ARCTIC OBITER

20 | ARCTIC OBITER
the title of the matrimonial home. The
parties had a pre-nuptual agreement,
and the respondent had registered a
caveat against title to the home as a
beneficial owner pursuant to that
a g r e e m e n t . T h e r e s p o n d e n t ’ s
entitlement under the agreement was to
one-half the value of the property and
not the property itself.
The property
was registered in the name of the
applicant, and control over the
disposition of the property was left
e x c l usively t o t h e a p p l i c a n t .
Application allowed, with an order that
the proceeds of sale be paid into court
pending determination of whether the
respondent is entitled to any of the
proceeds.
INSURANCE LAW – DUTY TO
DEFEND – WAIVER AND ESTOPPEL
Personal Insurance Company v
Richinger
2012 NWTSC 19 (CanLII) | March 2, 2012
Presiding: Justice V.A. Schuler
For the Applicant: G. Holan
For the Respondent (Richinger): B. Comba
For the Respondent (Osmond): P. Sacha,
For the Respondent (Co-operators): D. Shepherd
Application by the insurer for a
declaration that it has no obligation to
defend or indemnify the insured’s
estate in respect of an action related to a
motor vehicle collision.
There was
evidence the collission was deliberately
caused by the insured, to commit
suicide and kill his two young
daughters.
The respondents argued
that because the applicant has already
undertaken defence of the actions it has
waived its right to deny coverage or is
estopped from asserting that right.
None of the parties disputed that s. 35
of the Insurance Act applies, subject to
waiver and estoppel.
Application dismissed - An insurer
should be presumed to know both its
policy and the laws that govern its
business. The applicant had sufficient
knowledge of the facts that made s. 35
applicable to this case before it
undertook the defence of the estate. It
knew or must be deemed to know its
rights when it made that election. Had
the applicant wanted to reserve itself
the right to deny indemnity and
defence, it should have taken the steps
normally taken in its industry.
The
applicant did not obtain or attempt to
obtain a non-waiver agreement, nor did
it provide a reservation of rights letter.
In pursuing the defence of the claims, it
must be taken to have waived its rights
under s 35 of the Act.
Unlike waiver, estoppel requires the
insured establish prejudice.
Prejudice
may be inferred from circumstances,
such as the inability to control the
defence of a claim. Prejudice should be
inferred in this case as the issue was
raised three years after the action
commenced and after examinations for
discovery had been completed and one
claim partially settled.
therefore also applies.
FAMILY LAW – CHILD SUPPORT –
SETTING ASIDE DOMESTIC
AGREEMENT
Benwell v Villebrun
2012 NWTSC 20 (CanLII) | March 2, 2012
Presiding: Justice K. Shaner
for the Applicant: J. Walsh
For the Respondent: self-represented
Estoppel
Application by the father to have the
child support provisions of a domestic
agreement set aside and for an order
directing child support in accordance
with the Child Support Guidelines. In
2007 the respondent initiated
proceedings seeking child support in
accordance with the Guidelines. That
application was adjourned when the
parties entered into an agreement
including child support provisions. The
applicant was not represented by
counsel at the time of that agreement.
Application allowed - The law
recognizes it is important to respect the
agreements reached by parents and
spouses upon the dissolution of the
family unit. To do so encourages
settlement outside of court. These
agreements will not be set aside without
good reason. However the law
recognizes that circumstances may
change and that sometimes people enter
into agreements that are unreasonable
or unfair without realizing it at the time.
The Act therefore permits the Court to
set aside provisions of an agreement in
certain circumstances. Under s. 74(4)(b)
of the Act, a provision can be set aside
where a party did not understand the
nature or consequences of the provision.
While the applicant understood the
nature of the provision it was not clear
he understood the consequence that he
was paying almost twice what was
required by law. Nothing on the face of
the agreement indicated the amount of
support proposed was nearly double
what was required. It was therefore
appropriate to set aside the provision in
the agreeement. An order for support
was made and arrears adjusted in
accordance with the Guidelines.