonstrated she could not safely parent the child.

Custody was granted to the aunt.

However, the court found a genuine issue for trial regarding the mother's access, as the society's proposed access schedule was not consented to and required further factual determination.

In this family law trial, the remaining issues after settlement of parenting and property matters concerned imputation of income, retroactive and ongoing child support, section 7 expenses, retroactive and ongoing spousal support, and insurance security.

The court declined to impute income to the applicant, finding she had made consistent efforts to retrain and obtain employment and was not intentionally unemployed or under-employed within the meaning of the Federal Child Support Guidelines.

The court ordered the applicant to pay retroactive child support for the period after she obtained full-time employment and ongoing table child support, but rejected the respondent’s retroactive claim for section 7 expenses because advance notice and consent had not been obtained and the applicant lacked means.

The court also denied retroactive spousal support claims by both sides, but ordered ongoing spousal support in favour of the applicant and required life insurance and employment benefit designations to secure support obligations.

The moving party brought a motion for contempt against the responding party for failing to list the matrimonial home for sale as required by a 2008 final order.

The responding party had initially listed the home, but after it failed to sell, both parties took no further action for over a decade while the responding party maintained and improved the property.

The court dismissed the contempt motion, finding that the responding party had a legitimate excuse and did not deliberately and wilfully breach the order beyond a reasonable doubt given the changed circumstances and mutual inaction.

The respondent sought an interim order for the return of her six-year-old child, Patrick, to her care or, alternatively, shared parenting time.

The applicant resisted the relief, failing to file material or cooperate with the Office of the Children’s Lawyer (OCL) as previously ordered.

The court found the applicant's explanation for non-compliance unpersuasive and noted the child's need for stability.

On an interim basis, the court ordered week-about shared parenting until a scheduled settlement conference and re-issued an order for OCL involvement, expecting the applicant to complete the necessary paperwork promptly.

The Father (applicant) sought costs of $65,000 after successfully obtaining sole custody in a motion to change.

The Mother (respondent) argued for no costs due to her modest means and the resolution of some issues prior to trial.

The court, applying Rule 24(11) of the Family Law Rules and s. 131(1) of the Courts of Justice Act, found the Father presumptively entitled to costs but reduced the amount to $30,000, payable over six years, considering the parties' compromises, the Mother's financial situation, and the importance but not excessive complexity of the issues.

The court declined to deem the costs as additional support enforceable by the Family Responsibility Office.

The parties sought clarification of a prior order that found an enforceable settlement agreement between them, specifically regarding whether a waiver of child support applied to retroactive or ongoing support.

The court determined that because the prior order incorporating the settlement terms had already been signed and entered, the judge was functus officio and lacked jurisdiction to interpret the agreement's contents or the parties' intentions.

Parents sought costs against a child protection agency after the agency withdrew its protection application and entered into a voluntary agreement with the family.

The parents argued the agency acted unfairly by apprehending the children without a sufficient investigation and relying on uncorroborated allegations.

The court held that costs against a children’s aid society are awarded only in exceptional circumstances where conduct is patently unfair or indefensible.

Given the agency’s reliance on multiple police reports, the family’s prior history with the agency, and the existence of a warrant authorizing the apprehension, the court found the investigation and apprehension were reasonable.

The court concluded the agency had fulfilled its statutory duty and that an ordinary observer would not view its conduct as unfair.

Appeal in child protection proceedings where a First Nation community and a family member challenged a Crown wardship disposition.

The appellants argued the trial judge erred by refusing a short adjournment when approximately 1500 pages of disclosure were provided on the first day of trial, preventing meaningful review and the ability to obtain counsel.

They also argued the trial judge failed to give adequate consideration to the children’s Indigenous identity, culture, and heritage in determining their best interests, particularly where the foster placement had relocated the children to the United Kingdom.

The court held that denying the adjournment constituted a denial of natural justice and that insufficient weight had been given to cultural identity considerations.

The original judgment was set aside and a new trial ordered before a different judge.

Following a successful family law motion for increased parenting time, the court addressed costs.

The moving party had been entirely successful and was found to have acted reasonably in seeking increased access through counsel.

The responding party was found to have behaved unreasonably by secretly recording the moving party and selectively presenting video evidence, resulting in an order requiring full production and transcription of the recordings at her expense.

Considering the factors under Rule 24(11) of the Family Law Rules, the court awarded partial indemnity costs.

The responding party was ordered to pay $6,000 inclusive of disbursements and HST.

In advance of a new trial ordered by the Court of Appeal on issues of unjust enrichment and constructive trust relating to corporate shares, the applicant sought updated financial disclosure and interim disbursements and legal expenses under Rule 24(12) of the Family Law Rules.

The court permitted expanded financial disclosure to allow the applicant to investigate a claim to post‑separation increases in share value.

However, the request that the respondent fund updated valuation reports and legal expenses was denied.

The court held that the evidence did not demonstrate a need to level the playing field, that the respondent lacked superior financial resources, and that the applicant failed to show the updated valuation was necessary or that the claim for post‑separation increase in value was meritorious.

The applicant sought leave under s. 140 of the Courts of Justice Act to institute proceedings challenging prior family law orders and seeking damages for alleged fraud, abuse of process, and misconduct by the opposing party and counsel.

The applicant was subject to a vexatious proceedings order requiring leave of the court before commencing further proceedings.

The court held that the proposed motion lacked reasonable grounds and consisted largely of conclusory allegations of fraud unsupported by factual particulars.

The court also found that the applicant sought relief beyond what is permitted on a leave application under s. 140(4), including damages claims.

Leave to institute the proceeding was therefore refused and costs were awarded to the respondent.

In a family law proceeding, the applicant brought an ex parte motion alleging that the respondent had engaged in unauthorized surveillance and intercepted communications, seeking relief related to disclosure and preservation of evidence.

The court found that the motion did not meet the urgency threshold for a motion without notice under Rule 14(12) of the Family Law Rules because there was no evidence of ongoing surveillance and an investigation had already found no unauthorized devices.

However, the court determined that repeated unanswered requests for disclosure justified procedural intervention.

Leave was granted to bring the motion prior to a case conference, and the respondent was ordered to provide an affidavit of documents and preserve any electronic devices containing potential surveillance material.