C.J.G. v. L.T.G.,

• Jurisdiction: New Brunswick
• Judge: Baird, J.
• Neutral Citation: 2009 NBQB 175
• Citation: (2009), 346 N.B.R.(2d) 217 (FD),2009 NBQB 175,346 NBR(2d) 217,(2009), 346 NBR(2d) 217 (FD),346 N.B.R.(2d) 217
• Date: 26 June 2009
• Court: Court of Queen's Bench of New Brunswick (Canada)

C.J.G. v. L.T.G. (2009), 346 N.B.R.(2d) 217 (FD);

  346 R.N.-B.(2e) 217; 892 A.P.R. 217

MLB headnote and full text

Sommaire et texte intégral

Temp. Cite: [2009] N.B.R.(2d) TBEd. JN.040

Renvoi temp.: [2009] N.B.R.(2d) TBEd. JN.040

C.J.G. (petitioner) v. L.T.G. (respondent)

(FDSJ-234-04; 2009 NBQB 175; 2009 NBBR 175)

Indexed As: C.J.G. v. L.T.G.

Répertorié: C.J.G. v. L.T.G.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Saint John

Baird, J.

June 26, 2009.

Summary:

Résumé:

The parties married in 1992 and separated on January 1, 2003. A divorce judgment was issued and that decision settled the issues of custody, access and child support. Issues remained to be determined with respect to the division of the parties' property and debt. The major issues related to the valuation and division of the marital home in St. Andrews and whether a villa in Spain, which had been conveyed by the husband's parents to the husband and his sister, was a family asset subject to division.

The New Brunswick Court of Queen's Bench, Family Division, determined the issues accordingly.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Conflict of Laws - Topic 2068

Family law - Property - Choice of law - General - Jurisdiction and choice of law - The husband was a British citizen - The parties lived in England after their marriage and then moved to St. Andrews, New Brunswick, where they lived at the time of separation - The husband filed for divorce in New Brunswick - A main issue in the marital property proceedings concerned a villa in Spain, which had been conveyed by the husband's parents to the husband and his sister - The husband submitted that the court did not have jurisdiction to make an order concerning an asset in Spain - Neither party had raised the issue of jurisdiction or choice of law prior to the trial - Both parties indicated in their pleadings that their residence for marital property purposes was New Brunswick - The New Brunswick Court of Queen's Bench, Family Division, held that the New Brunswick legislation addressed the issue of jurisdiction, and the court had jurisdiction and authority to rule on the Spanish property - The court referred to the distinction between jurisdiction and choice of law, stating that "in assuming jurisdiction, the court need not accept New Brunswick as the choice of law, if, in doing so, it would run afoul the foreign country legislation" - The court held that in assuming choice of law jurisdiction, it was not running afoul of the legislation of either England or Spain - See paragraphs 193 to 242.

Evidence - Topic 3628

Documentary evidence - Private documents - Letters or documents written without prejudice - Settlement letter not marked "without prejudice" - [See Family Law - Topic 4132 ].

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - The wife had been living in the marital home since the parties' separation on January 1, 2003 - In the middle of the trial, the husband's counsel moved to include a claim for occupation rent - The wife's counsel did not consent - The New Brunswick Court of Queen's Bench, Family Division, stated that a claim for occupation rent had to be pled, and evidence had to be called to support the claim - In this case, the husband did not articulate a claim for occupation rent at any time in the proceedings, prior to his attempt to amend at trial - The court stated that "that attempt came too late, after the fact, and cannot be permitted. There will be no assessment of occupation rent" - See paragraphs 118 to 126.

Family Law - Topic 756

Husband and wife - Actions between husband and wife - Property - Jurisdiction of courts - [See Conflict of Laws - Topic 2068 ].

Family Law - Topic 866

Husband and wife - Marital property - Distribution orders - Jurisdiction or application of statutes - [See Conflict of Laws - Topic 2068 ].

Family Law - Topic 876

Husband and wife - Marital property - Distribution orders - Family or matrimonial assets - At issue was whether a villa in Spain, which had been conveyed by the husband's parents to the husband and his sister in the early 1990's, was a family asset subject to division - The husband's parents testified that the transfer of the villa to the husband and his sister was for taxation purposes only, that the house remained as their retirement home, and that they maintained control over and paid all expenses associated with the property - The New Brunswick Court of Queen's Bench, Family Division, found that there was a resulting trust in favour of the husband's parents - The transfer of the villa was in title only to the husband and his sister, and it could not be said that the asset became the sole property of the husband and his sister for their unconditional use or disposition - The court also rejected the wife's submission that the Spanish villa was a second home, which was used by them for recreational and other purposes, and was therefore a family asset - The legislation exempted property that was a gift, devise or bequest to one spouse only - Such was the case here - Even if the court were to find that the husband's parents gifted their Spanish villa to their children as an advance on their inheritance, the gift was to the husband and his sister and there was no intention to gift the home to their respective spouses - The wife had no interest in the Spanish villa - See paragraphs 243 to 351.

Family Law - Topic 876

Husband and wife - Marital property - Distribution orders - Family or matrimonial assets - Spouses separated on January 1, 2003 - The wife remained in the marital home and the husband took a small amount of the contents of the marital home with him - The husband wanted an equalization payment of $5,000 with respect to the contents of the marital home - The New Brunswick Court of Queen's Bench, Family Division, stated that "I am not able to determine whether that amount is fair. Given the length of time since separation, I am not prepared to arbitrarily equalize the value of the contents. If the parties cannot agree to an equalization figure within 31 days of the effective date of this decision, a detailed inventory list shall be prepared of all contents in the home on separation date, and those items, other than their daughter's furniture, shall be divided as follows: i. a neutral individual will be chosen to value and place the items in categories of today's fair market value over $1,000; value under $1,000 but more than $300, and items less than $300. The items shall be written on separate pieces of paper and draws will be held in each category" - See paragraphs 130 to 135.

Family Law - Topic 880.3

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Gift, trust, bequest or award - [See first Family Law - Topic 876 ].

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - Spouses separated on January 1, 2003 - The wife sought a division of the marital home based on a valuation of $400,000 effective the date of separation - She stated that any increase in property value was as a result of renovations made by herself and her current husband - The husband's expert valued the home at $495,000 in 2008 - He attributed the increase in value to the change in market conditions, as well as to the renovations done by the wife post-separation - He ball parked $20,000 as a reasonable increase attributable to the post-separation renovations - The wife's expert valued the home at $450,000 including an estimate of $50,000 for the value of the work done post-separation - The New Brunswick Court of Queen's Bench, Family Division, held that it would be unconscionable and unfair to divide the equity in the marital home as of the separation date - The court also did not accept that the home increased in value as result of the post-separation renovations alone - The court preferred the opinion of the husband's appraiser and valued the home at $495,000 - The court also found that the home had increased in value by $35,000 as a result of the renovations done post-separation (the average of the $20,000 and $50,000 amounts suggested by the parties' appraisers) - The court concluded that the husband was entitled to half of the equity calculated on the separation date, plus half of the increase in the value of the home since the separation date which was attributed to market forces alone - The payments on the line of credit (mortgage), property taxes and house insurance were a joint and equal responsibility of the parties - See paragraphs 61 to 117.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs (incl. interim costs) - Success was divided in divorce and marital property proceedings - The New Brunswick Court of Queen's Bench, Family Division, awarded the wife costs of $10,000 plus costs of $2,500 for a motion during the trial - The court considered that the respective claims were significant when one considered the appraised values of a Spanish villa and the marital home; the results were divided; the issues were complex and the evidence contradicting and convoluted; the issues were important; both parties had to share some responsibility for their conduct which lengthened the trial; the failure of both parties to make certain admissions until trial; the conduct of the parties from the date of separation onward, where there was deceit, or manipulative behaviour, thus creating difficulties for counsel in terms of disclosure and pre-trial preparation; and problems with credibility of the parties - While both parties had partially succeeded, the wife's costs had escalated significantly as a result of her attempts to track money - The husband, of the two, had the knowledge and the power and control over the financial resources - See paragraphs 360 to 412.

Family Law - Topic 4132

Divorce - Practice - General - Pleadings - General - The husband filed a petition for divorce - Included with the petition were a number of bank and credit card statements, as well as a letter from the husband's then solicitor addressed to the wife - The letter was not "without prejudice", and proposed what the lawyer believed was a fair settlement at that time - The New Brunswick Court of Queen's Bench, Family Division, stated that "The inclusion of this letter, as part of the pleadings, as well as the inclusion of the bank and visa statements, is highly unusual, and is not an acceptable standard of practice ... pleadings are to conform to the Rules of Court. They are the statement of relief requested, the facts upon which the requests are based, and the statutory provisions relied upon in support of those requests. Evidence is received as part of the trial process, subjected to the scrutiny of examination, and admitted only after the threshold requirements for admissibility have been met" - The inclusion of the letter was improper - However, counsel examined and cross-examined the husband as well as the wife on the contents - While the husband now submitted that the letter was a privileged document, the court concluded that any privilege that attached to the letter was waived by the husband - See paragraphs 156 to 160.

Family Law - Topic 4175

Divorce - Practice - Costs - General (incl. considerations) - [See Family Law - Topic 966 ].

Trusts - Topic 1901

Resulting trusts - General principles - General (incl. when available) - [See first Family Law - Topic 876 ].

Trusts - Topic 2141

Resulting trusts - Intention - General - [See first Family Law - Topic 876 ].

Droit de la famille - Cote 627

Mari et femme - Biens matrimoniaux - Foyer matrimonial - Occupation par un des conjoints - Demande d'indemnité d'occupation - [Voir Family Law - Topic 627 ].

Droit de la famille - Cote 756

Mari et femme - Poursuites entres mari et femme - Biens - Juridiction des tribunaux - [Voir Family Law - Topic 756 ].

Droit de la famille - Cote 866

Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Juridiction ou application des lois - [Voir Family Law - Topic 866 ].

Droit de la famille - Cote 876

Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Actifs familiaux ou matrimoniaux - [Voir Family Law - Topic 876 ].

Droit de la famille - Cote 880.3

Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Biens propres - Donation, fiducie, legs ou jugement - [Voir Family Law - Topic 880.3 ].

Droit de la famille - Cote 888

Mari et femme - Biens matrimoniaux - Facteurs considérés lors du prononcé de l'ordonnance de répartition - Évaluation (y compris le moment) - [Voir Family Law - Topic 888 ].

Droit de la famille - Cote 966

Mari et femme - Poursuites entre mari et femme - Procédure - Dépens (y compris frais provisoires) - [Voir Family Law - Topic 966 ].

Droit de la famille - Cote 4132

Divorce - Procédure - Généralités - Plaidoiries - Généralités - [Voir Family Law - Topic 4132 ].

Droit de la famille - Cote 4175

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

Droit international privé - Cote 2068

Droit de la famille - Biens - Choix de la loi applicable - Généralités - [Voir Conflict of Laws - Topic 2068 ].

Fiducies - Cote 1901

Fiducies résultoires - Principes généraux - Généralités (y compris conditions d'ouverture) - [Voir Trusts - Topic 1901 ].

Fiducies - Cote 2141

Fiducies résultoires - Intention - Généralités - [Voir Trusts - Topic 2141 ].

Preuve - Cote 3628

Preuve documentaire - Documents privés - Lettres ou documents "sans préjudice" - Lettre de rེglement sans la mention "sans préjudice" - [Voir Evidence - Topic 3628 ].

Cases Noticed:

Geremia v. Harb, [2008] O.T.C. Uned. 978; 2007 CarswellOnt 446 (Sup. Ct.), refd to. [para. 3].

Fraser v. Fraser (1983), 47 N.B.R.(2d) 364; 124 A.P.R. 364 (C.A.), refd to. [para. 89].

Rawluk v. Rawluk, [1990] 1 S.C.R. 70; 103 N.R. 321; 38 O.A.C. 81, refd to. [para. 93].

Serra v. Serra (2009), 246 O.A.C. 37; 2009 ONCA 105, refd to. [para. 94].

LeVan v. LeVan (2008), 239 O.A.C. 1; 2008 ONCA 388, refd to. [para. 94].

Scott v. Scott, [2005] N.B.R.(2d) Uned. 59 (Fam. Div.), refd to. [para. 97].

Khoury v. Khoury (1994), 149 N.B.R.(2d) 1; 381 A.P.R. 1 (Fam. Div.), refd to. [para. 98].

Buckler v. Buckler, [2009] A.R. Uned. 240; 2009 CarswellAlta 398 (Q.B.), refd to. [para. 99].

Bourque v. Bourque, [2003] N.B.R.(2d) Uned. 100; 2003 NBQB 315 (Fam. Div.), refd to. [para. 99].

Duguay v. Duguay (2000), 231 N.B.R.(2d) 137; 597 A.P.R. 137 (Fam. Div.), refd to. [para. 113].

Laurigano v. Laurigano, 2009 CarswellOnt 1380 (C.A.), refd to. [para. 113].

Brennan v. Brennan, [2003] N.B.R.(2d) Uned. 4 (Fam. Div.), refd to. [para. 123].

Braglin v. Braglin (2002), 325 A.R. 161 (Q.B.), refd to. [para. 123].

Barton v. Barton, [1999] N.B.R.(2d) Uned. 72 (Fam. Div.), refd to. [para. 124].

C.M.R. v. O.D.R. (2008), 337 N.B.R.(2d) 90; 864 A.P.R. 90; 2008 NBQB 253 (Fam. Div.), refd to. [para. 126].

Spence v. Spence (1994), 146 N.B.R.(2d) 321; 374 A.P.R. 321 (Fam. Div.), refd to. [para. 135].

Locke v. Locke, [2000] B.C.T.C. 681 (S.C.), refd to. [para. 148].

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 2002 CanLII 44957 (C.A.), refd to. [para. 227].

Christopher v. Zimmerman (2000), 144 B.C.A.C. 152; 236 W.A.C. 152; 2000 BCCA 532, refd to. [para. 229].

Stefanou v. Stefanou (2009), 246 O.A.C. 312; 2009 ONCA 204, refd to. [para. 230].

McKinney v. McKinney (1980), 17 R.F.L.(2d) 308 (B.C.S.C.), refd to. [para. 239].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 281].

Rawluk v. Rawluk (1990), 103 N.R. 321; 38 O.A.C. 81; 23 R.F.L.(3d) 337 (S.C.C.), refd to. [para. 294].

Barrett v. Henneberry (1984), 61 N.S.R.(2d) 428; 133 A.P.R. 428 (C.A.), refd to. [para. 295].

Westcott v. Dumont (2009), 277 N.S.R.(2d) 147; 882 A.P.R. 147; 2009 NSSC 22, refd to. [para. 296].

J.A.M. v. D.L.M. (2008), 326 N.B.R.(2d) 111; 838 A.P.R. 111; 2008 CarswellNB 24 (C.A.), refd to. [para. 301].

English v. English (2003), 258 N.B.R.(2d) 74; 676 A.P.R. 74; 2003 NBQB 63 (Fam. Div.), refd to. [para. 302].

Davenport v. MacBeth (2006), 306 N.B.R.(2d) 221; 793 A.P.R. 221; 2006 CarswellNB 435 (Fam. Div.), refd to. [para. 306].

Pecore v. Pecore (2007), 361 N.R. 1; 224 O.A.C. 330; 2007 SCC 17, refd to. [para. 308].

Baker v. Bourque (2008), 331 N.B.R.(2d) 60; 849 A.P.R. 60; 2008 NBQB 164 (Fam. Div.), refd to. [para. 314].

Saylor et al. v. Brooks (2007), 360 N.R. 327; 224 O.A.C. 382 (S.C.C.), refd to. [para. 314].

Madsen Estate v. Saylor - see Saylor et al. v. Brooks.

D.J. v. M.J., [2008] A.R. Uned. 443; 2008 CarswellAlta 845 (Q.B.), refd to. [para. 315].

Fulton v. Gunn, [2008] B.C.T.C. Uned. 782; 296 D.L.R.(4th) 1 (S.C.), refd to. [para. 317].

Hawley v. Paradis, [2008] B.C.T.C. Uned. 876; 2008 CarswellBC 1979 (S.C.), refd to. [para. 317].

Paddock v. Paddock, 2008 CarswellOnt 8794 (Sup. Ct.), refd to. [para. 318].

P.M. v. A.B., 2008 CarswellNB 372 (Q.B.), refd to. [para. 337].

Westcott v. Dumont (2009), 277 N.S.R.(2d) 147; 882 A.P.R. 147; 2009 NSSC 22 (Fam. Ct.), refd to. [para. 352].

Passarello v. Passarello (1998), 64 O.T.C. 118; 1998 CarswellOnt 2983 (Gen. Div.), refd to. [para. 355].

G.D. v. M.D., [2005] N.B.R.(2d) Uned. 114; 2005 NBQB 253 (Fam. Div.), refd to. [para. 355].

Rademaker v. Rademaker (2002), 251 N.B.R.(2d) 177; 654 A.P.R. 177 (C.A.), refd to. [para. 385].

Collier v. Collier (1990), 108 N.B.R.(2d) 287; 269 A.P.R. 287 (Fam. Div.), refd to. [para. 387].

MacDougall v. Boivin (2005), 286 N.B.R.(2d) 57; 748 A.P.R. 57 (C.A.), refd to. [para. 387].

Scott v. Scott (2003), 265 N.B.R.(2d) 359; 695 A.P.R. 359 (Fam. Div.), refd to. [para. 387].

Newman v. Tibbetts (2005), 283 N.B.R.(2d) 63; 740 A.P.R. 63; 2005 CarswellNB 181 (C.A.), refd to. [para. 387].

Clain v. Clain (1985), 62 N.B.R.(2d) 319; 161 A.P.R. 319; 1985 CarswellNB 350 (C.A. Registrar), refd to. [para. 387].

Authors and Works Noticed:

McLeod, James G., Conflict of Laws (1983), pp. 319 to 329 [para. 239].

Counsel:

Avocats:

Grant M. Ogilvie and Adam B. Neal, for the respondent;

Sheila J. Cameron and Adele Savoie, for the petitioner.

This matter was heard on December 1-5, 2008, and February 9-12, 2009, before Baird, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Saint John, who delivered the following decision on June 26, 2009.