Family and Matrimonial Law - SCJ

This decision addresses interim parenting time and school attendance for two children in a high-conflict family law matter.

The court maintains a week on/week off shared parenting schedule, with the caveat that if the mother fails to ensure the children’s school attendance, the father will have primary care during the school week.

The court declines to order a change of school or police enforcement at this stage, and orders the involvement of the Office of the Children’s Lawyer (OCL) to ascertain the children’s views and preferences.

The court considered whether a mother could insist on strict compliance with a parenting order after the parties had followed a different schedule for over three years.

The father sought to restore the status quo of Thursday overnight visits, which the mother unilaterally attempted to revert to alternate Wednesdays.

The court found that the status quo should be maintained pending a full hearing, emphasizing the best interests of the child and discouraging unilateral changes.

The father's motion was granted, maintaining Thursday overnight parenting time.

The respondent brought a motion for the sale of the matrimonial home.

The applicant opposed, seeking to buy out the respondent's share and arguing that financial disclosure was delayed.

The court found that the respondent's pleading was sufficient to invoke the Partition Act.

While acknowledging the respondent's prima facie right to sale, the court delayed the sale to allow the applicant time to secure financing for a buyout, given the recent receipt of financial disclosure and the children's best interests.

If financing is not secured by a set date, the home must be listed for sale.

The applicant brought a motion to set aside specific provisions of a 2017 consent order, particularly those related to property and the matrimonial home, while seeking to preserve the spousal support release.

The applicant argued lack of independent legal advice, lack of understanding, and unconscionability.

The court dismissed the motion, finding no evidence of fraud, mistake, or unconscionability.

The judge emphasized the judicial oversight present when the consent order was made, distinguishing it from a domestic contract, and reiterated the high bar for setting aside final judgments, concluding the applicant's motion was a case of "buyer's remorse."

In an uncontested trial, the applicant wife sought sole decision-making responsibility, primary residence for the children, specific parenting time arrangements, authority for travel and documentation, child support (retroactive and ongoing), and costs.

The respondent husband, though not filing responding pleadings, made submissions.

The court granted the wife sole decision-making, primary residence for the three younger children, and authority for travel and documentation.

It imputed income to the husband for child support purposes, ordered retroactive and ongoing child support, and awarded costs to the wife due to the husband's blameworthy conduct and non-participation in the proceedings.

The applicant wife sought an order for the partition and sale of the matrimonial home, with proceeds paid into court.

The respondent husband opposed, arguing that an interim sale would prejudice his substantive rights under the Family Law Act or that the motion was malicious, vexatious, or oppressive.

The court found that the sale would not prejudice the husband's substantive rights, as his financial interests would be protected by payment into court, and a potential vesting order was too remote.

The court also determined the motion was not vexatious or malicious, noting the wife had sought the sale since 2019 and that it moved the parties closer to resolution.

The motion for sale was granted, with specific terms for listing and sale.

The Children's Aid Society brought a motion for summary judgment seeking a finding that a 14-year-old child was in need of protection, placement of the child with the father under a six-month supervision order, and access to the mother at the Society's discretion.

The mother opposed the protection finding and the access terms but failed to file responding materials.

The court applied the principles of summary judgment in child protection cases and found no genuine issue for trial.

The child was found in need of protection due to the mother's inability to meet his needs and manage his behavioural issues.

The court ordered the child placed with the father and granted access to the mother at the Society's discretion.

The applicant father was found in contempt for failing to return the children after an access visit, despite eventually purging the contempt.

This endorsement addresses the sanction for contempt and the award of costs.

The court imposed a penalty of $252 and awarded full indemnity costs of $3,968.81 to the respondent mother, payable at $200 per month.

The decision emphasized the father's bad faith, misrepresentation of facts, and the negative impact of his actions on the children and the mother's ability to provide for them, outweighing his limited ability to pay due to disability.

The applicant, Jayme Anne Green, sought costs against the respondent, Devon Whyte, following a settlement of parenting and support issues.

The court found the respondent primarily responsible for the litigation's protracted nature and complexity due to his persistent failure to provide timely, accurate, and complete financial disclosure, including purposeful misrepresentations and omissions of assets.

While costs related to parenting issues were denied due to divided success and unreasonable conduct by both parties, the court determined that the respondent acted in bad faith regarding financial disclosure.

Applying principles for self-represented litigants and bad faith conduct under the Family Law Rules, the court awarded the applicant $32,752.00 in costs, inclusive of disbursements and HST, payable forthwith.

The applicant sought an order vesting title of the matrimonial home, owned by the respondent, to satisfy an unpaid equalization payment and costs from a prior trial.

The respondent was noted in default.

The court dismissed the applicant's motion for summary judgment, finding that it lacked jurisdiction under section 9 of the Family Law Act because the original application under section 7 was "spent" after a final judgment.

Furthermore, the matter was deemed res judicata, as the trial judge had previously declined to exercise powers under section 9, and the applicant could not re-litigate issues that could have been raised.

The parties brought multiple motions concerning parenting arrangements, equalization of net family property, and retroactive child support.

The court addressed the need for a fixed parenting schedule, dismissing the applicant's request for a final shared custody order due to ongoing conflict.

Regarding equalization, both parties' motions for an equalization payment were dismissed, but the applicant's request for further disclosure concerning the respondent's business valuation was granted.

The respondent's motion for retroactive child support was also dismissed, deemed a matter for trial.

This is a costs endorsement following a successful motion by the applicant, Jennifer Tovell, for child support and a successful opposition to the respondent, Douglas Jamieson's, cross-motion for shared parenting and set-off child support.

The court found Mr. Jamieson's conduct unreasonable, including providing false and misleading evidence and failing to accept a reasonable offer to settle, which amounted to bad faith.

Consequently, the court awarded Ms. Tovell costs on a full recovery basis, fixed at $8,702.41, inclusive of fees, HST, and disbursements, enforceable as support.

The Applicant sought costs of a motion and the overall proceeding after a settlement agreement in a high-conflict family law case.

The Respondent also sought costs.

The court awarded the Applicant $5,000 plus HST and disbursements for the motion on a full recovery basis, payable from the Respondent's share of net proceeds.

For the costs of the proceeding, the court found neither party substantially successful in the settlement but determined the Applicant was entitled to partial indemnity costs due to the Respondent's unreasonable and obstructionist behaviour, including failure to disclose financial information and comply with court orders.

The quantum for the proceeding costs was reserved for a further attendance, requiring the Applicant to submit a revised bill of costs excluding "steps in the case" where costs were already dealt with.

The Respondent's claim of inability to pay was rejected due to his lack of financial disclosure and unreasonable conduct.

The applicant sought summary judgment for the sale of the jointly-owned matrimonial home.

The respondent opposed, seeking interim exclusive possession and raising issues regarding her alleged Multiple Chemical Sensitivity (MCS), the applicant's alleged cognitive decline affecting finances, and undisclosed assets.

The court granted the applicant's motion for the sale of the matrimonial home, finding no genuine issue requiring a trial.

The respondent's claims regarding MCS lacked medical corroboration, and her financial allegations against the applicant were unsubstantiated.

The court dismissed the respondent's request for interim exclusive possession and the applicant's request for possession of household contents, ordering that $60,000 from each party's share of the sale proceeds be held in trust pending further order.

This endorsement addresses the issue of costs following an interim order regarding child access and spousal support.

The applicant mother sought $5,000 in costs, arguing substantial success on spousal support and parenting arrangements.

The respondent father argued for no costs or a reduced amount, citing mixed success and the mother's alleged unreasonableness.

Applying Family Law Rule 24, the court found the mother successful on spousal support and that the parenting outcome was more aligned with her proposal.

The court ordered the father to pay the mother $2,500 in costs.

The applicant father sought a provisional order under the Divorce Act to vary his child and spousal support obligations, as the respondent mother resided in New Brunswick and did not attorn to Ontario's jurisdiction.

The father argued that child support should be terminated for their two adult children because one had moved in with him and secured full-time employment, and the other had taken a hiatus from her studies before returning to university.

He also sought to terminate spousal support due to the mother's remarriage.

The court admitted the father's hearsay evidence as necessary and reliable for a provisional hearing.

The court found material changes in circumstances, terminating child support for the son, suspending and then reinstating child support for the daughter, and reducing spousal support by 20 percent annually.

The provisional order was made subject to confirmation by the New Brunswick court.

The applicant brought a motion to change a final order for spousal support following his retirement from the Ontario Provincial Police.

The court found that the applicant's retirement constituted a material change in circumstances that was not foreseen in the original order.

Applying the rule against double dipping, the court limited the applicant's income for support purposes to the non-equalized portion of his pension.

The court also imputed income to the respondent based on her ability to generate income from equalized assets.

Spousal support was reduced to $1,050 per month and a fixed termination date was set for October 31, 2021.

The mother, who had sole custody of the parties' two children, brought a motion to change a final consent order to permit her to relocate with the children to the Washington DC area to live with her fiancé.

The father opposed the move and brought a cross-motion to adjust child support.

The court applied the established relocation framework and found that a material change in circumstances had occurred.

The court determined that the move was in the children's best interests, noting their strong bond with the mother and her fiancé, their expressed preference to move, and the mother's role as the primary parent.

The mother's motion to relocate was granted, and temporary child support was ordered pending a reference to finalize the amounts based on imputed income.

The applicant children's aid society apprehended the respondents' newborn child at birth and sought Crown wardship with no access, relying heavily on the parents' history of having previous children made Crown wards and an older parenting capacity assessment.

The parents opposed the application, arguing they had made significant positive changes, engaged in extensive prenatal and parenting programs, and were supported by community resources.

The court found the child in need of protection due to historical risks but rejected the society's plan for Crown wardship, finding the society had taken a monofocal view and ignored recent evidence of the parents' capacity.

The court ordered the child returned to the parents' care subject to a 12-month supervision order.

The responding spouse brought a motion seeking an order declaring the opposing party a vexatious litigant pursuant to s. 140 of the Courts of Justice Act.

The court reviewed the extensive litigation history arising from the parties’ matrimonial dispute, including repeated motions, appeals, and collateral proceedings in multiple courts attempting to relitigate issues already determined.

The court found that the litigant persistently commenced proceedings without reasonable grounds, failed to pay outstanding cost orders, and continued to advance allegations of conspiracy and misconduct against judges, lawyers, and third parties.

Applying the principles governing vexatious proceedings, the court concluded that the conduct constituted harassment and oppression through abusive litigation.

An order was made prohibiting the litigant from instituting or continuing proceedings in any Ontario court without leave of the Regional Senior Judge.