Kenneth J. Peacocke

The appellant appealed a decision dismissing her application for adverse possession of a narrow strip of land behind the respondents' garage.

The application judge found that the appellant failed to prove actual possession of the disputed strip between 1998 and 2008, noting insufficient evidence of a fence restricting access.

The Court of Appeal dismissed the appeal, holding that the application judge's findings of fact and mixed fact and law were entitled to deference and were open to her on the record.

The appellant appealed from the dismissal of her motion to set aside a registrar's order dismissing her action for delay.

The parties settled the appeal on consent terms that set aside the registrar's dismissal and the motion judge's orders, reinstated the action, imposed litigation deadlines for documentary discovery, examinations for discovery, and setting the matter down for trial, and provided for dismissal for delay if those deadlines were missed on motion by the respondents.

The court held that the justice of the case warranted allowing the appeal pursuant to the agreed terms.

Appeal costs were fixed at $2,000 payable by the appellant to the respondents, and previously awarded motion costs were reserved to the trial judge.

The appellant developer appealed the dismissal of its application to enforce a restrictive covenant limiting the size of ancillary buildings on a lot purchased by the respondents.

The covenant expired before the appeal was heard.

The Court of Appeal dismissed the appeal on the merits as moot, finding no community interests or public importance to justify hearing it.

However, the Court granted leave to appeal costs, finding the application judge erred in awarding substantial indemnity costs to the respondents based on their offer to settle under Rule 49.10(7).

The costs award below was reduced to $20,000.

The applicants sought leave to appeal an interlocutory order dismissing their motion to dismiss the action for delay.

The respondents failed to file a responding factum, which was over four months late.

The Divisional Court clarified that Rule 61.03.1 applies to motions for leave to appeal from an interlocutory order of a Superior Court judge, requiring the responding factum to be filed within 25 days after service of the moving party's record.

The court proceeded without the respondents' materials and dismissed the motion for leave to appeal, finding the applicants failed to meet the test under Rule 62.02(4).

The appellant physician appealed a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario, which found him incompetent, revoked his certificate of registration, and ordered him to pay costs.

The Committee found the appellant had failed to maintain the standard of practice, engaged in professional misconduct by falsifying patient charts, and lacked insight into his deficiencies.

The Divisional Court dismissed the appeal, holding that the Committee's findings on incompetence, the penalty of revocation, and the costs award were reasonable and supported by the evidentiary record.

The appellant father appealed a Superior Court decision dismissing his motion to change custody of a 12-year-old child.

The original custody order was made on consent to the mother in 2007.

The father argued that a psychological report ordered under the Children's Law Reform Act established a material change in circumstances affecting the child.

The Court of Appeal upheld the dismissal, finding that while the report documented parental conflict and the mother's anger negatively impacting the child, the continuation of parental conflict does not constitute a material change in circumstances.

The court noted that the mother had taken reasonable steps to address the identified issues, including enrolling in parenting programs and increasing the father's time with the child.

The plaintiff commenced an action in Toronto for intrusion upon seclusion and other torts, alleging the defendant improperly obtained and disclosed information about her university enrollment during family litigation.

The defendant brought a motion to transfer the proceeding to London, while the plaintiff brought a motion to compel the defendant to disclose the source of the information.

The court granted the transfer motion, finding that the holistic application of Rule 13.1.02 factors strongly favoured London, where both parties and most witnesses reside.

The court adjourned the plaintiff's motion to compel disclosure, holding that while the information is relevant and must be disclosed, piecemeal discovery should be discouraged and the issue should be addressed at examinations for discovery.

Following a successful appeal that set aside an order reducing spousal support, the appellant sought costs of the underlying motion.

The issue of costs for the motion had not been addressed during the appeal hearing or in the initial reasons for judgment.

The Divisional Court exercised its discretion to correct the oversight before the final order was entered, relieving the appellant from the requirement to file a formal notice of motion.

The court awarded the appellant partial indemnity costs of the underlying motion fixed at $14,604.53.

The appellant, a disabled former spouse, appealed a motion judge's order reducing her spousal support from $1,500 to approximately $800 per month.

The motion judge had found a material change in circumstances based on the respondent's adoption of his new wife's children, his deteriorating health, and his new wife's inability to work.

The Divisional Court allowed the appeal, finding that the motion judge made palpable and overriding errors of fact regarding the respondent's health and income, and erred in law by failing to apply the 'first-family-first' principle to the respondent's voluntary assumption of new financial obligations.

The original spousal support order was restored.

The parties separated after a seven-year unmarried relationship.

The trial judge found the respondent had established an unjust enrichment claim regarding the home owned by the appellant, concluding there was a joint family venture, and awarded him $86,500.

The appellant appealed, arguing the trial judge erred in dismissing her retroactive child support claim and in finding a joint family venture.

The child support ground was abandoned during the hearing.

The Court of Appeal dismissed the appeal on the constructive trust claim, finding the trial judge's conclusions on unjust enrichment, joint family venture, and the proportionate damages award were supported by the evidence.

The appellants, owners of private cottages on leased land in a provincial park, appealed a decision declaring them obligated to pay a portion of the grant in lieu of taxes paid by the Crown to the municipality under the Municipal Tax Assistance Act.

The appellants argued that prior lease agreements and correspondence constituted an agreement exempting them from this obligation.

The Court of Appeal dismissed the appeal, upholding the application judge's finding that no such agreement existed and affirming the Crown's right to enforce its statutory rights following a change in taxation policy.

The appellant son appealed a judgment setting aside the transfer of his mother's home to him based on non est factum and undue influence, and dismissing his counterclaim for equitable remedies.

The Court of Appeal upheld the trial judge's findings, noting the mother's limited English, recent widowhood, and lack of independent legal advice.

The counterclaim was properly dismissed due to the appellant's lack of clean hands and prematurity.

The appeal and a related motion were dismissed with costs.

The appellant appealed a motion judge's finding that two individuals were not covered under renewal insurance policies from 2009 through 2011.

The Court of Appeal dismissed the appeal, agreeing that the individuals no longer met the definition of insured because they had been terminated as foster parents in 2008.

Furthermore, under the claims-made policy, no proceedings were commenced against them after the effective date of the renewal policies.

Two applications sought interpretation of an insurance policy issued to a Children’s Aid Society concerning legal expense coverage for foster parents charged with Criminal Code offences.

The applicants argued that the $500,000 aggregate limit applied per policy year, allowing stacking across successive policy periods in which defence costs were incurred.

The insurer argued that the legal expense rider was a claims‑made policy triggered only in the policy period when the criminal proceedings commenced and that coverage was limited to a single $500,000 aggregate limit.

The court held that the wording of the rider allowed aggregate limits to accumulate across policy periods but concluded that the foster parents ceased to qualify as “insureds” after their termination.

As a result, recovery remained limited to the $500,000 aggregate available under the 2008–2009 policy.

The appellant appealed an order granting his mother, the titled owner, leave to issue a writ of possession requiring him to vacate her home.

The appellant claimed an interest in the home via constructive trust based on oral promises and work he performed, but he had not commenced a counter-application or action.

The Court of Appeal dismissed the appeal, finding that the only issue before the court was the title holder's right to possession, making the appellant's constructive trust evidence irrelevant to the application.

The moving party sought costs following a motion to quash an appeal or, in the alternative, for security for costs.

Although the motion to quash was dismissed, the moving party was successful in obtaining an order for security for costs.

The court found that success was not divided, as most of the preparation time was relevant to both issues.

The responding party, who was self-represented, was ordered to pay partial indemnity costs of $5,577.50, to be paid from her share of the proceeds from the sale of a jointly owned property.

The appellant sought leave to appeal a judgment of the Superior Court of Justice.

The Court of Appeal denied leave, finding that the proposed appeal was fact-driven, raised no important legal issues, and lacked strong merits.

The appellants appealed a trial judgment finding personal liability and interpreting a second contract as open-ended as to time.

The Court of Appeal dismissed the appeal, agreeing with the trial judge's interpretation based on the plain wording of the contract and the parties' subsequent conduct.

The appellant appealed a decision of the Financial Services Tribunal confirming the Superintendent's consent to merge two pension plans following a corporate amalgamation.

The appellant argued the merger and subsequent use of the actuarial surplus from one plan to fund contribution holidays for the merged plan constituted a revocation of trust.

The Divisional Court dismissed the appeal, finding the Tribunal's decision reasonable and correct.

The court held that the plan documents permitted the merger and that using actuarial surplus to fund contribution holidays while a plan is ongoing does not constitute a revocation of trust.

The appellant appealed a final order regarding the sale of matrimonial properties, arguing it was granted without a case conference, despite the respondent's breach of a prior order, and without allowing her to complete her offer to purchase the matrimonial home.

The Court of Appeal dismissed the appeal, finding no error by the application judge.

The urgency of outstanding offers justified dispensing with the case conference, the prior breach was addressed by dispensing with consent for transfer, and there was reason to doubt the appellant's offer was better than a pending third-party offer.