James Bennett

The applicant wife brought a motion for the partition and sale of the matrimonial home and for temporary exclusive possession pending the sale.

The respondent husband brought a cross-motion for partial summary judgment to enforce an alleged pre-litigation settlement agreement for him to buy out the wife's interest.

The court found that the correspondence between counsel did not constitute a binding agreement, as essential terms regarding spousal support and equalization were not settled.

The court granted the wife's motion for partition and sale, finding no prejudice to the husband, but dismissed her request for temporary exclusive possession due to insufficient evidence.

The applicant brought a motion to re-open a family law trial to admit an appraisal report regarding the matrimonial home, which was omitted from the joint document brief due to counsel's inadvertence.

The trial decision had already been released, though judgment was not yet entered.

The court dismissed the motion, finding no mutual mistake between counsel regarding the document's inclusion.

Applying the test to re-open a trial, the court held that the evidence was available before trial and could have been adduced with reasonable diligence, and that the principle of finality weighed against re-opening the matter.

Following the dismissal of the plaintiff's action for delay, the defendants sought partial indemnity costs.

The self-represented plaintiff argued he was not liable for costs because he had accepted the defendants' offer to settle, which proposed a dismissal without costs.

The court found that the plaintiff attempted to accept the offer only after his request for an adjournment was denied at the motion hearing.

Applying Rule 49, the court held that the hearing had already commenced when the defendants' counsel first addressed the court, rendering the plaintiff's acceptance untimely.

The court awarded the defendants their requested costs of $15,881.04.

The defendant lawyer brought a motion to dismiss the plaintiff's professional negligence action for delay under Rule 24.01.

The action was commenced in 2012 and had previously been administratively dismissed and reinstated with a strict timetable.

The self-represented plaintiff failed to comply with the timetable, failed to file responding materials, and repeatedly sought adjournments without adequate medical evidence.

The court found the plaintiff's delay to be intentional, contumelious, and inexcusable, causing significant prejudice to the defendants.

The motion was granted and the action was dismissed for delay and as an abuse of process.

The applicant father brought an urgent 14B motion to stay the enforcement of a 2013 child support order by the Family Responsibility Office (FRO).

The children had been living primarily with the father since 2014, yet the mother continued to collect ongoing support and arrears, including emergency pandemic relief benefits garnished by FRO.

The court found the issue urgent and ordered a temporary stay of the support order pending a scheduled Motion to Change, noting the mother should not receive ongoing support for children not in her care.

A residual beneficiary brought a motion seeking a ruling that the drafting solicitor’s contemporaneous notes regarding the testator’s instructions were inadmissible in an application to interpret a will.

The dispute concerned whether the residue should be divided into three shares, with one share divided among four children, or into six equal shares among six individuals.

The court held that the language of the will suggested an equal division among six beneficiaries but also found that, if the clause were considered ambiguous as argued by the moving party, extrinsic evidence could be admitted to clarify the testator’s intention.

Applying appellate authority recognizing a trend toward admitting surrounding circumstances in will interpretation, the court ruled that the solicitor’s notes were admissible as extrinsic evidence.

Costs were ordered in the cause.

The moving parties sought summary judgment dismissing a negligence claim on the basis that it was barred by the two‑year limitation period under the Limitations Act, 2002.

The claim arose from an aborted real estate transaction where the plaintiff alleged that the drafting of a price allocation clause in an agreement of purchase and sale constituted solicitor’s negligence.

The court considered the discoverability provisions in s. 5 of the Act and whether a reasonable person in the plaintiff’s circumstances ought to have known of the potential claim earlier.

The court held that the plaintiff was put on notice of the potential drafting issue no later than the delivery of a statement of defence in related litigation in February 2005.

Because the action was commenced more than two years after that date, the claim was statute‑barred.