Simon's Megalomaniacal Legal Resources

Family - Standard of Review

. Shipton v. Shipton

In Shipton v. Shipton (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a family law application, here "from an order denying a mother permission to relocate her three-year-old daughter from Toronto to Ennis, Ireland".

Here the court sets out the SOR for child relocation:

[6] The trial judge’s relocation decision is fact-based, discretionary, and is owed significant deference on appeal. This court will only intervene if there is a material error, a serious misapprehension of the evidence, or an error in law: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 11. ....

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[22] The standard of review in this matter is also well-settled. This court “must approach the appeal with considerable respect for the task facing a trial judge in difficult family law cases, especially those involving custody and access issues”: C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, at para. 4; N.S. v. R.M., 2019 ONCA 685, at para. 4. As decisions in such cases “are inherently exercises in discretion”, they must attract a high degree of deference: Van de Perre, at para. 13. As this court has recently confirmed, this court’s task is not to impose the decision we would have made after engaging in a fresh analysis or balancing the various factors differently. We can intervene only if the motion judge erred in law or made a material error in the appreciation of the facts: J.N. v. C.G., 2023 ONCA 77, 477 D.L.R. (4th) 699, at paras. 9-10, leave to appeal refused, [2023] S.C.C.A. No. 112.

. White v. White

In White v. White (Ont CA, 2024) the Ontario Court of Appeal considered the appellate SOR for family court findings, here where the issue was the "imputation of income for support purposes":

[14] This court owes substantial deference to the trial judge’s findings of fact and mixed fact and law. The court will interfere “only where the fact-related aspects of the judge’s decision in a family law case exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong”: Johanson v. Hinde, 2016 ONCA 430, at para. 1; see also Rados v. Rados, 2019 ONCA 627, 30 R.F.L. (8th) 374, at para. 23. In addition, the imputation of income for support purposes is a discretionary and fact-specific exercise: Levin v. Levin, 2020 ONCA 604, at para. 12; see also Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561.

. Cuthbert v. Nolis

In Cuthbert v. Nolis (Ont CA, 2023) the Court of Appeal considered the appellate SOR for family law matters, here in a 'best interests' context:

[18] ... A trial judge’s factual findings are entitled to substantial deference, especially in family law cases, where the court can interfere “only where the fact-related aspects of the [trial] judge’s decision … [exceed] a generous ambit within which reasonable disagreement is possible and is plainly wrong”: Alajajian v. Alajajian, 2021 ONCA 602, at para. 4, citing Johanson v. Hinde, 2016 ONCA 430, at para. 1. ...

. Walsh v. Tober

In Walsh v. Tober (Div Court, 2023) the Divisional Court considered the SOR for a family law appeal:

[28] The standard of review is palpable and overriding error for questions of fact and for questions of mixed fact and law (except as above), including with respect to the application of correct legal principles to the evidence [SS query: 'extricable legal'?]. A palpable and overriding error is an obvious error that is sufficiently significant to vitiate the challenged finding: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 39. The appellant must show that the error goes to the root of the challenged finding such that it cannot safely stand in the face of the error: Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201 (C.A.), at p. 267, leave to appeal refused, [2004] S.C.C.A. No. 291.

. K.K. v. M.M.

In K.K. v. M.M. (Ont CA, 2023) the Court of Appeal considered the SOR for a support order appeal:

[3] The standard of review for family support decisions is significant deference. An appellate court should only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law. This court is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at para. 12. This is what we are being asked to do by the appellant. We have been pointed to no reversible legal error and no overriding palpable factual error with respect to the reasoning or the result reached by the trial judge.

. S.E.T. v. J.W.T

In S.E.T. v. J.W.T (Div Court, 2023) the Divisional Court considered a family law appellate SOR, here where "parenting time and decision-making authority is at issue":

Standard of Review

[10] As the Court of Appeal stated in J.N. v. C.G., the standard of review in appellate family law proceedings where parenting time and decision-making authority is at issue is narrow. Decisions on these matters constitute an exercise of discretion and attract a high degree of deference: an appellate court can only intervene if the motion judge erred in law or made a material error in the appreciation of the facts: J.N. v. C.G., at paras. 9-10; N.S. v. R.M., 2019 ONCA 685, at para. 4; Sferruzzi v. Allan, 2013 ONCA 496, [2013] W.D.F.L. 3642, at para. 43; and Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13.

. Jasiobedzki v. Jasiobedzka

In Jasiobedzki v. Jasiobedzka (Ont CA, 2023) the Court of Appeal consider the SOR generally in family law appeals:

[7] I will begin by reaffirming that “the scope of appellate review in family cases is narrow”: Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 100; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1013, at para. 11. This is because finality and expedition are of heightened importance in family law matters, and multiple court hearings, which can drain family resources, should not be encouraged. Moreover, most determinations are driven by factual decisions, and trial judges who have a close opportunity to consider the complete evidentiary record first-hand and to assess the credibility of witnesses are best situated to determine the facts. Therefore, an appellate court is not to interfere “[a]bsent an error of law or an overriding error of fact”, including a “serious misapprehension of [material] evidence”: Hickey. v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at para. 12; Barendregt, at paras. 101-104; Calin v. Calin, 2021 ONCA 558, at para. 16. As a result, a factual error will not support a successful appeal unless the error is clear and had an important bearing on the decision, and even a misapprehension of evidence will not ground an appeal unless it is a serious misapprehension relating to a material issue in the case.

[8] This court will not interfere with a spousal support award even where there is a clear “error in the precise manner in which the trial judge calculated the amount of the lump sum award for spousal support” if, “when all factors are considered, it remains a fit and appropriate award in the circumstances of the case.”: Green v. Green, 2015 ONCA 541, 387 D.L.R. (4th) 512.

. Nairne v. Nairne [spousal support]

In Nairne v. Nairne (Ont CA, 2023) the Court of Appeal considered the appellate deference accorded to family support awards:

[24] The starting point in reviewing any spousal support decision is significant deference, absent reviewable error. As the Supreme Court cautioned in Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at para. 11, “appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.”

. Zhao v. Xiao [family financial]

In Zhao v. Xiao (Ont CA, 2023) the Court of Appeal considered the appellate SOR for "resolving financial disputes in family law":

[20] In closing, we would underline the fact that the standard of review from orders resolving financial disputes in family law, which, as this appeal illustrates, is highly fact specific, is deferential: Lesko v. Lesko, 2021 ONCA 369, 57 R.F.L. (8th) 305, at para. 5, leave to appeal refused, [2021] S.C.C.A. No. 290. As the Supreme Court stated in Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at para. 12, an appeal court should only intervene “when there is a material error, a serious misapprehension of the evidence, or an error in law”.

. Anderson v. Anderson

In Anderson v. Anderson (SCC, 2023) the Supreme Court of Canada commented on the general standard of review for family law appeals:

[56] Trial judges’ decisions on matters of family law generally attract deference from appellate courts absent an error of law; a material misapprehension of the evidence; a failure to consider all relevant factors or a consideration of an irrelevant factor; or where the decision is so clearly wrong as to amount to an injustice (New Brunswick (Minister of Health and Community Services) v. C. (G.C.), 1988 CanLII 34 (SCC), [1988] 1 S.C.R. 1073, at p. 1077; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at paras. 11-14; Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413, at para. 73; Tysseland v. Tysseland, 2022 SKCA 39, at para. 12 (CanLII), citing Ackerman v. Ackerman, 2014 SKCA 137, 451 Sask. R. 132, at para. 23).

. Punit v. Punit

In Punit v. Punit (Ont CA, 2023) the Court of Appeal considers the general standard of review that applies in family law:

[2] In any event, the appellant raises numerous issues, all of which turn on the standard of review that governs in relation to family support decisions. The importance of finality in family law litigation, combined with the discretion involved in making support orders, requires significant deference to the decisions under review. An appeal court should only intervene where there is a material error, a serious misapprehension of the evidence, or an error of law. An appellate court is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at para. 12.