Peter Shawn Mirsky

The appellant appealed an order striking his amended statement of claim and dismissing his action as statute-barred under the Limitations Act, 2002.

The underlying action involved allegations of water infiltration from neighbouring properties caused by the respondents' excavation of a trench, installation of a drainage ditch, and engineering of water drainage into a culvert.

The Court of Appeal allowed the appeal, finding that the motion judge erred by treating multiple distinct instances of alleged tortious conduct as a single event.

Reading the pleadings generously, it was not plain and obvious that all claims were statute-barred, highlighting the desirability of waiting until pleadings are closed before bringing a Rule 21.01(1)(a) motion on limitation issues.

The parties separated after a 30-year cohabitation and 21-year marriage.

The trial addressed the equalization of net family property, the valuation of the respondent's excavation business, and the determination of his income for child and spousal support purposes.

The court dismissed the respondent's claim for a constructive trust over a property owned by the applicant.

The court valued the respondent's business by adjusting the fair market value of its real estate and equipment, and imputed an additional $25,000 per year in income to the respondent due to his practice of receiving unreported cash and claiming excessive amortization expenses.

The court also granted a charging order against the respondent's properties to secure support arrears and equalization, but dismissed the applicant's request for a restraining order.

The Respondent brought a motion to amend his Answer after the conclusion of the trial, while the decision was under reserve, to add a claim for a resulting trust over a property.

The trial had proceeded on the basis of a constructive trust claim.

The court dismissed the motion, finding that allowing the amendment at this late stage would cause non-compensable prejudice to the Applicant.

The amendment would require re-opening the trial to address the reverse onus associated with a resulting trust, causing significant delay and emotional prejudice, and fundamentally changing the case the Applicant had to meet.

The Applicant, Ms. Davidson, sought costs after being the more successful party on a motion concerning exclusive possession and sale of the matrimonial home, child support for two adult children, and compliance with a disclosure order.

The Respondent, Mr. Davidson, brought a cross-motion.

The court found Ms. Davidson more successful overall, having obtained orders for exclusive possession, sale, and child support based on imputed income.

While both parties exhibited some unreasonable behaviour, Mr. Davidson's was to a greater extent, particularly regarding disclosure.

The court fixed costs at $8,000 for Ms. Davidson, inclusive of disbursements and HST, to be paid by Mr. Davidson.

In this family law motion, the applicant sought exclusive possession and sale of the matrimonial home, sale of other properties, temporary spousal and child support, and to strike the respondent's pleadings.

The respondent cross-moved for exclusive possession, leave to claim a constructive trust, sale of one property, and support orders.

The court granted the applicant temporary exclusive possession of the matrimonial home and ordered its sale, finding the respondent unreasonably withheld consent.

The court imputed an income of $82,000 to the respondent for temporary spousal and child support purposes.

The applicant's request to strike pleadings was denied, but the respondent was ordered to provide full financial disclosure.

The respondent was granted leave to amend his pleadings to claim a constructive trust.

The applicant mother brought an urgent motion for exclusive possession of the matrimonial home, interim support, and a restraining order following the parties' separation.

The youngest child had been experiencing severe mental health issues and suicidal ideation related to the separation.

The court granted the mother exclusive possession of the home to provide stability for the child, deferred the support issues while ordering the father to pay specific home expenses, and dismissed the request for a restraining order due to insufficient evidence.

The Applicant father sought interim child and spousal support, imputation of income to the Respondent mother, and an order severing the divorce.

The Respondent mother cross-moved for interim child and spousal support, imputation of income to the father, and professional valuations of the father's assets and income.

The court imputed an income of $10,000 to the mother, declined to impute additional income to the father from gifts, ordered child support for one child (D.) and a s. 7 approach for another (Q.), and found the third child (A.) was not a child of the marriage for support purposes.

Interim spousal support was ordered at the high end of the SSAG.

The divorce was severed, and the mother's requests for professional appraisals were denied.

The Respondent Father brought a motion seeking unsupervised access to his two young children, while the Applicant Mother brought a cross-motion for sole custody and continued supervised access.

The court granted the Father unsupervised access, to be implemented gradually, finding no evidence to support the Mother's safety concerns regarding the Father's and his family's medical conditions or housing.

The Mother's request for interim sole custody was denied, with the court preferring to leave the final custody determination to a trial judge to avoid prejudging the issue.

Costs for the motion and cross-motion were awarded to the Father.

The respondent brought a motion to change a previous spousal support order, seeking increased retroactive and ongoing support due to the applicant's undisclosed severance payment and post-retirement employment income, alleging a material change in circumstances.

The applicant counterclaimed for a reduction in support, citing the respondent's remarriage.

The court found the applicant's failure to disclose severance payments and post-retirement income constituted a material change, and that severance pay was income for support purposes despite a property release clause in the separation agreement.

The respondent's remarriage was not deemed a material change.

The court ordered increased retroactive and ongoing spousal support for the respondent and dismissed the applicant's counterclaim.

This application concerned the respondent's claims for an interest in two properties registered solely in the applicant's name, a division of RRSP assets, and spousal support, alongside the applicant's counter-claims for occupancy rent and specific household items.

The court found no evidence of a joint family venture, largely due to the parties' segregation of assets and financial responsibilities.

The respondent's claims for property interest, RRSPs, and spousal support were dismissed, with the court noting his lack of credible evidence, failure to disclose income, and "unclean hands" in attempting to shelter assets from child support obligations.

The applicant was awarded a net monetary sum for occupancy rent and personal property.

Following a trial where success was evenly divided regarding child support arrears and overpayments, the court declined to award trial costs to either party.

However, the court awarded the respondent costs of $6,530.62 for successfully defending a prior motion brought by the applicant to set aside the spousal support terms of their separation agreement.

The respondent brought a motion for summary judgment seeking dismissal of the applicant’s claim for renewed spousal support in a Motion to Change, following a separation agreement containing a final release of spousal support.

Applying the two‑stage analysis from Miglin v. Miglin, the court examined whether the agreement should be set aside due to deficiencies in negotiation, disclosure, or subsequent unforeseen circumstances.

The court found the agreement was negotiated over several years with extensive disclosure and legal representation, and there was no evidence of duress or procedural unfairness.

At the second stage, the applicant failed to demonstrate a significant change in circumstances not contemplated by the agreement.

Summary judgment was granted and the spousal support claim dismissed.

The applicant brought a contempt motion alleging the respondent failed to comply with a prior disclosure order requiring an Affidavit of Documents.

The court reviewed the principles governing civil contempt under the Family Law Rules, emphasizing that contempt is a remedy of last resort and must be proven beyond a reasonable doubt with a clear and unambiguous order and intentional breach.

The evidence established that the respondent knowingly failed to comply with the prior order and appeared to be seeking a tactical litigation advantage through non-compliance.

Although the respondent had substantially complied by the time of the hearing, the court found contempt proven beyond a reasonable doubt.

Given that the contempt had effectively been purged by the hearing date, the court determined that the finding of contempt itself was a sufficient penalty.

The appellant appealed the dismissal of its Superior Court action, which the motion judge had found to be an abuse of process for raising the same issues as an earlier Small Claims Court action.

The Court of Appeal allowed the appeal, finding that despite the appellant's contradictory affidavits, the legal issues in the two actions were not identical or substantially the same.

However, due to the appellant's inaccurate affidavit, costs of the appeal and the motion were awarded to the respondent.

The appellant appealed an order requiring her to remove trailers and motor homes from her property.

She argued she had a legal non-conforming right to keep five trailers on the property, as they were placed there in 1977 under a previous zoning by-law.

The Court of Appeal found that the previous by-law permitted only one trailer to be used seasonally as a single-family dwelling.

Therefore, the appellant acquired legal non-conforming rights for one trailer only.

The appeal was allowed in part to exempt one trailer from the removal order.