15 Appeals in 1500 Words

By: Jennifer Cooper

Family law cases usually make up between 4% to 7% of all ONCA appeals. During the pandemic this increased to about 10%. 

In September and October 2021, the ONCA released 15 family law decisions. They dismissed 11 appeals. They allowed one on a jurisdictional issue and allowed a second which could have been easily resolved by a phone call with the trial judge. They granted stays of two orders respecting children pending further appeal. 

Two appeals were brought after Orders made under Rule 16(12)(a) motions. This Rule permits the Court to decide a question of law before trial if the decision will shorten the trial or save costs.
Can you ask for child support as against a deceased parent?

Appellant sought to vary an order from 1978 seeking retroactive child support from the father’s estate.

Answer: No. An Application cannot be brought to claim or vary a support order against a decedent’s estate if the original order is silent on whether that order binds the estate.

Can an estate receive at-source pension division payments as part of equalization?

Adrianna’s pension was in pay before separation.  Michael was either owed a considerable equalization payment from Adrianna due to the large value of her pension, or he was owed an at-source monthly division of her pension payments until her death. 

Michael was terminally ill and died before the Appeal.  

Can Michael and Adrianna agree that Michael’s share of Adrianna’s pension benefits be paid to his estate after his death until Adrianna herself dies? 

Answer: Yes.

Saying yes benefits Adrianna by allowing her to pay over time if she did not have access to funds to satisfy equalization in a lump sum.  The risk is that Adrianna would live so long that she overpays Michael’s estate.

Fairburn A.C.J.O. does an interpretational deep dive into the intersection between the Pension Benefits Act, the Family Law Act, the Regulation, and their respective intents. 

Two appeals involved cases which challenged marriage validity

Paul and Sharon married on July 27, 2019.

Six weeks later, Paul’s son obtained a guardianship order with respect to Paul’s property and person.

On July 31, 2020, Sharon was added as a party to the guardianship application, and the Court flagged the validity of Paul and Sharon’s marriage as a threshold issue in the Application.

On December 22, 2020, the Court determined the marriage was valid.  That decision was appealed. 

On  May 27, 2021,  the guardianship proceedings were stayed pending appeal of the validity issue.  

Sharon moved to appeal the stay which motion was dismissed on July 13, 2021.

She took another kick at the can and tried to set aside the dismissal.  

The ONCA dismissed this (again), indicating that they wished to know the outcome of the validity of the marriage appeal before deciding the guardianship application.

The issue of the marriage validity was to be argued October 1.

Sophie and Amer participated in a religious marriage ceremony in Tennessee, then moved to Ontario where they had three children and purchased a home.  They took no steps to register their marriage in either jurisdiction. 

When Sophie brought an Application, Amer claimed there was no valid marriage and therefore property issues should be dismissed. He believed the religious ceremony was entered into only to permit the parties to engage in sexual relations.  

The Trial judge found that the religious ceremony did not create a valid marriage under Tennessee law, but it didn’t matter because the parties had spent their entire married life in Ontario.

Can section 31 of the Marriage Act validate a marriage solemnized outside of Ontario?  

Determinations of validity are grounded on the facts of the individual case.  Is there evidence of intention to comply or, conversely, of deliberate non-compliance with the formal requirements of the law in Ontario? 

The only requirement the parties missed was the requirement to obtain a marriage licence. They complied with all other requirements and neither of them knew that they needed a licence. They entered into their marriage in good faith and conducted themselves as married (cue tax returns, mortgage documents, birth records). 

Appeal dismissed and marriage found to be valid. 

Fun quote: “the law will not permit him (the Husband) in a subsequent action to plead his own fraud upon the bride in order to have the ceremony declared a nullity”  

One case turned on Forum 

Conveniens

Appeal from an Order which concluded that Ontario had jurisdiction to decide a property and support dispute where the assets in question are primarily located in China.

The appellant owned companies and properties in China.  The respondent allegedly signed three written agreements in China related to the Appellant’s assets. 

The respondent asserted that the parties lived in two matrimonial homes in Ontario, each owned by the Appellant, and that he contributed to a Canadian bank account in the Appellant’s name.

Decision: the ONCA agreed that Ontario had jurisdiction to hear the case, however disagreed that China was not the more appropriate forum. Appeal allowed.

Two cases sought to reargue their cases on appeal.

The parties resolved parenting and ongoing child support after starting a trial.  

They agreed the remaining financial issues should be determined by summary judgment. 

After the decision was released, the appellant asked to reopen the trial and have the judge reconsider his decisions.  All arguments were dismissed. 

All arguments were dismissed again on appeal.

After an 11-day trial about spousal support the payor spouse sought to reargue his case on appeal.  Trial decision upheld, including the $180,800.00 costs order.

One appellant likely regrets his obstructive behaviour 

Husband failed to comply with financial disclosure orders.  He refused to instruct his accountants to cooperate with Wife’s experts. Husband’s Answer was struck.  

Husband’s appeal of the Order striking his Answer was dismissed.  Husband failed to appear at a hearing prior to trial to determine whether he ought to be provided with some degree of participation in said trial.  

Husband was present at trial.  Husband did not move to vary the non-participation order but instead chose to be disruptive during trial.  

Husband appeals trial order and seeks to file fresh evidence.

Appeal dismissed.  OCA upholds costs order of $217,229.25 from a three-day uncontested trial.

Three appeals of Motions to Change failed to demonstrate a “palpable and overriding error” had occurred.  Also, don’t try to clean up your case by adducing new evidence that was available in the original proceeding.

The motion judge varied child and spousal support retroactively to 2011 and terminated child support as of each child’s 18th birthday.  She also terminated spousal support 12 years after separation after a 12-year cohabitation.  

The Appellant sought to overturn all elements of the Order.  She argued that the judge should have weighed the evidence differently.

Appeal dismissed

The motions judge declined to find a material change justifying a change in decision-making responsibility but did increase Father’s parenting time with the child.  When Father failed to comply with financial disclosure orders, the judge imputed an income to him based on factors including collateral evidence of his lifestyle (such as renting a Maserati).  

Father appealed the entire decision and sought to now provide financial disclosure as new evidence. 

Appeal dismissed. Motion to adduce new evidence dismissed, finding it was not now open to the father to admit evidence available to him at the time of the motion to achieve a better result on appeal.

A payor argued the motions judge erred in fixing the effective date of the support adjustment and attempted to adduce fresh evidence.  Appeal dismissed.

A dubious victory

This case involved a homemade marriage contract, deductions, exclusions, and a “win” on appeal of $4,623.00 

The Wife owned a residence on date of marriage and had the Husband sign a contract agreeing to reimburse her for $45,000.00 (repayment of house deposit) on marriage breakdown, which was to “continue forward should they move to another location.”

They did move, and the trial judge made a mathematical error of including that $45,000.00 as a date of marriage deduction for the Wife, then double-reimbursing her off the top of the sale proceeds of their valuation-date (second) home. 

After correcting the error, the equalization payment was adjusted by $4,623.00. The OCA noted that the trial judge invited the parties to contact him if he’d made an arithmetic error.  The Husband could have organized a phone conference and avoided appeal.

Two Stays

In a wrongful retention case, the Application judge ordered that the mother should return to the UAE (a non-Hague signatory) with her children pursuant to s. 40 of the CLRA.  Mother argued inter alia that the precariousness of her residential status in the UAE put the children in danger of emotional harm if she were to be involuntarily separated from them.   Mother’s appeal to the ONCA was dismissed. Lauwer, J., dissented. 

Mother brought a motion to stay the ONCA order pending leave to appeal to the SCC. She was successful because:

There is a serious issue to be tried.  
This is a low threshold;
The Court considered that there was a dissenting appellate decision on the issue in Manitoba; and
Lauwer J.A.’s dissent at the ONCA could inspire the SCC to grant leave.
There is irremediable prejudice to the Applicant.

The Court considered the best interests of the children here.

The balance of convenience favours granting the stay

The Court considers the risk of disrupting the children twice and was reassured that SCC leave decisions are determined promptly.

Appeal from an Order of the SCJ that set aside a custody application brought by foster parents and which paved the way for Dilico Anishinabek Family Care to place an indigenous child with her maternal relatives in Manitoba.

The foster parents brought a motion to stay pending their appeal to the ONCA.

Dilico agreed that a stay was appropriate pending appeal, however argued that their authority as the child’s legal guardian was not being respected.  They asked for conditions which would allow them to maintain the child’s ties to her indigenous family and culture.

The foster parents opposed this, arguing that Dilico’s guardianship authority derived from an invalid customary care agreement.

The ONCA granted the stay, and imposed the conditions requested by Dilico.

Alienation after a final Order:  Rule 1(8) enforcement motion, contempt motion, or motion to change?

The motions judge ordered that the mother should have the parties’ two children in her sole care to allow them to attend the Family Bridges Program.  The father was ordered to have no contact with the children.  The Father had significantly undermined the mother’s relationship with one child and interfered with the therapeutic reintegration process.  The Court imposed a restraining Order on the father even though it was not specifically pleaded.  The authority?  Rule 1(8).

The Father appealed on a number of grounds, arguing primarily that the motions judge did not have the authority to order such a drastic substantive change.  The majority on appeal upheld the Order, engaging in a full discussion about the scope of Rule 1(8) powers and finding that it was intended to be much more than a procedural tool.  

Dissent:  Nordheimer J.A. pointed out that the motions judge had essentially varied the parties’ final parenting order while denying the father and children the procedural safeguards to which they were entitled before a serious variation was made.  He commented that parenting orders should not be used as a punishment for contempt. n

Jennifer is a partner at Hughes + Cooper LLP, and specializes in Family Law. 
She can be reached at: 
111 Charles Street
Hamilton, Ontario
L8P 3E4
Phone: 905-523-5252
Email: [email protected]

Endnotes

(Or more)
Blacklock v. Tkacz, 2021 ONCA 630
This is a remarkably interesting read, despite being a case about the driest aspect of family law, pensions.
Meloche v. Meloche, 2021 ONCA 640
Tanti v. Tanti, 2021 ONCA 607
Lalonde v. Agha, 2021 ONCA 651
Li v. Li, 2021 ONCA 669
Muraven v. Muraven, 2021 ONCA 657
Diamond v. Berman, 2021 ONCA 653
Except in relation to the children’s issues
Burke v. Poitras, 2021 ONCA 703
Skinner v. Skinner, 2021 ONCA 658

13 Hamilton’s own, the fabulous and brilliant Madam Justice Lauren Bale (I am on her lifetime conflict list). 
14 Father appealed this aspect of the Order stating that it failed to reflect the maximum contact principle.
15 Khairzad v, Erroussa, 2021 ONCA 667
16 Jonas and Akwiwu, 2021 ONCA 641
17 Also an allegation of forgery, and custody of a dog (not discussed on appeal).
18 Knight v. Knight-Kerr, 2021 ONCA 686
19 N v. F., 2021 ONCA 688
20 M.L. v. B.T., 2021 ONCA 683.
21 Bouchard v. Sgovio, 2021 ONCA 709