Court Cases & Orders

Case Update: Family Island Dispute Goes to Appeal


Case Update: Family Island Dispute Goes to Appeal

A few years ago I wrote about a case called Clarke v. Johnson which involved a dispute over a family-owned island on which a camp had been built.
Martha, the matriarch of the family was one-third owner (the other two thirds were owned by her deceased husband’s siblings) and the question was whether Martha’s son-in-law Donald should be allowed to use the camp after his 1991 separation from Martha’s daughter Victoria. In happier times and with Martha’s permission, Victoria and Donald had built a $15,000 pre-fabricated cottage on Martha’s portion of the property. Post-separation, Victoria wanted nothing to do with the camp at all and never visited it even once, whereas Donald continued to use the camp with their children over the years.

One of those children was Wesley, who had been living out west for a decade. When he returned he indicated that he wanted to use the camp, but he and his father Donald got into various conflicts and Donald eventually barred Wesley from using the camp entirely.

Martha then stepped in to threaten Donald with a trespass notice, pointing out that she was the rightful owner of the property. If Donald was unwilling to share it with Wesley and his other children, then his use would be circumscribed.

Donald took the matter to court, claiming an equitable right to occupy the property and camp. Initially, the matter was heard by an Ontario trial court. The appeal of that matter was heard recently, and the original decision was confirmed. The appeal judgment began this way:

A cottage, a camp, a cabin, a country house, a ranch: these are the different names given to second homes across Canada. No matter the description, Canadians’ affinity for their recreational properties is deep, abiding and renowned. This appeal involves such a recreational property, a camp located on Lake Panage near the city of Sudbury in Northern Ontario. …

It was indisputable that Donald had maintained and improved the camp for more than 20 years, paying the bills and taxes, and making improvement such as building a new dock, a new shed, a gazebo, and also reconstructing the sauna, roof and porch; his case for unjust enrichment was made out. In endorsing the trial judge’s decision to craft a minimally-intrusive solution (which used the legal concept of constructive trust and essentially gave Donald a personal, exclusive lifelong license to use the land), the Appeal Court pointed out that it would have been simply inadequate to award him monetary damages in light of the significant emotional attachment to the property. This was a delicate family situation calling for a nuanced solution, and the trial judge’s approach had been reasonable.

For the full text of the decisions, see:

Clarke v. Johnson (2012), 2012 ONSC 4320, 2012

Clarke v. Johnson (2014), 2014 ONCA 237

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.