Dunnington v. Emmett, 2012 NSCA 55

NOVA SCOTIA COURT OF APPEAL Citation: Dunnington v. Emmett , 2012 NSCA 55 Date: 20120529 Docket: CA 357749 Registry: Halifax Between: Peter Dunnington Appellant v. Ann Maria Frances Emmett Respondent Judge: The Honourable Mr. Justice Jamie W.S. Saunders Appeal Heard: May 24, 2012 Subject: Matrimonial Property Act . Separation Agreement. Unduly Harsh. Mistake. Misrepresentation. Fraud. Standard of Review.

Summary: The appellant applied in the Family Division to set aside a separation agreement on the grounds that it was unduly harsh and unconscionable, and that his consent had been induced by misrepresentation and fraud. The trial judge dismissed the application. He appealed. Held: Appeal dismissed. The appellant’s submissions were nothing more than a rehashing of the arguments made at trial in an attempt to retry the case. The trial judge carefully reviewed the evidence, assessed credibility, decided the facts and properly applied the law to the issues he was required to decide.

His reasons were fully supported by the evidence and legally sound. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 5 pages.

NOVA SCOTIA COURT OF APPEAL Citation: Dunnington v. Emmett , 2012 NSCA 55 Date: 20120529 Docket: CA 357749 Registry: Halifax Between: Peter Dunnington Appellant v. Ann Maria Frances Emmett Respondent Judges: Saunders, Oland and Fichaud, JJ.A. Appeal Heard: May 24, 2012, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Saunders, J.A.; Oland and Fichaud, JJ.A. concurring. Counsel: David A.

Grant, for the appellant Lydia Billingsley and Elinor Ireland (Articled Clerk), for the respondent Reasons for Judgment : [ 1 ] After considering the appellant’s submissions we recessed and then returned to announce our unanimous decision that the appeal ought to be dismissed with reasons to follow. These are our reasons. [ 2 ] Mr.

Dunnington brought an application in the Family Division pursuant to s. 29 of the Matrimonial Property Act , R.S.N.S. 1989, c. 275, to set aside the separation agreement he and his former wife negotiated and signed in April, 2004, which was later incorporated in their consent corollary relief judgment dated November 18, 2004 following their divorce. He complained that the agreement was unduly harsh and unconscionable and that his consent had been induced by the respondent’s misrepresentation and fraud.

He asked the court to vary the agreement by adding a clause which would require the respondent to sell the matrimonial home, or pay out the appellant’s interest therein, upon notice. After a full hearing, Justice Leslie J. Dellapinna dismissed Mr. Dunnington’s application and awarded costs of $1,000 to the respondent.

[ 3 ] The appellant appeals that decision and order saying the judge erred in defining “undue hardship” (his counsel’s words) and in finding that he was not entitled to the relief claimed. [ 4 ] The dispute centres around Mr. Dunnington’s claim to an interest in the parties’ former matrimonial home. At the time of their divorce they owned two residences, holding title to each as joint tenants. The matrimonial home was located at 5419 Vestry Street. They purchased it in 1984 from Ms. Emmett’s father.

Her evidence was that they were able to buy the house for $20,000 less than its true value as an “early inheritance” from her parents. [ 5 ] By the terms of their separation agreement, Ms. Emmett would continue to occupy the matrimonial home, without rent, until such time as she decided to sell the property, whereupon, after expenses were paid, she would receive $20,000, and after that sum was deducted, the net proceeds would be divided equally between the parties. [ 6 ] The separation agreement also referred to Ms.

Emmett as having executed a quit claim deed to the second residence the parties owned at 36 Hamshaw Drive. This home was originally owned by Mr. Dunnington’s parents, but had been conveyed to the appellant and the respondent as joint tenants in 2002. The separation agreement gave Mr. Dunnington full title to the home. In executing the quit claim deed, Ms. Emmett acknowledged that this property was not a matrimonial home or asset.

At the hearing she said she signed the quit claim deed removing herself as an owner of that property, in exchange for the right to remain in their matrimonial home on Vestry Street indefinitely. [ 7 ] The thrust of Mr. Dunnington’s complaint was that the clause in their agreement which allowed Ms.

Emmett to remain in the matrimonial home until she “decides to sell the property”, goes bankrupt, or has an unsatisfied judgment recorded against her, was unduly harsh in that it forces him to wait until she dies, or becomes insolvent, or sells the house and moves out, before he can realize his financial stake in the property. This, he argued, rendered the interest accorded him at divorce, virtually, worthless. His evidence at the hearing was that the parties had their own verbal agreement to the effect that Ms. Emmett promised to sell the house once their children left home.

He asked that the offending clause be “set aside” and that the court replace it with an order providing for the sale and equal division of the Vestry Street property. [ 8 ] Justice Dellapinna did not accept the appellant’s version of events. He preferred the evidence given by Ms. Emmett which he said was corroborated by the documentary record. The judge said: He’s offered no evidence in support of that claim, no exchange of letters between counsel, no exchange of letters between the parties themselves, no note; nothing. It is his word against that of Ms. Emmett. Ms.

Emmett claims there was no such agreement and that she never said anything to Mr. Dunnington to lead him to believe that that was any part of their agreement. She says that paragraph 8, subsection 2 regarding the Hamshaw Drive property was included at Mr. Dunnington’s insistence. It was a property that was conveyed to the parties jointly and she was prepared to release her interest in that property in exchange for the ability to remain in the former matrimonial home for as long as she wanted to remain there. ...

As I indicated earlier, there are differences in the evidence between the parties; they disagree on the most relevant of factors, most notably about whether there was or was not an agreement. Where their evidence differs, I prefer the evidence of Ms. Emmett. Her evidence, to the extent that it can be, is supported by independent evidence including the Agreement of Purchase and Sale which confirm what she says was the purchase price as opposed to the purchase price mentioned by Mr. Dunnington.

And during cross-examination, her evidence did not vary and I was given no reason to disbelieve her. [ 9 ] From this, and the balance of Justice Dellapinna’s clear and comprehensive reasons, it is obvious that he rejected the appellant’s position on all fronts. The judge found that the agreement was not unduly harsh. It was not induced by mistake, misrepresentation or fraud. There was no imbalance between the parties. The separation agreement was concluded after considerable negotiation, with each party represented by their own counsel. The final agreement was drafted by the appellant’s own lawyer.

[ 10 ] Dellapinna, J. did not believe that there was ever any “side agreement” between the parties as to when the house would be sold, beyond the actual terms set out in their separation agreement. The judge found that there was proper consideration for this arrangement. While acknowledging it was somewhat unusual that Ms.

Emmett be given complete authority to decide when their matrimonial home on Vestry Street would be sold, the explanation – which he accepted – was that she released her interest in the Hamshaw Drive property in exchange for the right to live in the matrimonial home for as long as she liked. [ 11 ] With respect, Mr. Dunnington’s written and oral submissions on appeal are nothing more than a rehashing of the same arguments made in the court below, in what seems to be an attempt to have us retry the case. That is not our function.

In this Court, our responsibility is to review for serious error, and to intercede when we find one. No such flaw arises in this case. Justice Dellapinna carefully reviewed the evidence, assessed credibility, decided the facts, and properly applied the law to the issues he was required to decide. His reasons are fully supported by the evidence and are legally sound. There is nothing here to warrant our intervention. Housen v. Nikolaisen , 2002 SCC 33 ; Gwynne-Timothy v. McPhee , 2005 NSCA 80 ; and Baker v.

Baker , 2012 NSCA 24 . [ 12 ] We would dismiss the appeal with costs of $1,200 inclusive of disbursements to the respondent. This sum is in addition to the costs of $1,000 awarded by Justice Dellapinna on September 14, 2011 and the $500 awarded by Justice Fichaud on February 10, 2012. Saunders, J.A. Concurred in: Oland, J.A. Fichaud, J.A.