Joel Etienne

The appellant husband appealed a trial judgment in a matrimonial property dispute.

The trial judge found that a declaration of trust and a $300,000 second mortgage were sham documents designed to defeat the respondent wife's interest in the matrimonial condominium.

The trial judge awarded the respondent an equalization payment of $100,500 and rejected an unequal division of property.

The Court of Appeal upheld the trial judge's findings, finding no basis to interfere with the credibility assessments or the detailed reasons for finding the documents to be shams.

The appeal was dismissed with costs awarded to the respondent.

The applicant sought to have a holographic will, allegedly made by his deceased brother, accepted as the last will and testament over a previously probated 1995 will.

The applicant had previously attempted to amend a statement of claim in a related action to plead this new cause of action, but that motion was dismissed by Lederman J. on the basis that the claim was statute-barred and the applicant failed to demonstrate due diligence in discovering the will.

The court held that the current application raised the exact same question decided by Lederman J. Applying the doctrine of issue estoppel, the court found the applicant was precluded from relitigating whether his claims were statute-barred.

The application was dismissed.

The applicant wife sought full indemnity costs following her success in the main judgment.

The court found the respondent's conduct, including entering a trust declaration and registering a second mortgage to defeat the applicant's claims, constituted bad faith under Rule 24(9) of the Family Law Rules.

Applying the factors under Rule 24(11), the court determined that full recovery costs were warranted.

Considering the importance and complexity of the application, the parties' reasonable and unreasonable behaviours, counsel rates, time spent, and disbursements, the court awarded the applicant $60,000 in costs, deeming it reasonable and proportionate.

The applicant sought an equalization payment, challenging the beneficial ownership of a condominium property registered in the respondent's name and a second mortgage against it.

The court found the trust declaration and second mortgage, purportedly in favour of the respondent's father, to be shams designed to defeat the applicant's entitlement to the matrimonial home.

The court concluded that the respondent was the beneficial owner of the property and awarded the applicant an equalization payment of $100,500, securing it with a charge on the property.

The respondent brought a motion on the eve of trial to amend his answer to add a claim for an unequal division of net family property under s. 5(6) of the Family Law Act.

The applicant opposed the motion, arguing it would cause prejudice.

The court dismissed the motion, finding that the proposed amendment was untenable as it lacked factual particulars to meet the exceptionally high burden for unequal division.

Furthermore, the court held that allowing the amendment at such a late stage would cause disadvantage to the applicant that could not be compensated by an adjournment or costs, and undermined the case management objectives of the Family Law Rules.

The plaintiff brought a motion for leave to amend his statement of claim and adjourn the trial.

He sought to add a new cause of action based on a holograph will he claimed to have recently discovered, which would entitle him to the entirety of his deceased brother's estate.

The court dismissed the motion, finding that the proposed amendments raised a new, statute-barred cause of action.

The plaintiff failed to demonstrate a triable issue of discoverability, as his explanation for misplacing and finding the will lacked due diligence.

Furthermore, the court held that granting the amendment would cause non-compensable prejudice to the defendants.

The accused, a pastor of a Spanish Pentecostal Church in London, Ontario, was charged with withholding material facts during border entry and attempting to aid and abet an undocumented individual to contravene immigration requirements.

The accused claimed duress, alleging that the hidden passenger threatened harm to his family in El Salvador if he did not smuggle him into Canada.

The court found the accused guilty on both counts, holding that the alleged threat of harm to the accused's parents lacked the temporal immediacy required for the duress defence and that the threat was too contingent and remote to constitute immediate harm.

The court also found the accused's account of events improbable and incredible.