2011 NBCA 12, 2011 NBCA 12

COURT OF APPEAL OF NEW BRUNSWICK 135-09-CA L.T.G. (Respondent) APPELLANT L.T.G. (Intimé

e) APPELANTE - and - - et - C.J.G. (Petitioner) RESPONDENT C.J.G. (Requérant) INTIMÉ L.T.G.v. C.J.G., 2011 NBCA 12 L.T.G.c. C.J.G., 2011 NBCA 12 CORAM: The Honourable Justice Larlee The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Larlee L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: September 15, 2009 Appel d’une décision de la Cour du Banc de la Reine : Le 15 septembre 2009 History of case: Decision under appeal: 2009 NBQB 175 Preliminary or incidental proceedings: Court of Appeal [2010] N.B.J. No. 136 [2008] N.B.J.

No. 442 Court of Queen’s Bench - Family Division [2008] N.B.J. No. 112 Historique de la cause : Décision frappée d’appel : 2009 NBBR 175 Procédures préliminaires ou accessoires : Cour d’appel [2010] A.N.-B. n o 136 [2008] A.N.-B. n o 442 Cour du Banc de la Reine – Division de la famille [2008] A.N.-B. n o 112 Appeal heard: September 20, 2010 Appel entendu : Le 20 septembre 2010

Judgment rendered: February 10, 2011 Jugement rendu : Le 10 février 2011 Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell Concurred in by: The Honourable Justice Larlee The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Green Counsel at hearing: For the appellant: Maria G. Henheffer, Q.C. For the respondent: Sheila J. Cameron Avocats à l’audience : Pour l’appelante: Maria G. Henheffer, c.r. Pour l’intimé : Sheila J. Cameron THE COURT The appeal is dismissed.

The evidence the appellant seeks to admit on appeal was fully discoverable before trial. The motion to admit fresh evidence is therefore denied. The cross- appeal is allowed in part. The trial judge erred at law, when, contrary to her own conclusions of fact regarding the proceeds from the sale of a Harley- Davidson motorcycle, she ordered that the respondent pay to the appellant $7,000. The judge’s award of $19,500 trial costs is reversed and trial costs of $31,375 plus reasonable disbursements to defend the claims to the London property and the Spanish property are awarded to the respondent.

The cross-appeal from the trial judge’s $2,500 cost award to the appellant on the mid-trial motion is dismissed. LA COUR L’appel est rejeté. La preuve que l’appelante cherche à faire admettre en appel pouvait parfaitement être découverte avant le procès. La motion visant l’admission de nouveaux éléments de preuve est en conséquence rejetée. L’appel reconventionnel est accueilli en partie.

La juge du procès a commis une erreur de droit lorsque, contrairement à ses propres conclusions de fait concernant le produit de la vente d’une motocyclette Harley-Davidson, elle a ordonné à l’intimé de payer 7 000 $ à l’appelante. L’attribution d’une somme de 19 500 $ comme dépens du procès est annulée, et les dépens du procès, fixés à 31 375 $, plus les débours raisonnables pour la défense contre les demandes visant le bien de Londres et le bien en Espagne, sont accordés à l’intimé.

L’appel reconventionnel à l’égard de la motion en cours de procès, contestant l’attribution de dépens de 2 500 $ à l’appelante par la juge du procès, est rejeté. The judgment of the Court was delivered by BELL, J.A. I. Factual Background [ 1 ] The appellant and the respondent were married in 1992 when they were 22 and 24 years of age respectively. Ms. L.T.G. , the appellant, is a Canadian citizen, and on marriage, was attending university in the United Kingdom. Mr. C.J.G. is a British citizen. At the time of the marriage, he was employed in the United Kingdom with his father’s company, O.E.M.

Marketing Services Ltd.

[ 2 ] The couple lived in London, England, immediately after their marriage Their daughter was born in 1997. They supported themselves from Mr. C.J.G’s salary, Ms. L.T.G.’s student loans and income received from her employment. [ 3 ] The appellant and the respondent lived rent-free in the respondent’s parents’ home in Old Park Riding, London, for two years, then moved into their own home in Broomfield, United Kingdom. After the sale of their home and prior to moving to Canada, the parties lived once again in the respondent’s parents’ home for a period of approximately 6 months. In 2000, they moved to Canada.

The appellant, who was originally from St. Stephen, New Brunswick, purchased the marital home in her name in nearby St. Andrews. The parties financed the St. Andrews property from the proceeds of their Broomfield property and a line of credit with the Bank of Nova Scotia. [ 4 ] The parties separated on January 1, 2003. They resolved issues of custody, access and child support on March 7, 2008. The marital property claims were the subject of a 9-day trial held in December, 2008 and February 2009.

In a 93-page decision reported at 2009 NBQB 175 , 346 N.B.R. (2d) 217 , the trial judge adjudicated upon disagreements between the parties over their respective interests in property as diverse as the marital home, the respondent’s parents’ home in London, England, the respondent’s parents’ villa in Sotogrande, Spain, a motorcycle and the child’s clothing. II. Issues [ 5 ] The original Notice of Appeal set out numerous purported errors by the trial judge.

However, through the filing of a Supplementary Notice of Appeal and a Notice of Cross-Appeal and pre-hearing negotiations, the parties’ counsel have narrowed the issues to four which I would paraphrase as follows: 1. The appellant submits the trial judge erred by valuing the marital home as at the date of trial, rather than the date of separation.

In the event this Court concludes the trial date is the appropriate valuation date, the appellant requests we accept fresh evidence which establishes interest costs, taxes, and insurance expenses incurred to maintain the property from the date of separation to the date of trial. On this point, the respondent contends the trial judge correctly considered the facts and the law in fixing the value of the marital home.

He opposes the admission of fresh evidence and, in the event the appellant is successful with respect to the valuation date or the fresh evidence, requests that he be credited with $23,675 which represents payments made by him to the appellant during the separation. 2.

The respondent contends the trial judge erred in making a: i. $7,000 adjustment in favour of the appellant representing her share of a Harley- Davidson motorcycle which was sold prior to separation; ii. cost award of $19,500 in favour of the appellant when she lost on virtually all major issues at trial; and, finally, iii. cost award of $2,500 in favour of the appellant on a mid-trial motion when the motion, brought by the appellant, was dismissed. III. Analysis A. Issues on Appeal

(1) Marital Home [ 6 ] The appellant had use of the marital home, without any deduction for occupation rent, during the six years between the date of separation and the trial. During those six years, the property increased in value due to market forces and renovations undertaken by the appellant and her new partner.

[7] In the case of a marital home, the valuation date is normally the trial date: Fraser v. Fraser(1983), (NB CA), 47 N.B.R. (2d) 364, [1983] N.B.J. No. 14 (C.A.) (QL). The trial judge admitted appraisal reportson the property and heard the testimony of two appraisers. She also heard the testimony of the appellant and her new partner, who wasalso the contractor who performed renovations to the home, regarding the costs of improvements to the property during those six years.

She arrived at a value of $460,000 by subtracting the cost of renovations ($35,000) from the value of the home at the date of trial($495,000). [8] The value of the marital home and the amounts to be credited to the appellant constitutefindings of fact. This court owes the trial judge deference unless she has committed palpable and overriding error: Housen v. Nikolaisen,2002 SCC 33, [2002] 2 S.C.R. 235. I can find no such error.

In my opinion the trial judge properly applied the law with respect to theappropriate valuation date and made no reviewable error in fixing the value of the marital home. [9] The appellant requests this Court admit fresh evidence which would establish the amountsspent by her for taxes, insurance and interest post-separation, all of which she contends were necessary to maintain the home. Sherequests the home’s value be reduced accordingly. The law with respect to the admissibility of fresh evidence in the criminal law contextis set out in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J.

No. 126 (QL), recently followed by thisCourt in Walsh (Re), 2008 NBCA 33, 335 N.B.R. (2d) 1, para. 42. Subject to minor modifications those principles apply to family andother civil matters. In order to be admitted, the evidence must not have been reasonably discoverable prior to trial by the application ofdue diligence, would probably have an influence upon the result, and must be apparently credible, although it need not beincontrovertible: Workers’ Compensation Board v. McCarthy (1982), (NB CA), 42 N.B.R. (2d) 160, [1982] N.B.J.No. 309 (C.A.) (QL), paras. 4-6; Ryan v. Law Society of New Brunswick [2000] N.B.J.

No. 540 (C.A.) (QL), para. 13; P.R.H. v. M.E.L.,2009 NBCA 18, 343 N.B.R. (2d) 100, para. 40, and cases cited therein. I am of the view the evidence the appellant seeks to admit onappeal was fully discoverable before trial. It could have been tendered at trial with the deductions claimed for renovations. I woulddismiss the motion to admit fresh evidence.

(2) The Respondent’s Contention [10] Given my proposed disposition of the appeal and the motion to admit fresh evidence, therespondent’s contention that the trial judge erroneously failed to credit him with $23,675 paid to the appellant during separation isdismissed. B. Issues on the Cross-Appeal

(1) Harley-Davidson Motorcycle [11] Prior to their separation, the parties sold a Harley-Davidson motorcycle which was registered inthe appellant’s name. No issue was raised in any pleadings concerning the proceeds of the sale, nor was the sale of the motorcycle or itsproceeds mentioned in any affidavit or financial statement. The first indication to either the trial judge or the respondent that theappellant had concerns about the whereabouts of the proceeds of that sale arose during the cross-examination of the respondent.

Theuncontested evidence before the trial judge was that both parties participated in the sale of the motorcycle prior to separation. Theappellant, having been the registered owner, was required to sign the transfer form on the back of the vehicle registration card and attendat the purchaser’s bank to facilitate the sale.

With respect to the proceeds of the sale, the trial judge makes two crucial findings: (1)“[The appellant] is entitled to one half of those sale proceeds, if she has not already received them”; and (2) “there was no evidence tosupport where those funds went”. [paras. 37 and 39] [Emphasis added.] [12] Subject to some exceptions, none of which apply in this case, it is an established principle thathe who asserts must prove: Radcliffe v. Rennie and McBeath, (SCC), [1965] S.C.R. 703, [1965] S.C.J. No. 43 (QL), atp. 709, quoting from Pleet v. Canadian Northern Quebec R.W. Co., (ON CA), [1921] O.J.

No. 263 (QL) (C.A.), atpara. 18. By expressing doubt about whether the appellant had received her share of the proceeds and the lack of evidence about “wherethe funds went”, the trial judge effectively concluded the appellant had not met the burden of proof.

There was no evidence the proceeds,obtained prior to separation, had not been deposited into bank accounts or incorporated into other marital assets that were eventuallydivided. [13] I am of the view the trial judge erred at law when, contrary to her own conclusions of factregarding the proceeds of the Harley-Davidson, she ordered the respondent to divide them with the appellant. I would allow the cross-appeal on this issue and reverse the trial judge’s order that the respondent pay to the appellant $7,000 for her share of the proceeds of the

motorcycle.

(2) The Costs Award [ 14 ] The trial judge is vested with a very broad discretion in relation to the assessment of costs. The exercise of that discretion should not be interfered with unless manifestly wrong: Saint John Regional Hospital v. Comeau, 2001 NBCA 113 , 244 N.B.R. (2d) 201 ; Ms . P.H. v. Mr. P.H ., 2008 NBCA 17 , 328 N.B.R. (2d) 245 . In British Columbia (Minister of Forests) v.

Okanagan Indian Band , 2003 SCC 71 , [2003] 3 S.C.R. 371 , LeBel J. stated: The power to order costs is discretionary, but it is a discretion that must be exercised judicially, and accordingly the ordinary rules of costs should be followed unless the circumstances justify a different approach. [para. 22] [ 15 ] It is trite law that costs normally follow the cause. Should a trial judge decide to depart from that rule he or she is required to justify the departure: Dupuis v. Moncton (City) , 2005 NBCA 47 , 284 N.B.R. (2d) 97 , para. 40 .

In Orkin, The Law of Costs (Toronto: Canada Law Book Ltd., 1965), the author states: The fundamental principle s of costs as between party and party is that they are given by the court as an indemnity to the person entitled to them; they are not imposed as punishment on the person who must pay them. Party and party costs are in effect damages awarded to the successful litigant as compensation for the expense to which he has been put by reason of the litigation. [p. 14] [ 16 ] Orkin’s observations have, of course, been expanded upon in Rule 59.02 of the New Brunswick Rules of Court .

In fixing an award of costs under that Rule, trial judges may consider, in addition to success or failure, the amount claimed and recovered, the complexity of the proceedings, the importance of the issues, the conduct of any party which tends to lengthen the proceedings, and any improper or vexatious conduct. (

a) Costs on the mid-trial motion [ 17 ] The trial judge made a total cost award to the appellant of $22,000, consisting of $19,500 in costs on the trial and $2,500 on a mid-trial motion. With respect to the costs on the motion, she concluded: I provisionally assess costs of $2,500.00 on the Motion filed by the Petitioner during trial. This Motion was necessary as Mrs. L.T.G. would not consent to an amendment of Exhibit P-6, which on reflection, she eventually did. As a result of Mr. C.J.G’s error, he created additional costs for Mrs.

L.T.G., as both she and her counsel were not certain whether an error had actually occurred or not and this error created more work, and uncertainty for them. As a result, I assess costs of $2,500.00 to Mrs. L.T.G., inclusive of HST for that Motion expense during trial. Those costs shall be paid within 31 days of the effective date of this decision. [para. 403] [ 18 ] Although the respondent had been successful on the motion, and would normally have been awarded costs, the trial judge judicially exercised her discretion to deny him costs and make an award in favour of the appellant.

She explained that the motion only became necessary due to the respondent’s errors. I would not interfere with the trial judge’s exercise of discretion in that regard. (

b) Costs at trial [ 19 ] The trial judge’s justification for an award of trial costs in favour of the appellant is succinctly stated:

Both parties have partially succeeded, however, I am convinced that Mrs. L.T.G.’s costs have escalated significantly as a result of her attempts to track money. Mr. C.J.G, of the two, had the knowledge and the power and control over financial resources. [para. 408] [ 20 ] With respect, I am of the view the trial judge failed to exercise her discretion judicially in awarding trial costs of $19,500 in favour of the appellant. Because costs normally follow the cause, it becomes important to first determine, if possible, which party was successful.

The trial judge appears not to have given any consideration to that issue other than to say that both parties “partially succeeded”. She appears to equate partial success with success being equally divided. In this regard she was, with respect, manifestly wrong. To attribute partial success to both parties seriously understates the success enjoyed by the respondent. Consider the following: (

i) London Property The appellant claimed a marital property interest in the respondent’s parents’ home in Old Park Riding, London. It appears there were two events which motivated the appellant to pursue this claim. First, the parties moved in with the senior G. at Old Park Riding in 1996 and resided there until 1998 when they [the parties] purchased their own home in Broomfield. Second, when the parties were planning their move to New Brunswick they discovered the sale of their home in Broomfield would trigger a penalty of £20,000 due to pre- payment of the mortgage.

This penalty would be waived in the event the parties placed another mortgage with the same lender. Since the parties were moving to Canada, they were unable to mortgage their new home with the same lender. To assist the parties in avoiding the penalty, the respondent’s parents offered to transfer their mortgage to the same company the parties had used. In order to effect this change the senior G. were required to place the respondent’s name on the deed to their property. That deed is dated November 27, 2000 and expressly provides that the respondent has no financial interest in the property.

The senior G. made all mortgage payments and paid all expenses on the home. I would also add that by November 27, 2000, the appellant was already residing at the marital home in St. Andrews, New Brunswick. In

summary, the interest claimed by the appellant in her in-law’s home arose because of their generosity in permitting the young couple to reside rent-free for approximately two years and their desire to assist the parties in avoiding a mortgage penalty. This claim was not abandoned until the beginning of the trial after considerable time and expense, including expert fees and travel costs, were consumed in defending the claim. (ii) Spanish Property The appellant also claimed a marital property interest in a villa purchased by the respondent’s parents in Sotogrande, Spain.

She made this claim despite the fact the parties had never occupied the property as husband and wife, had never paid any expenses on the property, and had never held joint title to the property. The respondent and his sister held title as a result of a tax-planning measure employed by the respondent’s parents on the advice of their professional advisors. The appellant was fully aware of that tax planning measure.

The choice of law with respect to the Spanish property, its valuation (which the appellant claimed to be $2.6 million) and the determination of whether or not the appellant held a marital interest in it, consumed 7 days of a 9-day trial. The trial judge concluded the appellant had no interest in the property. (iii) The St.

Andrews, N.B., property On the issue of the appropriate valuation date for the marital home, the respondent was, as already noted, the successful party. (iv) Shares in OEM The appellant also claimed an interest in the respondent’s shares in the family-owned company, OEM, and its wholly owned subsidiary, M.S.L. Marketing Services Ltd. The respondent’s interest in those two companies totalled $192,006. The appellant’s claim to an interest in those shares, although withdrawn at the beginning of the trial , consumed a significant amount of pre-trial time. I note Mr.

G. senior gifted 10 shares to the respondent in 1976 when he (the respondent) was 8 years old and an additional 10 shares in 1995. Neither the respondent nor the appellant paid any consideration for the shares. [ 21 ] There were, of course, other issues to be decided, including the division of personal retirement funds, debts, household furniture, bonds, and the child’s clothing, all of which pale in comparison to the amounts claimed by the appellant in the London property, the Spanish property and the shares in OEM and M.S.L.

[22] In addition to the issue of success or failure, courts must, in circumstances where the issues arestrictly monetary, consider the amount claimed and recovered as contemplated by Rule 59.02(

a) and then determine the amount involvedpursuant to Rule 59.09 for purposes of applying Tariff “A”. The utility of the Tariff and its application in Family Division matters isrecognized 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, 251 N.B.R. (2d) 177; and Ms. P.H. v. Mr. P.H., 2008 NBCA 17, 328 N.B.R. (2d) 245. Inawarding costs in this case, the trial judge failed to make any finding regarding either the amounts claimed or the amount involved. [23] I would allow the respondent’s cross-appeal from the costs awarded at trial.

It thereforeremains for this Court to fix the trial costs. C. This Court’s assessment of trial costs [24] In addition to the trial judge’s findings against the appellant on all major issues, the followingobservations demonstrate her conduct also lengthened the proceedings. This too militates in favour of an award of costs to therespondent: On direct examination [the appellant] led the Court to believe that she traveled to Spain and used the Villa at will. However, ondiscovery, (Exhibit P-29, page 60), [the appellant] advised that she did need to obtain permission to

schedule through Mrs. B.G.. This isan important change in her testimony and affects credibility; […] [The appellant] contradicted herself when she talked about how she gained entry to the Spanish Villa with Mr.

S., in order to do anappraisal; [The appellant] contradicted the testimony of […] concerning when they became more than just roommates; […] [para. 356] […] I recognize that this file was difficult and disclosure was complicated by the length of time, post-separation, the location of certainrecords, including banking records located in another country; however, it was apparent to me that both sides were guilty of failure toprovide disclosure in a timely fashion, and in some cases, failure to disclose at all; i.e. Mrs.

L.T.G.’s failure to provide her student loanstatement; and her disclosure of passports just days before trial; Mr. C.J.G’s failure to provide information concerning the RothschildBond until trial. [para. 362] [Emphasis added.] […] […] there were requests for information from [the respondent] that were fulfilled prior to trial, however, were not reciprocated by [theappellant] [...].

Despite disclosure by [the respondent], these issues were pursued at trial i.e. the International Investment Bond issue. [The respondent] produced his visa statements, and it was apparent from Exhibit P-13, that [the appellant] continued to refer to theBarclay’s account number […] as a bank account, rather than the visa it was. This was confusing and frustrating to counsel for [therespondent], as well as to the Court. [paras. 364-365] [Emphasis added.] […]

[The appellant’s] resistance to disclose, her failure to comply with undertakings, and her overall approach to the separation and subsequent litigation indeed increased the time needed to prove certain essential facts in this case, increased trial time, and, in fact, increased her costs. [para. 369] [Emphasis added.] […] [The appellant] produced the balance of her passports just days before the trial.

These had been earlier requested at discovery. [The appellant] did not produce her pension statement, is spite of being ordered to do so. [para. 381] [Emphasis added.] […] In February 2007, for example, the Court executed an order giving the [respondent’s] counsel the right to access employment records and income information directly from the source, presumably, because [the appellant] failed to provide it. The same order required her to account for $40,000.00 that was removed from the parties (sic) joint account on separation date.

No costs were awarded. […] During discovery proceedings […] [the appellant] was asked to produce certain documents. She failed to produce, which resulted in a Motion heard before Justice Wooder in December 2007, where she was ordered to comply. She produced some of the documentation only. She has still failed to fully comply with the December 2007 order. Mrs. L.T.G. purchased a second home […] in 2004. She had down payment funds of $33,000.00.

She had been asked to provide the source of those funds, and to date has not complied. [paras. 394, 396] [Emphasis added.] [ 25 ] In the respondent’s pre-trial brief, his counsel very carefully and cogently explained the facts and the law in relation to the claims to the senior G.’s London property and the Spanish villa. Given that each of those claims targeted assets held directly or beneficially by Mr. and Mrs. G. senior and the evidentiary findings made by the trial judge, I am of the view those claims were both frivolous and vexatious.

The fact those claims were without merit should have been obvious from the very early stages of the litigation process. [ 26 ] Before determining the amounts claimed and fixing upon an amount involved for purposes of assessing costs, I would make the following

summary. The appellant had some success on issues related to the division of the marital home, bank accounts, pension benefits and other investments accumulated during the marriage. The respondent succeeded on all major issues, including the appellant’s claim to the Spanish villa which consumed 7 days of the 9-day trial. The claims to the Spanish villa and the London property were frivolous and vexatious. Both parties failed to comply with court orders, which unnecessarily lengthened and complicated the litigation.

While the trial judge criticized both parties for conduct which tended to lengthen the court procedures, she found the respondent’s conduct to be the more egregious of the two. [ 27 ] I now turn to the amounts claimed. In her Answer and Counter-Petition the appellant pled as follows: 12. The parties returned to live in Old Park Riding property, notwithstanding the plan to move to Saint Andrews. The proposal of the [respondent] and his parents was that after four years the parties would return to England to take up residence in the home and the parents would then move to an apartment.

The [respondent] was added as a joint tenant in December of 2000. The property has a value of £1,400,000 pounds. 13. The [respondent’s parents] gave the parties a vacation home in the fall of 1992, a villa located in Sotogrande, Spain. The property was given to J.G., the [respondent’s] sister, who was unmarried at the time, and to the couple. The [respondent’s] father described the

gift as a wedding present . Legal title is in the names of J.G. and [the respondent]. The property is unencumbered. [Emphasis in original.] [ 28 ] In her pre-trial brief dated November 25, 2008, the appellant claimed the London property and the Sotogrande property to be valued at $2.5 and $2.6 million respectively. The appellant made no discount for any encumbrances. Given that the appellant pled the respondent owned the London property with his parents I conclude she claimed, until the beginning of the trial, a ½ interest in his presumed 1/3 interest, namely, $416,666.

With respect to the Spanish villa, the appellant pursued through trial a claim of $2.6 million. Because the respondent held title to the villa with his sister I conclude the appellant claimed ½ of his ½ interest, namely, $650,000. I also conclude the appellant claimed, until the beginning of the trial, a ½ interest in the O.E.M. and M.S.L. shares which she claimed had a value of $96,003 (1/2 of $192,006). Finally, in considering the claims made, I would note that in her pre-trial brief the appellant claimed her share of the marital home to be worth $30,000 more than the amount determined by the trial judge.

I would fix the various and sundry claims to vehicles, pension funds, bank accounts, tax payments, the motorcycle and children’s clothing at $200,000. I conclude the total amount claimed by the appellant to be $1,392,669. Given the prospective nature of the trial judge’s order it is virtually impossible to determine the exact amount recovered.

However, since the awarding of costs is more akin to an art than a science, I would give the benefit of the doubt to the appellant and conclude that she claimed $1.1 million which she did not recover. [ 29 ] The cost considerations in this case are complicated by several factors, some of which favour each party. Obviously, the respondent’s success on all major issues, including that which consumed 7 days of the 9-day trial, and the fact he had to defend the claims to the London property and the OEM and MSL shares until the beginning of the trial, suggest a significant award of costs in his favour.

However, his potential success on costs is muted by the trial judge’s criticism of him and the fact the appellant eventually abandoned the claims to the London property and the shares. Neither party escapes criticism for their contribution to complicating and lengthening the court processes by their conduct, including their failure to follow court orders. Given these observations, I would conclude the amount involved for purposes of Rule 59.09 is $800,000 and would assess costs in favour of the respondent based upon Tariff “A”, Scale 3.

I would also award the respondent reasonable disbursements incurred to defend the appellant’s claims to the London property and the Spanish villa. I would therefore assess costs at trial in favour of the respondent in the total amount of $31,375 plus those disbursements. But for the criticism levelled toward the respondent by the trial judge and the appellant’s withdrawal of the claims to the London property and the shares I would have ordered costs in favour of the respondent based upon Tariff “A” Scale 5 for an amount involved of $1,100,000. D.

Additional issue raised by the appellant [ 30 ] I would make one final observation. During argument the appellant requested this Court make a final order regarding the division of marital property, including the marital home. She requested we order a certificate of pending litigation filed against the marital home be lifted upon payment into Court, by her, of an amount equal to the marital home’s appraised value. I am of the view the Court should deny the appellant’s request.

I say this for two reasons. [ 31 ] First, the trial judge made at least nine prospective directions which can be found in paragraphs 25, 30, 31, 32, 60, 113, 114, 116, 117 and 190. All of those prospective orders potentially impact the amount payable by one party to the other.

Three of those concern the marital home: If [the appellant] retains the marital home, she shall pay her husband his share of the equity so calculated, to be effected within 60 days of the effective date of this decision : otherwise the marital home shall be listed and sold through a duly licenced [ sic ] New Brunswick real estate agent, mutually chosen for this purpose, at a value to be determined by the realtor. […] Both parties shall cooperate with the real estate agent for this purpose. [paras. 113, 114] [Emphasis added.] […] [The appellant] shall pay the line of credit until sale, and the parties shall equally share the house insurance and property taxes until sale.

A certificate of pending litigation was registered against the marital home as a result of a court order several years ago. That certificate shall be discharged only when the parties have transferred title of the home to a bona fide purchaser, or, to Mrs. L.T.G. if she keeps the

marital home”. [paras. 116, 117] [ 32 ] Second, the appellant brought no motion for a stay of proceedings until November 3, 2010. This Court executed a stay order, on consent of the parties, on November 24, 2010, nearly 17 months after the release of the trial judge’s decision. By that time, the deadlines for all prospective steps to be undertaken by the parties had passed. In the absence of evidence, I am of the view this Court should not speculate about the steps, if any, taken by the parties to implement the trial judge’s directions prior to the stay.

In the circumstances, it is best left to the Court of Queen’s Bench to consider issues surrounding implementation of the trial judge’s decision subject to the modifications flowing from this decision. IV. Conclusion [ 33 ] In

summary, I would make the following order: • Dismiss the appeal, dismiss the motion to admit fresh evidence and allow the cross-appeal to the extent set out in these reasons; • Reverse the $7,000 credit to the appellant with respect to the Harley-Davidson motorcycle; • Confirm the trial judge’s order that the marital home is to be valued as at the date of trial at $460,000 ($495,000 less $35,000 for post-separation expenses); • On agreement of the parties, adjust the tax liability of the respondent to the appellant from $32,050 to $23,228.13 for an adjustment in favour of the respondent in the amount of $8,821.87; • Confirm the trial judge’s award of $2,500 costs in favour of the appellant on the mid-trial motion; and • Reverse the trial judge’s award of $19,500 costs in favour of the appellant at trial and award trial costs to the respondent (petitioner at trial) of $31,375 plus reasonable disbursements to defend the claims to the London property and the Spanish villa. [ 34 ] Finally, the parties have advised the Court that due to the application of Rule 49.13 they wish to argue the issue of costs on appeal following the filing of this decision.

I would order that the Court retain jurisdiction to deal with the issue of costs on appeal and that the parties be permitted the opportunity to file written submissions in this regard. ______________________________ B. RICHARD BELL, J.A. WE CONCUR: ________________________________

M.E.L. LARLEE, J.A. ________________________________ BRADLEY V. GREEN, J.A.