Family and Matrimonial Law - SCJ

Luigi Falsetto sought a declaration that his former daughter-in-law, Paula Falsetto, held her interest in a property (415 Lisgar Street) in trust for him, based on a purchase money resulting trust.

The property was acquired jointly by Paula and Luigi's son, Albert, to avoid merger under the Planning Act.

Luigi paid the down payment and closing costs.

The court dismissed the application, finding that Luigi intended to gift the beneficial ownership to Paula to achieve the Planning Act purpose, thereby rebutting the presumption of a resulting trust.

A preliminary motion by Luigi to admit a late affidavit was also dismissed due to tangential relevance, non-compensable prejudice, and an unsatisfactory explanation for the delay.

The applicant brought a contempt motion against the respondent for her repeated failure to comply with court orders requiring their children to attend in-person schooling.

The court found that the applicant had established the elements of contempt beyond a reasonable doubt but exercised its discretion not to make a formal finding of contempt or impose a monetary penalty, citing the best interests of the children and the punitive nature of contempt.

Instead, the court declared the respondent's willful non-compliance, granted the applicant authority to obtain educational information, imposed restrictions on the respondent's ability to bring future motions, and awarded substantial costs to the applicant, to be set off against spousal support.

This 7-day trial concerned a dispute over parenting time, decision-making, and telephone access for two children.

The applicant father sought to increase his parenting time to an equal shared schedule and maintain joint decision-making.

The respondent mother opposed, seeking to maintain the status quo parenting schedule and obtain sole decision-making authority, citing concerns about the father's parenting and the children's anxiety.

The court granted the father's request for a step-up plan to an equal parenting arrangement, maintained joint decision-making, and ordered specific telephone access rules and attendance at children's activities to reduce parental conflict.

The court found that a material change in circumstances was not necessary for the review of the parenting order, as the previous order contemplated future review.

The husband sought to remove s.71 notices registered by the wife on his farm properties, arguing that an equalization claim does not create an interest in land.

The wife opposed the removal and sought a restraining (preservation) order under s.12 of the Family Law Act.

The court found that s.71 notices were improperly registered for an equalization claim, which is a monetary claim, not a proprietary interest in land.

Consequently, the s.71 notices were ordered discharged.

However, due to the husband's non-disclosure in Farm Debt Mediation and delays in financial disclosure, the court granted the wife's request for a restraining (preservation) order under s.12 FLA to protect her potential equalization payment.

This endorsement addresses the issue of costs following two successful motions for child support brought by fathers N. and R. against mother A. The fathers sought full indemnity costs, while the mother argued for no costs due to alleged divided success and her own offers to settle.

The court rejected both extreme positions, finding no merit in full indemnity or no costs.

Applying the presumption that successful parties are entitled to some costs, the court awarded partial indemnity costs to each father, reducing their requested amounts due to some overlap between their original motions.

The mother sought an adjournment of a care and custody hearing to attend a treatment program.

The Society consented to the adjournment but requested that the existing temporary without prejudice order be converted to a with prejudice order, given it had been in place for over a year.

The court declined to convert the order, finding that the case had been on a particular path until recent events, and emphasizing the remedial nature of the CYFSA regarding First Nations, Inuit, and Métis children, which supported allowing the mother to argue her motion under the without prejudice test.

The applicant brought a motion to add a newly purchased property to an existing non-dissipation order, arguing it was purchased with protected corporate funds.

The respondent brought a cross-motion to unfreeze his accounts and release funds, claiming he needed money for living expenses and corporate taxes.

The court granted the applicant's motion, finding the property was purchased with protected funds.

The court dismissed the respondent's cross-motion, noting his failure to provide court-ordered financial disclosure had delayed the business valuation necessary to determine the equalization payment.

The parties, both former drug addicts, sought custody of their 9-year-old daughter.

The mother sought primary residence and a change of school, while the father sought sole custody and limited access for the mother, alleging ongoing substance abuse.

The court found no evidence of current substance abuse by the mother but noted her housing instability and the child's chronic absenteeism while in her care.

The court ordered joint custody, with the child residing primarily with the father during the school week to ensure educational stability, and spending alternate weekends and holidays with the mother.

The applicant mother brought a summary judgment motion seeking sole custody of the parties' child, supervised access for the respondent father, and a permanent restraining order.

The parties' relationship was marked by domestic violence, and post-separation, the respondent engaged in a severe campaign of cyber harassment and threats against the applicant, her family, her lawyers, and the judiciary.

The court found no genuine issue requiring a trial, granted summary judgment awarding sole custody to the applicant with supervised access to the respondent, and issued a permanent restraining order.

The court also ordered the respondent to return the applicant's hard drives and destroy any copies of her personal information.

In the context of a family law dispute, the applicant brought a contempt motion against the respondent's former lawyers for allegedly receiving funds in breach of a Mareva injunction.

Both the applicant and the alleged contemnors brought motions for documentary production.

The court held that because contempt is a quasi-criminal proceeding, the alleged contemnors are not subject to the automatic disclosure obligations of the Rules of Civil Procedure and have a right against self-incrimination.

The court dismissed the applicant's request for an affidavit of documents but granted a preservation order against the lawyers.

The court also ordered the applicant to produce relevant communications to the alleged contemnors to allow them to make full answer and defence.

This is a costs endorsement following a motion by the Respondent to vary a final order concerning child support, retroactive adjustments, and section 7 expenses.

The court found mixed success for both parties on the substantive issues.

Considering the factors under Family Law Rule 24(11), including the importance and complexity of the issues, the reasonableness of each party's behavior, and counsel's rates, the court determined that the Respondent's unreasonable conduct, such as failing to comply with disclosure orders and a settlement conference requirement, warranted no award of costs to either party despite the mixed outcome.

The applicant sought supervised access and custody, while the respondent sought unsupervised access.

The court granted unsupervised access as sought by the respondent and limited rights to the applicant, noting the applicant's tactical use of access as a negotiating lever.

The court emphasized that access is a child's right and not a tool for parental negotiation, and urged both families to reduce acrimony for the child's best interest.

On a motion to change a final family law order, the moving party sought to reduce child support on the basis of a substantial post-order decline in income and an equal sharing of parenting time.

The responding party alleged prior non-disclosure and sought lump sum retroactive support based on asserted corporate income and shareholder benefits.

The court accepted the accountant's evidence that certain large accounting entries were not income actually available for support purposes, found a genuine income decline beginning in 2013, and held that the parties exercised true 50/50 parenting time.

Applying s. 9 of the Federal Child Support Guidelines and the framework in Contino, the court varied support to set-off amounts effective January 1, 2014 and January 1, 2015.

The moving party (former husband) brought a motion to vary a 2003 spousal support order due to a reduction in his income after changing employment.

The responding party (former wife) opposed and sought retroactive post-secondary expenses for their adult child.

The court found the moving party's income reduction from an average of $420,303 to $270,153 constituted a material change in circumstances.

Spousal support was varied from $7,000 to $5,850 per month, retroactive to January 2010, resulting in $46,750 in arrears owed to the responding party.

The court also ordered the moving party to pay $43,598, representing his 65% proportionate share of the child's reasonable retroactive post-secondary expenses.

The applicant brought a motion to find the respondent in contempt of court for failing to comply with a prior consent order requiring him to hold proceeds from the sale of his insurance business in trust.

The respondent received a $100,000 installment early but failed to place it in trust, instead paying half to the applicant toward equalization and keeping the rest.

The court rejected the respondent's arguments that the order was a payment order exempt from contempt proceedings or that the terms were vague.

The court found beyond a reasonable doubt that the respondent wilfully and deliberately disobeyed the order and found him in contempt.

The applicant wife sought to set aside a cohabitation agreement executed shortly before the parties purchased a home and later married.

The agreement provided that each party would retain their initial contribution to the home and share the remaining equity 70/30 in favour of the respondent husband.

The applicant argued she did not understand the nature and consequences of the agreement and received inadequate independent legal advice.

The court found the independent legal advice was deficient but concluded the applicant was not under duress, the terms were not unconscionable, and the respondent did not take advantage of her.

The court declined to set aside the agreement.

Following dismissal of a motion to vary a divorce order seeking termination of spousal support, the court determined the issue of costs.

The respondent was found to be substantially successful and sought costs calculated partly on a full indemnity basis relying on an earlier offer to settle.

The court considered the factors in Rule 24(10) and Rule 24(11) of the Family Law Rules and concluded that substantial indemnity costs were appropriate given the respondent’s consistent position and success at the hearing.

The court also considered the reasonableness of counsel’s hourly rate and docketed time and allowed limited disbursements.

Costs were fixed in a lump sum with additional travel disbursements permitted.

Following a successful Hague Convention application ordering the return of four children to Norway after wrongful retention in Ontario, the court determined costs.

The successful party sought substantial indemnity costs including Canadian counsel fees, travel expenses to attend an earlier adjourned hearing, and legal fees incurred with Norwegian counsel.

Applying Article 26 of the Hague Convention, the Family Law Rules, and the discretion under the Courts of Justice Act, the court held that abducting parents should generally bear the reasonable expenses of securing a child’s return.

Substantial indemnity costs were awarded for Canadian legal work and travel expenses, with additional costs later awarded for Norwegian counsel after supplementary documentation was provided.

The defendant brought a motion seeking consolidation of a tort action for damages arising from alleged spousal assaults with an ongoing family law application between the same parties.

The plaintiff opposed consolidation, arguing the tort claim was separate and commenced later due to psychological readiness.

The court considered Rule 6.01 of the Rules of Civil Procedure and the principle in s. 138 of the Courts of Justice Act that multiplicity of proceedings should be avoided.

Finding that both proceedings involved identical parties, overlapping factual allegations of assault during the marriage, and common issues of fact, the court held that all claims arising from the marital relationship should be determined together.

The tort action was ordered consolidated with the family law application to avoid duplicative proceedings and inconsistent findings.

A costs endorsement in a family proceeding addressing the applicant’s bill of costs following earlier orders.

The applicant sought recovery of legal fees, disbursements, and HST calculated using Legal Aid tariff rates and including time billed by multiple office staff.

The court endorsed the reasoning that staff time such as secretaries or non‑articling students generally constitutes law office overhead and should not be separately recoverable in costs awards.

While accepting the Legal Aid tariff rates and allowing compensation for a law clerk and paralegal, the court declined to deduct earlier costs awarded on a different basis and adjusted the claimed amounts accordingly.

The court fixed the total costs payable to the applicant after deductions.