2011 NBCA 77, 2011 NBCA 77

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 77 L.T.G. c.

C.J.G., 2011 NBCA 77 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: Historique de la cause : Decision under appeal: 2009 NBQB 175 Décision frappée d’appel : 2009 NBBR 175 Preliminary or incidental proceedings: Court of Appeal 2011 NBCA 12 , [2011] N.B.J. No. 33 [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 Procédures préliminaires ou accessoires : Cour d’appel 2011 NBCA 12 , [2011] A.N.-B. no 33 [2010] A.N.-B. no 136 [2008] A.N.-B. no 442 Cour du Banc de la Reine – Division de la famille [2008] A.N.-B. no 112 Motion heard: May 24, 2011 Motion entendue : Le 24 mai 2011

Judgment rendered: September 15, 2011 Jugement rendu : Le 15 septembre 2011 Counsel at hearing: For the appellant: Maria Henheffer, Q.C. For the respondent: Sheila Cameron Avocats à l’audience : Pour l’appelante : Maria Henheffer, c.r. Pour l’intimé : Sheila Cameron THE COURT The motion for clarification is allowed. The respondent will have costs on the appeal, including the motion for clarification, of $12,550. LA COUR La demande de clarification est accueillie. L’intimé aura droit à des dépens en appel de 12 550 $, ce qui comprend les dépens afférents à la demande de clarification.

The following is the judgment delivered by THE COURT I. Motion for Clarification [ 1 ] With the exception of the issue of costs to be awarded on appeal, this Court rendered its decision in this matter on February 10, 2011, reported at 2011 NBCA 12 , [2011] N.B.J. No. 33 (QL). On May 2, 2011, following a disagreement between the parties with respect to the

interpretation of that decision, the respondent filed a motion for clarification. That motion was heard on May 24, 2011 at which time this panel, in the event there was any ambiguity in the original decision, clarified its position. At that time we promised written reasons would follow.

Here are those reasons. [ 2 ] In the original trial decision, reported at 2009 NBQB 175 , 346 N.B.R. (2d) 217, the trial judge concluded as follows with respect to the valuation of the marital home: The value of the home therefore is assessed at $460,000.00 for division purposes and shall be shared equally, subject to adjustments for line of credit payments, home insurance and property taxes since date of separation. There was insufficient evidence for the Court to perform the mathematical calculations to determine those adjustments and it will be the responsibility of the parties to do so.

There shall be an accounting of which payments were made by whom and for how long. The payments on the line of credit (mortgage), property taxes and house insurance are a joint and equal responsibility of the parties and shall be adjusted from each spouse’s share of the equity in the home so that each has accepted responsibility for 50%. [paras. 110, 111,

112] [3] For purposes of the appeal, given the various notices of appeal, cross-appeal, supplementaryappeal and contention, this Court paraphrased the position of the parties with respect to the valuation of the marital home. We said: 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 theevent this Court concludes the trial date is the appropriate valuation date, the appellant requests we accept fresh evidence whichestablishes 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 freshevidence, requests that he be credited with $23,675 which represents payments made by him to the appellant during the separation. [para.5(1)] [4] Our response to that re-statement of the positions of the parties is set out below: The appellant requests this Court admit fresh evidence which would establish the amounts spent by her for taxes, insurance and interestpost-separation, all of which she contends were necessary to maintain the home.

She requests the home’s value be reduced accordingly. The law with respect to the admissibility of fresh evidence in the criminal law context is set out in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126 (QL), recently followed by this Court in Walsh (Re), 2008 NBCA 33, 335 N.B.R.(2d) 1, para. 42. Subject to minor modifications those principles apply to family and other civil matters.

In order to be admitted, theevidence must not have been reasonably discoverable prior to trial by the application of due diligence, would probably have an influenceupon the result, and must be apparently credible, although it need not be incontrovertible: 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 NewBrunswick [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 casescited therein.

I am of the view the evidence the appellant seeks to admit on appeal was fully discoverable before trial. It could havebeen tendered at trial with the deductions claimed for renovations. I would dismiss the motion to admit fresh evidence.

(1) The Respondent’s Contention Given my proposed disposition of the appeal and the motion to admit fresh evidence, the respondent’s contention that the trial judgeerroneously failed to credit him with $23,675 paid to the appellant during separation is dismissed. [paras. 9-10] [5] When we concluded fresh evidence would not be admitted in respect of taxes, insurance andinterest post separation paid by the appellant, it followed there would be no adjustment to the value of the marital home for thoseamounts.

Thereafter, we dismissed the respondent’s contention that he should be credited with $23,675 for amounts paid to theappellant. [6] A trial is not a discovery process. To the extent any party interprets any part of our decision aspermitting adjustments to the valuation of the marital home on account of property taxes, insurance and interest post-separation, they arein error. To the extent the trial judge directed the parties to adjust, post-trial, for these three items, she is reversed in that regard. II.

Costs [7] This Court took the opportunity on the hearing of the motion for clarification to render itsdecision with respect to costs on appeal. In that regard, we concluded the respondent would have costs based upon 40% of those

awarded at trial. The costs on appeal, including costs on this motion, payable by the appellant to the respondent, are fixed at $12,550 plus disbursements and HST. ________________________________ M.E.L. LARLEE, J.A. ________________________________ B. RICHARD BELL, J.A. ________________________________ BRADLEY V. GREEN, J.A.