Mervin L. Riddell

The moving party brought a motion for leave to appeal the decision of Campbell J dated October 7, 2024.

The Divisional Court dismissed the motion for leave to appeal without costs.

The appellant sought to overturn a lower court decision denying his claim for adverse possession over an unfenced portion of a triangular strip of land adjacent to his property, and his claim for proprietary estoppel.

The Court of Appeal upheld the application judge's decision, finding no error in the judge's application of the three-pronged test for adverse possession, nor in the rejection of the proprietary estoppel claim.

The court affirmed that the unfenced area could be treated separately from a fenced portion where adverse possession was conceded, and that the appellant failed to prove actual possession, intent to exclude, or effective exclusion for the unfenced area.

This property boundary dispute concerned competing applications over a triangular strip and adjoining open lawn between neighbouring Port Stanley properties.

The court held that adverse possession was established only for the enclosed triangular area within the existing picket fence, based on long-standing actual possession, inferred intention to exclude, and effective exclusion.

The broader claim to the open lawn extending by a projected fence line failed because the evidence did not establish actual possession, intention to exclude, mutual mistake, demarcation, or effective exclusion during the relevant pre-conversion period under the Land Titles Act.

The alternative claim in proprietary estoppel also failed for want of encouragement, detrimental reliance, and unconscionable advantage.

The appellant appealed the dismissal of her motion for retroactive child support payments against her deceased ex-husband's estate.

The original 1978 Decree Nisi did not state that the child support obligation would bind the estate.

The motion judge ruled that under s. 17 of the Divorce Act, an application to claim or vary a support order against a decedent's estate cannot be brought if the original order is silent on binding the estate.

The Court of Appeal upheld this decision, confirming that a support obligation under divorce legislation ends upon the payor's death unless specifically agreed otherwise, and that the Divorce Act lacks a provision similar to the Family Law Act that binds an estate.

The applicant brought a motion to change a 1978 divorce order to claim retroactive child support and post-secondary expenses from the estate of her deceased ex-husband, 41 years after the original order.

The respondent estate trustee brought a motion to dismiss the claim on a question of law.

The court held that under the Divorce Act, a support obligation ends upon the payor's death unless the order explicitly provides that it binds the estate.

Because the original order contained no such provision, it died with the payor and could not be retroactively varied post-death.

The applicant's motion to change was dismissed.

The children's aid society apprehended three children from their father's care due to concerns about his inability to control his temper and excessive discipline.

The society sought an interim order placing the children with their mother and restricting the father's access.

The father brought motions to strike the society's affidavit and dismiss the protection application as an abuse of process, arguing bias and a right to refuse cooperation.

The court dismissed the father's motions, finding no abuse of process and that his refusal to cooperate with services raised valid protection concerns.

Applying the interim placement test, the court found a real risk of emotional and physical harm if the children were returned to the father.

The children were placed with the mother on an interim basis, and the father was granted supervised access subject to strict conditions.

The parties separated after a 15-year marriage with no children.

Almost a year after separation, the respondent wife was diagnosed with paranoid schizophrenia and subsequently sought spousal support.

The applicant husband sought a divorce.

The court found no entitlement to compensatory support as the respondent was not economically disadvantaged by the marriage.

The court also denied non-compensatory support, holding that the respondent's disability arose post-separation, was not contemplated during the marriage, and had no connection to the marriage breakdown.

The interim support order was vacated, arrears were set to zero, and the divorce was granted.

This was a costs endorsement following a family law motion concerning compliance with undertakings and an advance for legal fees or release of funds from trust.

The court held that the moving party achieved partial success and was presumptively entitled to costs under the Family Law Rules.

Applying the reasonableness factors, the court awarded costs for the undertakings issue but reduced recovery on the funding issue because the moving party had failed to make timely financial disclosure.

Final costs were fixed at $2,500 inclusive of HST and assessable disbursements.

The appellant appealed a decision of the Ontario Court of Justice that varied a prior custody order and granted the respondent sole custody of the parties’ children.

The appeal court held that the trial judge erred in law by varying the custody order despite expressly finding that no material change in circumstances had been proven, contrary to the governing test in Gordon v. Goertz.

The court further found that the trial judge compromised the appearance of judicial impartiality by conducting extensive cross‑examination of a key witness and refusing to permit counsel to ask follow‑up questions, resulting in procedural unfairness.

Because these errors deprived the court of jurisdiction and undermined the fairness of the proceeding, the variation order could not stand.

The appeal was allowed, the impugned order quashed, and a new trial ordered, with the prior custody arrangement reinstated in the interim.

Following the offender's guilty pleas to fraud and money laundering, the Crown brought a forfeiture application.

Two third parties, Picard Foods Ltd. and SNC-Lavalin Profac Inc., claimed interests in the proceeds of the sale of a property.

In a previous ruling, the court found Picard was entitled to a portion of the municipal service costs.

In this final ruling, the court fixed the principal amount owing to Picard at $72,690.29, excluding carrying costs, with 10% interest payable from June 21, 2008.

The court dismissed Picard's application for costs against the Crown and ProFac, finding no Crown misconduct or exceptional circumstances to justify a costs award to a bystander in a criminal proceeding.

The applicant purchased property for a retail store and sought access from a provincial highway.

The Ministry of Transportation denied the request for safety reasons, citing a policy preferring municipal road access when available.

The applicant sought judicial review, arguing the Ministry unlawfully fettered its discretion by strictly applying the policy.

The Divisional Court dismissed the application, finding the standard of review was reasonableness and that the Ministry had genuinely considered alternatives and expert evidence before reasonably concluding no safe highway access could be provided.

The appellant, a beneficiary of a family trust, appealed the dismissal of his application to remove the trustees and interfere with their decisions regarding periodic payments.

He alleged the trustees had an inherent conflict of interest and failed to act impartially.

The Court of Appeal dismissed the appeal, finding no inherent conflict of interest and no error in the application judge's conclusion that the trustees had not failed in their duties.

The Court also agreed that issues regarding specific payments out of the trust should be dealt with on the passing of accounts, and found no basis to interfere with the trustees' discretionary decisions regarding periodic payments or the application judge's costs award.