2011 NBCA 79, 2011 NBCA 79

COURT OF APPEAL OF NEW BRUNSWICK 95-10-CA GEORGINA M.E. YORKE (Respondent) APPELLANT GEORGINA M.E. YORKE (intimé

e) APPELANTE - and - - et - RAYMOND EDWARD YORKE (Petitioner) RESPONDENT RAYMOND EDWARD YORKE (requérant) INTIMÉ Yorke v. Yorke, 2011 NBCA 79 Yorke c.

Yorke, 2011 NBCA 79 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Quigg CORAM : L’honorable juge Larlee L’honorable juge Richard L’honorable juge Quigg Appeal from a decision of the Court of Queen’sBench: June 24, 2010 Appel d’une décision de la Cour du Banc de la Reine: Le 24 juin 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 230 Décision frappée d’appel : 2010 NBQB 230 , 2010 NBBR 230 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: February 17, 2011 Appel entendu : Le 17 février 2011 Judgment rendered: September 22, 2011 Jugement rendu : Le 22 septembre 2011

Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : L’honorable juge Larlee Concurred in by: The Honourable Justice Quigg Souscrit aux motifs : L’honorable juge Quigg Dissenting reasons by: The Honourable Justice Richard Motifs dissidents : L’honorable juge Richard Counsel at hearing: For the appellant: Peter J.C. White For the respondent: Kimberly A. McCurdy Avocats à l’audience : Pour l’appelante : Peter J.C. White Pour l’intimé : Kimberly A. McCurdy THE COURT The appeal is allowed. The marital property of the parties shall be divided equally.

The lump sum order for spousal support is set aside. Costs at trial are fixed in an amount of $6,700 and an amount of $2,680 on appeal. Richard, J.A., dissenting, would have dismissed the appeal with costs. LA COUR L’appel est accueilli. Les biens matrimoniaux des parties seront répartis à parts égales. L’ordonnance de paiement forfaitaire pour ce qui est de la pension alimentaire au profit de l’épouse est annulée. Les dépens sont fixés à 6 700 $ en première instance et à 2 680 $ en appel. Le juge Richard, dissident, aurait rejeté l’appel avec dépens.

The judgment of Larlee and Quigg, JJ.A. was delivered by LARLEE, J.A. [ 1 ] Mrs. Yorke appeals the decision of a judge of the Court of Queen’s Bench, ( 2010 NBQB 230 , 361 N.B.R. (2d) 379 ) following a trial on the issues of division of marital property pursuant to the Marital Property Act , S.N.B. 1980, c. M-1.1 and spousal support pursuant to the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.) . I. Factual Background

[ 2 ] In 1981, one year after Mr. Yorke sold his plumbing business and retired, at the age of 49, he met and began cohabiting with Mrs. Yorke, in the house in which Mr. Yorke had lived with his previous wife. Mr. Yorke had separated from his first wife in the 1970’s and he eventually was divorced from her, but he did not marry Mrs. Yorke until his first wife died. The parties married in August 1997, separated in April 2009, and divorced in May 2010. Presently Mrs. Yorke is 73 years of age and Mr. Yorke is 80 years of age. There were no children of the marriage. When Mr.

Yorke sold his plumbing business he placed the money he received into investments and RRSPs, an amount estimated to be between $600,000 and $700,000. At separation, Mr. Yorke had RRSPs (converted to an RRIF account) valued at $150,929.95. He had approximately $15,000.00 in other investments (the Money Master Savings Account and the Tax Free Savings Account). Mr. Yorke purchased a cottage in Nova Scotia in his name, but it was subsequently transferred into the names of both parties. Neither party worked outside the home during their common law relationship and subsequent marriage. Mr.

Yorke paid the living expenses from his investment income and Mrs. Yorke managed the household. [ 3 ] At trial, Mrs. Yorke stressed the presumptive principle of the Marital Property Act , arguing marital property should be divided equally and that she required spousal support. Mr. Yorke agreed that he had the ability to pay spousal support, and did not dispute Mrs. Yorke’s entitlement, only the quantum. He requested an unequal division of property. Mr.

Yorke argued that there was no mingling of funds between the parties, and stated: “What was his was his and what was hers was hers”. [ 4 ] In determining the division of marital property, the trial judge weighed the relative contributions of the parties. He considered the fact that Mr. Yorke owned the marital home prior to this relationship, that he used his investments to pay for and support the couple’s purchases and travels during the relationship, and that his investments existed prior to their relationship. He then ordered an unequal division of the marital home (75% to Mr. Yorke; 25% to Mrs. Yorke).

He divided the cottage property and adjacent lot equally. He declared the following assets not to be marital property, or, alternatively, excluded them from marital property division: Mr. Yorke’s disability pension, two accounts in Mr. Yorke’s name (The “Money Master Savings Account” and “Tax Free Savings Account”); Mr. Yorke’s “Registered Retirement Income Fund” (RRIF); and his RRSPs. He ordered Mr. Yorke to pay to Mrs. Yorke spousal support in a lump sum of $30,000. II. Issues on Appeal [ 5 ] Mrs. Yorke relies on five grounds of appeal.

She argues the following assets are marital property, subject to an equal division, and the trial judge erred in law in determining: 1. the marital home referred to as the “Carter’s Point” property should be divided 25% for the appellant and 75% for the respondent; 2. the Money Master Savings Account and the Tax Free Savings Account are not marital property and therefore are not subject to division; 3. the Registered Retirement Income Fund (RRIF) is not marital property; 4. the RRSP is not marital property; and 5. the quantum of spousal support should be a one time lump sum payment of $30,000.

At the appeal hearing the appellant submitted that if the relief requested regarding the division of marital property was not granted, the quantum of spousal support should be a lump sum of $81,000.00 rather than one of $30,000.00 ordered by the trial judge. III. Notice of Contention [ 6 ] Mr. Yorke filed a Notice of Contention. He contends Mrs. Yorke would be unjustly enriched if an equal division of the value of the marital home and the investments were ordered in the totality of the circumstances. He acknowledges the

appellant’s concession regarding small RRSPs that each brought to the marriage. He agreed that the lump sum of spousal supportawarded by the judge is appropriate. IV. Pertinent Legislation [7] The relevant legislative provisions are attached as Appendix A. V. Standard of Review [8] An appellate court must show considerable deference to a trial judge’s decision on a family law matter(T.M.A.H. v. J.J.G., 2010 NBCA 4, [2010] N.B.J. No. 21 (QL)). In Milton v.

Milton, 2008 NBCA 87, 338 N.B.R. (2d) 300, at para. 14,this Court reiterated that with regard to the standard of review applicable to an appeal from a division of assets made pursuant to theMarital Property Act (legislation conferring discretion on a judge to divide property), we can intervene and review the facts only if thetrial judge has misdirected herself or himself or if the decision is “so clearly wrong as to amount to an injustice” (see Elsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367, [1989] S.C.J. No. 48 (QL), at 1375). [9] In N.L. v.

R.L., File Number 127/07/CA, December 14, 2007 (N.B.C.A.), Richard J.A. summed up thestandard of review in a family case: The law is equally clear that the Court of Appeal cannot re-try a case. The Court of Appeal may only overturn a trial judge’s finding offact can [sic] if it is the result of a palpable and overriding error, and may only interfere with a discretionary order if it is founded uponan error of law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence(see Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235, [2002] S.C.J.

No. 31 (QL), 2002 SCC 33 and H.L. v. Canada(Attorney General), 2005 SCC 25 , [2005] 1 S.C.R. 401, [2005] S.C.J. No. 24 (QL), 2005 SCC 25 with regard to findings offact, and British Columbia (Minister of Forests) v.

Okanagan Indian Band, 2003 SCC 71 , [2003] 3 S.C.R. 371, [2003] S.C.J.No. 76 (QL), 2003 SCC 71, at para. 43, with regard to discretionary orders). [para. 3] [10] Mindful of the admonition that an appellate court should be extremely reluctant to interfere with the exercise ofa discretionary power by a trial judge, for the reasons given below, I believe that this is one of those rare cases in which justice demandsthe exercise of discretion be reviewed. VI.

The Jurisprudence [11] Like all other common law provinces in Canada, New Brunswick’s Marital Property Act provides for apresumptive statutory right to an equal division of all marital assets.

Section 2 recognizes marriage as an equal economic partnership. Itgives equal status to joint responsibilities of spouses whether they are child care, household management or financial provision. Thesejoint responsibilities of spouses are recognized to be of equal importance in assessing the contributions of the respective spouses to theacquisition, management, maintenance, operation or improvement of marital property.

The contribution of each spouse to the fulfillmentof 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 equalsupon marriage breakdown. [12] The definition of family asset also plays a role in this decision. The Act, at

section 1, defines “family assets” as“… property, whether acquired before or after marriage, owned by one spouse or both spouses and ordinarily used or enjoyed for shelteror transportation or for household, educational, recreational, social or aesthetic purposes by both spouses or one or more of their childrenwhile the spouses were cohabiting”. [13]

Section 6 of the Act provides for the exclusion of a family asset where it was acquired before the spousesmarried, if, in the discretion of the Court, it would be unfair and unreasonable to the owner to include the family asset in the division ofmarital property. The Court must take into account the circumstances of the case as well as one or more of the three followingconsiderations: no substantial contribution by the non-owning spouse to the family asset; the cohabitation of the spouses was of short

duration; and the spouses had an agreement, arrangement or understanding. [14] Although the general scheme of the Act provides for a presumption of equality, s. 7 of the Act provides sixcriteria to be considered if the Court is of the opinion that a division of the marital property in equal shares would be inequitable: anyagreement other than a domestic contract; the duration of the period of cohabitation under the marriage; the duration of the period duringwhich the spouses have lived separate and apart; the date when the property was acquired; the extent to which property was acquired byone spouse by inheritance or by gift; or any other circumstances relating to the acquisition, disposition, preservation, maintenance,improvement of the property. [15] It is recognized in the case law that there is a heavy onus on a spouse who tries to prove that an equal divisionunder the Act is “inequitable”.

Other provinces use the following terms: unconscionable, grossly unfair, grossly unjust, injustice, andunjust. 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. [16] The trial judge relied on LeBlanc v. LeBlanc, (SCC), [1988] 1 S.C.R. 217, [1988] S.C.J. No. 6(QL). In that often cited case, the parties divorced after 26 years of marriage. They had 7 children in the first 8 years of the marriage.

Thewife had acquired a restaurant and, with hard work and the help of her children, successfully expanded the business which, for someyears, provided the major part of the family income. Later, she was able to buy a house, a summer cottage and a car, all of which wereregistered in her name. The husband worked regularly in the earlier years of the marriage, but later only at occasional odd jobs. He wasan alcoholic and drank heavily on a daily basis.

On the application for a division of property under the New Brunswick Marital PropertyAct, the trial judge found that, apart from a contribution of $1,000 towards the purchase of the house and some occasional assistance tothe wife in the operation of her business, the husband had virtually contributed nothing by way of child care, household management andfinancial provision during the marriage. He concluded that, in the present circumstances, he was not entitled to an equal share of themarital property. La Forest J. stated: While a court should, in the words of Galligan J. in Silverstein v.

Silverstein (1978), (ON SC), 20 O.R. (2d) 185(H.C.), at p. 200, “be loath to depart from [the] basic rule [of equal division]”, it should nonetheless, as he indicates, exercise its power todo so “in clear cases where inequity would result, having regard to one or more of the statutory criteria set out in cls. (

a) to (f).” This doesnot, as previously indicated, mean that a court should put itself in the position of making fine distinctions regarding the respectivecontributions of the spouses during a marriage.

Nonetheless, where the property has been acquired exclusively or almost wholly throughthe efforts of one spouse and there has been no, or a negligible contribution to child care, household management or financial provisionby the other, then, in my view, there are circumstances relating to the acquisition, maintenance and improvement of property that entitlea court to exercise its discretion under s. 7(f). [para. 11] [17] La Forest J. went on to conclude that this was such a case. “While the trial judge found that the husband didcontribute $1,000 as part of the down payment of the matrimonial home, and was from time to time of some assistance in the operationof the wife’s business, his overall findings are sufficient to warrant the exercise of his discretion.

Without entering into details, he foundthe husband’s drinking was ‘to say the least excessive, continuous and persistent’”. All the assets were in the wife’s name, and these hadbeen “earned entirely by her labour, with a great deal of assistance of her children when they were old enough to enter the labour force”;“[…] the husband made no contribution to child care, [...] to household management, and in fact he made no financial contribution to thefamily in any way, shape or form” (para. 12). [18] This Court has endorsed the primacy of equal division in recent caselaw. In R.B. v.

I.B., 2005 NBCA 38, 282N.B.R. (2d) 358, the parties were married for 6 years, but had cohabited for 11 years. The trial judge held that because the respondenthad paid $28,000 for land prior to ever meeting the appellant, it was only just and equitable that this amount be accounted for and/or bereimbursed to the respondent before any division of net proceeds or sale of the property. In so doing, the trial judge made an unequaldivision of the marital property: the wife would be entitled to $16,000 and the husband $44,000 on a sale of the property at the estimatedvalue of $60,000.

This Court concluded the judge failed to take into account the substantial contribution of the wife vis-à-vis that of thehusband with respect to the land, a family asset, acquired before marriage by the husband, per s. 6 of the Marital Property Act. Thecontributions of the parties were equal and there was thus no basis for making an unequal division. Ryan J.A. stated: Both parties bring important assets to any marriage, some fixed, some aesthetic, some transitory. These constitute the foundation uponwhich the marriage builds, exists, survives or fails.

In the normal circumstance, as here, the contributions of each are equal. [para. 45] See O'Brien v. O'Brien Estate (1990), (NB CA), 111 N.B.R. (2d) 271, [1990] N.B.J. No. 1027 (C.A.) (QL) (leave toappeal to the S.C.C. refused, [1991] S.C.C.A. No. 6 (QL) in which Ryan J.A. stated the recurrent theme of the Marital Property Act is anequality in the division of assets with consideration for unequal divisions in certain cases: “To have vested the marital home solely in Mr.O'Brien, exhausting the principal asset of Mrs. O'Brien's estate, would run counter to the spirit and intent of the Act in the circumstances

of this case” (p. 283). See also Hogan v. Hogan (1991), (NB CA), 115 N.B.R. (2d) 343, [1991] N.B.J. No. 331 (C.A.)(QL) where Ryan J.A. states: Nowhere in the case before us on appeal do we find a justification by the trial judge, if one exists, for a departure from the generalprinciple of an equal division in respect of the pension assets. [para. 12] See as well McKinnon v. McKinnon, 2011 NBCA 49, [2011] N.B.J.

No. 165 (QL), affirming Noble J., who directed an equal division ofmarital property and excluded a property which was the subject of a prenuptial agreement after a 20- year marriage. [19] An examination of the New Brunswick jurisprudence on marital property applications from the last 10 yearsreveals that, first and foremost, marriage is an equal economic partnership. Marital contributions, namely financial provision andhousehold 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 orlate marriage and inherited property. In long-term marriages, the marital home will generally be subject to an equal division. In theabsence of mingling or co-mingling of an account, that is, if an account is kept absolutely separate and not used for the household, it maybe excluded from division.

When one looks objectively at the affairs of the parties, what matters is whether their money was mingledwith the household accounts or, put another way, whether the money was spent on acquiring goods or paying the expenses for thefamily. As the statute stipulates, a family asset is one used or enjoyed for shelter or transportation or for household, educational,recreational, social or aesthetic purposes by both spouses. The focus in marital property applications cannot be on a balancing of financialcontributions.

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 anyrights of the owning spouse to the family asset” (s. 6(e)). It takes something more than that to affect the presumptive statutory right to anequal division of marital assets. VII. Analysis A.

Marital Home [20] In these reasons I refer in detail to recent New Brunswick jurisprudence because of the dearth of cases cited inthe judge’s decision and the appeal submissions of the appellant and respondent. In marriages of short duration, there may be an unequaldivision 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.

In the following cases,parties applied for unequal divisions of the marital home in marriages of short duration. The length of the marriage is seemingly one ofthe most influential criteria to be considered in the analysis. In Memisoglu v. Memiche (1995), (NB CA), 170 N.B.R.(2d) 285, [1995] N.B.J. No. 544 (C.A.) (QL), the Court approved an unequal division because the marriage was of short duration: 2years. In Vincent v. Vincent, 2003 NBQB 28, [2003] N.B.R. (2d) (Supp.) No. 6, an unequal division of marital property was appropriatebecause of the short duration of the marriage: 4 years. In P.B. v.

C.B., 2010 NBQB 77, 357 N.B.R. (2d) 381, the parties met in 2003,married in 2005 and separated in 2008. Robichaud J. stated that, first and foremost, on the issue of the division of property, there had tobe sufficient evidence to convince the Court to grant an unequal division of marital assets and marital debts. There was insufficientevidence to do so, with the exception of the tax liability for the Child Tax Credit. By contrast in Elliott v. Elliott, 2003 NBQB 458,[2003] N.B.R. (2d) (Supp.) No. 71, Robichaud J. considered (at para. 35) the 10-year cohabitation, the sizeable pre-marital savings ofMrs.

Elliott and her contribution of $35,000.00 to the acquisition of the marital home, and determined it would be inequitable to allowMr. Elliott to share the equity on an equal basis. She considered it fair to reduce the equity by one third. Similarly in MacLeod v.MacLeod, 2004 NBQB 185, 272 N.B.R. (2d) 220, D’Entremont J. found the marriage was relatively short in duration. There were nochildren and both the wife and the husband worked at their respective employment throughout the marriage.

Given that the husband hadequity in the home before cohabitation and given the short duration of the marriage, the court ordered an unequal division of the maritalhome. See also Lewery v. Lewery, 2002 NBQB 240, [2002] N.B.R. (2d) (Supp.) No. 58, in which D’Entremont J. ordered the wife wasentitled to only 40% of the original deposit in the marital home due to a marriage of short duration (3 years). [21] In Hosford v. Hosford (2002), (NB KB), 246 N.B.R. (2d) 108, [2002] N.B.J.

No. 6 (Q.B.)(QL), Riordon J. dealt with an application by a wife for unequal division of the marital home after a 10-year marriage and 2 children. Theparties had a verbal agreement that the trial judge would not enforce because it was unconscionable and made as a consequence ofduress. He ordered an equal division. [22] In Hickman v. Chiasson, 2001 NBCA 33, [2001] N.B.J. No. 132 (QL), this Court upheld a trial judge’s refusalto grant an unequal division of the marital property in a seven year marriage. An exception arose in Quinn-Eusanio v. Eusanio, 2003NBCA 1, 255 N.B.R. (2d) 70, because Mrs.

Quinn-Eusanio transferred her share in the marital home to Mr. Eusanio to pay the mortgageof $112,000.00. Subsequently, she asked the trial judge to order an equal division of the surplus after the costs of the sale and the

mortgage had been paid. The trial judge rejected this proposal for a second division of the marital home and declared Mr. Eusanio was the sole owner of the marital home, subject to the mortgage. [ 23 ] 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. In Laplante v. Laplante , 2007 NBQB 209 , 319 N.B.R. (2d) 305 , the p arties were married for 25 years the wife was 62 years of age and the husband was 52. The wife sought an unequal division of matrimonial home.

The Court found she was not entitled to it. Guerette J. stated: After considering the submissions and the evidence, I must conclude that there is no merit to the wife’s argument that she is entitled to an unequal division of the home. After 25 years of marriage where neither spouse is alleging the other failed to fulfill their “joint responsibilities” under

Section 2, the presumption for an equal division of the marital home is too strong to be rebutted by the argument that one paid more than the other in its acquisition. Consequently, the equity in the home, valued at $22,000, will be equally shared and the wife will be granted full ownership. [para. 25] [ 24 ] In Holmden v. Holmden , 2002 NBQB 111 , [2002] N.B.R. (2d) (Supp.) No. 30, after a 27-year marriage, the wife petitioned for divorce and for an unequal division of marital assets. The parties built their matrimonial home on land given to them by the husband’s family and money gifted by the wife’s family.

Behind the home the parties had a large woodlot which was a gift to the husband from his father. The wife argued that the woodlot was an integral part of the marital home. The wife had used a substantial inheritance from her family to support the parties’ lifestyle. Rideout J. ordered an equal division of assets . There was no gross disparity in contribution by the parties towards the marital assets. In Holmden , the Petitioner maintained her own accounts for her salary and inheritance.

They were mingled and the mingling was further compounded when the Petitioner moved money into the parties’ joint account whenever it was needed to either satisfy debts or to pay for certain goods or services. Rideout J. stated: Considering the manner in which the inheritance funds mingled with the Petitioner’s salary and with the funds in the parties’ joint account and the fact that there is no “gross disparity” in contribution by the parties, I am not prepared to exercise my discretion and order an unequal division of marital assets.

I do not believe the marital assets were acquired exclusively or almost wholly through the efforts of the Petitioner. I am satisfied that both parties contributed everything they had toward the welfare and well being of their family. Consequently there will be an equal division of marital assets. [para. 42] [ 25 ] In Bourque v. Bourque , 2003 NBQB 315 , [2003] N.B.J. No. 316 (QL) , the wife sought an unequal division of marital property, in particular, the marital home.

She submitted the disproportionate financial contribution that she made to the acquisition and maintenance of the home warranted an unequal division, 60 /40 in her favour. The parties were 60 and 64 and cohabited for 5 years prior to their 16 year marriage. The properties were acquired by the parties during their cohabitation through the efforts and financial contributions of both. LaVigne J. found that “where there is no gross disparity in contributions, we should further the objective that spouses share accumulation of marital property” (para. 58). See also L.J.M. v.

G.S.M. , 2006 NBQB 176 , 298 N.B.R. (2d) 251, in which D’Entremont J. ordered an equal division after a 23-year marriage. [ 26 ] In Maber v. Maber , 2007 NBQB 99 , 313 N.B.R. (2d) 208, Tuck J. dealt with the dissolution of a 13-year marriage. According to him, the evidence simply did not support an unequal division of the martial home. Both parties contributed to the partnership of marriage to the best of their abilities. He found that it would simply be unfair and unreasonable to exclude the marital home from equal division.

From the beginning, there was a substantive and substantial contribution by both parties in relation to the home and household. [ 27 ] In the case at bar, the trial judge based his conclusion that an unequal division of the marital home was warranted on the following facts: • The property was acquired and occupied by the petitioner long before he met the respondent; • The monies used to maintain and improve the home through the years of cohabitation were from capital earned by the petitioner before he even met the respondent.

• There is no evidence that the respondent made any monetary or ‘in kind’ contribution to the maintenance or improvement of the home; • There was very little, if any, financial contribution by her to the household management; • In regards to household management, the respondent did perform what some in years past would call a traditional role. But, this did not involve the raising of children. However, she lived and worked in that home for a very long time. [para. 21] [ 28 ] The parties lived in the so-called Carter’s Point Road house from 1981 until their separation in 2009.

The house falls squarely within the definition of marital home under s. 16 of the Marital Property Act . The property had been the marital home for Mr. Yorke’s first marriage and there is no evidence it was acquired by inheritance or gift. There is no evidence that the parties had come to any agreement or arrangement about the marital home. The undisputed evidence of Mrs. Yorke is that she kept the house clean by doing regular housework. She did the laundry and prepared the meals. She bought the curtains and other things for the house. Mr. Yorke used his money to provide for the household’s needs.

In the words of Guerette J. in Laplante , neither spouse alleged the other failed in their joint responsibilities under s. 2. [ 29 ] In my view the trial judge made an error in placing too little emphasis on the length of the cohabitation and marriage and too much emphasis on the lack of a substantial financial contribution on the part of Mrs. Yorke. The fact that “there is no evidence that [Mrs. Yorke] made any monetary or ‘in kind’ contribution to the maintenance or improvement of the home” is not the test.

Under the statute, there is no obligation on a spouse to make a monetary or “in kind” contribution, that is, a non-moneatry input which can be given a cash value. In saying that Mrs. Yorke brought very little in terms of tangible assets into the marriage, the trial judge has diminished her contribution in a way that is contrary to s. 2 of the Act and the guidance this Court has given in R.B. v. I.B. If the trial judge was relying on the fact that Mr.

Yorke acquired the marital home before the spouses married, one of the criteria that can be considered in s. 6 is that the cohabitation of the spouses was of short duration. The trial judge did not make a finding that this was a long- term marriage. However, there does not seem to be a dispute that 16 years of cohabitation before marriage and a 12-year marriage qualify this as a long-term marriage. This case does not in any way fall within the exception of LeBlanc v. LeBlanc or the circumstances of Long- Beck v. Beck , 2006 NBQB 317 , 305 N.B.R. (2d) 253 .

There was no cogent evidence to deviate from the basic rule of an equal division and nothing to justify a 75%-25% division. The marital home shall be divided equally. B. Bank Accounts [ 30 ] Assets other than the marital home have been the subject of discussion in the jurisprudence. In Milton v. Milton , this Court had the opportunity to consider the question of whether the professional corporation of the physician husband was a business asset to be excluded from the division of marital property. French J. answered that question in the negative and he was upheld on appeal.

The parties separated after a 21-year marriage. The starting point was not whether the professional corporation was a business asset, but whether it was marital property. The nature and typical use of this particular professional corporation caused it to be a family asset. While professional corporations might not always be family assets and such corporations are still capable of holding assets that are not family assets, in Milton its use as a tool to delay tax consequences meant the professional corporation, by its very nature, had little, if any, independent enterprise or value.

The income of the physician belonged to the family, and it was a family asset, regardless of whether the income was from salary or from a professional practice.

The Marital Property Act was broad enough to catch the professional corporation as marital property in a number of ways: (1) the professional corporation was operated like a family bank account; (2) it fell within the Act 's definition of “family asset” which was property “ ordinarily used or enjoyed for [...] household, [...], recreational” and other purposes ”; (3) the parties took the funds from the professional corporation by way of special distributions for significant family purchases; and (4) it was to be the husband's means of funding the children's education. [ 31 ] In other cases a dissipation of assets, unequal contribution during a short, second or late marriage or inherited property may lead to an unequal division.

In English v. English , 2003 NBQB 63 , 258 N.B.R. (2d) 74, Wooder J. ordered an unequal division of an investment account in a 39-year marriage. She was dealing with a specific investment asset, not the marital home, and ordered an unequal division in a textbook application of the factors set out in s. 7 of the Act : - Approximately 74% of the total amount deposited into the account came from Mrs. English's father to her. Mr. Lawson chose to “gift” his son-in-law specifically by the conveyance to him as a joint tenant of Mr. Lawson's home.

He did not do the same with his investment accounts, which he transferred only to his and his daughter's joint names; - The accounts were in existence for only the last four years of a thirty-nine year marriage;

- Mr. English actively managed only a portion of the funds ($150,000.00) and only for a period of approximately one and half years. The rest of the time they were managed by an investment adviser of Mrs. English's choice; - Mr. English chose to end the marriage; - The preservation of the funds was intended, certainly by Mrs. English, to provide for the future financial security of the parties as a couple; - There was no evidence to support any contrary intention on the part of Mr. English. Further, it was Mr.

English's testimony that the parties had discussed benefiting their children's financial futures with the funds; - The funds were not used for any purpose other than investment. They did not supplement the parties' lifestyle or livelihood in any manner; - Mr. English did not exercise independent access to the accounts for his own expenditures or expenditures of his choice. The trial judge concluded that a n equal division of the investment accounts would be inequitable given the above circumstances and she ordered an unequal division in Mrs .

English's favour. [ 32 ] In Laplante , Guerette J., after dividing the marital home equally, excluded a savings account from division for these reasons: The evidence leads me to conclude that the wife was conscious of the vulnerability of the marriage, and always took pains to keep her “savings account” for her future security. There was never any co - mingling of funds, and no contributions from either the husband or the wife. All the money came from the mother. It is clear the wife was meticulous in keeping her “savings account” separate.

In my view, all the money in the savings account represents a gift from the mother to her daughter. [para. 36] Guerette J. concluded that the money in the account was never “ordinarily” used for the purposes outlined in the definition of family asset. [ 33 ] In B.W. v. B.W. , 2007 NBQB 330 , 324 N.B.R. (2d) 107 , Tuck J., dealing with a marriage of 15 years duration, commented that Court must be persuaded on cogent evidence that an equal division of marital property is inequitable.

He then granted an unequal division of a debt because the husband had used the wife’s debit card unbeknownst to her for presumed video lottery gambling. By contrast in Cripps v. Cripps , 2007 NBQB 2 , 310 N.B.R. (2d) 1 , after a 13-year marriage, Tuck J. ordered an unequal division of $20,000 held in trust from the proceeds of the sale of the marital home because the husband had put his mother's gift moneys into the marital home.

He was not convinced by the wife’s argument that when the husband used the monetary gift he had received to pay down the parties’ mortgage, the funds then became co-mingled with the martial property, specifically the marital home, and thus became marital property rather than a gift. [ 34 ] Duff v. Duff , 2007 NBQB 222 , 322 N.B.R. (2d) 219 , was an unsuccessful s. 7 application after 15 years of marriage and 3 children. The question was whether the shares Mr. Duff had acquired prior to the marriage and had cashed in to use as a deposit to purchase rental property were family assets.

Quigg J. (as she then was) found that Mr. Duff's conduct did not suggest in any way that he intended to retain any sole beneficial ownership of the funds that were cashed in to provide the deposit. [ 35 ] In Dykeman v. Dykeman , 2002 NBQB 395 , 256 N.B.R. (2d) 207 , the parties had been married for 39 years. The wife claimed an unequal division or an adjustment in the value of an investment asset, claiming that Mr. Dykeman knowingly continued to trade in a risky stock despite its falling trend and at a time when the stock market itself was rocky. Ms. Dykeman argued

Mr. Dykeman should absorb the losses reasonably attributable to this reckless activity. The value had fluctuated significantly since theseparation, sustaining considerable losses, both as a result of market forces and the nature of stock that was added to the portfolio.Robichaud J. ordered the husband to add back a sum of $49,916 to these accounts, as that sum represented withdrawals which were usedto pay for personal expenses.

However, the whole of the evidence failed to demonstrate that the husband's post-separation investmentdecisions were made “in an incompetent manner with wanton and reckless disregard for their impact on the family's investments” (para.132). [36] Crosman v. Crosman, 2005 NBQB 245, 285 N.B.R. (2d) 153, aff’d 2006 NBCA 46, 299 N.B.R. (2d) 334,leave denied on another issue [2006] S.C.C.A. No. 246 (QL), dealt with the treatment of a specific asset.

Clendening J. found thehusband’s accrued military leave was acquired during the marriage and should be divided equally. [37] The trial judge in the case at bar cites only one recent case in support of the unequal division application. InLong-Beck v. Beck, after a 16-year childless marriage, the husband applied for unequal division of marital property. Throughout themarriage the wife maintained the home and did the housekeeping.

The husband claimed his monetary contributions to the family assetswere much greater than the wife’s, specifically, he had put a $83,000 personal injury award towards renovations on the marital home andpaying marital debts in 1997. Athey J. allowed the husband's claim for unequal division, since he had contributed his significant personalinjury settlement money, which was not marital property, to improve marital property and retire or reduce marital debts.

Athey J.commented that household management and breadwinning are equally important spousal roles when a court is required to divideproperty pursuant to the Act. Equal financial contributions are not a prerequisite to equal sharing of the property. Where the husband hasearned more income while the wife has assumed a greater responsibility for managing the household during their long childlessmarriage, the husband's argument that this division of labour entitles him to a greater share of the marital property lacks any merit (seeLeBlanc v. LeBlanc and Hogan v. Hogan). However, Beck turned on very specific facts.

Athey J. first considered that settlement fundsthat represent damages for personal injuries are not marital property: Duguay v. Duguay (2000), (NB KB), 231N.B.R. (2d) 137, [2000] N.B.J. No. 444 (Q.B.) (QL); Léger v. Léger (1994), (NB CA), 143 N.B.R. (2d) 148, [1994]N.B.J. No. 30 (C.A.) (QL). Athey J. also took into consideration the fact that the funds had been converted to marital property only threeyears before the spousal separation, which resulted in an extreme disparity in the capital contributions of the spouses to their acquisitionof marital property and the discharge of marital debts.

She therefore ordered an unequal division of the marital property pursuant to s. 7of the Act. [38] In this case, the Money Master Savings Account contains $10,500.54, an amount that remains from Mr.Yorke’s investments from the business he sold 30 years ago. The trial judge found this account was the one from which Mr. Yorkedirectly made “big ticket item” purchases during the marriage including trips and vehicles. In addition there is $5,000 in a Tax FreeSavings Account.

The trial judge states: As noted before, this sum (and approximately $5,000 in a Tax Free Savings Account) is all that remains of the petitioner’s sale of hisbusiness many years ago. Through the years the respondent directly benefited, and substantially, from those proceeds. Over the years shewas rewarded from this account. The Court notes, for example, that the purchase of the Nova Scotia cottage (which she will share) wasfrom these savings.

It would simply be inequitable in these circumstances, where she made no other contribution to this so-called “familyasset”, to award her a share of the comparatively little that remains. The amount remaining in this account is excluded from division.[para. 33] [39] He orders the exclusion of these accounts from the division of property for two articulated reasons.

He couldnot accept that the very act of drawing on some of the proceeds from those accounts for “big ticket items”, converted the whole accountinto a “family asset”, in light of the independent manner in which these parties dealt with their financial affairs.

The second reason forthe exclusion was “it was the petitioner only who was making the contributions to the ‘household account’”. [40] First, in my view, the judge’s findings regarding the use of those accounts clearly bring them within thedefinition of a “family asset”: “ordinarily used or enjoyed for shelter or transportation or for household, educational, recreational, socialor aesthetic purposes by both spouses [...]”.

The money was used for cars, trips (Europe, Bermuda and across Canada) and otherhousehold, social and aesthetic purposes. [41] Second, I am of the view that the trial judge erred when he concluded there was no mingling of funds betweenthe parties and that they dealt with their financial affairs in an independent manner. This whole issue of the parties’ philosophy of theirmarital finances is troubling. The issue was first suggested to Mr. Yorke by his counsel when she asked a leading question: “So what washer money and what was your money was your money?” and he replied “It was our money”.

Then the judge posed a number of questionson this issue which went to the heart of the application. When questioned by the judge if Mrs. Yorke had access to the Money MasterSavings Account, Mr. Yorke answered “Oh yes. She had access, the only thing that wasn’t joint investments was the pension moneyfrom DVA” (page 100). Then he recalled the RRIF was in his name. Then there was an intervention by the judge and Mr. Yorke’s

counsel to show him bank documents that showed the accounts were in his name. As a result of the judge’s questions, Mr. Yorke’s counsel asked him who paid for a mattress and the response was “I couldn’t say who paid for it because she wrote cheques on my account or used my bank card and I have no bank records”. When the judge asked Mrs. Yorke “was his money his’ she responded, “Yes. Or he-it was ours. He had a chequing account and when his bills came in I paid them”. The judge made that finding.

He stated: Of the several accounts the petitioner held at one bank, the respondent had access to a chequing account from which she could withdraw funds for the day to day running of the household. To this account the petitioner deposited monies from his investment accounts, along with his Old Age Security and Canada Pension cheques. The respondent’s monies, e.g. Old Age Security and Canada Pension, were hers to do with as she wished. The petitioner, as noted purchased tangible assets and paid for virtually everything. [para. 10] [ 42 ] Perhaps the most telling statement is when Mr.

Yorke testifies, “I never dug into her financial end of it at all. I thought it was my obligation to maintain the place and maintain a home and I did out of the monies and what she had was hers to do whatever she wanted to do with it” . The judge concluded: The respondent brought very little in terms of tangible assets into the marriage. She received a few thousand dollars in severance from her employer and sold her vehicle. These sums were placed in an RRSP in her name.

For all intents and purposes she did not work outside the home and it is common ground that the petitioner paid for virtually everything, from the day to day expenses of running a household, to home improvements, to vehicles for both, all the way to European and southern vacations. The petitioner never resented this though. Indeed, his evidence was that he felt it was his obligation to provide for the respondent as he did. [para. 8] [ 43 ] The small amount of money that Mrs. Yorke had may have been used exclusively for her own benefit. However, it is clear Mr.

Yorke admitted that she was running the household from the accounts in question. The notion that there is no mingling of funds between separate accounts held by the parties is irrelevant. What is important is the mingling of the money in the accounts for the household expenditures. Mr. Yorke may have kept separate accounts, but he used them for household purposes and Mrs. Yorke had access to them.

So it would seem that the true philosophy of this marriage was not “what was his was his and what was hers was hers”, but rather “what was hers was hers what was his was theirs”. [ 44 ] To be clear, I am of the view the trial judge erred in concluding that, despite the regular and ongoing use of these accounts for family purposes throughout the marriage, the accounts were not family assets ( see Wang v. Poon , 2008 BCCA 442 , [2008] B.C.J. No. 2113 (QL) ). These accounts were the source of payment of the family expenses. When asked the purpose of the accounts, Mr. Yorke answered, “that’s what we are living on”.

If that does not fit the category of “ordinary used for […] purposes by both spouses”, nothing will. A similar circumstance occurred in Milton v. Milton where the physician used a professional corporation as a tax deferral tool, but operated it like a family bank account . The professional corporation was a family asset in Milton ; so are the bank accounts in this case.

I would adopt the wording of Guerette J. in LaPlante : in order for a spouse to prevent an account from being declared a family asset, the spouse must be “meticulous” in keeping an account separate and not “ ordinarily” use it for the purposes outlined in the definition of family asset. [ 45 ] The question arises whether it would be inequitable under the circumstances to divide the accounts equally.

Applying s. 7 of the Act , I conclude that there was no specific agreement to keep these accounts separate: it was a 28-year cohabitation and marriage, the separation was short, there is no evidence of an inheritance or gift; throughout the cohabitation Mrs. Yorke managed the household and Mr. Yorke paid for the expenses and there were no other exceptional circumstances that apply. The parties in this case were unsophisticated litigants who did nothing during the course of their marriage and cohabitation to protect assets from an equal division. They did not enter into a written agreement as in Hartshorne v.

Hartshorne , 2004 SCC 22 , [2004] 1 S.C.R. 550 where, in a second marriage for both, the husband brought all the financial assets into the marriage and declared he would never again allow a division of his property . [ 46 ] The trial judge stated that had he found the accounts to be family assets, he would have excluded them on the basis that they were acquired before the spouses married and that it would be unfair and unreasonable to include them in the division because Mrs. Yorke made no substantial contribution to their acquisition.

He does not discuss the other two criteria in s. 6 of the Act , the long duration of the cohabitation and the obvious arrangement the parties had to use these accounts for “ ordinary” purposes outlined in the statutory definition of “family asset”. T he onus for shifting the presumption of an equal division of family assets has not been met. C. RRSPs

[ 47 ] Generally, RRSPs have been treated as family assets subject to division: J.C. v. A.R., File Number: 150/98/CA, February 9, 1999 (N.B.C.A.) (unreported), approved of an equal division of RRSPs. In McQuade v. McQuade , 2004 NBCA 90 , 276 N.B.R. (2d) 275 , t he appellant brought an application for a division of marital property. He listed a number of Registered Retirement Savings Plans as marital property, but informed the respondent that one of the Plans did not qualify as marital property since prior to the marriage he had invested $16,000 in an RRSP that had an accrued value of $20,000 by the end of 1980.

During the marriage, no further monies were added to this pre-marriage investment and no amounts were withdrawn. At the time of the parties’ separation, the value of the investment had grown to $140,000. On this basis the judge concluded the retirement fund qualified as non-marital property. No one questioned the validity of that conclusion. The judge went on to divide the RRSP equally. This court overturned the decision.

Robertson J.A. found that the application judge had erred in making the division for the following reasons: To effect a division of non-marital property, it is necessary for an applicant to come within the terms of s. 8 of the Act . In the circumstances of this case, ss. 8(b)(

i) and (ii) are the relevant provisions. Those provisions state that non-marital property may be subject to division if it is established that the division of marital property would be inequitable, having regard to the factors set out in s. 7(

a) to (

f) and also that the effect of the applicant’s (respondent’

s) assumption of child care, household management and finances had an effect on the other spouse’s ability “to acquire, manage, maintain, operate or improve” non-marital property. In the present case, no evidence was adduced as to what child care, household management and financial responsibilities were assumed by the parties. Nor was any evidence adduced to establish that because of the responsibilities assumed by the non-owning spouse, the owning spouse was in a position to acquire or maintain the non-marital property.

As stated earlier, no such evidence was tendered for the simple reason that the issue as to whether non-marital property should be divided was not in play. Alternatively stated, the respondent did not apply for a division of non-marital property. Accordingly, the application judge erred in ordering that the RRSP in question be divided, let alone divided equally. [para. 6] [Emphasis added.] This case does not stand for the proposition that RRSPs which are acquired before the marriage and remain un-utilized during the marriage, are not subject to division as marital assets. [ 48 ] Mr.

Yorke’s RRIF was valued at $150,929.95 at the time of the trial. His counsel argued as a general proposition that RRSPs acquired or contributed to before the marriage, and not contributed to during the marriage, are not marital property and should be excluded from a division. The trial judge accepted both this argument and also the one Mr. Yorke made, that the RRSP in this case was a functional equivalent to a pension earned prior to cohabitation and therefore not martial property subject to division.

The trial judge states, in the alternative, if the RRSPs are marital property, s. 6 applies, but he does not do any analysis. In particular, he fails to mention that the cohabitation is of long duration. The parties agreed to exclude from division small amounts in two other RRSPs that each brought to the marriage. They were not added to or touched during the course of the marriage. I make no comment on whether they could have qualified as marital assets or whether the amount that accrued in those accounts during the currency of the marriage may have been subject to division.

There 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. [ 49 ] For example, in British Columbia, where an RRSP is by statutory definition a family asset, its legislation has a

section similar to our s.

Section 65 of the British Columbia Family Relations Act , R.S.B.C. 1996, c. 128, provides for reapportionment of a family asset from the presumptive equal division to an unequal division. In R.M.S. v. F.P.C.S., 2011 BCCA 53 , [2011] B.C.J. No. 174 (QL) , the trial judge considered the factors under s. 65(1)(

c) where the RRSPs were acquired by the appellant before the marriage. He concluded, however, that it would not be unfair to divide the value of the RRSPs equally between the parties as the appellant had received the financial benefit of having her pre-marital student loans of $90,000 paid off from the net proceeds of sale of the asset, to the extent of considering the debt attached to that asset. In Clarke v. Clarke , [1997] B.C.J. No. 2869 (C.A.) (QL) , the trial judge wrongly decided that only a portion of the RRSP’s the husband had accumulated constituted family assets. Quoting Seaton J.A. in Mailhot v.

Mailhot , [1988] B.C.J. No. 2087 (QL) , the Court held: The whole of the pension in existence at the date of the triggering event, including the part earned before marriage and the part earned after separation, is a family asset divisible equally unless equal division would be unfair, having regard to the factors in s. 51. [para. 48] Similarly, in Taylor v. Taylor , [1998] B.C.J. No. 586 (C.A.) (QL) , the Court quoted Mailhot when it upheld a trial judge’s equal division of RRSPs.

Noting that the British Columbia Legislature had amended regulations to allow a division of employee pensions to factor out contributions made prior to marriage, the Court stated:

[… the legislature] has not taken steps to amend the legislation to provide for similar treatment of RRSP's.

It could have done so, forexample, by providing that only that portion of an RRSP accumulated subsequent to marriage was a family asset for the purpose ofdivision under the FRA. [para. 28] Barring explicit legislation, the presumption is that RRSPs are family assets and that they should be divided equally unless it would beinequitable to do so. [50] That said, in my view there may be a distinction to be made between RRSPs to which there are nocontributions made during the marriage and are kept segregated and those which are used to finance the family household.

The ultimateuse 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 forbusiness purposes, but for family and investment purposes to defer the payment of tax. RRSPs are savings plans. The holder of an RRSPis free to withdraw funds from them like any other account and pay the deferred taxes which he cannot do with a pension.

From Mr.Yorke’s evidence, he 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. [51] I am of the opinion that the trial judge erred in finding the RRSPs which have been converted by law to aRRIF, are not a marital asset. Like the professional corporation in Milton, they took the place of the family bank account. One mightargue that Milton can be distinguished from the case at bar because the professional corporation was a family asset acquired during themarriage.

I do not think it makes any difference because the determining factor in this case is the use Mr. Yorke made of the RRSPsduring the cohabitation. The trial judge says if the RRSPs are marital property, in the alternative, without analysis, s. 6 applies. What isthe cogent evidence that an equal division of the RRSPs is inequitable? There are three considerations in s. 6. While it is true Mrs. Yorkemade no substantial contribution to the RRSPs, that factor alone cannot trump the long duration of the cohabitation. There was noagreement to opt out of the marital property provisions with respect to this asset.

To the contrary, Mr. Yorke used the RRSPs for a periodof at least 10 years to operate the household. Contrast this with Baker v. Blodgett, [2000] B.C.J. No. 1185 (QL) in which Finch J.A. (ashe then was) commented: “There is a clear finding of fact that the parties intended to keep the RRSPs separate in the event that therelationship broke down.

It appears to me that there was evidence to support this conclusion” (para. 6). [52] Another complicating factor in this case is that no evidence was adduced as to the exact amount of the RRSPsat the time the cohabitation commenced or the amount they increased during the cohabitation. I presume that the amount Mr. Yorkewithdrew monthly from the RRIF was an estimate since, in his reasons, the trial judge rejected new figures contained in post hearingbriefs as to how much Mr. Yorke withdrew because it was not in evidence.

This is not a case in which an inequity would result if theRRSPs (now RRIF) were divided equally. [53] In

summary, each of these cases must be decided by doing an analysis of the facts to each applicable criterion.In this case the husband brought the financial assets into the marriage: his house became the marital home; his bank accounts financedthe household; when the bank accounts were depleted the RRSPs financed the household. The wife made an equal contribution asdefined by the Act. After 28 years of cohabitation and living in this manner, I suggest that the wife would not have had any otherexpectation than to share in an equal division of property.

And from the record it appears that the husband operated under the sameexpectation. In this unique case it is equitable to divide all the marital assets equally including the RRSPs. [54] Permit me an additional comment on this subject. The respondent in his Notice of Contention stated that Mrs.Yorke would be unjustly enriched if an equal division of the value of the marital home and the investments were ordered in the totalityof the circumstances.

Unjust enrichment principles are more properly applied in cases of unmarried persons in domestic relationships:see the recent case of the Supreme Court of Canada, Kerr v. Baranow, 2011 SCC 10, [2011] S.C.J. No. 10 (QL) and Leatherdale v.Leatherdale, (SCC), [1982] 2 S.C.R. 743, where the Court stated that the disposition made on the basis of specificstatutory provisions of the only assets that were in issue leaves no room to consider the application of constructive or resulting trusts. VIII. Spousal Support [55] In this case Mrs.

Yorke agreed that if the division of assets is equal she would withdraw her request for spousalsupport. IX. Costs

[56] Two cases of interest on costs have issued from this Court lately. In Townsend-Grant v. Grant, 2011 NBCA 12,[2011] N.B.J. No. 33 (QL), Bell J.A. gives a comprehensive analysis of how to fix costs in a family case. He concludes: In addition to the issue of success or failure, courts must, in circumstances where the issues are strictly monetary, consider the amountclaimed and recovered as contemplated by Rule 59.02(

a) and then determine the amount involved pursuant to Rule 59.09 for purposes ofapplying Tariff “A”. The utility of the Tariff and its application in Family Division matters is recognized in Khoury v. Khoury (1994), (NB KB), 149 N.B.R. (2d) 1, [1994] N.B.J. No. 188 (Q.B.F.D.) (QL); Rademaker v. Rademaker, 2002 NBCA 47 ,2002 NBCA 47, 251 N.B.R. (2d) 177; and Ms. P.H. v. Mr. P.H., 2008 NBCA 17, 2008 NBCA 17, 328 N.B.R. (2d) 245. In awardingcosts in this case, the trial judge failed to make any finding regarding either the amounts claimed or the amount involved. [para. 22] In Doucet and Dauphinee v.

Spielo Manufacturing Incorporated and Manship, 2011 NBCA 44, [2011] N.B.J. No. 153 (QL), RobertsonJ.A. discusses the application of Rule 59 both generally and specifically. [57] The issues in this case were strictly monetary. The marital home was worth $ 97,000, the “Money MasterSavings Account” $10,500; the “Tax Free Savings Account” $5,000; Mr. Yorke’s “Registered Retirement Income Fund” (RRIF),converted from his RRSPs in the amount of $150,929.95. Mr. Yorke claimed an unequal division of the marital home and an order thatthe other assets be excluded from division, or $239,554. Mrs.

Yorke claimed an amount that was half of the total assets or $131,965. Thetrial judge stated that Mr. Yorke was “substantially” successful and ordered costs in the amount of $2,500. I would set aside that awardof costs in favour of Mr. Yorke at trial and award trial costs to Mrs. Yorke 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. I used Scale 2 because the issues, althoughimportant, were not complex and the trial hearing lasted only one day). [58] Mrs. Yorke has been successful on the appeal. I would order that Mr.

Yorke pay her costs on appeal of $2,680. [59] Counsel for the respondent did not appear at the first date set for the hearing of this matter. She apologized tothe Court. The panel had no definitive proof that she had been informed of the date by the Registrar’s office so under the circumstances Iwould not impose cost consequences. X. Disposition [60] I would allow the appeal. I would divide equally the following marital property of the parties: the maritalhome; the “Money Master Savings Account”; the “Tax Free Savings Account”; Mr. Yorke’s “Registered Retirement Income Fund”(RRIF), converted from his RRSPs.

I would set aside the lump sum order for spousal support. I would fix Mrs. Yorke’s costs at trial inan amount of $6,700 and an amount of $2,680 on appeal. ____________________________________ M.E.L. LARLEE, J.A. I CONCUR: ______________________________________ KATHLEEN A. QUIGG, J.A. The following are the reasons delivered by RICHARD, J.A. (dissenting)

[61] I have had the benefit of reading my colleagues’ reasons for decision and am in total agreement with the standard of review they identify as governing an appeal of this nature.

With the greatest of respect, what I do not agree with is their conclusion that this is “one of those rare cases in which justice demands the exercise [of the trial judge’s] discretion be reviewed” notwithstanding the frequently expressed “admonition that an appellate court should be extremely reluctant to interfere with the exercise of discretionary power by a trial judge.” In my view, this case is a perfect illustration of why considerable deference is owed to the trial judge in family law matters. [62] This matter involves (1) the division of property upon divorce; and, (2) spousal support. [63] With respect to the division of property, the general rule, set out in s. 3(1) of the Marital Property Act , S.N.B. 1980, c.

M-1.1, is that marital property is to be divided equally. However, this rule is not absolute. In the case of a family asset that was acquired before the spouses married or by one spouse as a gift from the other spouse or as a gift, devise or bequest from any other person :

[…] the Court may exclude that family asset from the division of marital property if, in the discretion of the Court, it would be unfair and unreasonable to the owner to include the family asset in the division of marital property, taking into account the circumstances of the case as well as one or more of the following considerations, namely, that (

c) there was no substantial contribution by the nonowning spouse to the acquisition, management, maintenance, operation or improvement of the family asset; (

d) the cohabitation of the spouses was of short duration; (

e) the spouses had an agreement, arrangement or understanding that the use of the family asset by the nonowning spouse or any of their children would not prejudice any rights of the owning spouse to the family asset, notwithstanding that this was not expressed in a domestic contract. [s. 6] […] la Cour peut exclure ces éléments de la répartition des biens matrimoniaux si, à sa discrétion, il serait injuste et déraisonnable envers leur propriétaire de les y soumettre, compte tenu des circonstances en l’espèce et de l’une ou plusieurs des considérations suivantes :

c) le conjoint non possédant n’a fourni aucun apport important à l’acquisition, l’administration, l’entretien, l’exploitation ou l’amélioration de ces éléments;

d) la cohabitation des conjoints a été de courte durée;

e) les conjoints avaient convenu par entente, arrangement ou accord que l’utilisation de ces éléments par le conjoint non possédant ou par l’un de leurs enfants ne porterait nullement atteinte aux droits du conjoint possédant à leur égard, même s’il n’en n’avait pas été fait mention dans un contrat domestique. [art. 6] [64] In addition, s. 7 of the Act allows the Court to make an unequal division in appropriate circumstances. It provides as follows:

7 Notwithstanding sections 2, 3 and 4, the Court may make a division of marital property resulting in shares that are not equal if the Court is of the opinion that a division of the marital property in equal shares would be inequitable, having regard to (

a) any agreement other than a domestic contract, (

b) the duration of the period of cohabitation under the marriage, (

c) the duration of the period during which the spouses have lived separate and apart, (

d) the date when the property was acquired, (

e) the extent to which property was acquired by one spouse by inheritance or by gift, or (

f) any other circumstances relating to the acquisition, disposition, preservation, maintenance, improvement or use of property rendering it inequitable for the division of marital property to be in equal shares. 7 Nonobstant les articles 2, 3 et 4, la Cour peut répartir les biens matrimoniaux en parts inégales si elle estime qu’une répartition en parts égales serait inéquitable, compte tenu

a) de l’existence d’une entente, autre qu’un contrat domestique,

b) de la durée de la cohabitation pendant le mariage,

c) de la durée de la période pendant laquelle les conjoints ont vécu séparés,

d) de la date d’acquisition des biens,

e) de la mesure dans laquelle les biens ont été acquis par un seul conjoint par voie d’héritage ou de donation,

f) de toutes autres circonstances liées à l’acquisition, l’aliénation, la préservation, l’entretien, l’amélioration ou l’utilisation des biens qui rendraient inéquitable leur répartition en parts égales. [65] As for spousal support, entitlement and the amount are determined under the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp.), applying the principles enunciated in s. 15.2(4), which reads as follows:

Spousal Support Orders Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. Ordonnances alimentaires au profit d’un époux Facteurs

(4) En rendant une ordonnance ou une ordonnance provisoire au

titre du présent article, le tribunal tient compte des ressources, des besoins et, d’une façon générale, de la situation de chaque époux, y compris :

a) la durée de la cohabitation des époux;

b) les fonctions qu’ils ont remplies au cours de celle-ci;

c) toute ordonnance, toute entente ou tout arrangement alimentaire au profit de l’un ou l’autre des époux. [66] Time and again we have said it is not the role of the Court of Appeal to retry the case or to substitute its own discretion based on the weighing of the evidence. Granted, if the judge commits an error in law or an error in the application of the governing principles, the Court of Appeal is justified to intervene. In my view, there is no such error in this case. [67] Ei g hty-year-old Raymond Edward Yorke owned a plumbing business, which he sold when he retired at age forty nine.

Since then, he has lived on investments from savings, including RRSPs (later converted into a RRIF), and from the proceeds of the sale of his business. For over 50 years, Mr. Yorke resided in a home located at Carter’s Point, N.B. He was married and had children but in the 1970s separated from his wife and eventually divorced. Meanwhile, Georgina M.E. Crosby (now 74 years old and hereinafter referred to as Ms. Yorke) was twice married and had children of her own. While separated from her second husband, she worked at CFB Cornwallis in Nova Scotia. [68] Mr. Yorke and Ms. Yorke met in 1981, and, soon after, Ms.

Yorke left her employment and moved to New Brunswick to live with Mr. Yorke. The couple lived in Mr. Yorke’s home in Carter’s Point and would spend summers at a property Mr. Yorke purchased in Nova Scotia so Ms. Yorke could be close to her

family. In 1997, they married. [69] During their period of cohabitation and their marriage, the couple lived off Mr. Yorke’s savings and investments. They vacationed in Europe, in Bermuda and travelled throughout Canada. They also acquired not only their summer home but also new vehicles and many domestic items. Ms. Yorke had only limited savings and eventually received some income from the Canada Pension and Old Age Security programs. However, she kept her money separate from Mr. Yorke’s and generally did not use it for the couple’s domestic expenses. For the most part, Mr. Yorke paid for everything.

Obviously, his savings and investments have been significantly depleted as a result. [70] In April 2009, Mr. and Ms. Yorke separated. Ms. Yorke remained in the house at Carter’s Point while Mr. Yorke moved in with one of his children and spent time at the Nova Scotia summer home. The separation was not amicable and is particularly marked by an unwillingness to communicate. There were allegations of Ms. Yorke destroying and/or selling or otherwise disposing of some of Mr. Yorke’s goods. Some of these allegations were admitted at trial and others denied. Ultimately, Mr.

Yorke filed a Petition for Divorce in which he also claimed an unequal division of marital property under the Marital Property Act . In response, Ms. Yorke sought an equal division of the marital property and spousal support. [71] The matter proceeded to trial in the Family Division of the Court of Queen’s Bench on May 11, 2010. Because the parties did not communicate much with one another before trial, there was very little agreement on the issues to be tried.

In fact, it was only during the course of the hearing that the parties came to some agreement on the division of the household goods and personal effects, including their motor vehicles. Otherwise, the trial judge was called upon to determine what constitutes marital property and how it should be divided. This included the marital home in Carter’s Point, the summer home in Nova Scotia, Mr. Yorke’s disability pension, monies in bank accounts and funds Mr. Yorke held in a Registered Retirement Income Fund (RRIF). The judge was also required to determine entitlement to spousal support and, if so, the amount.

Only the two parties to the divorce petition testified. To characterize their respective testimony as somewhat vague, incomplete and at times contradictory would be something of an understatement. This is evidenced by the fact the trial judge had to himself ask several questions of the parties to help understand the facts. [72] In the end, the trial judge was left to determine the issues as best he could. He was required to make findings of fact on the basis of the evidence laid before him, and he concluded that Mr. and Ms. Yorke’s common approach was

generally to keep their finances separate. This is a finding of fact that in my view is supported by the evidence and which is not challenged in any ground of appeal alleging it is the result of a palpable and overriding error. Applying the law to the findings he made, the judge determined what was and was not marital property and divided that property in a manner he considered fair and reasonable in the circumstances. The judge also determined Ms. Yorke was entitled to spousal support and awarded her the support he considered appropriate.

The trial judge’s decision is reported at 2010 NBQB 230 , 361 N.B.R. (2d) 379 . [73] I stated in my introductory paragraph that this case is a perfect illustration of why considerable deference is owed to a trial judge in family law matters. The case exemplifies how trial judges are called upon to weigh a myriad of factors and to apply fluid principles such as fairness, reasonableness and equity in making decisions often in the face of incomplete evidence and sometimes in light of very unusual sets of circumstances.

For example, in determining whether or not to exclude a family asset from the division of marital property, wide latitude is given to the trial judge to determine whether it would be unfair or unreasonable to include the asset. So long as the judge takes into account the circumstances of the case, and considers the factors enumerated in s. 6 of the Marital Property Act , the judge commits no error of law or principle. The weighing of both the circumstances and the enumerated factors, in determining what is fair and reasonable, is, with respect, not generally a matter for appellate review.

As another example, a trial judge can make an unequal division under s. 7 of the Marital Property Act if the judge “is of the opinion that a division of marital property in equal shares would be inequitable”. In making that determination, the judge must consider the factors enumerated in that section. Evidently, if the judge applies a different test than the one set out in s. 7, he or she commits an error of law, and if the judge does not consider the factors set out in s. 7 or considers irrelevant factors, there is an error in principle.

However, if the judge applies both the right test and acts on the governing principles, the ultimate decision reached by weighing the relevant factors is one that, in my respectful view, must be accorded deference. [74] In the present case, I find no error in the trial judge’s decision that would justify appellate interference. The Marital Property Act provides for exceptions to the basic rule of equal division, when the circumstances justify it. The judge recognized this, identified the relevant factors and made a determination.

While it may be that other judges might have given some of the factors the judge was called upon to weigh more importance than others, the fact is that the judge applied the law and considered the relevant factors in coming to his ultimate determination of the issues at hand. The grounds set out in both the Notice of Appeal and in the Notice of Contention do not allege palpable and overriding error. Those grounds raise what are essentially questions of mixed law and fact that involve the trial judge’s

interpretation of the evidence as a whole and in regard to which deference is warranted.

[75] All cases are different. This is illustrated by the comprehensive review of the caselaw in my colleagues’ reasons for decision. With respect, it was not necessary for the trial judge to undertake a detailed review of the jurisprudence because, as I said, all cases are different. What was important was for the judge to apply the law and the governing principles to the circumstances of this particular case. In my respectful view, the trial judge did just that.

I find in his reasons for decision no error of law, no error in principle and no misapprehension of the evidence that would justify appellate intervention. In addition, his decision is not, in my view, clearly wrong so as to amount to an injustice. Rather, the decision is the product of both weighing the evidence and considering the relevant factors in reaching what the trial judge felt was a fair, reasonable and equitable decision in the very peculiar facts of this case. [76] For those reasons, I would dismiss the appeal with costs. ______________________________ J.C. MARC RICHARD, J.A