Trevor Moum

The court dismissed the applicant’s motion to set aside a previous order dismissing her claim for life insurance proceeds allegedly paid in violation of a separation agreement.

The decision addresses the availability of summary judgment in family law, the requirements for setting aside an order, and the jurisdictional boundaries between the Unified Family Court and the general Superior Court.

The court found no arguable defence on the merits and concluded that the Unified Family Court was not the proper forum for the applicant’s claim against the respondent.

The Applicant Mother sought interim child and spousal support from the Respondent Father.

The Father consented to child support but disputed spousal support, arguing for no payment and the imputation of income to the Mother due to alleged underemployment and underutilization of capital assets (equalization payment and family farm).

The court found that entitlement to spousal support had already been established by a previous order.

The court declined to impute employment income to the Mother, considering her long absence from the workforce, her role in caring for a special needs child, and her partial blindness.

It also declined to impute income from capital assets, citing unsettled valuations and unclear income-earning potential.

The Father's motion for a variation to pay no interim spousal support was dismissed.

The court awarded the Mother interim spousal support of $2,900 per month from September 1, 2019, and set specific interim child support amounts.

This decision concerns the costs award following a successful summary judgment motion where the defendants, Schembri et al., had a $30,500,000 claim against them struck in its entirety.

Schembri sought $499,933.06 in costs.

The plaintiffs, Way et al., opposed the quantum, arguing for a reduction.

The court found Schembri's costs reasonable, noting the complexity of the intertwined actions and the plaintiffs' extensive, unfocused responding material.

The court also drew an adverse inference from the plaintiffs' failure to provide their own cost outline.

The full amount of costs requested by Schembri was awarded.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' action for breach of a non-competition clause in a shareholders agreement and breach of fiduciary duty.

The parties, former joint venturers in real estate development, had a falling out.

The plaintiffs alleged the defendants breached the agreement by pursuing other developments without presenting them first.

The court found the non-competition clause was ambiguous, constituted an unenforceable agreement to agree, and lacked a reasonable time limit.

The court also rejected the plaintiffs' unpleaded argument regarding breach of statutory fiduciary duties under the Business Corporations Act.

The plaintiffs' action was dismissed in its entirety.

The respondent moved to set aside a Certificate of Pending Litigation (CPL) that had been granted ex parte to the applicants concerning a property.

The court granted the motion, discharging the CPL and awarding costs to the respondent.

The reasons included the applicants' lack of full and frank disclosure on the ex parte motion, failure to establish the property's uniqueness, significant unexplained delay in seeking the CPL, and the prejudice to a bona fide third-party purchaser.

The court found the applicants' claim for damages would remain, and the balance of harm favored vacating the CPL.