Bryan R.G. Smith

The applicant in a family law case claimed a constructive trust in the respondent's house arising from an alleged 13-year cohabitation.

The respondent moved for summary judgment, arguing the claim was barred by the two-year limitation period under the Limitations Act, 2002.

The court dismissed the motion, finding that a constructive trust claim for an ownership interest in land is an 'action to recover land' governed by the ten-year limitation period under s. 4 of the Real Property Limitations Act.

The court also noted that if the Real Property Limitations Act did not apply, there would be a gap in the legislative scheme for family law constructive trust claims.

Following a complex family law trial involving challenges to a marriage contract, equalization, support arrears, and related financial claims, the successful party sought substantial costs.

The court considered Rule 24 of the Family Law Rules and found that the unsuccessful party acted in bad faith, including failing to provide disclosure, refusing reasonable settlement offers, and engaging in conduct that prolonged the litigation.

The court held that such conduct justified full recovery costs.

After deducting certain conference-related and administrative charges, the court awarded substantial costs and prejudgment interest to the successful party and costs to added respondents from the date of their settlement offer.

The applicant sought costs after the respondent withdrew her answer in a family law application concerning the validity of a separation agreement and referral of child support issues to mediation/arbitration.

The applicant argued that under rule 12(3) of the Family Law Rules he was entitled to near full recovery of legal fees exceeding $22,000.

The court held that rule 12(3) entitles a party to costs thrown away by a withdrawal but does not automatically require full indemnity recovery.

Considering proportionality, the limited procedural steps taken, and the absence of unreasonable conduct, the court fixed costs at a reduced all‑inclusive amount.

Payment of the costs award was deferred until specified milestones relating to the mediation/arbitration of the child support dispute.

The appellant appealed a motion judge's order staying Ontario family law proceedings in favour of Mexican proceedings.

The appellant argued the motion judge erred by failing to implement a prior consent order that mandated binding mediation-arbitration.

The Court of Appeal allowed the appeal, finding that staying the proceedings without setting aside the prior order was an impermissible collateral attack.

The Court also held that the mediation-arbitration agreement was valid even though it was signed by counsel rather than the parties themselves, applying the principle from Geropoulos v. Geropoulos.