Law Times

Page 4 February 25, 2013 �� Law Times ��� NEWS Judge sets 10-year limitation period for constructive trust claims BY YAMRI TADDESE Law Times I n a motion a judge said was a first for Ontario���s legal system, the Superior Court decided the expiry date for claiming a constructive trust in family law is 10 years after finding out about the claim. The Limitations Act of 2002 imposes a general two-year limitation period for constructive trust claims. The two-year time frame begins as soon as an applicant discovers a constructive trust claim. But this legislation can���t reasonably apply to family law cases, Justice Craig Perkins ruled in a case this month. The court came to that conclusion in a motion involving a common law partner who claimed a constructive trust over property her spouse owned. The applicant had known about the claim since 2007. When she brought the case to court, the respondent said her claim should have expired several years ago due to the two-year limitation period. Limitation periods aim to spare a potential defendant from indeterminate litigation risk. They also help the courts run more efficiently since evidence is easier to gather closer to the time an applicant became aware of a constructive trust claim. According to Perkins, this is the first time a motion related to constructive trust limitation periods has arisen in a family law case in Ontario. But instead of the Limitations Act, the judge ruled it���s more practical in family law to apply the Real Property Limitations Act that provides a 10-year limitation period for claims to recover land. In McConnell v. Huxtable, Perkins said it���s difficult to know when the clock on the limitation period starts ticking in a common law relationship or marriage. Asserting a definitive point of awareness of a claim is tricky, according to Perkins. ���Does that knowledge reasonably or actually arise when the couple are no longer getting along?��� he asked. ���When one of them thinks of separating? When one of them tries to raise the issue of the title to a particular piece of property?��� He added: ���The Limitations Act of 2002 may have been meant to but does not manage to encompass constructive trust claims. I am unable to give effect to the precise and detailed wording of sections 4 and 5 so as to make them apply to constructive trusts in family law cases.��� If the two-year limitation applies to family law, Perkins noted, it could mean a person would have to sue the partner before their relationship ends. ���If despite that awareness, the potential claimant continues the relationship (or cohabitation) more or less unchanged for two years, is the claim barred even before the relationship (cohabitation) ends?��� he asked. Family lawyer Bill Rogers, who represented the applicant, argued the Limitations Act would have ���absurd��� implications in family law. ���If you���re in a spousal relationship, when do you know you���ve been cheated?��� he asks. ���There is no coherent answer. The way I look at it is not like a commercial relationship, which doesn���t usually involve . . . a romantic relationship. It���s not like a car accident, a wrongful dismissal or a house fire. You can���t pinpoint it.��� Perkins��� decision, assuming it stands, means ���family lawyers can breath a sigh of relief,��� says Rogers. The two-year limitation period ���would have increased litigation because a lot of people would be scrambling to get under the two year, a lot of people would miss it,��� he adds. ���It would just be a nightmare. In my opinion, it would wreck everything.��� Bryan Smith, counsel for the respondent, calls the case complex and suggests Perkins��� decision is in some ways inconsistent. Smith argued the applicant was bringing a claim for unjust enrichment, which isn���t a proprietary claim and therefore not an action to recover land covered by the Real Property Limitations Act. He notes his client is considering an appeal. LT Chance of error ���shockingly high��� Continued from page 1 involved and no marital difficulties, he added. ���In fact, at trial, a parade of witnesses testified that Angela and David were a very happy young couple who loved their two children very much,��� he said. So how did Gavitt end up with life in prison with no chance of parole? ���The answer was entirely forensics,��� said Moran. The prosecution called two witnesses at trial: a fire marshal and a food scientist. They testified that based on their examination, the fire was intentional. ���The testimony they gave was very prevalent at the time, the 1980s,��� said Moran. ���What they said is, ���You can tell from certain indicators at the fire scene that a fire has been intentionally set.������ One of the presumed signs, Moran noted, was that the fire was ���unusually fast-moving and unusually hot.��� There were also black marks under the living room carpet that looked like ���pour patterns��� of gas, the experts said. The other ���surefire sign��� of arson was ���crazed glass,��� which occurs when shattered glass forms a spider web-like pattern. And then there was ���allegatoring��� involving burned wood beams that resemble the back of an alligator and are another indicator of arson. Another expert in gas chromatography also reported seeing two gallons of gasoline poured over the carpet, said Moran. Moran���s team at the Innocence Clinic has been around since 2009. Unlike some other innocence clinics, the project tackles wrongful convictions that don���t involve DNA, which can only redeem a small portion of those imprisoned by mistake. ���In the vast majority of criminal cases, there is no biological evidence left behind,��� according to Moran. The clinic received 4,000 applications when it first opened. But it rejects 85 per cent of applications because the applicant was ���plainly not innocent,��� said Moran. Here at home, Osgoode Hall Law School also runs an innocence clinic that has had several successes, including the release of Romeo Phillion, who served 31 years for murder. Since the 1980s, the Osgoode Innocence Project has helped exonerate 25 to 30 people, says Alan Young, a professor and criminal lawyer who runs the clinic. There are also about 25 other cases in which people have won their freedom in the absence of evidence against them even though their innocence couldn���t be proven. Like Moran���s clinic, Young���s Innocence Project tackles cases not involving biological evidence. Through freedom of information laws, Moran���s team obtained all of the information and evidence police had on the Gavitt case, including 17 samples of the burned carpet taken from several spots in the home. Investigation by experts trained in more sophisticated forensics revealed there was no evidence of gasoline on the carpet. Further, the team discovered that the phenomenon called a flashover wasn���t known at the time of the fire at the Gavitt home. Flashovers are fast-moving blazes that could be due to something as mundane as a cigarette fire on a couch. Hardly anyone survives a flashover, according to Moran. Angela and David Gavitt were both smokers. That Saturday night in 1985, they had also left candles burning in the living room. As well, they had a dog who may have knocked something over, said Moran. ���We know there are a lot more of these cases,��� Moran added. ���There are a lot more wrongful convictions than we thought.��� According to Moran, studies that looked into the frequency rate of wrongful convictions, specifically in capital rape-murder cases in the United States from the early 1980s to the early 1990s, came up with an estimate of a three- to five-per-cent chance of one happening. Although the three- to five-per-cent chance of error doesn���t necessarily apply to all types of cases, it���s still ���shockingly high,��� said Moran. There���s no estimate on the frequency of wrongful convictions in Canada, but the numbers don���t mean much to Young, who says ���every wrongful conviction is one too many.��� ���It doesn���t matter how many there are. You just got to fix the ones that you discover.��� A 2009 report from the National Academy of Sciences deemed forensic science in the United States to be ���fundamentally unreliable.��� But bad forensics aren���t the only source of wrongful convictions. False confessions, police misconduct, use of jailhouse informants, inept defence lawyers, and inaccurate eyewitness identifications all play a part. In states that have the death penalty, it���s often too late to free the innocent. On the day Gavitt gained his freedom, he sat quietly by his family���s grave for two hours, said Moran. ���We largely wept uncontrollably,��� he added. Gavitt now has his job back at the factory where he made furniture in 1985. He has also married a woman he met. ���He still believes to this day that he was weak because he didn���t die in the fire as well, that he went out the window,��� said Moran. But, he added: ���It���s a somewhat happy ending to the saddest case I know.��� LT Get fast and easy access to l t yo ble to y u s and itt���s availa a day. 24 hours Canada���s legal professionals! Canada���s most comprehensive online directory of legal professionals gives you a direct route to the information you need. departments location and area of practice Visit www.CanadianLawList.com and find out how we���re serving you better than ever. compiled by top Canadian legal researchers Untitled-1 1 www.lawtimesnews.com 13-01-03 9:02 AM

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