Best v. Best, (1991) 102 N.S.R.(2d) 61 (CA)

• Judge: Jones, Hallett and Freeman, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 12, 1991
• Jurisdiction: Nova Scotia
• Citations: (1991), 102 N.S.R.(2d) 61 (CA)

Best v. Best (1991), 102 N.S.R.(2d) 61 (CA);

    279 A.P.R. 61

MLB headnote and full text

Joyce Mildred Best (appellant) v. Gerald Willis Best (respondent)

(S.C.A. No. 02263)

Indexed As: Best v. Best

Nova Scotia Supreme Court

Appeal Division

Jones, Hallett and Freeman, JJ.A.

March 12, 1991.

Summary:

A husband and wife married in 1948, separated in 1969 and divorced in 1988. The wife applied under the Matrimonial Property Act for an equal division of matrimonial property.

The Nova Scotia Supreme Court, Trial Division, in a judgment not reported in this series of reports, found a woodlot purchased by the husband nine years before the marriage to be a business asset and unequally divided matrimonial property in the husband's favour. The wife appealed.

The Nova Scotia Supreme Court, Appeal Division, allowed the appeal. The court stated that the woodlot was matrimonial property and that all matrimonial property should be equally divided.

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - [See Family Law - Topic 874].

Family Law - Topic 874

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - A husband and wife married in 1948, separated in 1969 and divorced in 1988 - The husband continued to occupy the matrimonial home without paying occupation rent to the wife for her 50% interest - The trial judge unequally divided the matrimonial home and cottage in the husband's favour, to reflect the value of improvements during the 20 years since separation - The husband's expenditures did not effect a major increase in the value of the home and did not exceed what would have been a reasonable rent - The Nova Scotia Court of Appeal stated that the matrimonial home and cottage should have been equally divided between the spouses - See paragraphs 25 to 30.

Family Law - Topic 877

Husband and wife - Marital property - Distribution orders - Business assets - A husband purchased a woodlot in 1939 and married in 1948 - The Nova Scotia Court of Appeal stated that the woodlot was matrimonial property, not a business asset - The court stated that the woodlot was not purposely held or used for the production of income or profit - The increase in value ($500 in 1969 to $20,000 at present) was a capital gain, not income or profit - The court stated that a piece of land held in the hope of gain was a matrimonial asset - See paragraphs 5 to 20.

Cases Noticed:

Clark v. Clark (1986), 72 N.S.R.(2d) 387; 173 A.P.R. 387, refd to. [para. 5].

Ashe v. Ashe (1988), 83 N.S.R.(2d) 109; 210 A.P.R. 109, refd to. [para. 5].

Lawrence v. Lawrence (1981), 47 N.S.R.(2d) 100; 90 A.P.R. 100, refd to. [para. 9].

Leslie v. Leslie (1990), 98 N.S.R.(2d) 253; 263 A.P.R. 253 (T.D.), refd to. [para. 9].

McNulty v. McNulty (1989), 94 N.S.R.(2d) 387; 247 A.P.R. 387 (T.D.), refd to. [para. 9].

Curren v. Curren (1988), 81 N.S.R.(2d) 118; 203 A.P.R. 118 (T.D.), refd to. [para. 9].

Archibald v. Archibald (1981), 38 N.S.R.(2d) 361; 69 A.P.R. 361 (T.D.), refd to. [para. 11].

Best v. Best (1983), 61 N.S.R.(2d) 400; 133 A.P.R. 400 (T.D.), refd to. [para. 13].

Duff v. Duff (1989), 91 N.S.R.(2d) 374; 233 A.P.R. 374 (T.D.), refd to. [para. 14].

Laprise v. Crow (1990), 95 N.S.R.(2d) 7; 251 A.P.R. 7 (T.D.), refd to. [para. 14].

Ledson v. Ledson (1990), 98 N.S.R.(2d) 153; 263 A.P.R. 153 (T.D.), refd to. [para. 14].

Johnston v. Johnston (1988), 15 R.F.L.(3d) 1, dist. [para. 26].

Caslake v. Caslake (1982), 29 R.F.L.(2d) 168, refd to. [para. 27].

Taylor v. Taylor (1984), 65 N.S.R.(2d) 294; 147 A.P.R. 294; 41 R.F.L.(2d) 446 (T.D.), refd to. [para. 27].

Donovan v. Donovan (1986), 5 R.F.L.(3d) 1 (B.C.S.C.), refd to. [para. 28].

Irving v. Latimer (1988), 17 R.F.L.(3d) 18, refd to. [para. 28].

Spicer v. Spicer (1985), 48 R.F.L.(2d) 200 (B.C.C.A.), refd to. [para. 28].

Statutes Noticed:

Matrimonial Property Act, R.S.N.S. 1989, c. 275, sect. 2(a) [para. 8]; sect. 4(1) [para. 7]; sect. 13 [para. 21].

Counsel:

Richard W. Johnson and Peter Van Feggelen, for the appellant;

Michael G. Forse, Q.C., for the respondent.

This appeal was heard on February 1, 1991, before Jones, Hallett and Freeman, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On March 12, 1991, Freeman, J.A., delivered the following judgment for the Court of Appeal.