Milavsky v. Milavsky et al., 2011 ABCA 231

• Judge: O'Brien, Martin and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: July 11, 2011
• Citations: 2011 ABCA 231;(2011), 513 A.R. 282

Milavsky v. Milavsky (2011), 513 A.R. 282; 530 W.A.C. 282 (CA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JL.168

Marilyn Theresa Milavsky (appellant/plaintiff) v. Harold Philip Milavsky, 353396 Alberta Inc., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and the Harold Milavsky Descendants Trust (respondents/defendants)

(1101-0141-AC; 2011 ABCA 231)

Indexed As: Milavsky v. Milavsky et al.

Alberta Court of Appeal

O'Brien, Martin and O'Ferrall, JJ.A.

July 26, 2011.

Summary:

A wife commenced an action against her husband seeking a divorce and division of their matrimonial property. She commenced a second action against him, as well as a trustee and three family trusts, claiming remedies for unjust enrichment and also sought to set aside conveyances alleged to have been made to the trusts by the husband during their cohabitation. The defendants in the trusts action sought summary judgment on the basis that the claims against the trusts, and against the husband personally respecting the trusts, were statute barred.

The Alberta Court of Queen's Bench, in a decision reported at [2011] A.R. Uned. 357, granted the application with the exception of the claims against one trust, which the defendants conceded might not be statute barred. The wife appealed from the summary judgment.

The Alberta Court of Appeal allowed the appeal. This was not a suitable case for summary judgment. The evidence disclosed that material facts were in serious dispute, which required a trial. There were also genuine issues of law which should only be answered in the context of findings of fact.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - A wife commenced an action against her husband seeking a divorce and division of their matrimonial property - She commenced a second action against him, as well as a trustee and three family trusts, claiming remedies for unjust enrichment and also sought to set aside conveyances alleged to have been made to the trusts by the husband during their cohabitation - The defendants in the trusts action sought summary judgment on the basis that the claims against the trusts, and against the husband personally respecting the trusts, were statute barred - The chambers judge granted the application with the exception of the claims against one trust - The Alberta Court of Appeal allowed the wife's appeal from the summary judgment - This was not a suitable case for summary judgment - The chambers judge took an overly narrow view of the claims advanced and the issues raised thereby - There were arguable claims based on unjust enrichment, the Statute of Elizabeth and fraudulent concealment - The evidence disclosed that material facts were in serious dispute, which required a trial - There were also genuine issues of law which should only be answered in the context of findings of fact.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5702 ].

Cases Noticed:

Desoto Resources Ltd. v. Encana Corp. et al. (2011), 513 A.R. 72; 530 W.A.C. 72; 2011 ABCA 100, refd to. [para. 13].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1; 178 D.L.R.(4th) 1, refd to. [para. 14].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 15].

Kerr v. Baranow, [2011] 3 W.W.R. 575; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 2011 SCC 10, refd to. [para. 19].

Johansson v. Fevang, [2009] A.R. Uned. 872; [2010] A.W.L.D. 468; 2009 ABQB 573, refd to. [para. 26].

Sorochan v. Sorochan, [1986] 2 S.C.R. 38; 69 N.R. 81; 74 A.R. 67; 46 Alta. L.R.(2d) 97, refd to. [para. 27].

Palechuk v. Fahrlander et al. (2006), 397 A.R. 151; 384 W.A.C. 151; 2006 ABCA 242, refd to. [para. 31].

Bowes v. Edmonton (City) et al. (2007), 425 A.R. 123; 418 W.A.C. 123; 2007 ABCA 347, dist. [para. 32].

Perry, Farley & Onyschuk v. Outerbridge Management Ltd. et al. (2001), 146 O.A.C. 144; 199 D.L.R.(4th) 279 (C.A.), refd to. [para. 34].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321; 96 D.L.R.(4th) 289, refd to. [para. 38].

Kitchen v. Royal Air Force Association, [1958] 2 All E.R. 241 (C.A.), refd to. [para. 38].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161; 13 D.L.R.(4th) 321, refd to. [para. 39].

Authors and Works Noticed:

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), p. 334 [para. 30].

Counsel:

L.E. Allen, for the appellant;

J.P. Peacock, Q.C. and G.F. Graham, Q.C., for the respondents.

This appeal was heard on July 11, 2011, by O'Brien, Martin and O'Ferrall, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the court and filed at Calgary, Alberta, on July 26, 2011.