OCA sees no ineffective assistance of counsel in divorce case

On June 14, 2024, in Delongte v. Delongte, 2024 ONSC 3454, Justice Judy Fowler Byrne of the Ontario Superior Court of Justice issued a divorce order directing the appellant father to pay the respondent mother the following, among others: 

• ongoing child support 
• retroactive child support 
• a contribution to the children’s special and/or extraordinary expenses 
• an equalization payment 
• an amount of money for what he took from their son’s bank account 
• a sum of money for what he took from their daughter’s bank account 
• application costs 
• disbursements in the application 

On Dec. 11, 2025, Justice J. Scott Cowan of the Superior Court denied a motion under r. 25(19) of the Family Law Rules, O Reg 114/99. Before the appeal court, the father commenced multiple proceedings. 

Fresh evidence motions

Last Sept. 21, in De Longte v. De Longte, 2026 ONCA 656, the Ontario Court of Appeal denied a motion to admit fresh evidence in both of the father’s appeals in relation to the valuation of a corporation considered in the equalization calculation. 

The appeal court could not reasonably expect the proposed fresh evidence – which did not satisfy the test for admissibility in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759 – to impact the outcome of the proceedings. 

However, in the appeal against the trial judgment, the appeal court admitted fresh evidence concerning the father’s claim of ineffective assistance of trial counsel to consider whether the assistance was indeed ineffective and whether there was a miscarriage of justice. 

Ineffective assistance of counsel claim denied

Ultimately, the Ontario Court of Appeal rejected the claim of ineffective assistance of trial counsel. 

In the civil context, the appeal court explained that the ineffective assistance claim was limited to the rarest cases involving some overriding public interest or the interests of certain vulnerable individuals. 

The appeal court added that this appeal ground was unavailable in purely private disputes like the present appeal. 

Appeal dismissed against trial judge’s order 

The Ontario Court of Appeal dismissed the father’s appeal from the trial judge’s order. The appeal court found the trial judge’s reasons sufficient, clear, comprehensive, responsive to the relevant issues, and capable of appellate review. 

The appeal court deferred to the trial judge’s factual findings, given the absence of palpable and overriding error. Upon considering the father’s arguments, the appeal court held that he was asking the court to redo the trial judge’s fact-finding. 

Appeal denied from motion judge’s decision

The Ontario Court of Appeal dismissed the father’s appeal against the motion judge’s denial of the r. 25(19) motion. Upon considering the reasons for the dismissal of the motion, the appeal court determined that the motion judge: 

• committed no error in finding that the father failed to establish fraud in obtaining the trial judgment 
• used the correct legal principles when weighing whether to set aside a judgment based on fraud 
• applied the standard of proof for the balance of probabilities 
• did not apply an excessively high standard to the fraud claims 

Appeals dismissed against cost orders

The Ontario Court of Appeal denied leave to appeal from the trial judge’s and the motion judge’s cost orders. 

Regarding the trial judge’s costs order, the appeal court saw ample support in her findings regarding the father’s bad faith in the litigation through surreptitiously reading the emails between the mother and her counsel, as well as the mother’s pre-trial offer to settle. 

As for the motion judge’s costs order, the appeal court acknowledged that the motion judge 
initially did not receive the father’s costs submissions because of the father’s filing error or an error within the Superior Court. 

However, the appeal court determined that the motion judge: 

• made supplementary cost reasons after reviewing the father’s cost submissions 
• did not err in exercising his discretion concerning costs 
• reasonably ordered costs due to the father’s unfounded fraud allegations 
• fixed a quantum of costs for the mother that was less than the father’s requested motion costs 

Panel review motion found moot

The Ontario Court of Appeal denied the panel review motion under s. 7(5) of Ontario’s Courts of Justice Act, 1990, to set aside or vary Justice Osborne’s order last Aug. 12. 

The appeal court noted that the appellant had withdrawn his motion to set aside or vary this order, which remained effective only until Sept. 10. 

Cost awards

The Ontario Court of Appeal awarded the mother appeal costs of $26,000, including disbursements and harmonized sales tax (HST). The appeal court found the intervener entitled to appeal costs of $15,000, including disbursements and HST.

Ontario Court of Appeal’s previous family law cases

Here are some other recent family law decisions by the Court of Appeal for Ontario. 

On June 17, the appeal court dismissed a mother’s urgent motion to stay an order to immediately return her child to her habitual residence in California, where the father resided, under the Hague Convention on the Civil Aspects of International Child Abduction. 

On June 11, the appeal court dismissed a father’s motion to extend the time to perfect his appeal, noting that he breached disclosure and support orders despite being a lawyer who should understand the importance of complying with court orders. 

Enjoy this story? Read the latest family law news on the main page!