The ONCA released 67 decisions in July and 48 decisions in August. Six of these involved family and child protection law.
Windsor-Essex CAS v. R.H.C., 2016 ONCA 595
Hoy, A.C.J.O, Brown and Huscroft JJ.A.
At first instance, the Society successfully brought a motion for summary judgment seeking Crown wardship no access for the two children. The mother appealed to the SCJ, alleging ineffective assistance of counsel. The SCJ dismissed her appeal. On appeal to the ONCA, the self-represented mother renewed her argument regarding ineffective assistance of counsel and also sought to introduce fresh evidence. The fresh evidence was not admitted and her appeal was summarily dismissed.
The appellant wife argued that the trial judge erred:
(1) in dismissing her retroactive child and spousal support claim;
(2) in failing to award her a 50% interest in the husband’s RRSP;
(3) in failing to grant her credit for various post-separation payments she made in relation to the matrimonial home, the husband’s debts and their joint debts, and the husband’s life insurance.
All of these arguments were rejected.
With respect to (2), the trial judge had awarded the husband a 50% interest in the matrimonial home (which was solely in the wife’s name), using trust principles. The wife had not raised any argument at trial that she should receive a 50% interest in the husband’s RRSP. Instead, at trial she had unsuccessfully argued that an unequal division of net family property was appropriate. In seeking to obtain a 50% interest in the husband’s RRSP on appeal, the ONCA held that “it would be unfair to permit her to seek essentially the same relief, dressed up as a different claim on appeal”.
With respect to (1) and (3), the ONCA noted that it was open to the trial judge to make the findings that he did based on the record that was before him.
Costs of $22,000 were ordered against the wife for the appeal.
The father brought a motion to vary a final custody and access order. The motion judge, following a 12-day hearing, concluded that there had been no material change in circumstances and dismissed the father’s motion. The father appealed to the ONCA, arguing that the motion judge erred in finding no material change in circumstances.
The father argued that a material change in circumstances was made out because:
1) the mother had implicitly acknowledged a material change when she agreed to extend the father’s access by one day per week mid-trial of the Motion to Change;
2) there was a change in the father’s workplace arrangements such that he traveled less and was able to assume a greater parenting role.
With respect to (1), the ONCA, unsurprisingly, rejected the father’s argument that a concession made by one parent relieves the other parent from demonstrating a material change, noting that this would have negative and far-reaching implications for family law generally.
With respect to (2), the trial judge had found that the father’s ability to meet the needs of the children had not materially changed since the time of the Final Order as a result of him changing his employment. The ONCA found no reason to interfere with this finding.
The husband appealed the trial judge’s decision to grant sole custody to the wife. The OCL report had recommended that the father be granted sole custody with generous access to the mother. The trial judge, however, granted sole custody to the mother.
He also appealed the trial judge’s finding that the court did not have jurisdiction to make any ruling regarding the wife’s mother’s interest in the matrimonial home because the husband had not made any claim against the wife’s mother and she was not a party to the proceedings. The matrimonial home was held 50% by the wife and 50% by the wife’s mother. At trial the husband made a constructive trust argument in relation to the matrimonial home, without seeking to add the wife’s mother as a party to the case.
Both of the husband’s arguments were rejected, with the court noting that OCL reports do not bind trial judges, and that the trial judge was correct in noting that the court could not make an order affecting the wife’s mother’s interest in the matrimonial home without the wife’s mother being a party to the proceeding.
The trial judge found that the appellant father had created an unlawful status quo by not providing full information to the court in obtaining an ex parte custody order, and granted custody to the mother. The appellant father argued that the trial judge was biased and erred in concluding that the father had created an unlawful status quo.
The ONCA dismissed the bias argument but agreed that the father had not deceived the court at the ex parte motion. In the end, however, the court was unable to conclude that this error materially affected the trial judge’s decision that granting the mother custody of the children was in their best interests, and the ONCA declined to order a new trial. No costs of the appeal were awarded as both parties were legally-aided.
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