Grimes v. Grimes, 2012 NLCA 68

Date: 2012 1102 Docket: 11/93 Citation: Grimes v. Grimes , 2012 NLCA 68 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : PETER GRIMES APPELLANT AND : MELITA ANN GRIMES RESPONDENT Coram: Welsh, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (U) 200702U0143 Appeal Heard: June 12, 2012 Judgment Rendered: November 2, 2012 Reasons for Judgment by Hoegg J.A. Concurred in by Welsh and White JJ.A. Counsel for the Appellant: Nancy McKillop Counsel for the Respondent: Owen Myers

Hoegg J.A.: Introduction [ 1 ] This appeal concerns the disposition of a matrimonial property located on Torbay Road in St. John’s (the “Torbay property”). History and Context [ 2 ] Peter and Melita Grimes married in 1988. They had three children. The couple separated in 2006 and divorced in 2008. Custody of and access to the children, support issues and all matrimonial property matters except for the disposition of the Torbay property have been resolved. [ 3 ] Mr. and Mrs. Grimes lived at the Torbay property for the first twelve years of their marriage.

In 2000 they moved to Paradise, but kept the Torbay property as a rental property. [ 4 ] On June 1, 2007, two consent orders respecting all other matrimonial matters were granted by a Unified Family Court (“UFC”) judge, and leave was granted for the parties to file a consent order pertaining to the Torbay property. That same day Mr. and Mrs. Grimes, through their respective counsel, agreed that Mr. Grimes would buy out Mrs. Grimes’ interest in the Torbay property for $27,500, in return for which Mrs. Grimes would convey her interest in it to him.

The Torbay property had been assessed, and the parties agreed that Mr. Grimes, who wanted to keep the Torbay property, would refinance it so as to pay Mrs. Grimes. [ 5 ] Approximately four months prior to this agreement, a lis pendens had been registered against the Torbay property by James Murray and J.S. Murray Electrical Limited (“Murrays”). Murrays and Peter and Melita Grimes had previously been in business together, and Murrays had filed suit against Mr. and Mrs. Grimes in relation to outstanding bank guarantees relating to their former business relations. [ 6 ] On June 15, 2007 Mrs.

Grimes’ counsel wrote to counsel for Mr. Grimes requesting the settlement funds for the Torbay property as per their agreement. In response, counsel for Mr. Grimes advised that he had been unable to obtain bank financing to buy out Mrs. Grimes’ interest as a result of the lis pendens . [ 7 ] A few weeks later, on August 17, 2007, Mrs. Grimes, without the knowledge or consent of Mr. Grimes, executed a deed of conveyance purporting to convey her interest in the Torbay property to Murrays so as to satisfy Murrays’ claim against her. The deed was registered on September 4, 2007. Murrays’ suit against Mr.

Grimes proceeded. [ 8 ] On June 9, 2008, Murrays’ suit against Mr. Grimes concluded with a decision ordering a net payment to Murrays from Mr. Grimes. Sometime later, Mr. Grimes declared bankruptcy. The Torbay property was not liquidated in the bankruptcy because of its matrimonial status. [ 9 ] Despite Mrs. Grimes’ registered conveyance of her interest in the Torbay property to Murrays, Murrays was unable to deal with the property without a court order. Mr. Grimes, finding himself unwittingly entangled with Murrays, was similarly constrained. In December 2009, Mrs.

Grimes applied to the UFC for leave to file an interim application for the partition and sale or severance of the joint tenancy of the Torbay property so as to enable her to properly convey her interest in the Torbay property to Murrays in accordance with their August 17, 2007 settlement. Supporting affidavits from Mrs. Grimes and her counsel setting out the details of the conveyance were registered. [ 10 ] On May 27, 2011, Mr. Grimes filed an interim/interlocutory application in UFC seeking an order declaring the deed of conveyance of August 17, 2007 between Mrs.

Grimes and Murrays null and void for being in contravention of provisions of the Family Law Act , RSNL 1990, c. F-2 (the “ Act ”). [ 11 ] In response to Mr. Grimes’ application, counsel for Mrs. Grimes filed an affidavit dated June 10, 2011 in which she stated that Mrs. Grimes wanted to be free of any dealings concerning the Torbay property except for cooperating with Murrays for the proper conveyance to them of her interest in the property so as to give effect to her settlement of Murrays’ claim against her. Counsel requested an order severing the joint tenancy of the Torbay property as between Mr. and Mrs.

Grimes and ratifying the August 17, 2007 conveyance to Murrays, and an order for partition and sale of the Torbay property. (While the affidavit should have been filed by Mrs. Grimes, the court proceeded on the basis of counsel’s affidavit.) [ 12 ] At an interim hearing on June 14, 2011, the presiding UFC judge suggested that counsel who was acting for both Mrs. Grimes and Murrays may be in conflict. She urged Murrays to try to resolve its claim against Mr. and Mrs. Grimes, and suggested that Mr. and Mrs. Grimes consider giving effect to their own agreement of June 2007. She also granted Mr.

Grimes leave to apply to set aside Mrs. Grimes’ August 17, 2007 conveyance to Murrays. [ 13 ] On August 22, 2011, Mr. Grimes filed a fresh application to set aside the deed of conveyance of August 17, 2007. The matter was set to be heard on October 3, 2011. On September 28, 2011, Mr. Grimes filed submissions in support of his application. Mrs. Grimes did not file any affidavit or other submission in relation to Mr. Grimes’ application. [ 14 ] On October 3, 2011, Mr. Grimes and his counsel and new counsel for Mrs. Grimes appeared at the hearing. Mrs. Grimes did not appear.

The application was heard, and the UFC judge ordered that the August 17, 2011 deed of conveyance between Mrs. Grimes and Murrays be set aside pursuant to the provisions of

section 14 of the Family Law Act . Counsel for Mrs. Grimes raised the issue of the value of the Torbay property, and suggested that it should be revalued at current market rates. Mr. Grimes advised the Court that the disposition of the Torbay property had been agreed to in June 2007. Following a short discussion among the UFC judge and counsel, the

UFC judge ordered the parties to appear on October 19, 2011 to argue whether the Torbay property ought to be revalued. Mrs. Grimesdid not file an application pursuant to her counsel’s request for a revaluation. [15] On October 17, 2011, Mr. Grimes filed submissions in relation to the valuation date issue. Mr. Grimes’ position was that heand Mrs. Grimes had a valid and enforceable agreement which stipulated the amount he was to pay Mrs. Grimes for her interest in theTorbay property. Mrs. Grimes did not file any affidavit or other submission disagreeing with Mr. Grimes’ position. [16] Mrs.

Grimes did not appear at the hearing on October 19, 2011. Mr. Grimes raised the issue of Mrs. Grimes’ failure to file anaffidavit or other submission as well as her failure to appear for possible cross-examination. He argued that because Mrs. Grimes did notfile any objection to his submission, she must be taken to agree with it, leaving the UFC judge with no option but to order that the June 1,2007 settlement agreement that Mr. Grimes could buy out Mrs. Grimes’ interest for $27,500 was valid, binding and enforceable.

Mrs.Grimes’ counsel argued that the Torbay property should be revalued at current market rates and then divided equally. The UFC judgereserved his decision. [17] On November 9, 2011, the UFC judge decided that the June 2007 agreement was valid and enforceable but that the Torbayproperty should be revalued at current market rates. He ordered 1) that each party conduct a separate appraisal of the Torbay property; 2)that the average of the two appraisals would be the fair market value of the property; 3) that Mr. Grimes could buy out Mrs.

Grimes’interest by paying her one-half of the equity in the property; and 4) that if this arrangement failed, the property was to be sold and theproceeds equally divided. A formal order to the above effect was filed on November 29, 2011. [18] Meanwhile, at the October 3, 2011 hearing, counsel for Mrs. Grimes had advised the court that he would try to resolve the lispendens issue with counsel for Murrays. On October 19, 2011, counsel for Mrs. Grimes advised the court that he had secured consentfrom counsel for Murrays to have the lis pendens on the Torbay property discharged.

He confirmed this information to the court onNovember 9, 2011, and on November 23, 2011, an order discharging the lis pendens on the Torbay property was filed. Leave to Appeal [19] Mr. Grimes argues that because the order of the UFC judge disposing of the Torbay property is final in nature, he does notrequire leave to appeal it. However, should leave be required, he seeks leave to appeal pursuant to all five factors enumerated in Rule57.02(4). [20] In United Food and Commercial Workers, Local 1252 v.

Cashin et al. (1994), (NL CA), 124 Nfld. &P.E.I.R. 201 (NFCA), Marshall J.A. explains the difference between an interlocutory and a final order: [31] … whether an order or judgment is to be treated as interlocutory or final depends upon the nature and effect of the disposition. If itbrought the proceedings at first instance to an end, regardless of whether it actually disposes of the rights between the parties, it is final.

However, if the disposition’s effect is such that the real matter in dispute between the parties remains to be determined in the veryproceeding from which it issued, the disposition is interlocutory. [21] In Kent v.

Kent, 2010 NLCA 53, 301 Nfld. & P.E.I.R. 152, this Court confirmed Justice Marshall’s statement as the governingtest for determining whether an order is final, and added that “[the] focus on the nature and effect of the order means that an order maybe final even though it results from an interlocutory proceeding” (paragraphs 23 to 25). [22] In this case, the real matter in dispute, in fact the only matter in dispute, was the disposition of the Torbay property. The UFCjudge ordered the parties to perform a series of steps, upon completion of which the dispute over the Torbay property would be ended.

Inother words, the order was wholly dispositive of the issue before the Court, and once it was complied with, nothing remained to bedecided in respect of the Torbay property. In this regard, see also the reasoning of Green J.A. in McCabe v. Verge (1999), (NL CA), 172 Nfld. & P.E.I.R. 101 (NFCA), paragraphs 5, 9, 10 and 11. Moreover, the disposition of the Torbay property wasthe last matter to be decided between Mr. and Mrs. Grimes.

Hence, the UFC order brought the parties’ entire matrimonial litigation to anend. [23] In the result, the UFC order was final despite the application being an interim one and the proceeding being characterized asinterlocutory. Accordingly, Mr. Grimes does not require leave to appeal. His appeal to challenge the correctness of the UFC judge’sdecision is as of right. Standard of Review [24] The applicable standards of review are correctness for errors of law and palpable and overriding error for findings of fact. (Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.) This Court has previously emphasized appellate deference to fact-based anddiscretionary family law decisions unless manifest error is found. (See Meadus v. Meadus, 2012 NLCA 59, paragraph 39; and Locke v.Goulding, 2012 NLCA 8, 318 Nfld. & P.E.I.R. 91, paragraphs 18-19.) This family law appeal involves whether a settlement ought to beenforced, as well as alleged procedural irregularities. As such, it primarily engages legal issues rather than factual findings anddiscretionary rulings.

The Appeal Issue: Is the June 2007 agreement valid, binding and enforceable? [25] The central issue in this case is whether the UFC judge erred in determining that although the June 2007 settlement agreementbetween Mr. and Mrs. Grimes respecting the disposition of the Torbay property was valid and binding, the term respecting the buyoutprice was not enforceable, and the property had to be revalued. The Law

[26]

Section 64(

a) of the Act provides that parties who have co-habited in a conjugal relationship may agree on their respective rightsand obligations as to “ownership in or division of property”. Section 66(4) provides that a court may, on application, set aside suchagreements (

a) where a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domesticcontract was made; (

b) where a party did not understand the nature or consequences of the domestic contract; or (

c) otherwise in accordance with the law of contract. [27] In Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, the Supreme Court set out principles governing enforceability ofseparation agreements in the context of an application to set aside an agreement for spousal support made pursuant to the Divorce Act,R.S.C. 185, c-3.

At paragraph 4 of Miglin, Justices Bastarache and Arbour state that when a court is considering whether such anagreement is enforceable, it should first look to the circumstances of negotiation and execution of the impugned agreement to determinewhether the applicant has established a reason to discount it.

This first stage involves two questions, 1) whether the substance of theagreement, at formation, complies with the general objectives of the governing legislation, which include an equitable sharing of theeconomic consequences of marriage breakdown and adherence to the principles of “certainty, finality and autonomy” in family law; and2) whether the agreement still reflects the original intention of the parties. [28] The Miglin Court explained that matrimonial litigation takes place in a unique legal context where emotions are highly chargedand when parties may not be at their best.

Consequently, vulnerabilities which would not establish unconscionability in a commercialcontext may establish unconscionability in a matrimonial context. The Court explained: Where vulnerabilities are not present, or are effectively compensated by the presence of counsel or other professionals or both, or havenot been taken advantage of, the court should consider the agreement as a genuine mutual desire to finalize the terms of the parties’separation and as indicative of their substantive intentions. Accordingly, the court should be loathe to interfere.

In contrast, where thepower imbalance did vitiate the bargaining process, the agreement should not be read as expressing the parties’ notion of equitablesharing in their circumstances and the agreement will merit little weight. (paragraph 83) [29] The Supreme Court emphasized that “only a significant departure from the general objectives of the Act will warrant the court’sintervention on the basis that there is not substantial compliance with the governing legislation, and also that the settlement agreementmust be looked at in its totality, bearing in mind that all aspects of the settlement agreement are inextricably linked and that the partieshave a large discretion in establishing priorities and goals for themselves”.

The Court stated that where an agreement is not impugned onthe basis of unconscionability or vulnerability or for not complying with the general objectives of governing legislation, “the courtshould defer to the wishes of the parties and afford the agreement great weight” (paragraph 87). [30] The Miglin Court went on to acknowledge that circumstances may change over time, and if they do, and a party applies tovitiate an original agreement, a second stage inquiry is required. This analysis focuses on the intentions of the parties in making theagreement.

If the agreement still reflects the original intention of the parties, it should be enforced: The parties’ intentions, as reflected by the agreement, are the backdrop against which the court must consider whether the situation ofthe parties at the time of the application makes it no longer appropriate to accord the agreement conclusive weight. We note that it isunlikely that the court will be persuaded to disregard the agreement in its entirety but for a significant change in the parties’circumstances from what could reasonably be anticipated at the time of negotiation.

Although the change need not be “radicallyunforeseen”, and the applicant need not demonstrate a causal connection to the marriage, the applicant must nevertheless clearly showthat, in light of the new circumstances, the terms of the agreement no longer reflect the parties’ intentions at the time of execution andthe objectives of the Act. Accordingly, it will be necessary to show that these new circumstances were not reasonably anticipated by theparties, and have led to a situation that cannot be condoned. (paragraph 88) [31] In Rick v.

Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, the Supreme Court upheld a British Columbia trial court finding thatan agreement made pursuant to the provisions of the Family Relations Act, R.S.B.C. 1996, c. 128 was unconscionable. The husband hadexploited the wife’s mental instability during negotiations and had deliberately concealed or undervalued matrimonial assets, whichresulted in the wife receiving significantly less than her entitlement despite the parties’ express intention to divide their assets equally.

The Supreme Court relied on the reasoning in Miglin in coming to this result, saying: While Miglin dealt with spousal support agreements in the context of a divorce, it nonetheless offers guidance for the conduct ofnegotiations for separation agreements generally, including negotiations for the division of matrimonial assets. (paragraph 39) [32] Similarly, I would adopt the guiding principles in Miglin and apply them to consideration of the enforceability of agreementsconcerning ownership in or division of property which are challenged under paragraphs 66(4)(

a) and (

b) of the Act. [33] Settlement agreements pertaining to matrimonial litigation can be made by counsel on behalf of their clients, and if made afterlitigation has commenced, are exempt from the requirement that they must be executed by the parties themselves. (Tucker v. Tucker(1993), (NL CA), 110 Nfld. & P.E.I.R. 168 (NFCA).) At paragraph 22 of Tucker, Cameron J.A. emphasized theobjective of encouraging settlements of matrimonial litigation. [34] Picco v. Picco (1987), (NL SC), 66 Nfld. & P.E.I.R. 117 (UFC) also dealt with the enforceability of a

matrimonial settlement. In deciding that counsel could negotiate enforceable settlements of matrimonial litigation, Russell J. referred toand adopted case law which encourages compromise and resolution of litigation in family matters (see paragraphs 23-26). [35] Freake v. Freake, 2007 NLUFC 25, 271 Nfld. & P.E.I.R. 25 is another UFC case in which one party did not want a settlementof matrimonial property enforced.

In Freake, Handrigan J. determined that the parties had actually made a settlement agreement, andthere was no reason why it ought not to be enforced. [36] Section 66(4) of the Act provides that if an applicant cannot establish that a matrimonial agreement can be set aside pursuant tosubsections (

a) and (b), considered in the context of the guiding principles provided by Miglin and Rick, then its enforceability isgoverned by the law of contract. In this case there was no challenge to the existence of the elements of offer, acceptance, consideration,intention to create legal relations and certainty of terms. (See McCabe v. Verge (1999), (NL CA), 182 Nfld. &P.E.I.R. 135 (NFCA).) Analysis [37] The UFC judge determined that the June 2007 agreement disposing of the Torbay property was “valid and binding”, but thatone of its terms, specifically the $27,500 price tag for Mr. Grimes to buy out Mrs.

Grimes’ interest, was not enforceable. The UFC judgereasoned that enforcement of the payment term would lead to a windfall for Mr. Grimes due to the judge’s view that real estate valueshad increased in the years since the agreement was made. He concluded that it would be unfair to bind Mrs. Grimes to receiving only$27,500 because both she and her husband were responsible for the situation leading to the lis pendens which had initially prevented Mr.Grimes from obtaining financing to buy out her interest. He found that Mrs.

Grimes’ conveyance to Murrays, while not irrelevant, hadnot been the stumbling block to effecting the settlement. [38] There was no evidence respecting an increase in the value of real estate in the general location of the Torbay property or anincrease in the value of the Torbay property itself. [39] The record shows that both parties had assessments of the Torbay property done before the June 2007 agreement was reached,and that both parties were represented by counsel at the time. There is no suggestion that one of the parties did not understand theagreement, or failed to disclose assets or debts.

No oppression, pressure, or vulnerability of any sort was alleged. There is no suggestionthat the buy-out price of $27,500 was arrived at in bad faith or that the agreement was unconscionable or improvident. Indeed Mrs.Grimes did not make any such assertions. [40] The buyout price of $27,500 for Mrs. Grimes’ interest in the Torbay property was clearly stated in the settlementcorrespondence and could not be considered vague under any analysis. Indeed, Mrs. Grimes did not challenge the fact that she and Mr.Grimes had agreed that she would convey her interest in the Torbay property to him for $27,500.

Moreover, she confirmed herunderstanding of the value of her interest in the minutes of settlement respecting her August 17, 2007 conveyance to Murrays to settleMurrays’ action against her. It was Mrs. Grimes’ position at all times from June 2007 up to and until October 3, 2011, when herconveyance to Murrays was declared null and void by the UFC judge, that the agreement she had with her former husband was that shewas to receive $27,500 for her interest. (See her counsel’s affidavit of June 10, 2011.) Mrs.

Grimes’ conduct throughout is consistentwith her knowledge, understanding and intention that the June 2007 agreement with her former husband was to be enforced for the statedprice. [41] The determination that it would be unfair to Mrs. Grimes to enforce the June 2007 settlement fails to recognize that whenparties come to an agreement on certain terms, they do so for their own reasons. In this regard, the settlement correspondence statessimply that Mrs. Grimes’ interest in the Torbay property was to be conveyed to Mr. Grimes for $27,500. The correspondence does notcharacterize Mrs.

Grimes’ interest as a one-half interest – it is simply stated as “her interest”. Counsel referred to Mrs. Grimes’ interestas being one-half in their arguments before this Court, although I note that counsel for both parties had changed between the negotiationof the June 2007 settlement and the UFC hearing. Regardless, the settlement of the Torbay property was the last part of a largersettlement of matrimonial property, child and spousal support, and matrimonial debt. The parties made a decision to settle child andspousal support and matrimonial debt, that Mrs.

Grimes would keep the home the family had been living in (which may also haveincreased in value since June 2007), and that Mr. Grimes would keep the Torbay property and pay Mrs. Grimes $27,500 in return for theconveyance of her interest in it to him. The agreed buy-out price was based on the parties’ knowledge and appreciation of the issuespresenting in their matrimonial litigation at the time. It is not appropriate to subsequently revisit only one part of a larger, comprehensivematrimonial settlement on a ground of perceived fairness.

The fairness of the buyout price, even if it were an issue, cannot bedetermined in isolation from the entire agreement. [42] The UFC judge asked the parties to consider what impact, if any, this Court’s decision in Gosse v. Sorensen-Gosse, 2011 NLCA58, 311 Nfld. & P.E.I.R. 76 had upon the valuation of the Torbay property. The Gosse case dealt with the valuation date for amatrimonial home in respect of which there was no agreement as to its value or disposition. In this case, there is an agreement whichprovides for disposition of the property on certain terms.

The two situations are quite different, and Gosse is therefore inapplicable. [43] Moreover, approximately six weeks after the June 2007 settlement, Mrs. Grimes purposely and voluntarily attempted to divestherself of her interest in the Torbay property by conveying it to Murrays. In so doing, she knowingly relinquished her interest in anyincrease in the value of the Torbay property, being content to let Murrays have the benefit of any increase in its value. The minutes ofsettlement pursuant to the August 17, 2007 conveyance state that the property conveyed was worth “at a minimum” $27,500.

Mrs.Grimes remained steadfast in that position until the UFC judge set aside the conveyance on October 3, 2011. This sequence of events isconfirmation that the parties originally intended to make the settlement agreement they made, and that there was no significant change intheir circumstances which show that the agreement no longer reflected their intentions and the objectives of the Act (see Miglin,paragraph 88). In these circumstances, Mrs. Grimes can hardly be heard to complain that enforcement of the settlement is unfair to her. [44] In

summary, it is undisputed that the parties made a settlement agreement respecting the Torbay property. There is no allegationof failure to disclose an asset or a debt, lack of understanding on the part of a party and no vulnerability has been demonstrated. Theessential elements of a contract - offer, acceptance, consideration, intention to create legal relations and certainty of terms were present.

Accordingly, there is no reason not to enforce the settlement agreement. [45] For the above reasons, the UFC judge erred in ordering a revaluation of the Torbay property. The settlement agreement of June2007 between Mr. and Mrs. Grimes is enforceable on its stated terms. Accordingly, Mr. Grimes must pay Mrs. Grimes $27,500, andMrs. Grimes must convey her interest in the Torbay Property to Mr. Grimes. Procedural Irregularities [46] Mr. Grimes’ asserts several procedural irregularities as grounds of appeal. They are moot as a consequence of this Court’sdecision that the June 2007 settlement is to be enforced.

Nevertheless, some comment is appropriate. [47] Mr. Grimes alleges that the UFC judge conducted the hearing in contravention of Rule 56A.16(4) of the Rules of the SupremeCourt, 1986, which provides for a party opposing an application to file an affidavit that sets out why the applicant should not besuccessful. [48] The application before the UFC judge was that of Mr. Grimes, who sought only that the August 17, 2007 conveyance toMurrays from Mrs. Grimes be set aside. Mrs.

Grimes was the party “applying for” a revaluation, which she did by way of anunsupported verbal request from her counsel, made after the UFC judge had set aside her conveyance to Murrays. The UFC judgedetermined that the matter ought to be argued, and set it over to October 19. Two days before, Mr. Grimes filed detailed submissions insupport of his position that the settlement ought to be enforced, characterizing himself as the applicant. Mrs. Grimes filed nothing. [49] At the hearing, counsel for Mr. Grimes complained about Mrs.

Grimes’ failure to file an affidavit and her failure to appear so asto be available for cross-examination, and argued that because Mrs. Grimes did not object to Mr. Grimes’ position, the court ought toenforce the June 2007 agreement. Counsel for Mrs. Grimes responded by saying that it would serve no useful purpose for her to provideevidence as the issue was essentially a legal one. The UFC judge proceeded with the hearing and ultimately decided the issue in Mrs.Grimes’ favour. [50] The procedure followed in this case was unusual at best, but cannot be said to have contravened Rule 56A.16(4).

That rulespeaks to a respondent, presuming that the applicant’s position is already before the court. It is permissive, not mandatory, allowing fora practical and flexible approach to the day to day business of UFC applications court, especially in the handling of legitimateapplications when respondents do not participate or co-operate in the proceedings. [51] The UFC judge decided not only that the Torbay property was to be revalued, but went on to order that its value would be theaverage of the two new appraisals and that Mrs. Grimes was to receive half of the equity in it.

It was not open to the UFC judge to makethese orders. The division of the property was not before the Court. Mr. Grimes had had no opportunity to apply for an unequal divisionpursuant to

section 22(

g) of the Act or to adduce evidence for his argument that equal division would not be justified because he had“maintained and managed that property, collected the rent, paid the mortgage, the property tax, the insurance, made renovations [and]improvements to the property” (see transcript of October 19, 2011, page 180) during the four years or so since the June 2007 settlementagreement. Neither could the UFC judge determine the value of the Torbay property by averaging the two new appraisals withoutconsidering the reliability and credibility of each of the two appraisals ordered (See Duff v. Duff (1983), 43 Nfld. & P.E.I.R. 151(NFCA)).

Summary [52] In the result, the UFC judge’s order is set aside. The June 2007 settlement agreement between Mr. and Mrs. Grimes, specifyingthat Mr. Grimes is to pay Mrs. Grimes $27,500 for her interest in the Torbay property in exchange for her conveyance of that interest tohim, is to be enforced. Pre-judgment Interest [53] Given the five-year time lapse since the June 2007 agreement, and the fact that Mr. Grimes has had the Torbay property sincethen without having paid Mrs.

Grimes for her interest in it, the issue of pre-judgment interest arises. [54] The purpose of pre-judgment interest was described by Green J.A. in Young v. Dawe (1998), (NL CA), 160Nfld. & P.E.I.R. 233 (NFCA) at para. 69: The underlying purpose of the [Judgment Interest Act, RSNL 1990, c. J-2] is to compensate successful claimants for the loss of use ofmoney to which they have been found entitled, and for the decline in value of the money, from the time the cause of action arises to thetime of judgment.

It also removes the incentive for defendants to delay litigation and thereby unjustly enrich themselves by continuingto have the use of the money until judgment. … [55] In this case Mrs. Grimes was substantially responsible for delaying resolution of the disposition of the Torbay property byconveying her interest in it to Murrays approximately six weeks after she made the June 2007 agreement with her husband, and then byseeking to ratify the conveyance until it was set aside at Mr. Grimes’ behest. Her conduct was a significant stumbling block to theconclusion of the parties’ matrimonial litigation.

The lis pendens issue may have been resolvable by way of an application by eitherparty to have it discharged in the early stages of the litigation between Mr. and Mrs. Grimes and Murrays, and was especially resolvableonce the litigation between Mr. Grimes and Murrays was decided in 2008. Mr. Grimes has been put to the effort and expense ofprotracted and adversarial litigation, and ultimately had to apply to have Mrs. Grimes’ conveyance to Murrays set aside. In thesecircumstances, it would not be appropriate to compensate Mrs. Grimes for her loss of use of the money or for any decline in its value. Costs [56] Mr.

Grimes shall have his party and party costs in this Court and the court below.

L. R. Hoegg J.A. I concur: B. G. Welsh J.A. I concur: C. W. White J.A.