Brewer v. Brewer, (2010) 361 N.B.R.(2d) 214 (FD)

• Judge: Baird, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: May 25, 2010
• Jurisdiction: New Brunswick
• Citations: (2010), 361 N.B.R.(2d) 214 (FD);2010 NBQB 196

Brewer v. Brewer (2010), 361 N.B.R.(2d) 214 (FD);

    361 R.N.-B.(2e) 214; 931 A.P.R. 214

MLB headnote and full text

Sommaire et texte intégral

[English language version only]

[Version en langue anglaise seulement]

.........................

Temp. Cite: [2010] N.B.R.(2d) TBEd. JN.023

Renvoi temp.: [2010] N.B.R.(2d) TBEd. JN.023

Mary Aledia Brewer (petitioner) v. Neil William Brewer (respondent)

(1301-45591; FDF-035-10; 2010 NBQB 196; 2010 NBBR 196)

Indexed As: Brewer v. Brewer

Répertorié: Brewer v. Brewer

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Fredericton

Baird, J.

June 7, 2010.

Summary:

Résumé:

The parties separated in 2000 and the wife filed a petition for divorce. In October 2009, the wife retained Myatt to represent her. In February 2010, the wife filed a motion seeking interim relief. The motion was to be heard in April. On April 6, 2010, the husband filed a motion seeking an order removing Myatt's firm as counsel for the wife on the basis that the firm had previously acted for the husband.

The New Brunswick Court of Queen's Bench, Family Division, denied the motion and ordered the husband to pay costs of the motion of $2,000.

Barristers and Solicitors - Topic 1601.1

Relationship with client - Conflict of interest - Delay in complaining of conflict - The parties separated in 2000 and the wife filed a petition for divorce - In October 2009, the wife retained Myatt to represent her - In February 2010, the wife filed a motion seeking interim relief - The motion was to be heard in April - On April 6, 2010, the husband filed a motion seeking an order removing Myatt's firm as counsel for the wife on the basis that the firm had previously acted for the husband - The husband had retained Tweedie of the same firm in the 1980s - When Tweedie left the firm in 2002, the husband transferred his files to Tweedie - The New Brunswick Court of Queen's Bench, Family Division, denied the husband's motion - The husband never used the services of Myatt - The husband had terminated his retainer with the firm prior to 2009 - All of his personal and corporate files had been forwarded to another firm - The two part test set out in MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd. (1990 S.C.C.) was not met - There was no evidence that the husband had ever consulted anyone in the firm regarding his marriage breakdown or retained the firm to represent him in any matters that were relevant to his divorce - Neither Myatt nor the firm had received any information that could be used against the husband - The court also noted that the husband had waited until the eve of the interim hearing to present his motion, effectively staying his wife's motion for interim relief - Although not determinative, the timing of the husband's motion was considered by the court - See paragraphs 20 to 32.

Barristers and Solicitors - Topic 1611

Relationship with client - Conflict of interest - Conduct of action against former client - [See Barristers and Solicitors - Topic 1601.1 ].

Family Law - Topic 4175

Divorce - Practice - Costs - General (incl. considerations) - [See Practice - Topic 7364 ].

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - The parties separated in 2000 and the wife filed a petition for divorce - In October 2009, the wife retained Myatt to represent her - In February 2010, the wife filed a motion seeking interim relief - The motion was to be heard in April - On April 6, 2010, the husband filed a motion seeking an order removing Myatt's firm as counsel for the wife on the basis that the firm had previously acted for the husband - The New Brunswick Court of Queen's Bench, Family Division, denied the motion and ordered the husband to pay costs of the motion of $2,000 - The court was not satisfied that the motion was necessary - Further, its timing was suspect - The motion had delayed the hearing of the wife's motion seeking interim relief - The husband's motion created additional expense for the wife which she should not have to bear in its entirety - See paragraphs 33 to 37.

Avocats et notaires - Cote 1601.1

Rapport avec le client - Conflit d'intérêts - Retard à se plaindre du conflit - [Voir Barristers and Solicitors - Topic 1601.1 ].

Avocats et notaires - Cote 1611

Rapport avec le client - Conflit d'intérêts - Conduite d'une action contre un ancien client - [Voir Barristers and Solicitors - Topic 1611 ].

Droit de la famille - Cote 4175

Divorce - Procédure - Dépens - Généralités (y compris facteurs considérés) - [Voir Family Law - Topic 4175 ].

Procédure - Cote 7364

Dépens - Dépens relatifs aux procédures interlocutoires - Dépens relatifs aux motions et aux requêtes - [Voir Practice - Topic 7364 ].

Cases Noticed:

LeBlanc v. Allain et al. (2003), 261 N.B.R.(2d) 227; 685 A.P.R. 227 (T.D.), refd to. [para. 17].

Rosenstein v. Plant, [2010] O.T.C. Uned. 502; 2010 ONSC 502, refd to. [para. 20].

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, appld. [para. 21].

Saint John Shipbuilding Ltd. v. Bow Valley Husky (Bermuda) Ltd. et al. (2002), 251 N.B.R.(2d) 102; 654 A.P.R. 102 (C.A.), folld. [para. 23].

Canadian Broadcasting Corp. v. New Brunswick Broadcasting Co. (2000), 230 N.B.R.(2d) 332; 593 A.P.R. 332 (C.A.), folld. [para. 23].

Landry v. Vienneau et al. (2004), 282 N.B.R.(2d) 211; 738 A.P.R. 211; 2004 NBQB 356, refd to. [para. 24].

Côté et al. v. Rancourt et al. (2004), 325 N.R. 279 (S.C.C.), refd to. [para. 26].

3464920 Canada Inc. v. Strother et al. (2007), 363 N.R. 123; 241 B.C.A.C. 108; 399 W.A.C. 108 (S.C.C.), refd to. [para. 28].

Counsel:

Avocats:

Howard Myatt, for the applicant;

Gordon Shepard, for the respondent.

This motion was heard on May 25, 2010, by Baird, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Fredericton, who delivered the following decision on June 7, 2010.