Yorke v. Yorke, (2011) 378 N.B.R.(2d) 141 (CA)

• Judge: Larlee, Richard and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 17, 2011
• Jurisdiction: New Brunswick
• Citations: (2011), 378 N.B.R.(2d) 141 (CA);2011 NBCA 79

Yorke v. Yorke (2011), 378 N.B.R.(2d) 141 (CA);

    378 R.N.-B.(2e) 141; 973 A.P.R. 141

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2011] N.B.R.(2d) TBEd. SE.028

Renvoi temp.: [2011] N.B.R.(2d) TBEd. SE.028

Georgina M.E. Yorke (respondent/appellant) v. Raymond Edward Yorke (petitioner/respondent)

(95-10-CA; 2011 NBCA 79)

Indexed As: Yorke v. Yorke

Répertorié: Yorke v. Yorke

New Brunswick Court of Appeal

Larlee, Richard and Quigg, JJ.A.

September 22, 2011.

Summary:

Résumé:

The parties began cohabiting in 1981, a year after the husband sold his plumbing business and retired. They married in 1997. During their cohabitation and marriage, the parties lived off the husband's savings and investments. The parties separated in 2009. There were no children of the marriage. The husband petitioned for divorce and also claimed an unequal division of marital property under the Marital Property Act. In response, the wife sought an equal division of the marital property and spousal support. The husband was 80 years old; the wife was 73.

The New Brunswick Court of Queen's Bench, Family Division, in a decision reported at 361 N.B.R.(2d) 379; 931 A.P.R. 379, ordered an unequal division of the marital home (75% to the husband; 25% to the wife), and divided a cottage property and adjacent lot equally. The court declared the following assets not to be marital property, or, alternatively, excluded them from division: the husband's disability pension, two bank accounts in the husband's name, his RRIF and his RRSPs. The court ordered the husband to pay spousal support in a lump sum of $30,000. The wife appealed. She agreed to withdraw her request for spousal support, if the division of assets was equal. The husband contended that the wife would be unjustly enriched if an equal division of the value of the marital home and the investments were ordered.

The New Brunswick Court of Appeal, Richard, J.A., dissenting, allowed the appeal. "In this unique case it is equitable to divide all the marital assets equally including the RRSPs". The court set aside the lump sum order for spousal support. The court fixed the wife's costs at trial and on appeal. Richard, J.A., found no error in the trial judge's decision that would justify appellate interference. Deference was warranted.

Family Law - Topic 629.3

Husband and wife - Marital property - Marital property legislation - Availability of constructive trust - This matter involved the division of property upon divorce - Neither party had worked outside the home during their common law relationship and marriage - The husband paid the living expenses from his investment income, and the wife managed the household - At trial, the husband contended that the wife would be unjustly enriched if an equal division of the value of the marital home and the investments were ordered - The New Brunswick Court of Appeal stated that "[u]njust enrichment principles are more properly applied in cases of unmarried persons in domestic relationships ... [t]he [Supreme] Court [of Canada] stated [in Leatherdale v. Leatherdale (1982)] that the disposition made on the basis of specific statutory provisions of the only assets that were in issue leaves no room to consider the application of constructive or resulting trusts" - See paragraph 54.

Family Law - Topic 637

Husband and wife - Marital property - Constructive trusts - [See Family Law - Topic 629.3 ].

Family Law - Topic 688

Husband and wife - Property rights during and after common law marriage or relationship - Resulting or constructive trusts - [See Family Law - Topic 629.3 ].

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - This matter involved the division of property, including the marital home - The New Brunswick Court of Appeal, referring to recent New Brunswick jurisprudence dealing with division of the marital home, stated that "[i]n marriages of short duration, there may be an unequal division of the marital home depending on the treatment of a particular monetary asset that has not been mingled with other family assets, or has been kept separate and apart and not ordinarily used toward the family household or its management ... The length of the marriage is seemingly one of the most influential criteria to be considered in the analysis ... In marriages of long duration, an equal division of the marital home is the norm. It is generally well accepted in New Brunswick that a marriage of over 20 years is a long-term marriage" - See paragraphs 20 to 26.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - In the case at bar, the parties lived in the marital home from 1981 until their separation in 2009 - The trial judge based his conclusion that an unequal division of the marital home was warranted on the following facts: the property was acquired by the husband long before he met the wife; the monies used to maintain the home were from capital earned by the husband before he met the wife; there was no evidence that the wife made any monetary or "in kind" contribution to the maintenance of the home - The New Brunswick Court of Appeal ordered an equal division of the marital home - Neither spouse alleged the other failed in their joint responsibilities under s. 2 of the Marital Property Act - The trial judge erred in placing too little emphasis on the length of the cohabitation (16 years) and marriage (12 years) and too much emphasis on the lack of a substantial financial contribution on the wife's part - Under the Act, there was no obligation on a spouse to make a monetary or "in kind" contribution - The trial judge diminished the wife's contribution in a way that was contrary to s. 2 of the Act and the court's endorsement of the primacy of equal division - See paragraphs 27 to 29.

Family Law - Topic 874

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - General - The New Brunswick Court of Appeal stated that "[l]ike all other common law provinces in Canada, New Brunswick's Marital Property Act provides for a presumptive statutory right to an equal division of all marital assets. Section 2 recognizes marriage as an equal economic partnership. It gives equal status to joint responsibilities of spouses whether they are child care, household management or financial provision. These joint responsibilities of spouses are recognized to be of equal importance in assessing the contributions of the respective spouses to the acquisition, management, maintenance, operation or improvement of marital property. The contribution of each spouse to the fulfillment of these responsibilities entitles each spouse to an equal share of the marital property and imposes on each spouse, in relation to the other, the burden of an equal share of the marital debts. In a nutshell, the statute provides for orderly and equitable settlement between equals upon marriage breakdown" - See paragraph 11.

Family Law - Topic 874

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - General - The New Brunswick Court of Appeal stated "[t]his Court has endorsed the primacy of equal division in recent caselaw ... An examination of the New Brunswick jurisprudence on marital property applications from the last 10 years reveals that, first and foremost, marriage is an equal economic partnership. Marital contributions, namely financial provision and household management, share equal status. Equal financial contributions are not a prerequisite to equal division of the property. Common exceptions to equal division result from peculiar circumstances: dissipation of assets; unequal contribution; short, second or late marriage and inherited property. In long-term marriages, the marital home will generally be subject to an equal division. In the absence of mingling or co-mingling of an account, that is, if an account is kept absolutely separate and not used for the household, it may be excluded from division. When one looks objectively at the affairs of the parties, what matters is whether their money was mingled with the household accounts or, put another way, whether the money was spent on acquiring goods or paying the expenses for the family ... The focus in marital property applications cannot be on a balancing of financial contributions. Simply espousing at trial: 'what is mine is mine and what is yours is yours' does not qualify as 'an agreement, arrangement or understanding that the use of the family asset by the non-owning spouse or any of their children would not prejudice any rights of the owning spouse to the family asset' (s. 6(e)) [Marital Property Act]. It takes something more than that to affect the presumptive statutory right to an equal division of marital assets" - See paragraphs 18 and 19.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - [See second Family Law - Topic 874 ].

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - This matter involved the division of property upon divorce - The general scheme of the New Brunswick Marital Property Act provided for a presumption of equality - However, s. 7 of the Act provided six criteria to be considered if the court was of the opinion that a division of the marital property in equal shares would be inequitable - The New Brunswick Court of Appeal stated that "[i]t is recognized in the case law that there is a heavy onus on a spouse who tries to prove that an equal division under the Act is 'inequitable'. Other provinces use the following terms: unconscionable, grossly unfair, grossly unjust, injustice, and unjust. Some of the factors to be considered in s. 7 require an assessment of subjective evidence such as the contribution of the spouse. Others require an objective assessment such as the length of time the spouses cohabited" - See paragraphs 14 and 15.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - This matter involved the division of property upon divorce - The New Brunswick Court of Appeal reviewed the New Brunswick jurisprudence where assets other than the marital home had been the subject of an unequal division application - See paragraphs 30 to 37.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - The husband requested an unequal division of property under the New Brunswick Marital Property Act - He owned the marital home prior to the relationship and subsequent marriage, used his investments to pay for the couple's purchases and travels, and his investments existed prior to their relationship - The New Brunswick Court of Appeal stated that "[t]here are no hard and fast rules about the division of previously-acquired assets. Certainly, in our legislation, assets acquired before the marriage fall within the definition of 'family asset'. It is my view that each application for an unequal division must be decided by doing an analysis in accordance with the appropriate statutory criteria as a whole" - In the end result, the court ordered an equal division of all marital assets - See paragraph 48.

Family Law - Topic 876

Husband and wife - Marital property - Distribution orders - Family or matrimonial assets - [See second Family Law - Topic 880.44 ].

Family Law - Topic 880.32

Husband and wife - Marital property - Distribution orders - Particular property - Registered Retirement Savings Plans, R.E.S.P.'s, Income Funds, unregistered investments, etc. - The New Brunswick Court of Appeal stated that "[g]enerally, RRSPs have been treated as family assets subject to division" - See paragraph 47 - "Barring explicit legislation, the presumption is that RRSPs are family assets and that they should be divided equally unless it would be inequitable to do so. That said, in my view there may be a distinction to be made between RRSPs to which there are no contributions made during the marriage and are kept segregated and those which are used to finance the family household. The ultimate use of an RRSP might be to take the place of a pension, but there is no doubt that RRSPs were created by the government, not for business purposes, but for family and investment purposes to defer the payment of tax. RRSPs are savings plans. The holder of an RRSP is free to withdraw funds from them like any other account and pay the deferred taxes which he cannot do with a pension" - See paragraphs 49 and 50.

Family Law - Topic 880.32

Husband and wife - Marital property - Distribution orders - Particular property - Registered Retirement Savings Plans, R.E.S.P.'s, Income Funds, unregistered investments, etc. - The parties cohabited for 16 years and were married for 12 - The husband began drawing money from the RRSPs by way of a RRIF 10 years prior to the separation to support the parties - When the savings were depleted, he started using the RRSPs - The RRIF was valued at $150,929.95 at the time of the trial - He argued that the RRSPs acquired or contributed to before the marriage, and not contributed to during the marriage, were not marital property and should be excluded from a division - The trial judge found the RRSPs (which had been converted by law to a RRIF) were not a marital asset - In the alternative, if the RRSPs were marital property, the trial judge found that s. 6 of the Marital Property Act applied and an equal division was inequitable - The New Brunswick Court of Appeal held that the trial judge erred - The RRSPs took the place of the family bank account - "[T]he determining factor in this case is the use [the husband] made of the RRSPs during the cohabitation" - While the wife made no substantial contribution to the RRSPs, that factor alone could not trump the long duration of the cohabitation - There was no agreement to opt out of the marital property provisions with respect to the asset - Another factor was that no evidence was adduced as to the exact amount of the RRSPs at the time the cohabitation commenced or the amount they increased during the cohabitation - This was not a case in which an inequity would result if the RRSPs (now RRIF) were divided equally - See paragraphs 51 and 52.

Family Law - Topic 880.44

Husband and wife - Marital property - Distribution orders - Particular property - Separate accounts (incl. term deposits) - This matter involved the division of property upon divorce - The definition of family asset in s. 1 of New Brunswick's Marital Property Act played a role - A money master savings account and a tax free savings account each contained an amount that remained from the husband's investments from the business he sold 30 years ago - The trial judge ordered the exclusion of those accounts from the division of property - The New Brunswick Court of Appeal held that the bank accounts were a family asset - The trial judge erred in concluding that, despite the regular and ongoing use of those accounts for family purposes throughout the marriage, the accounts were not family assets - Those accounts were the source of payment for cars, trips, and family expenses - The trial judge also erred when he concluded there was no mingling of funds between the parties and that they dealt with their financial affairs in an independent manner - The notion that there was no mingling of funds between separate accounts held by the parties was irrelevant - "The true philosophy of this marriage was ... 'what was hers was hers [and] what was his was theirs'" - See paragraphs 38 to 44.

Family Law - Topic 880.44

Husband and wife - Marital property - Distribution orders - Particular property - Separate accounts (incl. term deposits) - The parties in this case were unsophisticated litigants - They married in 1997, separated in 2009 and divorced in 2010 - A money master savings account and a tax free savings account each contained an amount that remained from the husband's investments from the business he sold in 1981, a year before the parties met and began cohabiting - The trial judge ordered the exclusion of those accounts from the division of property - The New Brunswick Court of Appeal held that the bank accounts were a family asset and divided the accounts equally - Applying s. 7 of the Marital Property Act, the court concluded that there was no specific agreement to keep the accounts separate; it was a 28 year cohabitation and marriage; the separation was short; there was no evidence of an inheritance or gift; the wife managed the household and the husband paid for the expenses, and there were no other exceptional circumstances that applied - The onus for shifting the presumption of an equal division of family assets had not been met - See paragraphs 45 and 46.

Family Law - Topic 883

Husband and wife - Marital property - Considerations in making distribution orders - Contributions of parties (incl. unequal contributions) - [See both Family Law - Topic 865 , both Family Law - Topic 874 and second Family Law - Topic 875 ].

Family Law - Topic 1006

Common law, same-sex or adult interdependent relationships - Resulting or constructive trusts - [See Family Law - Topic 629.3 ].

Family Law - Topic 4170

Divorce - Practice - Appeals - Duty of appellate court - Discretionary orders - The New Brunswick Court of Appeal set out the standard of review in a family case - "An appellate court must show considerable deference to a trial judge's decision on a family law matter ... [T]his Court reiterated that with regard to the standard of review applicable to an appeal from a division of assets made pursuant to the Marital Property Act (legislation conferring discretion on a judge to divide property), we can intervene and review the facts only if the trial judge has misdirected herself or himself or if the decision is 'so clearly wrong as to amount to an injustice' ... Mindful of the admonition that an appellate court should be extremely reluctant to interfere with the exercise of a discretionary power by a trial judge, ... I believe that this is one of those rare cases in which justice demands the exercise of discretion be reviewed" - See paragraphs 8 to 10.

Family Law - Topic 4182

Divorce - Practice - Costs - Lump sum or fixed costs - This matter involved the division of property upon divorce and spousal support, i.e., the issues were monetary - The husband claimed an unequal division of the marital home and an order that the other assets be excluded from division, or $239,554 - The wife claimed an amount that was half of the total assets or $131,965 - The trial judge stated that the husband was "substantially" successful and ordered costs in the amount of $2,500 - The wife was successful on the appeal - The New Brunswick Court of Appeal set aside the award of costs in favour of the husband at trial and awarded trial costs to the wife in an amount of $6,700 plus reasonable disbursements (pursuant to rule 59, Tariff A, Scale 2, based on an amount involved of $131,965) - The court used Scale 2 because the issues, although important, were not complex, and the trial hearing lasted only one day - The wife was successful on the appeal - The court ordered that the husband pay the wife's costs on appeal of $2,680 - See paragraphs 56 to 58.

Droit de la famille - Cote 629.3

Mari et femme - Biens matrimoniaux - Application d'une législation sur les biens matrimoniaux - Disponibilité d'une fiducie constructoire - [Voir Family Law - Topic 629.3 ].

Droit de la famille - Cote 637

Mari et femme - Biens matrimoniaux - Fiducie judiciaire - [Voir Family Law - Topic 637 ].

Droit de la famille - Cote 688

Mari et femme - Droits de propriété pendant et après une union libre - Fiducie résultoire ou constructoire - [Voir Family Law - Topic 688 ].

Droit de la famille - Cote 865

Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Foyer matrimonial - [Voir Family Law - Topic 865 ].

Droit de la famille - Cote 874

Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Lois exigeant une répartition égale - Généralités - [Voir Family Law - Topic 874 ].

Droit de la famille - Cote 875

Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Lois exigeant une répartition égale - Exceptions (y compris la répartition judiciaire) - [Voir Family Law - Topic 875 ].

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 880.32

Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Biens particuliers - Régimes enregistrés d'épargne-retraite, régimes enregistrés d'epargne-études fonds à revenu fixe, placements non enregistrés, etc. - [Voir Family Law - Topic 880.32 ].

Droit de la famille - Cote 880.44

Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Biens particuliers - Comptes séparés (y compris dépôts à terme) - [Voir Family Law - Topic 880.44 ].

Droit de la famille - Cote 883

Mari et femme - Biens matrimoniaux - Facteurs considérés lors du prononcé de l'ordonnance de répartition - Apport respectif des parties (y compris un apport inégal) - [Voir Family Law - Topic 883 ].

Droit de la famille - Cote 1006

Union libre, union interdépendante ou union formée par deux personnes du même sexe - Fiducie résultoire ou constructoire - [Voir Family Law - Topic 1006 ].

Droit de la famille - Cote 4170

Divorce - Procédure - Appels - Devoirs de la Cour d'appel - Ordonnances discrétionnaires - [Voir Family Law - Topic 4170 ].

Droit de la famille - Cote 4182

Divorce - Procédure - Dépens - Somme globale - [Voir Family Law - Topic 4182 ].

Cases Noticed:

T.M.A.H. v. J.J.G. (2010), 357 N.B.R.(2d) 51; 923 A.P.R. 51; 2010 NBCA 4, refd to. [para. 8].

Milton v. Milton (2008), 338 N.B.R.(2d) 300; 866 A.P.R. 300; 2008 NBCA 87, refd to. [para. 8]; consd. [para. 30].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 8].

N.L. v. R.L. - see Lang v. Lang.

Lang v. Lang, [2007] N.B.R.(2d) Uned. 99 (C.A.), refd to. [para. 9].

Leblanc v. Leblanc, [1988] 1 S.C.R. 217; 81 N.R. 299; 84 N.B.R.(2d) 33; 214 A.P.R. 33, consd. [para. 16].

R.B. v. I.B. (2005), 282 N.B.R.(2d) 358; 738 A.P.R. 358; 2005 NBCA 38, consd. [para. 18].

O'Brien v. O'Brien Estate (1990), 111 N.B.R.(2d) 271; 277 A.P.R. 271 (C.A.), leave to appeal refused (1991), 135 N.R. 238; 113 N.B.R.(2d) 89; 285 A.P.R. 89 (S.C.C.), refd to. [para. 18].

Hogan v. Hogan (1991), 115 N.B.R.(2d) 343; 291 A.P.R. 343 (C.A.), refd to. [para. 18].

McKinnon v. McKinnon (2011), 373 N.B.R.(2d) 378; 964 A.P.R. 378; 2011 NBCA 49, refd to. [para. 18].

Memisoglu v. Memiche (1995), 170 N.B.R.(2d) 285; 435 A.P.R. 285 (C.A.), refd to. [para. 20].

Vincent v. Vincent, [2003] N.B.R.(2d) (Supp.) No. 6; 2003 NBQB 28 (T.D.), refd to. [para. 20].

P.B. v. C.B. (2010), 357 N.B.R.(2d) 381; 923 A.P.R. 381; 2010 NBQB 77 (Fam. Div.), refd to. [para. 20].

Elliott v. Elliott, [2003] N.B.R.(2d) (Supp.) No. 71; 2003 NBQB 458 (Fam. Div.), refd to. [para. 20].

MacLeod v. MacLeod (2004), 272 N.B.R.(2d) 220; 715 A.P.R. 220; 2004 NBQB 185 (Fam. Div.), refd to. [para. 20].

Lewery v. Lewery, [2002] N.B.R.(2d) (Supp.) No. 58; 2002 NBQB 240 (Fam. Div.), refd to. [para. 20].

Hosford v. Hosford (2002), 246 N.B.R.(2d) 108; 638 A.P.R. 108 (Fam. Div.), refd to. [para. 21].

Hickman v. Chiasson, [2001] N.B.R.(2d) Uned. 31; 2001 NBCA 33, refd to. [para. 22].

Quinn-Eusanio v. Eusanio (2003), 255 N.B.R.(2d) 70; 668 A.P.R. 70; 2003 NBCA 1, refd to. [para. 22].

Laplante v. Laplante (2007), 319 N.B.R.(2d) 305; 823 A.P.R. 305; 2007 NBQB 209 (Fam. Div.), refd to. [para. 23].

Holmden v. Holmden, [2002] N.B.R.(2d) (Supp.) No. 30; 2002 NBQB 111 (Fam. Div.), consd. [para. 24].

Bourque v. Bourque, [2003] N.B.R.(2d) Uned. 100; 2003 NBQB 315 (Fam. Div.), consd. [para. 25].

L.J.M. v. G.S.M. (2006), 298 N.B.R.(2d) 251; 775 A.P.R. 251; 2006 NBQB 176 (Fam. Div.), refd to. [para. 25].

Maber v. Maber (2007), 313 N.B.R.(2d) 208; 809 A.P.R. 208; 2007 NBQB 99 (Fam. Div.), consd. [para. 26].

Long-Beck v. Beck (2006), 305 N.B.R.(2d) 253; 791 A.P.R. 253; 2006 NBQB 317 (Fam. Div.), consd. [para. 37]; refd to. [para. 29].

English v. English (2003), 258 N.B.R.(2d) 74; 676 A.P.R. 74; 2003 NBQB 63 (Fam. Div.), consd. [para. 31].

B.W. v. B.W. (2007), 324 N.B.R.(2d) 107; 834 A.P.R. 107; 2007 NBQB 330 (Fam. Div.), refd to. [para. 33].

Cripps v. Cripps (2007), 310 N.B.R.(2d) 1; 800 A.P.R. 1; 2007 NBQB 2 (Fam. Div.), refd to. [para. 33].

Duff v. Duff (2007), 322 N.B.R.(2d) 219; 829 A.P.R. 219; 2007 NBQB 222 (Fam. Div.), consd. [para. 34].

Dykeman v. Dykeman (2002), 256 N.B.R.(2d) 207; 670 A.P.R. 207; 2002 NBQB 395 (Fam. Div.), consd. [para. 35].

Crosman v. Crosman (2005), 285 N.B.R.(2d) 153; 744 A.P.R. 153; 2005 NBQB 245 (Fam. Div.), affd. (2006), 299 N.B.R.(2d) 334; 778 A.P.R. 334; 2006 NBCA 46, leave to appeal refused (2006), 361 N.R. 392; 309 N.B.R.(2d) 400; 799 A.P.R. 400 (S.C.C.), refd to. [para. 36].

Duguay v. Duguay (2000), 231 N.B.R.(2d) 137; 597 A.P.R. 137 (Fam. Div.), refd to. [para. 37].

Léger v. Léger (1994), 143 N.B.R.(2d) 148; 366 A.P.R. 148 (C.A.), refd to. [para. 37].

Wang v. Poon, [2008] B.C.A.C. Uned. 129; 2008 BCCA 442, refd to. [para. 44].

Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550; 318 N.R. 1; 194 B.C.A.C. 161; 317 W.A.C. 161; 2004 SCC 22, refd to. [para. 45].

J.C. v. A.R. - see Roy v. Crutchfield.

Roy v. Crutchfield, [1999] N.B.R.(2d) Uned. 16 (C.A.), refd to. [para. 47].

McQuade v. McQuade (2004), 276 N.B.R.(2d) 275; 724 A.P.R. 275; 2004 NBCA 90, consd. [para. 47].

R.M.S. v. F.P.C.S. (2011), 299 B.C.A.C. 186; 508 W.A.C. 186; 2011 BCCA 53, consd. [para. 49].

Clarke v. Clarke (1997), 101 B.C.A.C. 225; 164 W.A.C. 225 (C.A.), consd. [para. 49].

Mailhot v. Mailhot, [1988] B.C.J. No. 2087 (C.A.), refd to. [para. 48].

Taylor v. Taylor et al. (1998), 104 B.C.A.C. 217; 170 W.A.C. 217 (C.A.), consd. [para. 49].

Baker v. Blodgett, [2000] B.C.A.C. Uned. 120 (C.A.), dist. [para. 51].

Kerr v. Baranow (2011), 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 2011 SCC 10, refd to. [para. 54].

Leatherdale v. Leatherdale, [1982] 2 S.C.R. 743; 45 N.R. 40, refd to. [para. 54].

C.J.G. v. L.T.G. (2011), 369 N.B.R.(2d) 202; 952 A.P.R. 202; 2011 NBCA 12, consd. [para. 56].

Doucet et al. v. Spielo Manufacturing Inc. et al. (2011), 372 N.B.R.(2d) 1; 961 A.P.R. 1; 2011 NBCA 44, refd to. [para. 56].

Statutes Noticed:

Marital Property Act, S.N.B. 1980, c. M-1.1, sect. 2, sect. 6, sect. 7, sect. 16 [Schedule A].

Counsel:

Avocats:

Peter J.C. White, for the appellant;

Kimberly A. McCurdy, for the respondent.

This appeal was heard on February 17, 2011, before Larlee, Richard and Quigg, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was rendered in both official languages on September 22, 2011, with the following reasons:

Larlee, J.A. (Quigg, J.A., concurring) - see paragraphs 1 to 60 ;

Richard, J.A., dissenting - see paragraphs 61 to 76.