Louie et al. v. Lastman; Canadian Foundation for Children, Youth and the Law, Intervenor [Indexed as: Louie v. Lastman (No. 1)]

61 O.R. (3d) 449

[2002] O.J. No. 3521

Docket No. C36567

Court of Appeal for Ontario,

Catzman, Rosenberg and Cronk JJ.A.

September 17, 2002

• Application for leave to appeal to the Supreme Court of Canada was dismissed with costs March 27, 2003 (Gonthier, Major and Arbour). S.C.C. File No. 29458. S.C.C. Bulletin, 2003, p. 515.

Fiduciaries -- Duties -- Plaintiffs' mother and defendant allegedly had extramarital affair which ended in 1971 -- Plaintiffs bringing action in 2000 for damages for breach of fiduciary duty -- Motions judge properly striking statement of claim on motion by defendant under Rule 21 -- Claim essentially one for retroactive child support and constituting attempt to circumvent existing comprehensive statutory child support scheme -- Defendant does not have fiduciary obligations towards plaintiffs -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21.

Family law -- Support -- Child support -- Plaintiffs' mother and defendant allegedly had extramarital affair which ended in 1971 -- Plaintiffs bringing action in 2000 for damages for breach of fiduciary duty -- Motions judge properly striking statement of claim on motion by defendant under Rule 21 -- Claim essentially one for retroactive child support and constituting attempt to circumvent existing comprehensive statutory child support scheme -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21.

The plaintiffs were born in 1958 and 1962 respectively. They alleged that the defendant was their father and that he and their mother had a secret extramarital affair which ended in 1971. During the relationship, they knew the defendant only as a friend of their mother. From time to time, he took them on various outings and purchased small gifts for them. After the separation, he made small monthly payments which ended in 1974 when the plaintiffs' mother signed a release in exchange for the payment of a lump sum of $27,500. The plaintiffs brought an action in 2000 claiming that the defendant had a fiduciary obligation to make adequate provision for their support and seeking compensation for breach of fiduciary duty and unjust enrichment. On a motion by the defendant under Rule 21 of the Rules of Civil Procedure, the motions judge found that it was plain and obvious that the plaintiffs' claims could not succeed. The plaintiffs appealed.

Held, the appeal should be dismissed.

No matter how the plaintiffs attempt to frame their action, in the end it is nothing more than a claim for retroactive child support