Gill v. Hurst et al., (2011) 309 N.S.R.(2d) 86 (CA)

• Judge: Fichaud, Farrar and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 03, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 309 N.S.R.(2d) 86 (CA);2011 NSCA 100

Gill v. Hurst (2011), 309 N.S.R.(2d) 86 (CA);

    979 A.P.R. 86

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. NO.002

Christopher Valentino Gill (appellant) v. Christine Mary Hurst (respondent)

Wickwire Holm (appellant) v. Christine Mary Hurst and Christopher Valentino Gill (respondents)

(CA 338209; 2011 NSCA 100)

Indexed As: Gill v. Hurst et al.

Nova Scotia Court of Appeal

Fichaud, Farrar and Bryson, JJ.A.

November 1, 2011.

Summary:

The parties separated. The wife petitioned for divorce.

The Nova Scotia Supreme Court, in a decision reported at [2010] N.S.R.(2d) Uned. 314, ordered the husband to pay the wife an equalization payment of $46,328.11 and to pay his remaining share of the matrimonial net worth to his former lawyers (Wickwire Holm), who had obtained judgment against him for unpaid post-separation legal fees and disbursements. Income of $25,000 was imputed to the husband and he was to pay monthly Guideline support of $216. The monthly spousal support payable by the wife was increased from $2,000 to $2,200. The husband was to pay costs of $5,000. The husband appealed, alleging errors in the court's finding of credibility, its division of matrimonial property, its allocation of support and its award of costs. The husband applied to stay the financial provisions of the corollary relief judgment.

The Nova Scotia Court of Appeal, per Fichaud, J.A., in a decision reported at 297 N.S.R.(2d) 97; 943 A.P.R. 97, dismissed the application. Wickwire Holm appealed the postponement of its judgment to the matrimonial award in favour of the wife. The wife cross-appealed the court's finding that the costs award was not to be deducted from the sale proceeds of the matrimonial home. The appeals were consolidated.

The Nova Scotia Court of Appeal, Fichaud, J.A., dissenting in part, dismissed the husband's appeal and the wife's cross-appeal, but allowed Wickwire Holm's appeal and remitted the matter to the trial judge to reconsider the division of the matrimonial home in light of the priority of Wickwire Holm's judgment. The trial judge might wish to reallocate assets and liabilities, including setting off any sums payable to the husband against his indebtedness to the wife. The court awarded costs of $2,500, inclusive of disbursements, to the wife against the husband. The court awarded Wickwire Holm costs of $1,500, inclusive of disbursements, $750 of which was to be paid by each spouse.

Execution - Topic 3966

Sale of land of judgment debtor - Distribution of proceeds of sale - Where judgment is against a joint owner - Wickwire Holm (Wickwire) was retained by a husband during divorce proceedings - They were subsequently removed as solicitors and recorded a judgment against the husband for unpaid fees - The husband was a joint tenant with the wife in the matrimonial home - The home was sold and the proceeds put in trust pending a determination of priority to the sale proceeds - The trial judge ordered the husband to pay the wife an equalization payment and to pay his remaining share of the matrimonial net worth to Wickwire - The Nova Scotia Court of Appeal allowed Wickwire's appeal - As a result of s. 66 of the Land Registration Act, Wickwire's judgment represented a valid charge on the husband's interest in the home - Section 21 of the Act supplanted the common law presumption of advancement with a presumption of resulting trust - Absent an overt challenge, the interest enjoyed by the parties in their deed was valid and enforceable and s. 21 was not engaged - The wife acquired no proprietary interest in the husband's interest until the trial judgment - The prohibition in s. 8 of the Marital Property Act against encumbering the matrimonial home referred to spousal conduct and did not capture the act of a third party who recorded a judgment - Section 10(1)(d) of that Act empowered the court to set aside a disposition or encumbrance on terms - Although it captured more than a s. 8 breach, it was not a license to rearrange third parties' property interests - While it might have been prudent to have notified the wife of Wickwire's taxation, it was unclear how the absence of notice prejudiced Wickwire's judgment - There was a potential for commercial mischief if Wickwire's judgment was to lose priority - Impairing a judgment's priority to effect a desired result was not a proper exercise of discretion regarding costs because it confused rights with remedies and subordinated the former to the latter - See paragraphs 39 to 145.

Execution - Topic 3971

Sale of land of judgment debtor - Distribution of proceeds of sale - Priorities - General - [See Execution - Topic 3966 ].

Execution - Topic 8203

Memorial or certificate of judgment - General - Effect of registration of judgment - [See Execution - Topic 3966 ].

Execution - Topic 8206

Memorial or certificate of judgment - General - Priorities - [See Execution - Topic 3966 ].

Family Law - Topic 632

Husband and wife - Marital property - Matrimonial home - Joint ownership - [See Execution - Topic 3966 ].

Family Law - Topic 654

Husband and wife - Marital property - Dispositions and encumbrances - [See Execution - Topic 3966 ].

Family Law - Topic 868.3

Husband and wife - Marital property - Equalization payments - [See Execution - Topic 3966 ].

Family Law - Topic 880

Husband and wife - Marital property - Distribution orders - Contribution to business asset - The parties separated - The husband claimed an interest in the wife's physiotherapy business based on his contribution to the business (Matrimonial Property Act, s. 18) - The trial judge rejected the claim - The judge found that the husband's activities were not managerial in nature, but secretarial and that he had been compensated adequately by virtue of various personal and family expenses being paid from the business - She also found that the business had contributed, at a minimum, $90,000 towards the husband's music career, which more than compensated him for his efforts - The husband appealed, noting that s. 189 used "shall" in connection with assessing the contribution of a spouse to the acquisition, management, maintenance or improvement of a business asset regardless of the spousal relationship - The Nova Scotia Court of Appeal dismissed the appeal - The husband's argument assumed the acceptance of his evidence and the rejection of the wife's evidence, in effect, reversing the judge's findings of the worth of that evidence - While it might be that the business's funding of family vacations and the like could not properly be considered as compensation because it arose from the husband's spousal status, the judge found that he also received substantial benefits by way of the financial contribution to his music career - It was the judge's responsibility to weigh the evidence and consider whether the husband was owed any compensation beyond what he had already received - She did that and it was not for the Court of Appeal to intercede - See paragraphs 25 to 28.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The wife petitioned for divorce - At issue was child support - The husband asserted that he was reasonably unemployed owing to health and education reasons - The trial judge found that the husband had not met his obligation to improve his own financial circumstances in order to achieve self-sufficiency - His evidence was troublesome due to inconsistences, most notably that relating to his employment attempts and his financial circumstances - His affidavit evidence was misleading - As opposed to putting an effort towards finding employment, he spent three to four months working "full-time" on a CD - He had made decisions which served to delay his financial self-sufficiency and prolong his dependency on the wife - The judge concluded that the husband's actions were not reasonable and that he was purposefully underemployed - Although the husband had some health concerns, there was no evidence that he was precluded from gainful employment because of his physical or mental health - The judge imputed an annual income of $25,000 onto the husband - The Nova Scotia Court of Appeal held that there was no basis on which to challenge this modest imputation of income - See paragraphs 29 to 31.

Family Law - Topic 4176

Divorce - Practice - Costs - Party and party costs - In granting corollary relief, the trial judge ordered the husband to pay costs of $5,000 - The judge ruled that the costs should not be deducted from the sale proceeds of the matrimonial home which were held in trust - The husband appealed the costs awards - The wife cross-appealed, asserting that the costs should be paid from the money held in trust - She also asserted that the husband's former law firm (Wickwire Holm), which had obtained a judgment against the husband, had unfairly benefited from the ruling because it meant that there was more money available to pay its judgment - The Nova Scotia Court of Appeal stated that costs were notoriously within the trial judge's discretion - That discretion had to be exercised judicially; but if that occurred, the Court of Appeal would not interfere - In concluding that a cost award was appropriate, the judge relied on the wife's success in relation to two key issues which occupied significant court time: parenting arrangements and the husband's claim to an interest in the wife's business - The judge also found fault with the husband's failure to implement an earlier interim order for sale of the matrimonial home which increased expenses to the wife who had to maintain the home and the husband's occupancy of it - In making what can only be described as a token award of $5,000, the judge was fully aware of the husband's modest resources - The wife cited no authority respecting her assertion about the source of costs - The judge's decision was discretionary - There was no obvious link between costs and trust money and there was no good reason why a costs award should take priority over an existing judgment - The judge did not err in the exercise of her discretion, either respecting the amount of costs or her refusal to make them payable from the money held in trust - See paragraphs 34 to 38.

Family Law - Topic 4188

Divorce - Practice - Costs - Appeals from costs order - [See Family Law - Topic 4176 ].

Practice - Topic 7021

Costs - Party and party costs - Entitlement to - Successful party - Quantum - [See Family Law - Topic 4176 ].

Practice - Topic 7029.8

Costs - Party and party costs - Successful party - Exceptions - Situation of unsuccessful party - [See Family Law - Topic 4176 ].

Practice - Topic 8296

Costs - Party and party costs - Appeals - Appeals from order granting or denying costs - General - [See Family Law - Topic 4176 ].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - A husband appealed provisions of a corollary relief order asserting that the trial judge made unreasonable findings of fact - The Nova Scotia Court of Appeal, in dismissing the appeal stated that "... each instance, there was evidence upon which the trial judge could make the findings that she did. To repeat, it is not for this court to revisit factual findings by a trial judge simply because one party is unhappy with those findings. The appeal court lacks the advantages of a trial judge in seeing and observing witnesses. Unless factual findings are clearly unreasonable, appeal courts have no basis for intervention ..." - See paragraph 24.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 10].

Edwards v. Edwards (1994), 133 N.S.R.(2d) 8; 380 A.P.R. 8 (C.A.), refd to. [para. 11].

MacLennan v. MacLennan (2003), 212 N.S.R.(2d) 116; 665 A.P.R. 116; 2003 NSCA 9, refd to. [para. 12].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 13].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 13].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 15].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 16].

Baker-Warren v. Denault (2009), 277 N.S.R.(2d) 271; 882 A.P.R. 271; 2009 NSSC 59, refd to. [para. 16].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 16].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 16].

Shurson v. Shurson (2008), 268 N.S.R.(2d) 176; 857 A.P.R. 176; 2008 NSSC 264, refd to. [para. 32].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 32].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 43 R.F.L.(3d) 345, refd to. [para. 32].

Wile v. Barkhouse, [2011] N.S.R.(2d) Uned. 116; 2011 NSCA 50, refd to. [para. 34].

Brill v. Nova Scotia (Attorney General) (2010), 294 N.S.R.(2d) 307; 933 A.P.R. 307; 2010 NSCA 69, refd to. [para. 45].

Maroukis v. Maroukis, [1984] 2 S.C.R. 137; 54 N.R. 268; 5 O.A.C. 182, refd to. [paras. 55, 95].

Sagar et al. v. Bradley (Marion) Estate and Bradley (1984), 63 N.S.R.(2d) 386; 141 A.P.R. 386 (C.A.), refd to. [para. 56].

R. v. Surette (J.R.W.) (1993), 123 N.S.R.(2d) 152; 340 A.P.R. 152 (C.A.), refd to. [para. 56].

Church v. Forbes and Church (1983), 60 N.S.R.(2d) 211; 128 A.P.R. 211 (T.D.), refd to. [para. 56].

Blades and Quinlan v. Atwood (1990), 95 N.S.R.(2d) 348; 251 A.P.R. 348 (T.D.), refd to. [para. 56].

Downey v. Fitzgerald (1984), 65 N.S.R.(2d) 122; 147 A.P.R. 122 (C.A.), refd to. [para. 56].

Malhotra v. Malhotra, [1983] B.C.J. No. 2249 (C.A.), refd to. [para. 57].

Barnes v. Barnes et al. (2006), 411 A.R. 286; 2006 ABQB 855, dist. [para. 60].

Kerr v. Baranow (2011), 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 63].

Levy v. Levy Estate (1981), 50 N.S.R.(2d) 14; 98 A.P.R. 14 (T.D.), refd to. [para. 63].

Noble China Inc. v. Cheong et al., [1999] O.T.C. 233 (Sup. Ct.), refd to. [para. 64].

Bank of Montreal v. Bray (1997), 104 O.A.C. 351; 36 O.R.(3d) 99 (C.A.), refd to. [paras. 68, 110].

First City Trust Co. v. McDonough (1993), 15 O.R.(3d) 586 (Gen. Div.), refd to. [para. 68].

Enterprise Newfoundland and Labrador Corp. v. Kawaja (1997), 153 Nfld. & P.E.I.R. 230; 475 A.P.R. 230 (Nfld. T.D.), refd to. [para. 68].

Ferguson v. Ferguson, [1994] O.J. No. 1975 (U.F.C.), refd to. [para. 69].

Boyd v. Boyd, [2008] O.T.C. Uned. 64 (Sup. Ct.), dist. [para. 70].

Walduda v. Bell, [2004] O.T.C. 656 (Sup. Ct.), dist. [para. 71].

Agirman v. Bank of Nova Scotia - see Bank of Nova Scotia v. Halef.

Bank of Nova Scotia v. Halef (2003), 216 N.S.R.(2d) 89; 680 A.P.R. 89; 2003 NSCA 70, refd to. [paras. 73, 113].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 111].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 111].

Statutes Noticed:

Matrimonial Property Act, R.S.N.S. 1989, c. 275, sect. 8(1) [para. 65]; 10(1) [para. 73].

Authors and Works Noticed:

Anger and Honsberger, Law of Real Property (3rd Ed. 2006), vol. 1, para. 14:20.10 [para. 47].

Anger and Honsberger, Law of Real Property (3rd Ed. 2006) (2010 Looseleaf), paras. 15.20.40(b), 15.20.40(c) [para. 138].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 111].

Klotz, Robert A., Bankruptcy, Insolvency and Family Law (2nd Ed. 2001) (2007 Looseleaf Update, Release 1), c. 4, pp. 4-21 [para. 50]; 4-23 [para. 51].

Ontario, Law Reform Commission, Report on the Family Property Law (1992), p. 128 [para. 52].

Counsel:

Timothy G. Daley, Q.C., for the appellant, Christopher Valentino Gill, respondent on Wickwire Holm appeal;

Bradford G. Yuill, for the respondent, Christine Mary Hurst, on both appeals;

Kenzie MacKinnon and Lori Hill, for the appellant, Wickwire Holm.

This appeal was heard on June 3, 2011, at Halifax, Nova Scotia, by Fichaud, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal. On November 1, 2011, the judgment of the Court was delivered with the following opinions:

Bryson, J.A. (Farrar, J.A., concurring) - see paragraphs 1 to 85;

Fichaud, J.A., dissenting in part - see paragraphs 86 to 146.