Skip to content

Posts from the ‘Children’ Category

What’s Considered ‘Bad Faith” in Family Law?

Image result for bad faith

What’s Considered ‘Bad Faith” in Family Law?

Everyone has stories about divorces-gone-bad:  High levels of conflict over trivial matters, under-reporting income or hiding assets, and other forms of generally bad behaviour by former spouses towards each other.

Divorce being the emotionally complex process that it is, it’s hard to draw the line between straightforward “asserting your legal rights” versus outright “bad faith” behaviour.

This leads to an interesting question:

Does Canadian Family Law have a test for what is tantamount to “bad faith” conduct?

It turns out, it does.  This was confirmed in an Ontario Court of Appeal decision called Scalia v. Scalia where the court said:

The legal test for bad faith in the family law context … is that the impugned behaviour must be shown to be carried out with “intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.” In short, the essential components are intention to inflict harm or deceive.

As against this stated test, courts are sometimes called upon to evaluate a Family litigant’s behavior. They don’t always do so correctly.

For example, in a recent case called Turk v. Turk, a court found that an earlier judge on an application had failed to properly identify and apply the “bad faith” test to an acrimonious property and custody dispute between spouses.   The results at trial had been mixed, and both parties were now seeking their legal costs from the other.  However, the wife added that she should get full costs from the husband because of his “egregiously bad faith behaviour”.

The court considered the evidence on this point, and reviewed the application judge’s findings that the husband had:

  • Failed to comply with this disclosure obligations;
  • Had been dishonest about the status of one of his corporate ventures, claiming that it was in its “infancy”, when in reality – according to a public statement the wife’s lawyer  found on the internet — the corporate launch was imminently due; and
  • Failed to disclose, and offered no credible explanation for, his interest in another corporate venture.

The reviewing court chronicled these shortcomings of the husband, and said:

… It is possible that [the husband] consciously and deliberately concealed his interest in [the companies] when the Separation Agreement was being negotiated. When I consider the totality of his non-disclosure conduct, I prefer a different characterization of [the husband’s] behaviour that is just as serious. [The husband] does not care if he is complying with his disclosure obligation. He has made this clear through his repeated non-compliance with this important obligation. He is dismissive of the documentary disclosure process and the Family Law Rules. His chronic non-compliance reveals incomplete sworn financial statements and a failure to follow court orders.

Simply put, [the husband] remembers what is beneficial to his position in this litigation.

Indeed, the court found that the husband’s conduct “created an atmosphere of distrust and unnecessarily contributed to the cost of this litigation.”  He also took numerous unreasonable stances in the proceedings, disputed non-essential points, and needlessly drove up the time and costs to untangle the couple’s issues.

Still, previous application judge’s conclusion that the husband had acted in “bad faith” could not stand, since it did not meet the established Family Law-specific legal test on these facts.  In short – and while finding that “there was good reason to criticize Stuart for his unacceptable and unreasonable conduct” – the court ultimately concluded that it did not “rise to the level of wrongdoing, dishonest purpose or moral iniquity the test for bad faith requires.”

The court went on to allocate litigation costs between the parties, accordingly.

For the full text of the decisions:

Turk v. Turk

Scalia v. Scalia

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Is Using the SSAGs Truly “Voluntary”? When Can a Court Deviate from Them?

Image result for spousal support

Is Using the SSAGs Truly “Voluntary”? When Can a Court Deviate from Them?

Those of you who read my Blog regularly are familiar with the Spousal Support Advisory Guidelines (the “SSAGs” or simply the “Guidelines”) which are designed to help spouses, lawyers, mediators and judges to “determine the amount and duration of spousal support within the existing legal framework of the Divorce Act and the judicial decisions interpreting its provisions.”

However, the law makes it clear that the Guidelines are not legally binding, and they are used “only voluntarily”.   But does that mean they can be disregarded by judges entirely, when making a ruling on spousal support?

Not exactly.

In a case called Slongo v. Slongo, the Ontario Court of Appeal confirmed that any departure by a judge from the Guidelines requires “adequate explanation.”  As the Court explained:

…the Guidelines, while not binding, should not be lightly departed from. This is in large part because, without them, it is very difficult to establish a principled basis for arriving at a figure for spousal support.

This principle was expounded on in a recent case called Sharpe v. Sharpe where the court said:

The Guidelines were designed to be used under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am. ss. 1 to 35.1, but are in fact used as a useful tool by federal, provincial and territorial courts in the determination of spousal support and variation. I recognize that the Guidelines are neither legislated nor binding but note that it seems that use of the Guidelines has evolved from a “cross-check” or “starting point” to the Guidelines being a useful tool that should not be deviated from lightly.

So without wanting to quibble at the meaning of the word “voluntary”, it seems the use of the Guidelines is something a little more than that, at least for judges making a spousal support ruling.

For the full text of the decision, see:

Sharpe v. Sharpe

Slongo v. Slongo

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Must a Judge Actually Read the Materials That Family Litigants File?

Image result for judge bored

Must a Judge Actually Read the Materials That Family Litigants File?

In a recent Court of Appeal decision, the court entertained a novel little question:

Does the fact that a motion court judge admitted to not having read the materials filed by the parties automatically mean his or her judgment on their matter should be overturned?

The background facts in Kelly v. Findlay were uncomplicated:  The unmarried parents of a 20-year old daughter, who never lived together and never married, were in court before a judge on a motion to deal with child support and the payment of extraordinary expenses, most notably relating to the daughter’s horseback riding activities.

Apparently, during the course of hearing the motion on those issues the judge stated (in her own words) that she had “not had an opportunity to review the materials in any detail.”    However, she went on to make a substantive ruling on the various issues the parties had raised.

Afterwards, the father brought an appeal on the basis that the motion judge’s admitted failure to read the materials prior to the hearing brings the administration of justice into disrepute.

However – and perhaps surprisingly – the Appeal Court rejected this ground of appeal.

Clearly, the motion judge overtly admitted to not having read the file in detail, stating that she only received it the morning of the hearing.   But this was not fatal in the circumstances.  The Court of Appeal observed:

However, it is also clear that the Motions Judge took the opportunity to both listen to the arguments made by the parties and to consider the materials that were before her.  She also provided the parties with a detailed endorsement, outlining both her decision and the reasons for that decision.

A judge who acknowledges that she has not had an opportunity to read all the materials does not bring the administration of justice into disrepute.  There is no merit to this argument and I reject it.

For the full text of the decision, see:

Kelly v. Findlay

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Court Finds Wife’s New Lawyer’s Attempt to Renege on Deal “Too Cute By Half”

Image result for court

Court Finds Wife’s New Lawyer’s Attempt to Renege on Deal “Too Cute By Half”

The question in a case called Hillis v. Hillis was whether the wife’s new lawyer could (conveniently) rely on the fact that the wife had not signed her own Offer to Settle, as a means of getting out of a deal they had negotiated with the husband.

Spoiler alert:  The court wasn’t buying it.

The separated husband and wife had been negotiating through their respective lawyers about selling their matrimonial home and related issues.  The wife’s first lawyer made a formal Offer to Settle, and the husband’s lawyer accepted it on the husband’s behalf.

However – and despite being the one to put the Offer forward – the wife herself never personally signed it.   Technically, this was a breach of the Family Law Rules (FLR) on validly-accepted Offers to Settle.  Still, the parties took steps in furtherance of their intended agreement.

Then, the wife got a new lawyer.  Perhaps opportunistically, that new lawyer relied on technicalities to claim the wife’s non-signature meant there was not Offer capable of being accepted.  Essentially, the new lawyer reneged on the Offer that had been made to the husband.  The husband went to court for an order validating their mutual acceptance of the deal that had been struck, even despite the lack of signature.

The court agreed with the husband that “there are different routes to a contract that don’t always require compliance” with the FLR as to signature:

Using the ordinarily understood principles of contract law, it is clear to me that there was offer and acceptance and hence a valid and binding agreement.

The court pointed out that this couple had previously entered into a formal cohabitation agreement, and knew that their lives together were governed by contract, including the question of how the matrimonial home would be dealt with, the custody and access of their two children, and the exchange of financial information.  They agreed to have the draft Minutes of Settlement incorporated into a formal Court Order.  The court said:

[The wife’s] counsel prepared and provided those draft Minutes shortly after the [the husband’s] acceptance.

There was some jigging of the language of that document by the parties’ counsel.

Then, the [wife] changed counsel and lo and behold! her new counsel disapproved of the draft Minutes and entered the fray demanding that the Minutes be tailored to be precisely consistent with “the offer your client claims to have accepted”. …

It seems to me that after the [husband] had accepted her Offer, the [wife] had second thoughts and that those second thoughts were occasioned by the only material change in the parties’ circumstances:  her new counsel.

In rejecting the late-breaking technical objection by the wife’s new lawyer, the court concluded that the former couple had agreed to all essential terms of the wife’s Offer, when the husband accepted.  The court made a formal order that incorporated those same terms, adding:

It is important to remember that the Offer was made by the [wife].

It my view, the [wife’s] new lawyer’s position is too cute by half.

For the full text of the decision, see:

Hillis v. Hillis

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

New Online Divorce Application Service Enters Pilot Stage 

Image result for online application

New Online Divorce Application Service Enters Pilot Stage 

The Ontario Superior Court of Justice (OSCJ) has announced that couples who live Brampton, Hamilton, Ottawa, or Toronto and who collectively agree to a divorce may now file an application for divorce online. This pilot study is being conducted with an intention to speed up the process of filing for a divorce.

Although, before you submit an application you must qualify and have all of the required documents. The OSCJ states that:

To file online either you or your spouse must:

  • currently live in one of the four pilot locations (Brampton, Hamilton, Ottawa and Toronto)
  • have lived in Ontario for at least one year (leading up to filing your application)
  • be separated for at least one year

Both you and your spouse must also:

  • have been married in Canada or have an electronically-issued marriage certificate (not a scanned copy) from another country
  • agree to the divorce
  • be able and willing to sign court documents
  • must swear that the documents are true in front of a notary public or commissioner for taking affidavits
  • have already resolved any other family law matters, such as parenting, spousal support or division of property
  • not require a fee waiver

The OSCJ also required the relevant documents:

  1. Form 8A: Application (Divorce)
  2. Form 36: Affidavit for Divorce
  3. Form 25A: Divorce Order
  4. Copy of your marriage certificate
  5. Form 35.1: Affidavit in Support of Claim for Custody or Access
  6. Child or Spousal Support Forms

The cost of an application is currently $447. After application the court will review it and send an email including a) your joint divorce application with an attached court seal and, b) the assigned court file number and date of issue.

The OSCJ also advises that any couple wishing to file an application should speak to a lawyer beforehand to ensure that they qualify, and have all of the requisite documents.

More information on how to apply can be found here. Or if you have any questions you can contact us at Russellalexander.com

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  RussellAlexander.com

Did Trial Judge Go Wrong By Granting Husband a “Support Holiday”?

Image result for holiday

Did Trial Judge Go Wrong By Granting Husband a “Support Holiday”?

Did an Ontario trial judge make a mistake by granting a bankrupt husband a two-year “support holiday,” meaning a temporary break from paying spousal support, to allow him to “get back on his feet”?  And did the judge err further, by reducing his support obligations, when the break was over?

This was the question for the Ontario Court of Appeal in the case of McKinnon v. McKinnon.

The couple had been married for 28 years, before separating in 2007.  They had a separation agreement that provided for the husband to pay spousal support for the wife, and child support for the youngest of their three children.

The agreement could be reviewed every three years for both entitlement and amount of support.  It also stipulated that the wife, who did not work outside the home, would take reasonable steps to achieve self-sufficiency. Various adjustments had been made over the years, and the couple had negotiated certain changes as well.

However, things changed significantly in 2013 when the husband left his job, and assigned himself into bankruptcy.   The Family Responsibility Office suspended his licence for defaulting on his support obligations.  The wife, who had health issues, claimed she still needed spousal support since she had no income.

The couple appeared before a trial judge in 2015 to resolve the situation.  Although that judge confirmed the wife’s ongoing entitlement to support, he also decided to grant the husband a two-year “support holiday,” which would start on February 1, 2015 and end either two years later, or shortly after he got his license back (whoever came first).  The judge also ordered that once the support holiday was over, the husband should be allowed to pay significantly less spousal support than was recommended under the Spousal Support Advisory Guidelines (SSAGs), based on guesses as to what the husband might be able to earn as a mechanic at that later date.

The Court of Appeal considered these facts.  While noting that lower-court support orders should be given significant deference, it concluded that the trial judge had made a mistake here.   For one thing – and aside from the reference to letting the husband “get back on his feet” and noting he had no driver’s licence – the trial judge neglected to explain this order was made.

In fact, the ruling seemed to have been incorrectly guided by the terms of the mediated settlement that the couple had almost managed to reach, but which they never signed.  The trial judge even referred to the fact that he was making an order that “incorporates as much as possible the spirit of the settlement” between these spouses.

The Court of Appeal concluded this was also an error:  The terms of an unimplemented settlement agreement could not justify the trial judge’s decision to depart from SSAGs, or justify a two-year support holiday. By law, the judge could only consider an offer to settle, or draft minutes of settlement, in the context of costs – not in the context of being swaying on the substantive ruling.  The judge should have stuck to the evidence that was presented to him in court.

In the end, the Court of Appeal substituted its own spousal support order, in keeping with the SSAGs amounts and current income levels, but with no “support holiday” even despite the husband’s current job predicament.

For the full text of the decision, see:

McKinnon v. McKinnon

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at www.RussellAlexander.com

 

 

Wife Didn’t Know Husband Had Divorced Her – Can She Overturn it?

Image result for divorce

Wife Didn’t Know Husband Had Divorced Her – Can She Overturn it?

In Rai v. Grewal, the couple had started living together in 2003, and got married 8 years later, only to split up a few years after that. The husband applied for a Simple Divorce, which is a straightforward procedure designed for cases where the parties have no complex divorce-related issues between them, with evidence being put in by Affidavit.   The husband was granted a divorce “over the counter” at the courthouse in early 2018.  He married another woman two months later.

The problem was, the wife apparently did not realize the divorce had been granted.  It was only when she and the husband were negotiating their remaining matrimonial issues – a month after the Divorce Order and a month before his wedding to the new woman – that the wife realized that the husband had formally divorced her.

The wife then waited another three months after this revelation.  She then brought a motion to set aside the Divorce Order, and refused to agree to any compromise that would simply separate out the matrimonial issue from the divorce itself.

In support of her motion, the wife claimed the husband had lied on his Affidavit.  But even giving the wife the benefit of the doubt on that point, the court pointed out that this was her only real objection, and the sole basis for setting the Divorce Order aside.   It noted that the wife’s motive seemed to be to “exact leverage” against the husband.

The larger problem, the court said,  was that if the divorce was overturned at this stage, the husband would be significantly prejudiced, since he had moved on to a new relationship. The court said:

In this case, there is real prejudice to the Husband. He is remarried.  His new wife will be prejudiced. He will be “disadvantaged” if the order sought is granted as will his new spouse.

In this case, the Wife refuses to accept an order which would remove all prejudice she claims – the corollary relief, including child and spousal support.

The refusal to consider and accept [an] order [dividing the issues] suggests that the Wife’s motivation is to exact leverage on the Husband regarding the corollary relief rather than avoiding any prejudice to her. 

The court also called the woman out on her three-month delay, rejecting her claims that it took time to investigate the matter before brining the motion.  It found the evidence was to the contrary:  Neither the wife nor her lawyer had made any enquiries of the husband about the Divorce Order – not even to obtain a copy of it.  Nor had they obtained a copy from the Trial Coordinator’s Office, which would have taken a day or two at most.

After weighing the spouses’ respective positions, the court declined to set aside the Divorce Order, and ordered the remaining marital property issues to go forward for resolution by separate court processes.

For the full text of the decision, see:

Rai v. Grewal

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Newfoundland Court Makes Landmark Ruling Recognizing Polyamorous Parents

Related image

Newfoundland Court Makes Landmark Ruling Recognizing Polyamorous Parents

As the CBC recently reported an East coast court has made a ground-breaking ruling that affirms the parental rights of those in non-traditional families.

In Canada, polyamorous relationships – which involve three consenting unmarried adults rather than the customary two – are legal.  (They are different from marriages that purport to involve multiple parties, such as bigamy and polygamy.  These are illegal under Canadian law).

What has not been as clear, is whether and how parents who hare involved in polyamorous unions should be legally recognized. Recently, the family court in Newfoundland and Labrador had a chance to tackle this very issue.

The case involved a family consisting of two men, and the mother of an infant. The court introduced the unconventional family arrangement this way:

J.M. And J.E. are the two male partners in a polyamorous relationship with C.C., the mother of A., a child born of the three-way relationship in 2017. The relationship has been a stable one and has been ongoing since June 2015. None of the partners in this relationship is married and, while the identity of the mother is clear, the biological father of the child is unknown.

The adults went to court to have all three of them legally recognized as the parents of the child.  This followed after their failed bid to the Newfoundland Ministry of Service to have themselves administratively designated as parents; that application was rejected on the basis that the provincial Vital Statistics Act allowed only two parents to be listed on a child’s birth certificate.

In making the order in their favour, the Newfoundland family court focused on the best interests of their child, which remains the predominant factor in any family issue involving children.  It noted that the unique arrangement between the three adults gave rise to a stable, loving family, and one that certainly did not detract from the child’s well-being.

While conceding that the province’s three-decades-old Children’s Law Act also allowed for no more than two people to be named as the legal parents of a child, the court said this did not embrace the “now complex family relationships that are common and accepted in our society.”  It noted that the more narrow historical interpretation should not circumvent what was in the child’s best interests, adding that “[s]ociety is continually changing and family structures are changing along with it.”

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Does Child Support Get Cut Off If University Student Take a “Gap Year”?

Image result for gap year

Does Child Support Get Cut Off If University Student Take a “Gap Year”?

In the recent case in Hilhorst v. Amaral, the court considered the effect that a “gap year” in a student’s education had, on a parent’s overall child support obligations.

The court heard that the parents had lived separately for 18 years, and had a daughter together who was now 21 years old.  The daughter completed high school in 2016, and took a “gap year” where she did not immediately enroll into a college or university program.  At this point, the father took it upon himself to terminate child support.

Then, a year after graduating and with her “gap year” done, the daughter enrolled in a college Veterinary Sciences program for 9 months, to obtain her first diploma.  The father conceded that he owed (but had not paid) child support for that period.  However, he resisted paying child support for the period that covered the gap year; moreover he was not willing to pay child support for a second diploma, in Community Studies, that the daughter now wanted to pursue.

The mother applied to have the court order the father to pay child support for the entire period after their daughter completed high school, and until she completed her post-secondary education.

The court both explained the law in this area, and considered the circumstances, writing:

Dealing firstly with the continuity of the child support obligation, it is not the case that the obligation to pay support ceases automatically on the day a child finishes high school.  The test under the Family Law Act is set out in s. 31 (1).  Parents are obligated to pay support for children who are minors, who are enrolled in a full time program of education or who are unable because of illness, disability or other cause to withdraw from parental care.  This language is easily broad enough to cover a period of time between high school and college unless the child is actually self-sufficient. It is also broad enough to re-trigger an obligation to pay support if the child takes time off and then returns to school to pursue further education.

The question is not whether there is an absolute cut-off date or event for support but whether or not the child remains dependant on the parent to whom support is paid and whether or not that dependency remains reasonable under all of the circumstances.  …

The court then applied these principles to the case at hand:

In this case, the child took what amounts to a “gap year” during which she was working and saving money for college and travel.  During that time, she was paying modest rent to the [mother] and was able to travel to Europe.  The [mother] is not seeking support for the period of July 2016 to April 2017 and is not entitled to it.  The [mother] \is seeking support for the period of time the child was enrolled at Algonquin College pursuing a diploma as a veterinary assistant.  She also seeks to have that support continue during the time when the child is pursuing a second diploma in community studies.

The court concluded overall that it was not unreasonable for the daughter to pursue a second diploma to “enhance the education she has already obtained.”  The court noted that she has a “plan for her career and believes the Community Studies Program will enhance the value of the diploma she has already earned.”

In the end, the father was declared to have an ongoing child support obligation, lasting until the daughter completed her post-secondary education by obtaining a second degree.

For the full text of the decision, see:

Hilhorst v. Amaral

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Mother Wins Appeal of Order Forcing her to Return to England or Lose Custody

Image result for travel

Mother Wins Appeal of Order Forcing her to Return to England or Lose Custody

The upcoming summer travel season makes the case of Zafar v. Saiyid particularly interesting, since it involves a not-uncommon scenario of a separated parent taking children on holiday and then deciding never to come back. It illustrates only some of the complex judicial machinery that gets set in motion when a parent makes this kind of unilateral decision.

The mother and the two young children, who were Canadian citizens, had come to Canada from England for a summer holiday.  The father had given his permission for their travel, and she was slated to return to England by a certain date.

Instead, while still on holiday the mother advised the father that the marriage was over, and that she was staying in Ontario with the children. The father immediately filed an application under the Hague Convention, asking for an order for the children’s return.  The Convention allows a court to order the return of a child who has been wrongfully removed or detained from the jurisdiction.

In terms of granting such an order the jurisdictional test under the Hague Convention centers mainly on the children’s “habitual residence”, which in this case was England.  (This is unlike more substantive questions of custody, which under Ontario law focuses on the “best interests” of the children).

However, the Convention also allowed the mother to resist having to return the children on the basis that they were at risk of physical or psychological harm.  She accused the father of being “threatening, verbally abusive, financially controlling” and of showing “intolerable behaviour towards the mother”, which she claimed deprived the children of a safe environment. The father denied these allegations outright.

Initially, the mother lost her bid to stay in Ontario.  The lower court judge ordered her to return the children to England by December 1, 2018; if she did not, the father would be given sole custody.

The mother then obtained a stay of this order, and voluntarily returned to England where she applied for orders allowing her to formally relocate with the children to Canada.  She also brought an appeal in Ontario on procedural grounds, claiming among other things that the lower court judge had been legally wrong to order her to immediately return to England, and to threaten to strip her of custody if she did not.  She also claimed that the lower court judge had incorrectly failed to conduct a “risk analysis” about her allegations of psychological abuse on the basis that there was conflicting affidavit evidence on that point.

In hearing that appeal, the Ontario Court of Appeal concluded these were indeed mistakes on the part of the lower court judge.  On the point of the order to return, the Appeal Court said:

To award custody of the children to one parent as a consequence of the other parent’s failure to obey a court order is an error as it fails to consider or prioritize the children’s best interests. 

Similarly, to the extent that he did so, the application judge was without jurisdiction to order the appellant to return to England with her children.

As for the conflicting affidavits as to the father’s psychological abuse, the lower court judge should have considered whether to allow the mother and father to each give oral evidence in the circumstances.

Collectively, these failures by the judge were tantamount to an error in law, which warranted the granting of part of the mother’s appeal in Ontario.  (The remaining part, relating to whether the mother could return to Canada with the children, was still pending, with a hearing being scheduled on an urgent basis).

For the full text of the Appeal decision, see:

Zafar v. Saiyid

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com