Family and Matrimonial Law - SCJ

The respondent brought a motion seeking a finding that the applicant was in contempt of a September 13, 2023 order by Munroe J., which mandated shared parenting time for their two children.

The applicant acknowledged non-compliance but argued she had made reasonable efforts to ensure the children's attendance.

The court applied the three-part test for civil contempt, requiring proof beyond a reasonable doubt of an intentional act or omission breaching a clear order with knowledge.

Despite the children's continued refusal to reside with the respondent, the court found the applicant had undertaken substantial, albeit unsuccessful, efforts to facilitate compliance, including imposing consequences and seeking professional assistance.

The court was left in doubt as to whether the applicant's actions constituted an intentional failure to comply.

Consequently, the motion for contempt was dismissed.

The Children and Family Services for York Region (the "Society") brought an urgent motion and child protection application concerning a child.

The court raised questions about its territorial jurisdiction, as the child and parents did not reside in or were present in York Region.

The Society sought to transfer the matter to Durham Region based on preponderance of convenience under section 91(3) of the Child, Youth and Family Services Act, 2017.

The court found that the Society lacked territorial jurisdiction to initiate the application because the child was not present within its jurisdiction.

Despite this, and with the consent of the parties, the court ordered the transfer of the proceeding to Durham Region, not under section 91(3), but by exercising its authority under Rule 2 of the Family Law Rules, prioritizing the child's best interests and judicial efficiency.

The father brought a motion to change seeking sole or joint decision-making responsibility and maximum unsupervised parenting time, alleging the children were at risk of physical and sexual abuse in the mother's care.

The mother brought a cross-motion to terminate the father's parenting time entirely and to remove requirements for his consent for travel and passports.

The court found no material change in circumstances to alter decision-making, as the father's abuse allegations were unsubstantiated.

The court declined to terminate the father's parenting time, instead ordering a graduated schedule starting with supervised visits.

The court granted the mother's request to dispense with the father's consent for passports and travel.

This appeal concerned a motion to change a child support order, specifically challenging the calculation of arrears based on the child's enrollment in post-secondary education.

The appellant father argued that the lower court erred in finding the child entitled to support for periods where there was insufficient evidence of full-time educational enrollment.

The court found that while there was some evidence for certain periods, there was a complete lack of evidence for other periods (July 2018 - December 2018 and May 2019 - August 2019), constituting an error of law.

Consequently, the appeal was allowed in part, and the child support arrears owed by the father were significantly reduced.

The payor father brought a motion to change seeking to terminate spousal support or, alternatively, to impute a full-time minimum wage income to the recipient mother.

The mother opposed the motion and sought child support arrears and a variation of section 7 expenses.

The court dismissed the father's motion, finding that the mother's continued unemployment was justified by her health issues and the significant special needs of the parties' two children, which required near full-time care.

Spousal support was maintained on both compensatory and non-compensatory grounds.

The father was ordered to pay $11,312 in child support arrears.

The mother's request to vary the section 7 expense provisions was dismissed as there was no material change in circumstances.

The applicant mother sought an interim order permitting her to relocate the parties' two children to New York pending trial, while the respondent father sought interim sole custody.

The court dismissed both motions, finding that a temporary relocation shortly before trial was not in the children's best interests and that there was no compelling reason to change the existing custody order.

The court ordered that the children's primary residence remain with the respondent pending trial, granted him authority to make educational decisions including whether the children attend school virtually or in person, and ordered virtual access for the applicant.

The applicant wife brought a motion to find the respondent husband in breach of previous child support, spousal support, and costs orders, and to strike his pleadings.

The husband had accumulated over $52,000 in arrears and claimed impecuniosity due to the pandemic, despite maintaining his pre-separation lifestyle.

The court found the husband in breach of the orders but declined to immediately strike his pleadings, instead granting him a final opportunity to pay the outstanding arrears and costs by a specified date, failing which the wife could move to strike his pleadings on all non-parenting issues.

The mother brought a motion for the return of her infant child to her temporary care and custody pending the final disposition of a child protection application.

The child had been removed by the children's aid society due to concerns regarding the mother's alcohol consumption and the child's exposure to domestic conflict with the father.

The court found reasonable grounds to believe the child would be at risk of harm if returned without supervision.

However, the court concluded that the risks could be adequately mitigated by a supervision order with strict terms, including the full-time presence of an approved supervisor in the home.

The child was ordered returned to the mother's care subject to the society's supervision.

The applicant mother sought sole custody of the parties' two children in an uncontested trial.

The mother had moved to Ottawa with the children in 2017.

In May 2018, during a visit to Halifax, the respondent father withheld the older child and refused to return him to the mother.

The younger child remained with the mother in Ottawa.

The court granted the mother final sole custody of the younger child.

Finding that Ontario had jurisdiction under section 22 of the Children's Law Reform Act, the court granted the mother temporary sole custody of the older child and ordered his return, subject to the father's right to file responding materials.

This endorsement from a case conference addresses the management of two intertwined proceedings: a family law application (divorce, spousal support, equalization, trust claims) and a guardianship proceeding.

The court prioritized the family law application, scheduling a combined settlement and trial management conference.

It also addressed disclosure issues, compliance with previous orders (costs, property listing), and clarified the procedural nature of prior decisions.

The court declined to set a hearing date for the guardianship application at this time.

The parties reached a settlement on the second day of a family law trial, leaving the issues of costs and minor chattel disputes to the court.

The respondent sought $1,000 in damages for damaged or missing chattels, which the court largely dismissed as petty, save for $150 for a missing video game.

On costs, the court applied Rule 18(14) of the Family Law Rules, finding the applicant unreasonably delayed accepting the respondent's reasonable settlement offer made months prior.

The respondent was awarded full recovery costs from the date of the offer, fixed at $17,500.

The applicant mother and respondent father engaged in a highly conflictual 27-day trial regarding custody, access, child support, and the mother's request to relocate their four children to England to live with her new husband.

The court found the father to be abusive, emotionally unstable, and unable to shield the children from his hostility towards the mother and her new husband.

The mother was awarded sole custody and permitted to move the children to England, subject to conditions including immigration approval and child protection clearance.

The father's access was ordered to be supervised initially, with a pathway to unsupervised access and extended holiday visits if the move occurs.

The father was ordered to pay child support, with a reduction upon relocation due to the undue hardship of international access costs.

The Applicant sought full indemnity costs of $21,661.06 for motions previously decided.

The Respondent argued for no costs or a proportional award.

The court reviewed the outcomes of the prior motions, noting the Applicant's success on significant issues like interim spousal support and production orders, and the Respondent's refusal of a settlement offer.

The court found the Respondent's overall litigation strategy to be one of delay, aiming to force a favourable settlement.

Consequently, the court awarded the Applicant $18,000 in costs, payable forthwith, to be treated as costs incurred to obtain spousal support, reflecting full indemnity less a minor adjustment for the Respondent's partial success on two minor motions.

This application concerned the enforcement of a Letter of Request for Judicial Assistance from a Florida court, seeking an oral examination of a representative from the National Gallery of Canada (NGC) regarding the ownership of Monet paintings by Frederic Bouin, who was involved in matrimonial litigation with the applicant.

The NGC had previously produced documents but opposed the oral examination.

The court applied a six-factor test for enforcing letters rogatory, finding that the applicant failed to demonstrate that the sought-after examination evidence was relevant, necessary, or not otherwise obtainable, as Mr. Bouin himself was available for examination in the US proceedings.

Consequently, the court declined to order the oral examination.

The Children's Aid Society apprehended five children due to concerns including alleged sexual abuse, drug involvement, and unexplained injuries to one child.

While four children were returned to the mother's care under supervision, the temporary care and custody of one child, N., remained at issue.

The mother moved for N.'s return, which the father opposed due to concerns about supervision, a past grow-op, and the mother's candour.

The Society took no position on N.'s placement.

The court, applying section 51(3) of the CFSA, found no reasonable grounds to believe N. would suffer harm that could not be adequately protected by a supervision order, and ordered N.'s return to the mother and her partner under specific conditions.

The applicant brought a motion to vary existing child and spousal support orders following the respondent’s earlier-than-expected retirement and pension payout.

The court found a material change in circumstances sufficient to justify reconsideration of spousal support but dismissed the claim for continued child support.

The judge identified unresolved issues regarding the proper actuarial treatment of the pension payout and the appropriate calculation of spousal support, including whether the Spousal Support Advisory Guidelines should apply.

The court sought further submissions from counsel and potentially the actuaries to determine the correct approach before finalizing the variation.

The court determined costs following competing family law motions concerning the appointment of a professional to prepare a Voice of the Child Report and disclosure of a professional’s file.

Both parties achieved partial success on the motions.

The court found that neither party demonstrated unreasonable conduct under the Family Law Rules despite allegations from both sides.

However, the applicant had made an offer to settle regarding disclosure of the professional’s file and ultimately achieved the result contemplated by that offer.

In recognition of that offer, the court ordered the respondent to pay modest costs for the disclosure motion while each party bore their own costs for the remaining issues.

The applicant society sought an order for Crown wardship without access for an 11-year-old child who had been in care for over 38 months.

The respondent mother withdrew from the trial and abandoned her claim for access.

The court found the child could not be safely returned to the mother due to her ongoing substance abuse, domestic violence issues, and failure to engage in services.

The court ordered Crown wardship without access, finding that access would not be beneficial and would impair the child's opportunities for adoption.

The applicant mother brought a motion seeking leave to relocate with the parties' two children from Parry Sound to Aurora, to vary the respondent father's access schedule, and for retroactive child support.

The father opposed the relocation, arguing it would further alienate him from the children, particularly the daughter who already refused to see him.

The court applied the best interests of the child test from Gordon v. Goertz.

Despite two Office of the Children's Lawyer reports recommending against the move, the court granted the relocation, finding it would provide the mother with better economic opportunities and would not disrupt the father's existing alternate-weekend access with the son.

The court also ordered the mother to seek treatment to repair the father-daughter relationship and ordered the father to pay retroactive child support.

The applicant brought a motion to change seeking an increase in child support under an existing divorce order.

The respondent opposed the increase and brought a cross‑motion seeking termination of a nominal $1 per year spousal support order.

The court found the respondent’s guideline income to be approximately $191,500 after adjusting professional expense deductions and concluded the guideline table amount was less than the $2,600 monthly support already being paid.

The court ordered no change to the existing child support but directed that verified section 7 expenses be shared proportionately based on the parties’ respective incomes.

The respondent’s request to terminate the nominal spousal support order was also refused due to insufficient evidentiary basis.