2011 ONSC 3180, 2011 ONSC 3180

CITATION : Burke v. Kidd, 2011 ONSC 3180 COURT FILE NO.: 10-932 DATE HEARD: 2011-05-24 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Kris Anne Burke v. John McKelvie Kidd & County of Renfrew BEFORE: Honourable Mr. Justice Timothy Ray COUNSEL: Kris Burke, plaintiff, responding party, self represented No one for the defendant, Kidd David A. Stewart for the defendant, moving party, County of Renfrew E N D O R S E M E N T [ 1 ] The County of Renfrew (“County”) moves for

summary judgement under Rule 20, Rules of Civil Procedure, to dismiss the plaintiff’s claim which seeks to set aside a conveyance of land to it by the plaintiff’s former common law spouse, or alternative relief, on the ground that there is no genuine issue requiring a trial with respect to the plaintiff’s claim against the County. [ 2 ] The plaintiff launched this simplified rules action against the defendant Kidd, her former spouse (who previously held legal title to a parcel of land in the Township of McNab/Braeside), and against the County (the grantee of the parcel in question) to set aside the transfer to the County.

She seeks a judgement ordering that the property be transferred to her, and an order to change the location of an intersection planned by the County as part of the road re-alignment with the acquired parcel. She also seeks damages for breach of the duty of good faith. [ 3 ] Counsel advise that the defendant Kidd consents to the order being sought by the County. The success of the County’s motion for

summary judgement will in no way impair her claim against the defendant Kidd, which will presumably continue. [ 4 ] The plaintiff opposes the County’s motion on the ground that there is evidence that the conveyance by the defendant Kidd was a fraudulent conveyance, and on the ground that the County ought to have sought her consent before taking a conveyance of the parcel from the defendant Kidd. [ 5 ] The plaintiff and the defendant Kidd, who were not legally married, entered into a separation agreement in September, 2006 which included a provision that the defendant Kidd would “ pursue an application for severance for the property located at 788 Mill Ridge Road and Transfer severed (sic) piece to the Plaintiff in lieu of support”.

The defendant Kidd was the registered owner of the property. The severance was to have been undertaken with the Township of McNab/Braeside, but was delayed some four years. The delay prompted the plaintiff to commence an action (not this one) against the defendant Kidd for specific performance. This was unsuccessful.

The plaintiff then received information that the severance would proceed. [ 6 ] The plaintiff’s affidavit on this motion included a letter dated October 23, 2009 from the County to the defendant Kidd in which it acknowledged that part of the land it was seeking was to “i nclude the land that is to be conveyed by you to a third party ”. The plaintiff contends that constituted an acknowledgement by the County that the plaintiff had a legal interest in the land, thereby requiring her consent.

[ 7 ] On February 4, 2010, the plaintiff was asked by the defendant Kidd’s counsel to execute an option to purchase to permit the County to purchase the property for a road re-alignment scheme. She signed it as spouse of the defendant Kidd, (which she was not) who was the legal, titled owner of the parcel. The plaintiff says she was under duress when she signed the option. In her affidavit, she says the duress was because she was told by the defendant Kidd’s lawyer that if she didn’t sign the option, further delay would ensue.

She said that further delay at the time would have put her in a precarious financial position. The County made no representations to her at all. [ 8 ] Her affidavit on this motion included a letter from neighbours to the County complaining of the location of a planned intersection as part of the road re-alignment. [ 9 ] The validity or sufficiency of the plaintiff’s claim against the defendant Kidd is not in issue.

If he is in breach of the separation agreement, the plaintiff may be entitled to damages, since the conveyance was according to her explicitly “in lieu of support”. [ 10 ] The claim against the County, however, has no merit. There is no genuine issue for trial. [ 11 ] The plaintiff has not established the basis of a claim that the conveyance was a fraudulent conveyance or that it should be deemed void. There is no evidence to support that contention. In any event the County was entitled to rely on the plaintiff’s executed option to purchase, allowing the County to purchase the property, which they did.

The plaintiff’s claim that the option recited that she was a spouse, when she was not, does not change the fact of the option. There is no evidence of duress sufficient to nullify her signature. The County was entitled to assume that whatever her status, she had consented to the purchase by the County. [ 12 ] The plaintiff’s claim that the County be required to move a planned intersection is not supported by any evidence nor by any juridical grounds.

Complaints about the location of a planned road intersection, in and of themselves, no matter how valid, are insufficient to permit the intervention of the courts. [ 13 ] The County’s motion for

summary judgement is therefore granted and the plaintiff’s claim against the defendant County of Renfrew is dismissed. [ 14 ] If the parties cannot agree on costs, I invite submissions of 2 pages or less within 10 days addressed to my chambers in Ottawa _____________________________ Honourable Mr Justice Timothy Ray DATE RELEASED: May 24, 2011 CITATION : Burke v. Kidd, 2011 ONSC 3180 COURT FILE NO.: 10-932 DATE HEARD: 2011-05-24

SUPERIOR COURT OF JUSTICE - ONTARIO RE: Kris Anne Burke v. John McKelvie Kidd & County of Renfrew BEFORE: Honourable Mr. Justice Timothy Ray COUNSEL: Kris Burke, plaintiff, responding party, self represented No one for the defendant, Kidd David A. Stewart for the defendant, moving party, County of Renfrew ENDORSEMENT Honourable Justice Timothy Ray DATE RELEASED: May 24, 2011