Falavena v. Falavena, 2011 MBCA 39

Citation: Falavena v. Falavena, 2011 MBCA 39 Date: 20110506 Docket: AF 09-30-07295 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Martin H. Freedman Madam Justice Holly C. Beard BETWEEN: COLLEEN DAWN LESLIE FALAVENA ) C. B. Paul ) for the Applicant (Petitioner) Respondent ) ) E.

Hirsch ) for the Respondent- and - ) ) Motion heard: ) April 13, 2011MICHAEL FALAVENA ) ) Decision pronounced: (Respondent) Applicant ) May 6, 2011 MONNIN J.A. 1 Following the delivery of reasons for judgment in this matter (2010 MBCA 98, 258 Man.R. (2d) 255), the applicant appliedby notice of motion for a reconsideration of the disposition as to costs. No certificate of decision has been taken out or entered and,consequently, there is jurisdiction for this court to entertain the motion.

Following the receipt of written argument, the court directed anoral hearing, following which the panel reserved its decision. 2 The court was prepared to reconsider the matter of costs because, although referred to in the notice of appeal and thefactums of the parties, that issue, for whatever reason, was never addressed by the parties or the court at the appeal hearing. 3 The appeal dealt with the confirmation by a judge of a marital property accounting before a Master.

In very brief reasons,the judge had confirmed the Master’s accounting. 4 The applicant had asserted that the Master erred in finding that two parcels of real property were shareable assets and thattwo loans were to be excluded from the accounting. 5 We found in favour of the applicant with respect to the issue of shareable gifts, but also added the following words ofcaution, as found in our reasons (at para. 21): This, however, is far from saying that the respondent is not entitled to share equally or unequally in this asset because of the fact that itsenhanced present value has come about from the fact that she participated in paying down the mortgage during the course of themarriage.

That, however, is an issue still to be decided on the basis of unjust enrichment or constructive trust as alluded to by Morse J. inhis reasons in Saifer [(1987), (MB KB), 47 Man.R. (2d) 52 (Q.B.)]. 6 In dealing with costs, writing for the court, I said (at paras. 41-42): The [applicant] argues that the Master was in error as to his findings with respect to shareability of certain assets and that each partyshould bear their own costs.

The respondent replies that costs are discretionary and that she was properly awarded costs as she was thesuccessful party and that in addition, the award was properly made based on the conduct of the [applicant] and the positions he tookduring the course of the proceedings.

As both parties shared some success in the appeal before us, I am not prepared to award any costs in this court. However, because of my finding with respect to the shareability of the real estate assets in favour of the [applicant], I am of the view that some adjustment be made to the award of costs granted by the Master.

I would reduce the amount awarded to the respondent from $15,000 to $10,000 and proportionately reduce the amounts awarded for RST and GST. 7 The applicant now argues that, as he was partially successful on his appeal, costs should have followed that success throughout and we should have directed that each party bear their own costs, not only in this court, but also before the Master and the judge.

At the very least, the applicant argues that, if the reduction of costs as previously directed by this court is to stand, that reduction should also apply to the disbursements set by the Master and to the costs awarded by the judge. 8 In reply, the respondent argues that the applicant did not achieve the success that he alleges he did, that his success was of little moment and, when considered in the context of the whole case, that it will not significantly alter the final shareability of assets.

In addition, she argues that the decision of the Master dealt with other issues or matters that were not the subject of the appeal and that the Master’s award of costs and disbursements encompassed those issues. 9 I accept the respondent’s argument that the Master dealt with issues other than those addressed on appeal. I am also of the view that, although the applicant appears to have had some success on the appeal, that success might well be transient.

Although we ruled that two assets were not shareable, the evidence before us, as well as the words of caution referred to earlier in these reasons, lead me to believe that the respondent’s claim for compensation on an equitable basis is not completely without merit. It may very well be that the Master, although incorrect in his view of the law, was correct in the final disposition of the assets.

Finally, on that issue, the calculations made by the Master in dealing with the issue of shareability will no doubt be useful in dealing with the issue of unjust enrichment. 10 As both parties have conceded, the setting of costs is a discretionary matter and I have not been convinced by the applicant that the apportionment I originally set should now be altered.

I was not, nor am I now, persuaded that the applicant’s success in this court was as meaningful as he wishes us to find it. 11 The applicant has, however, convinced me that the change in apportionment of the costs should also extend to the disbursements set by the Master and to the costs awarded by the judge. Our failure to do so originally was an oversight which I now correct. 12 Therefore, the respondent is entitled to two-thirds of the costs, disbursements and applicable taxes as set by the Master and the judge. 13 The parties will continue to each bear their own costs in this court. J.A. I agree: J.A.

I agree: J.A.