Court File and Parties

Citation: Brennan v. Brennan, 2010 ONCA 222 Date: 2010-03-24 Docket: C50989 Court of Appeal for Ontario

Before: O’Connor A.C.J.O., Cronk and Watt JJ.A.

Between:

Melissa Brennan Applicant (Appellant)

and

Edward Brennan Respondent (Respondent in appeal)

and

The Office of the Children’s Lawyer on behalf of the minor child Edward Brennan Jr. Respondent (Respondent in appeal)

Counsel: Marnie Vickerd, for the appellant D. John Kirby, for the respondent Edward Brennan Louis Leibowitz and Katherine Antonacopoulos, for the respondent, the Office of the Children’s Lawyer

Heard and released orally: March 18, 2010 On appeal from the order of Justice T.D. Little of the Superior Court of Justice, dated May 28, 2009.

Endorsement

[1] The appellant challenges the trial judge’s decision confirming the validity of the impugned Trust Agreement on four main grounds.

[2] First, she argues that even if the Trust Agreement were otherwise valid, her interests under the Family Law Act, R.S.O. 1990, c. F. 3 (the “Act”) in respect of the real property that became the parties’ matrimonial home could not be defeated by the Trust Agreement.

[3] Although this argument was ably put by the appellant’s counsel, we would not give effect to it. When the Trust Agreement was executed, the real property was not a matrimonial home within the meaning of the Act. Neither the appellant nor the respondent had any interest in the home, which was not acquired until after the date of the Trust Agreement. More importantly, by her own admission, the appellant had no proprietary or other interest – whether legal or equitable – in the funds that formed the subject-matter of the trust.

[4] Nor do we agree that the trust is defeated for lack of certainty of subject matter. The trial judge found that the subject matter of the trust was the monies paid by the respondent into the trust account of the parties’ solicitor. He found that, on the appellant’s own evidence, these monies were held in trust by the appellant for the respondent’s benefit prior to their transmittal to the solicitor. It was these monies that constituted the subject matter of the trust thereafter created. In these circumstances, certainty of the subject matter of the trust was demonstrated.

[5] The appellant next argues that the trial judge was functus officio when he issued his supplementary reasons and final decision. We disagree.

[6] In his initial reasons, while the trial judge expressed a view as to the validity of the Trust Agreement, he also expressly invited further submissions from the parties on this precise issue. Those additional submissions were received and considered. Throughout, no order in respect of the trial judge’s April 22, 2009 reasons had been issued and entered. The trial judge, therefore, was not functus officio at the relevant time.

[7] Finally, the appellant challenges the trial judge’s finding that she failed to establish her claim of duress on the requisite standard of proof. In effect, the trial judge held that the appellant had not established duress. This factual finding attracts great deference from this court. On this record, there is no basis on which to interfere with it.

[8] For these reasons, the appeal is dismissed. The respondent is entitled to his costs of the appeal, fixed in the total amount of $5,000, inclusive of disbursements and G.S.T. We make no costs award in respect of the Office of the Children’s Lawyer.

“Dennis O’Connor A.C.J.O.”

“E.A. Cronk J.A.”

“David Watt J.A.”