Jeanie DeMarco

The appellant appealed a trial decision that rejected his undocumented claim to a half-interest in a residential property.

The trial judge had found the appellant's evidence incredible and accepted the respondent's evidence that a $130,000 payment was a gift.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings and credibility assessments.

The court also upheld the trial judge's decisions regarding a breach of trust claim, an order for the appellant to pay $3,000 for property damage, and a no-costs award at trial.

The cross-appeal was abandoned and dismissed.

Following a four-day trial where the applicant was awarded a $450,000 lump sum from the estate, the court determined the issue of costs.

The applicant sought full or substantial indemnity costs, arguing the estate trustees' conduct was unreasonable.

The court found the respondents' conduct was aggressive but not reprehensible, and since the applicant had withdrawn all offers to settle before trial, partial indemnity costs were appropriate.

The court fixed fees at $125,000 and reduced the claimed disbursements, noting the expert's account was excessive, resulting in a total costs award of $125,000 for fees and $35,387.20 for disbursements, plus HST.

A common law spouse brought an application under Part V of the Succession Law Reform Act seeking dependant support from the estate of her deceased partner after his will left the estate entirely to his daughters.

The court determined that the applicant was a dependant spouse within the meaning of s. 57 and that the deceased had not made adequate provision for her proper support under s. 58.

Applying the factors in s. 62, including the parties’ 20‑year cohabiting relationship, the applicant’s age, health issues, limited retirement income, and contributions to the deceased’s household, the court found that she required significant support.

Evidence also established that the deceased intended that his RRSP/RRIF funds would benefit the applicant.

The court concluded that a lump sum payment representing the approximate value of those funds would provide fair and adequate support while allowing the applicant financial independence.

Following the breakdown of a common law relationship, the applicant claimed a 50% beneficial interest in the respondent's home based on an alleged agreement, proprietary estoppel, constructive trust, and resulting trust, and also sought a larger share of proceeds from a jointly held investment property.

The court found the applicant's $130,000 payment toward the home was a gift rather than a purchase of equity, and rejected all equitable trust and estoppel claims to the home.

The court held the parties owned the investment property equally as tenants in common and awarded the applicant 50% of the net sale proceeds, less amounts already paid.

Claims for breach of trust, intentional infliction of mental suffering, aggravated and punitive damages, investment-loss damages, website-removal relief, and a non-harassment order were all dismissed, except that the applicant was ordered to pay $3,000 for damage to the home.

The respondent brought a motion for summary judgment seeking dismissal of the applicant’s family law application challenging a mediation/arbitration award concerning termination and repayment of spousal support.

The applicant attempted to set aside the arbitration award under the Arbitration Act, 1991 and the Family Law Act, alleging jurisdictional error, breach of natural justice, evidentiary issues, and reasonable apprehension of bias.

The court held that the issues had already been determined in prior proceedings, including a denied motion for leave to appeal and an enforcement order of the arbitration award, and were therefore barred by res judicata and issue estoppel.

The court further found the application was out of time under statutory limitation provisions and disclosed no genuine issue requiring a trial.

Summary judgment was granted and the application dismissed as an abuse of process.

Following earlier reasons on two family law motions, the court determined costs.

The respondent in the underlying motions sought partial indemnity costs for motions to enforce a costs arbitral award and for security for costs.

The court found the respondent had been successful on both motions, although the security for costs order was granted in a lesser amount than requested.

The court held the claimed fees were generally reasonable but disallowed certain unexplained disbursements.

Costs were fixed on a partial indemnity basis in favour of the successful moving party.

Following family arbitration concerning spousal support, the respondent sought to enforce an arbitral costs award and to obtain security for costs in related court proceedings.

The applicant had commenced proceedings seeking to set aside the arbitral awards and various related relief.

The court held that the statutory requirements for enforcement of the arbitral costs award under the Family Law Act and Arbitration Act, 1991 were met and incorporated the award into a court order, but stayed enforcement pending the determination of a forthcoming summary judgment motion.

The court also found that security for costs was justified because the applicant resided outside Ontario, but reduced the requested amount and ordered security of $16,000 to be posted through share certificates.

The respondent’s motions were therefore granted with modifications.

The appellant appealed a decision regarding an agreement reached by the parties, reflected in a special case, concerning the review of a decision by the majority executors of an estate.

The Court of Appeal dismissed the appeal, declining to interfere with the agreement.

The court noted that the agreement entitled the appellant to a review of the majority executors' decision, meaning the court's jurisdiction was not ousted, and left the determination of the appropriate standard of review to the judge hearing the review application.

The applicant sought leave to appeal an arbitrator’s decision finding that a terminating event under a separation agreement had occurred and ordering repayment of spousal support previously paid.

Under s. 45(1) of the Arbitration Act, 1991, leave to appeal is available only on questions of law.

The applicant alleged errors relating to contract interpretation, admissibility of evidence, and bias, but failed to particularize any specific legal errors or provide evidentiary support.

The court held that the central issue—whether the applicant was living in a relationship resembling marriage—required applying facts to a legal test and therefore constituted a question of mixed fact and law.

Because leave may only be granted for pure questions of law, the motion for leave to appeal was dismissed.

The respondent on appeal moved to lift the automatic stay pending appeal and for security for costs against the appellants, a corporation and its sole shareholder.

The corporate appellant had filed a Notice of Intention to Make a Proposal under the Bankruptcy and Insolvency Act, triggering a stay of proceedings under s. 69(1)(a).

The court declined to make an order against the corporation due to the bankruptcy stay.

However, the court lifted the automatic stay against the individual appellant for the undisputed principal amount of $620,000 and ordered her to post $150,000 as security for costs, citing the trial judge's negative findings regarding her dishonesty and knowing assistance in the corporation's breach of fiduciary duty.

The appellant husband appealed a trial judgment regarding the calculation of net family property and equalization.

He challenged the trial judge's findings on the separation date, the inclusion of his truck and trailer, the order to sell the matrimonial home, and the valuation of Nortel shares.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's factual determinations and concluding that the sale of the matrimonial home was the only practical way to effect equalization.

The respondent's cross-appeal was also dismissed.

The appellant challenged trial findings concerning undue influence, the validity of gifts, and whether a 1988 will had been revoked.

The Court of Appeal held that the trial judge's decision turned largely on credibility findings, to which deference was owed.

The court found clear evidence raising a presumption of undue influence, which the appellant failed to rebut, and rejected the argument that the facts supported a presumption that the will had been revoked.

The appeal was dismissed with costs to the respondents.