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Leeming v. Leeming 2017 ONCA 111

This recent decision from the Ontario Court of Appeal provides guidance for family law litigants and counsel with respect to the jurisdiction for subsidiary dispute resolution. The Court is firm in their finding that in high conflict cases, best practice mandates that the same judge continue to hear subsidiary disputes.


The parties in this matter were involved in a trial regarding custody and access issues, among others, characterized as high-conflict by the trial judge. There are two children of the marriage born in 2005 and 2008. The children were residing primarily with the mother and the father had not had access with the children for several months leading up to trial. The trial judge ordered joint custody, and the mother was granted primary care of the children subject to the parenting schedule, which, as ordered by the trial judge, “may not be varied except by prior agreement in writing between the parents”.

Following the granting of the trial judge’s Order, on a motion, the mother was found to be in contempt of the parenting schedule, as she continued to withhold the children from the father, and an order for double make-up time was granted. A follow-up hearing was held before the motion judge, and the Court found that the mother had complied with the previous Order.

The mother appealed the motion judge’s original order for double make-up time, which came before the Court of Appeal.


The Court of Appeal commences their analysis of this decision by noting that there may be a question with respect to jurisdiction to hear this appeal. Assuming that there is such jurisdiction, the Court notes that they do not find any palpable error in the motion judge’s finding that the mother was in contempt.

The mother’s appeal was in part, based upon her position that the motion judge erred in imposing the double make-up time penalty without allowing her counsel to speak to the matter. However, as the mother abided by said order, the Court is of the opinion that an appeal in that regard is moot, and should be dismissed.

The mother also appealed based upon a jurisdiction argument. She claimed that in continuing jurisdiction over this matter until the Order had run, the motion judge had erred. However, the Court of Appeal noted that in high-conflict cases, such as the current case, best practice mandates that a motion’s judge continue to hear subsidiary disputes. In conducting its analysis, the Court of Appeal points to its previous decision in Chan v. Chan ONCA 478, and finds that the Chan decision does not preclude their finding in this case.

In making this decision, the Court of Appeal has confirmed an efficient process with respect to subsidiary disputes. Having subsidiary disputes heard by the same judge who presided over the original hearing will optimize court resources, and help to resolve such disputes more efficiently, as the judge will be familiar with the case history. This practice will help to resolve subsidiary disputes in a timely manner, which is of great benefit for litigants and effected parties, particularly in matters concerning the best interests of any children involved.