Family and Matrimonial Law - SCJ

The applicant father brought a motion seeking to change the primary residence of the four-year-old child from the respondent mother to himself, and to determine the child's school attendance.

The motion heavily relied on an Office of the Children's Lawyer (OCL) report that was critical of the mother's lifestyle and stability.

The respondent mother opposed the motion, disputing the OCL report's findings and alleging bias.

The court dismissed the applicant's motion, emphasizing the high threshold for disturbing a de facto parenting status quo on an interim basis.

The court found that the OCL report, largely based on hearsay and contentious information, carried little weight for the purposes of the interim motion, and that the applicant failed to provide compelling evidence that the child's best interests required an immediate change in primary residence.

The respondent, a Lieutenant Commander in the Royal Canadian Navy, sought a temporary order to relocate with the three children of the marriage to North York, Ontario, due to a mandatory career development posting.

She also sought temporary sole decision-making authority and permission for the children to obtain passports and travel internationally without the applicant's approval.

The applicant opposed the relocation and the request for sole decision-making.

The court granted the temporary relocation, finding it to be in the children's best interests, particularly given the mother's primary caregiving role and the career implications of refusing the posting.

However, the court denied the request for sole decision-making authority and passport/travel permissions, deeming these issues for trial.

The court also provided guidance for the parties to agree on a revised parenting schedule.

The parties brought cross-motions regarding interim child support in a shared parenting arrangement.

The respondent sought to impute income to the applicant, who had left full-time employment to attend teacher's college.

The court found the applicant was intentionally under-employed but that her educational goals were reasonable.

Applying the Drygala framework, the court imputed income to the applicant based on a percentage of her previous earnings and ordered the respondent to pay $425 per month in interim child support, considering the significant disparity in the parties' financial circumstances.

The respondent, Muhammad Akhtar Agha, brought a motion seeking to change an interim child support order, vacate an exclusive possession order, appoint a litigation guardian for the applicant, obtain consent for CAS records release, reissue an OCL involvement order, sever the divorce, and dismiss the case.

The applicant, Zohra Fatima, sought to dismiss the motion due to the respondent's failure to obtain leave, her health, and non-compliance with prior orders.

The court dismissed all of the respondent's motions, finding no material change in circumstances to justify a change in child support, no reason to re-issue the OCL order, and that severing the divorce would invalidate the exclusive possession order.

The court also ordered the respondent to pay costs and prohibited him from bringing further motions without leave.

The applicant, Jonathan Arthur Huson, brought various claims against the respondent, Jenny Lee Kirby, including an equitable interest in property, return of tools, and damages.

Ms. Kirby brought a summary judgment motion to dismiss these claims.

The court dismissed all of Mr. Huson's claims, finding no genuine issue requiring a trial due to lack of admissible evidence and legal foundation for his assertions, including a claim for divorce when the parties were never married.

The court also addressed the addition of two other property owners as respondents.

Following two summary judgment motions in a family law proceeding, the respondent sought approximately $115,000 in costs based on offers to settle.

The applicant argued the amount was grossly excessive and disproportionate.

The court applied the principles of proportionality, fairness, and reasonableness, significantly reducing the claimed hours and disallowing time docketed by an unidentified law clerk.

The respondent was awarded a total of $30,000 in costs inclusive of disbursements and HST.

The Children's Aid Society brought a protection application regarding two children.

The older child disclosed sexual abuse by the mother's new partner, and the mother failed to protect the child, eventually resuming her relationship with the abuser.

The children were placed in the temporary care of their paternal grandparents.

At trial, the court found the children in need of protection.

The father sought custody but had moved to a new city with a partner who had seven children recovering from severe trauma, and the older child refused contact with him.

The court granted a final custody order to the paternal grandparents under section 102 of the Child, Youth and Family Services Act, finding it in the children's best interests, and ordered a structured access schedule for the parents.

The parties settled their family law matter with comprehensive minutes of settlement and brought a 14B motion for a consent order.

The court adjourned the motion, noting that while courts rarely interfere with such agreements, it cannot act as a rubber stamp and must independently consider whether the terms are in the children's best interests.

The parties were directed to file brief affidavits explaining the terms and updated Form 35.1 affidavits.

In the context of a motion to change a final support order, the parties brought cross-motions.

The mother sought additional financial disclosure regarding the father's corporate income, while the father sought a retroactive reduction in child support because the eldest child had moved in with him.

The court struck portions of the mother's affidavit as irrelevant, ordered the father to provide most of the requested financial disclosure to allow the mother's expert to assess his income, and granted the father's request to retroactively reduce his child support obligation and require the mother to pay support for the eldest child.

The plaintiff obtained an ex parte Certificate of Pending Litigation (CPL) against a property that had been transferred from the defendant's ex-husband to the defendant as part of a separation agreement.

The defendant moved to discharge the CPL, arguing the plaintiff failed to make full and fair disclosure of material facts, including a prior settlement and release, and the circumstances surrounding a previous motion to renew a writ of execution.

The court found the plaintiff breached the duty of full and fair disclosure under Rule 39.01(6) of the Rules of Civil Procedure and discharged the CPL, emphasizing the exceptional duty on parties seeking ex parte relief.

On an urgent family motion, the court held that the matter could proceed before a case conference under rule 14(4.2) because the respondent alleged she had fled an abusive relationship and there was sufficient corroboration of ongoing safety concerns.

Applying the best interests analysis under s. 24 of the Children’s Law Reform Act, the court granted the respondent temporary care and control of the parties' one-year-old child.

The court also permitted the respondent to relocate temporarily to Sioux Lookout, emphasizing her role as primary caregiver, the child's ongoing breastfeeding, objective medical evidence, and the need for family and therapeutic supports.

Facilitated access was ordered for the applicant on specified dates pending the case conference.

Following a successful motion permitting the mother to travel internationally with the parties’ children without the father’s consent, the court addressed costs under the Family Law Rules.

The mother sought $5,573.65 in costs, while the father argued that no costs or a reduced amount should be ordered.

Applying Rule 24, the court considered the presumption that the successful party receives costs, the complexity and importance of the issues, the reasonableness of the parties’ conduct, and the rates and hours claimed.

Although the matter was straightforward, it was significant to the parties and the children.

The court awarded reduced costs reflecting fairness and proportionality.

The parties separated after an 11-year marriage with two young children.

The father sought joint custody and equal parenting time, while the mother sought sole custody, citing concerns about the father's mental health, volatile temper, and lack of historical involvement in the children's care.

The court admitted expert psychological evidence indicating the father did not suffer from a mental illness.

However, applying the principles for joint custody, the court found the parents lacked the necessary communication and cooperation.

The mother was granted sole custody as she had been the primary caregiver and demonstrated better insight into the children's needs.

The court also resolved equalization of net family property and ordered the father to pay child support.

On a family law motion, the applicant sought distribution of sale proceeds from jointly owned property, an order striking the respondent's pleadings for repeated non-compliance with disclosure and payment orders, and costs for two prior 14(b) motions.

The court found extensive non-compliance with disclosure obligations and prior payment orders, and directed that sale proceeds be distributed to satisfy support-related costs, prior order obligations, reimbursement for a credit card payment, and the outstanding Visa balance.

Applying the Rule 1(8) framework and the appellate caution that pleadings should be struck only in exceptional circumstances, the court declined at this time to strike the respondent's pleadings because other remedies were available and merits adjudication remained preferable.

The applicant was awarded $6,000 in costs for the two 14(b) motions.

This costs endorsement arose from a family law contempt motion concerning non-compliance with prior orders requiring production of insurance documents and implementation of direct reimbursement for medical and dental expenses.

Although the court did not find contempt, it granted alternative compliance relief and held that the moving party was successful enough to attract costs under Rule 24 of the Family Law Rules.

The court rejected the argument that costs should be deferred, found the responding party's non-compliance unreasonable, and quantified costs by reference to hourly rates, time spent, proportionality, and fairness.

Costs of $3,088.97 were fixed and made payable forthwith with post-judgment interest, enforceable as child support.

The applicant moved to terminate spousal support following voluntary retirement at age 55, arguing that the resulting reduction in income was a material change in circumstances and that continued support would amount to double recovery after equalization of his pension.

The court held that retirement at age 55 and its income consequences were reasonably foreseeable when the parties executed both the partial and final separation agreements, particularly given the express contractual language that a voluntary reduction in income would not constitute a material change.

Applying the material change threshold under s. 17(4.1) of the Divorce Act and the principles governing negotiated spousal support agreements, the court found no basis to vary the support obligation.

The respondent's limited employability, modest circumstances, and ongoing economic hardship arising from the marriage breakdown supported continued support.

The motion was dismissed, support was fixed at $2000.00 per month from March 1, 2014, and costs were awarded to the respondent.

Costs decision following multiple motions in a matrimonial proceeding concerning disclosure issues and the sale of the matrimonial home.

The court found that although success on some minor issues was divided, the applicant was successful on the principal contested matter relating to control of the listing and sale of the matrimonial home.

The applicant sought substantial indemnity costs, but the court declined to award them due to the absence of settlement offers and lack of egregious conduct by the respondent.

Applying a partial indemnity approach and recognizing the mixed success, the court fixed costs at $2,000 inclusive of HST.

The court ordered that the amount be paid from the respondent’s share of the sale proceeds of the matrimonial home with interest.

Following earlier reasons on family law motions, the court addressed the issue of costs after inviting written submissions when the parties were unable to agree.

The responding party had been largely successful on the substantive motion and sought costs on a partial indemnity basis.

The moving party argued costs should be deferred because the spousal support relief granted was only interim in nature.

The court rejected that argument and held that the successful party was entitled to costs immediately.

Due to insufficient differentiation in counsel’s bill of costs between settled issues and argued issues, the court fixed costs at a reduced all‑inclusive amount.

On cross-motions in a family proceeding, the applicant sought interim access while the respondent sought child and spousal support.

The principal issue was whether the applicant stood in the place of a parent to a stepchild who had lived with the parties for approximately ten years.

Applying the Supreme Court of Canada framework for determining whether a person stands in the place of a parent, the court found that the applicant had assumed a parental role and therefore owed support under the Divorce Act.

Interim child support for two children was ordered after accounting for the biological father’s obligation, and interim spousal support was awarded due to the respondent’s illness and substantial loss of income.

The court determined costs following a family law motion in which the respondent had served an offer to settle that mirrored the order ultimately made.

The court found the applicant failed to comply with her obligation to provide financial disclosure and refused to answer whether she intended to do so when questioned during argument.

This failure affected the substantive ruling on section 7 expenses and was a significant factor in the costs determination.

In light of the offer to settle and the applicant’s unwarranted refusal to disclose financial information, the court awarded the respondent full indemnity costs.

Costs were fixed at $2,744.45 inclusive of disbursements and HST and made payable forthwith.