Judith Wilcox

Application by a corporate owner of adjacent property claiming entitlement to a disputed strip of land used as a driveway for over 30 years.

The applicant advanced claims in adverse possession and proprietary estoppel.

The court dismissed the adverse possession claim, finding the applicant could not show that its use of the disputed strip was inconsistent with the respondent's intended use of keeping the land vacant, as required by Court of Appeal authority.

However, the court granted the application on the basis of proprietary estoppel, finding that the respondent's 30-plus years of silence while the applicant and its predecessors used and improved the driveway constituted encouragement, that the applicant detrimentally relied on that silence, and that it was unconscionable for the respondent to erect a fence dividing the driveway without notice or consultation.

The respondent was ordered to remove the fence and repair damaged interlocking brick.

The moving party brought a motion for leave to appeal an order dated September 27, 2021.

The Divisional Court dismissed the motion for leave to appeal and ordered costs payable by the moving party to the responding party fixed at $4,100.

The appellant, Shawn Poitras, appealed a trial decision that awarded the respondent, Natalie Burke, child and spousal support, arrears, an equalization payment, and exclusive possession of the matrimonial home, following an uncontested trial where the appellant's answer was struck due to repeated non-disclosure.

The appellant raised four grounds of appeal: denial of participation rights, insufficient scrutiny of the respondent's evidence, indefinite spousal support, and excessive costs.

The Court of Appeal dismissed the appeal, denying leave to file fresh evidence (failing the Palmer test), finding no unfairness regarding participation rights given the appellant's conduct, upholding the trial judge's scrutiny of evidence and spousal support award (applying Moge and SSAGs), and affirming the costs award.

The mother brought a motion to change seeking retroactive and ongoing child support and section 7 expenses.

The father had unilaterally reduced his child support payments and failed to provide annual financial disclosure, despite earning a six-figure income.

The court ordered retroactive child support and section 7 expenses, finding the father's conduct blameworthy and noting that his prior refusal to contribute made advance consultation for expenses meaningless.

The court also rejected the father's argument that support should be terminated due to his estrangement from the adult children, finding insufficient evidence that the children unilaterally and unjustifiably rejected him.

The parties brought a motion for directions to determine whether property excluded under their cohabitation agreement could be traced into other assets and remain excluded from equalization.

The applicant argued that the agreement did not explicitly provide for tracing, while the respondent argued that the creation of a new category of excluded property implicitly included tracing rights.

The court applied principles of contractual interpretation and examined the factual matrix, concluding that the mutual and objective intention of the parties was to exclude pre-marriage property and any property traced from it.

The court also ruled on the admissibility of affidavits sworn by the respondent's former counsel and a law clerk.

Following a motion regarding a section 71 Land Titles Act Notice and a cross-motion for a restraining order, the parties were unable to resolve the issue of costs.

The court noted divided success and problematic conduct by both parties, including the applicant's non-disclosure and the respondent's improper registration of the notice on title.

Ultimately, the court awarded costs of $5,000 to the applicant, finding it to be a fair, reasonable, and proportional amount.

The husband sought to remove s.71 notices registered by the wife on his farm properties, arguing that an equalization claim does not create an interest in land.

The wife opposed the removal and sought a restraining (preservation) order under s.12 of the Family Law Act.

The court found that s.71 notices were improperly registered for an equalization claim, which is a monetary claim, not a proprietary interest in land.

Consequently, the s.71 notices were ordered discharged.

However, due to the husband's non-disclosure in Farm Debt Mediation and delays in financial disclosure, the court granted the wife's request for a restraining (preservation) order under s.12 FLA to protect her potential equalization payment.

The applicant sought full costs after an uncontested trial, citing the respondent's bad faith conduct, her success on all claims, and beating her offer to settle.

The court awarded full recovery costs of $217,229.25, finding the respondent acted in bad faith through persistent non-disclosure, obstruction, and asset concealment.

A portion of these costs, related to support issues, was made enforceable by the Family Responsibility Office, while costs for a preservation motion related to family property were not.

The parties separated after a 13-year marriage.

The respondent failed to provide financial disclosure, resulting in his pleadings being struck except for parenting issues.

In an uncontested trial, the court imputed the respondent's income at $294,420 based on expert evidence of his corporate earnings and personal expenses paid through the business.

The applicant was awarded substantial retroactive and ongoing child and spousal support, exclusive possession of the matrimonial home, occupation rent of $165,000, and an equalization payment of $241,514.24, which included an unequal division for property damage caused by the respondent.

The court also ordered the respondent to obtain a $1.5 million life insurance policy to secure his support obligations and issued a non-depletion order.

This was a family law costs decision following a parenting trial in which the applicant was largely successful.

The court considered costs consequences flowing from a rule compliant offer to settle under Rule 18, the treatment of trial management conference time under Rule 24(10), and whether the respondent's litigation conduct justified full indemnity costs under Rule 24(8).

The court held the applicant was wholly successful on the central issues, allowed one-half of the trial management conference time, and found the final order was as favourable as the offer to settle.

Although the court declined to make an explicit bad faith finding, it held the respondent had disregarded mounting indications undermining his position and fixed costs at $45,000 inclusive of HST, plus costs of the costs submissions.

The applicant, acting as litigation guardian for the deceased's two children, brought an application to remove the respondent as the estate trustee.

The respondent, who was the deceased's former common-law partner, had continued to occupy the deceased's home, used estate assets, and improperly claimed pension survivor benefits despite having separated from the deceased prior to her death.

The court found that the totality of the respondent's actions, including his hostility toward the beneficiaries and potential conflicts of interest regarding estate debts, raised real concerns about his ability to carry out his fiduciary duties.

The application was granted, the respondent was removed, and the alternate trustees named in the will were appointed.

The respondent father brought a motion to vary a prior order seeking to terminate child support and special expenses for two adult children attending post-secondary education.

The court considered the definition of “child of the marriage” under the Divorce Act and the application of sections 3 and 7 of the Child Support Guidelines.

Applying the factors from Rosenberg v. Rosenberg and related authorities, the court found both children remained financially dependent while enrolled full-time in post-secondary programs and therefore continued to qualify as children of the marriage.

The court rejected the request to reduce basic child support to zero and held the Guidelines table amount remained appropriate.

The father was also ordered to contribute one-third of the children’s post-secondary education expenses beginning with the 2015–2016 academic year, conditional on proper disclosure of educational details.

Costs decision arising from family law disclosure motions related to the valuation of corporations owned by the respondent spouse.

The applicant brought motions seeking contempt and an order requiring business valuations after the respondent failed to respond within the seven-day timeline set out in a prior disclosure order.

The court found that the respondent took a position inconsistent with the order and deliberately delayed the proceedings by failing to provide a timely response.

Although the contempt motion itself was unnecessary, the applicant was justified in bringing the motions to resolve the issue of corporate valuations.

The court awarded substantial indemnity costs to the applicant.

The plaintiffs claimed damages for breach of a written contract to purchase a yacht.

The defendant argued that he and the deceased plaintiff had verbally agreed to waive performance of the written contract and instead entered into a month-to-month rental agreement.

The court applied section 13 of the Evidence Act, requiring corroboration of the defendant's evidence against the deceased's estate.

The court found sufficient circumstantial evidence corroborating the defendant's version of events, concluding that the parties had mutually waived performance of the written contract.

The plaintiffs' action was dismissed.

The appellants appealed a trial judgment resolving a deadlock in a family-owned ice cream business.

The trial judge ordered the majority shareholder to sell her shares to the minority shareholder for fair market value.

On appeal, the appellants argued the trial judge ignored the majority shareholder's reasonable expectations, her security interest in the business, and the minority shareholder's alleged misappropriation of a corporate opportunity.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or application of the law, including the conclusion that the appellants were more responsible for the deadlock.