Ross v. Ross

• Jurisdiction: Nova Scotia
• Court: Court of Appeal of Nova Scotia (Canada)
• Judge: Pugsley, Flinn and Cromwell, JJ.A.
• Citation: 1999 NSCA 162,(1999), 181 N.S.R.(2d) 22 (CA)
• Date: 10 November 1999
• Subject Matter: FAMILY LAW,PRACTICE

Ross v. Ross (1999), 181 N.S.R.(2d) 22 (CA);

 560 A.P.R. 22

MLB headnote and full text

Temp. Cite: [2000] N.S.R.(2d) TBEd. JA.030

Joseph Albert Sylvain Ross (appellant) v. Jeane Rita Ross (respondent)

(CA 156874; 1999 NSCA 162)

Indexed As: Ross v. Ross

Nova Scotia Court of Appeal

Pugsley, Flinn and Cromwell, JJ.A.

December 22, 1999.

Summary:

The parties separated after 16 years' mar­riage. They had two children. The husband spent his career in the Armed forces. He retired approximately six months after sep­aration. The wife sought a divorce, custody of the children, child and spousal support, and a division of the assets and pension.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, granted custody of the children to the wife. He also ordered that the husband pay child support of $175 per month and an equal­ization payment of $23,049.47, representing the wife's equal share on the division of matrimonial assets. The trial judge further awarded the wife one-half of the husband's Canadian Forces Superannuation Plan pen­sion. The husband appealed.

The Nova Scotia Court of Appeal dis­missed the appeal except for the correction of a clerical error in the valuation of assets.

Family Law - Topic 876

Husband and wife - Marital property - Distribution orders - Family or matri­monial assets - The husband appealed the trial judge's division of matrimonial assets - The husband, who had retired from the Armed forces six months after the parties separated, argued inter alia, that the trial judge erred in concluding that certain compensation paid to him under the Forces Reduction Program and in lieu of annual leave when he left the Navy, constituted matrimonial assets - The Nova Scotia Court of Appeal rejected this ground of appeal - The matter was not raised as an issue at trial so the trial judge had no evidence to make such a conclusion - It would be unfair to permit the argument on appeal - Nonetheless, the court noted that even if it had permitted the argument, the husband had failed to establish that the compensation was not a matrimonial asset - See paragraphs 30 to 40.

Family Law - Topic 876

Husband and wife - Marital property - Distribution orders - Family or matri­monial assets - The parties separated - The husband retired from the Armed forces approximately six months after separation -In granting the parties a divorce, the trial judge divided the matri­monial assets equally - The husband appealed - He argued, inter alia, that the trial judge erred in concluding that certain compensation paid to him upon leaving the Navy (i.e., severance) constituted a matri­monial asset -Particularly, those funds should have been excluded because they had already been used by him to pay support up to April 1998 - The Nova Scotia Court of Appeal rejected this ground of appeal - The payments made by the husband were support payments - They were not advances on the wife's share of the matrimonial assets - See paragraphs 26 to 29.

Family Law - Topic 880.33

Husband and wife - Marital property - Distribution orders - Particular property - Severance or retirement allowance - [See both Family Law - Topic 876 ].

Family Law - Topic 880.45

Husband and wife - Marital property - Distribution orders - Particular property - Vacation pay - [See second Family Law - Topic 876 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See first Family Law - Topic 876 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - A husband appealing the trial judge's division of matrimonial property, attempted to raise issues that had not been raised in the pleadings or at trial - The Nova Scotia Court of Appeal declined to hear the issues - The court stated that "[t]he general prin­ciple concerning argu­ments raised for the first time on appeal is that they should only be entertained if the Court of Appeal is persuaded that all the facts necessary to address the point are before the Court as fully as if the issue had been raised at trial. The rationale of the principle is that it is unfair to permit a new argument on appeal in relation to which evidence might have been led at trial had it been known the issue would be raised" - See paragraph 34.

Cases Noticed:

Ship Tasmania et al. v. Smith et al. (1890), 15 App. Cas. 223 (H.L.), refd to. [para. 34].

S-Marque Inc. v. Homburg Industries Ltd. (1999), 176 N.S.R.(2d) 218; 538 A.P.R. 218 (C.A.), refd to. [para. 34].

O'Bryan v. O'Bryan (1997), 97 B.C.A.C. 62; 157 W.A.C. 62 (C.A.), refd to. [para. 34].

Yaschuk v. Logan (1992), 110 N.S.R.(2d) 278; 299 A.P.R. 278; 39 R.F.L.(3d) 417 (C.A.), refd to. [para. 38].

Statutes Noticed:

Matrimonial Property Act, S.N.S. 1980, c. 9, sect. 4(1)(g) [para. 37].

Counsel:

Steven Zatzman, for the appellant;

Samira Zayid, for the respondent.

This appeal was heard on November 10, 1999, before Pugsley, Flinn and Cromwell, JJ.A., of the Nova Scotia Court of Appeal. On December 22, 1999, Cromwell, J.A., delivered the following judgment for the Court of Appeal.