Michael Kavanagh

The appellants, representative plaintiffs in a certified class proceeding concerning universal life insurance policies, appealed the dismissal of their motion to amend their statement of claim and add a new common issue regarding an 'Investment Spread Claim'.

The motion judge refused the amendments on the basis that the claim was a new cause of action that was discoverable in 2016 and therefore statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld the motion judge's decision, agreeing that the claim was not captured by existing pleadings, was discoverable based on a 2016 repricing report, and did not engage a rolling limitation period as it involved discrete decisions rather than periodic breaches.

The appellant appealed an order reducing and ultimately terminating her spousal support.

The respondent, a former police officer, had voluntarily retired at age 51 and successfully argued at first instance that this constituted a material change in circumstances.

The Divisional Court allowed the appeal, finding that the motion judge made a palpable and overriding error in concluding the parties had agreed to an early retirement date during their initial settlement.

The Court held that voluntary early retirement by a payor who retains the capacity to earn income does not constitute a material change in circumstances.

The Court also found errors in the motion judge's application of the rule against double-dipping and the imposition of a termination date on support for a disabled spouse.

The original spousal support order was reinstated.