Peter S. 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 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.

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.