“This court has addressed the issue of non-compliance with family law judgments pending appeal in the cases of Brophy v. Brophy (2004), 45 R.F.L. (5th) 56 (C.A.); Dickie v. Dickie (2006), 78 O.R. (3d) 1 (C.A.), rev’d 2007 SCC 15, [2007] 1 S.C.R. 346 approving dissenting reasons of Laskin J.A. on this point; and Murphy v. Murphy, 2015 ONCA 69, 56 R.F.L. (7th) 257.

Most recently in Murphy, the court refused to hear the submissions of the responding party who was in default.  In Brophyin 2004, the court discussed the alternatives when faced with this situation. One is to dismiss the appeal, another to adjourn pending compliance with the trial order. Although the court in that case then determined that it did not matter because there was no merit to the appeal, in our view, it is no longer the best practice to proceed in that way.

In our view, where an appellant wishes to be relieved of his or her trial ordered obligations pending appeal, the proper approach is to bring a stay motion where the circumstances can be brought before the court. If that is not done, then although the court may still hear the appeal in circumstances the court feels require that approach, the court will normally not hear the appeal until the trial order has been complied with.”

A.A. v. Z.G.,2016 ONCA 660 at 2-4

“In my view, to award one parent the exclusive custody of a child is to clothe that parent, for whatever period he or she is awarded the custody, with full parental control over, and ultimate parental responsibility for, the care, upbringing and education of the child, generally to the exclusion of the right of the other parent to interfere in the decisions that are made in exercising that control or in carrying out that responsibility. The foregoing, of course, does not address the matter of the respective obligations of the custodial parent and the other parent to contribute to the support of the child, nor the right, if any, of the other parent to access to the child.

By contrast, to award to both parents the joint custody of a child on the basis already described is to clothe both parents with equal parental control over, and equal ultimate parental responsibility for, the care, upbringing and education of the child, but to name one of the parents as the parent with whom the child shall ordinarily reside under that parent’s immediate direction and guidance (whether indefinitely or as otherwise stipulated), with the other parent to enjoy such access to the child as does not unreasonably impede the ability of the first to assume his or her immediate direction and guidance of the child, nor unreasonably interfere with the right of the first parent to live his or her own life separate from the other.

If the foregoing can be said to be a reasonably accurate formulation of what is involved in this kind of joint custody, it seems obvious that it is indeed an arrangement that requires maturity on the part of each parent:

(a) in accepting that the other is a person with whom he or she can share, on an equal basis, the control over and responsibility for the child which together they, as parents, must assume in making the many important decisions that must be made with respect to the child’s care, upbringing and education (including of course the child’s religious upbringing);

(b) in accepting that the child must physically reside with one or the other of them (in the words of Weatherston, J.A., in McCahill v. Robertson (1974), 17 R.F.L. 23, quoted in Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 23 O.R. (2d) 391 at p. 396, 95 D.L.R. (3d) 529 at p. 534, 8 R.F.L. (2d) 236, to which reference has already been made: ”A child must know where its home is and to whom it must look for guidance and admonition …”), and

(c) in accepting that generous access by the other parent is an essential part of the arrangement and must be assured by some sort of agreement that can operate in such a way that it will not ultimately reduce to ruins the whole arrangement.

Above all, it requires a willingness by both parents to work together to ensure the success of the arrangement. Such a willingness must be sincere and genuine; by its very nature it is not something that can be imposed by a Court on two persons, one or both of whom may be unwilling or reluctant to accept it in all its implications. Like marriage itself if it is to succeed, it is an arrangement that has to be worked out by two persons who are determined, of their own will and in good faith, to make it work.”

Kruger v. Kruger, 1979 CanLII 1663 (ON CA) per Thorson J.A.

“The test for bias is well-settled: would a reasonable and informed person viewing the matter realistically and practically and having thought it through, conclude that the judge, consciously or unconsciously would not decide fairly? The test is easily stated. The difficulty arises in its application.

…

The threshold for finding a reasonable apprehension of bias is extremely high: See Lloyd v. Bush, 2012 ONCA 349 at para. 23. There is a strong presumption in favour of the impartiality of the trier of fact and the question of reasonable apprehension requires a highly fact-specific inquiry.

Again in Lloydas this court noted at para. 27:

In Chippewas, the court warned at para. 243 that “[i]solated expressions of impatience or annoyance by a judge as a result of frustrations … do not of themselves create unfairness.”:

Clayson-Martin v. Martin, 2015 ONCA 596 at paras 68, 71 & 72

“In dismissing the motion, the motion judge correctly applied the proposition from this court in Berry v. Berry, 2011 ONCA 705 (CanLII), 285 O.A.C. 366 that the “superordinate consideration” in a mobility case is the best interests of the child, determined from a child-centred perspective (para. 10). Accordingly, in assessing the mother’s reasons for moving, the motion judge correctly held that the only reasons relevant to the analysis were those that related to her ability to meet the needs of her son.

A motion judge’s decision not to allow a relocation is discretionary and it is not the place of this Court to engage in a rebalancing of the factors identified in Berry. However, as explained below, the motion judge made an error in principle by not characterizing the mother as the primary caregiver of the child, which led to the further error that her reasons for moving were not entitled to the serious consideration required by Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

…

The Supreme Court of Canada held in Goertz, at para. 48, that where assessing a motion to relocate:

…the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.

The motion judge held that in circumstances of joint and shared custody, there is no primary caregiver, and therefore neither parent’s interests can have greater weight than the other’s.

We do not agree that the legal status of joint and shared custody forecloses the possibility that one parent can be, for the purposes of a mobility motion, the primary caregiver. On the record before us, it is evident that although the parties have joint and shared custody, the mother is nevertheless the primary caregiver.”

Porter v. Bryan, 2017 ONCA 677 (CanLII) at 10, 11, 14, 15 and 16

“Second, and importantly, we have examined the comments of the trial judge attacked by the appellant.  In our view, in the circumstances of this trial and having regard to the demonstrated conduct of the parties as established by the record, these comments fall far short of meeting the test for reasonable apprehension of bias established by the Supreme Court of Canada in R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 and related cases.  Many of the impugned comments were directed to the respondent wife or her counsel, rather than the appellant or his counsel.  Others arose during the testimony of the respondent, in contrast to that of the appellant.  While some of the challenged remarks by the trial judge may appear to reflect his frustration and concerns with the appellant’s conduct, neither the trial judge’s statements nor his alleged interruptions during the testimony of the parties support the assertion that he approached this trial with a closed mind or that his management of the trial was unfair or partisan.  This was an acrimonious law suit.  The evidence of the parties was conflicting and every issue appears to have been vigorously contested.  Viewed as a whole, the record and the trial judge’s reasons reveal that he did a commendable job in weighing the evidence, managing the trial and adjudicating on the issues in contention.”

McFarlane v. McFarlane, 2007 ONCA 591 (CanLII) at 3

“Counsel for Mr. Mamo also submits that limiting the application of the deemed undertaking accords with the common law rationalization for the rule as recognized by Morden A.C.J.O. in Goodman v. Rossi (1995), 1995 CanLII 1888 (ON CA), 24 O.R. (3d) 359, [1995] O.J. No. 1906 (C.A.), at para. 36, quoting Prudential Assurance Co. v. Fountain Page Ltd., [1991] 1 W.L.R. 756, [1991] 3 All E.R. 878 (Q.B.), at pp. 764-65 W.L.R.:

The rational basis for the rule is that where one party compels another, either by the enforcement of a rule of court or a specific order of the court, to disclose documents or information whether that other wishes to or not, the party obtaining the disclosure is given this power because the invasion of the other party’s rights has to give way to the need to do justice between those parties in the pending litigation between them; it follows from this that the results of such compulsion should likewise be limited to the purpose for which the order was made, namely, the purposes of that litigation then before the court between those parties and not for any other litigation or matter or any collateral purpose[.]”

Sobeski v. Mamo, 2012 ONCA 560 (CanLII) at 31

“[In D.B.S.] Bastarache J. also discusses how a court should assess and award the correct amount of retroactive support, including the date from which it will be payable and the quantum. He concludes that the fairest retroactive date is the date when “effective notice” was given by the recipient spouse to the payor spouse that child support needed to be renegotiated. He stated that all that is required for effective notice is that the subject be broached. However, if after broaching the subject, the recipient parent does not pursue the matter, the payor parent may again begin to rely on the status quo. For that reason, Bastarache J. concluded that it will usually be inappropriate to select a date more than three years prior to the formal notice of the claim.

However, the date of retroactivity can be extended back in time for a payor parent who withholds information about a material change in circumstances, such as income increases that would entitle the child to increased support. In those circumstances, the presumptive date will be the date of the material change, as “[a] payor parent cannot use his/her informational advantage to justify his/her deficient child support payments” (para. 124).

Bastarache J. concludes as follows (at para. 125):

The proper approach [for determining the date of retroactivity] can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.”

Connelly v. McGouran, 2007 ONCA 578 (CanLII) at 21-23

“The test for reasonable apprehension of bias was recently stated by this court in Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1, at para. 68: “Would a reasonable and informed person viewing the matter realistically and practically and having thought it through conclude that the judge, consciously or unconsciously would not decide fairly”. The threshold for finding a reasonable apprehension of bias is extremely high. There is a strong presumption in favour of the judge’s impartiality and the question of a reasonable apprehension requires a highly fact-specific inquiry: Martin, at para. 71.

In Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, leave to appeal refused, [2010] S.C.C.A. No. 91, at para. 243, this court cautioned:

[A]ppellate courts are reluctant to intervene on the basis that a trial judge “entered the arena” and improperly intervened in a trial.  There is a strong presumption that judges have conducted themselves fairly and impartially.  Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not of themselves create unfairness.  Similarly, a trial judge’s willingness to debate with counsel openly over relevant factual and legal issues should not serve as a basis for a reasonable apprehension of bias.  In the end, an appellate court should only intervene if satisfied that the trial judge’s interventions, considered in the context of the entire trial, created a reasonable apprehension that the trial judge was biased. [Citations omitted.]

A.M. v. J.M.,2016 ONCA 644 at 55-56.

“Given that a support order under the Family Law Actis binding on a payor spouse’s estate unless the order provides otherwise, on its face, s. 34(1)(k) is broad enough to permit a court to order a spouse to obtain an insurance policy to secure payment of the order following the payor spouse’s death. The concluding words “or otherwise” in s. 34(1)(k) afford the court broad scope for securing the payment of a support order.

Because a support payor’s estate is bound by a support order following the payor’s death, the court making a support order is entitled to secure the payments to be made in the event of the payor’s death by requiring the payor to obtain and maintain life insurance for a specified beneficiary while the support order is in force and to give directions concerning the extent to which the payout of the insurance proceeds will discharge the support obligation: see Laczko v. Laczko (1999), 176 D.L.R. (4th) 507 (Ont. S.C.), at pp. 511-12.

…

That said, where there is no existing policy in place, a court should proceed carefully in requiring a payor spouse to obtain insurance. This case demonstrates the desirability of having evidence of the payor’s insurability and of the amount and cost of the available insurance. Careful consideration should be given to the amount of insurance that is appropriate. It should not exceed the total amount of support likely to be payable over the duration of the support award. Moreover, the required insurance should generally be somewhat less than the total support anticipated where the court determines that the recipient will be able to invest the proceeds of an insurance payout. Further, the amount of insurance to be maintained should decline over time as the total amount of support payable over the duration of the award diminishes. The obligation to maintain insurance should end when the support obligation ceases – and provision should be made to allow the payor spouse to deal with the policy at that time. Finally, when proceeding under the Divorce Act, the court should first order that the support obligation is binding on the payor’s estate.”

Katz v. Katz, 2014 ONCA 606 at 69, 70 & 74

“Where an arbitration agreement exists, courts will stay their own proceedings and compel the parties to arbitrate: Dormer v. McJannet, 2006 CanLII 42670 (ON SC), [2006] O.J. No. 5106, 35 R.F.L. (6th) 418 (S.C.J.), at paras. 20 and 34; and Puigbonet-Crawford v. Crawford, 2006 CanLII 38881 (ON SC), [2006] O.J. No. 4626, 152 A.C.W.S. (3d) 991 (S.C.J.), at paras. 8, 13 and 14.”

Grosman v. Cookson, 2012 ONCA 551 (CanLII) at 26