Court of Appeal

Nova Scotia Court of Appeal

Citation: Wintrup v. Adams, 2023 NSCA 19

Date: 20230329

Docket: CA 509130

Registry: Halifax

Between:

Roberta Lynne Wintrup

Appellant

v.

Bradley Guy Adams

Respondent

Between:

 

Docket: CA 512462

Registry: Halifax

 

 

Roberta Lynne Wintrup

Appellant

v.

Bradley Guy Adams

Respondent

 

 

 

Judge:	The Honourable Justice Anne S. Derrick
Appeal Heard:	February 1, 2023, in Halifax, Nova Scotia
Subject:	Family law. Spousal Support. Unequal division of matrimonial property. Appearance at trial by video-conference. Costs.
Summary:	The parties had a short cohabitation and marriage. They were in their fifties and previously married. They were independent professionals with well-established careers and considerable assets, including real property. There were no children. When the marriage broke down the appellant filed for divorce seeking a division of assets and spousal support. After a four-day trial which, over the objections of the appellant, the respondent attended by video-conference from Saudi Arabia, the trial judge found in favour of the respondent and ordered the appellant to pay lump sum costs of $55,000. The trial judge found the appellant had surreptitiously withdrawn $200,000 from a bank account containing the respondent’s inheritance and, as a result, ordered an unequal division of matrimonial assets in favour of the respondent. The appellant’s spousal support claim was dismissed. The trial judge also dismissed her claim for unjust enrichment.
Issues:	(1)        Did the trial judge err by dismissing the appellant’s claim for unjust enrichment? (2)        Did the trial judge err in his classification and division of property? (3)        Did the trial judge err by failing to value the assets in issue? (4)        Did the trial judge err by permitting the respondent to appear by video-conference from Saudi Arabia without a commissioner present? (5)        Did the trial judge err by dismissing the appellant’s claim for spousal support? (6)        Did the trial judge err in his determination of costs?
Result:	The appeals are dismissed with costs. The trial judge’s asset classification and division, his determination of the respondent’s application to appear by video-conference, his dismissal of the appellant’s claim for spousal support and his award of costs were undertaken in accordance with the correct law and subject to considerable deference on appeal. The trial judge was correct in law to have dismissed the appellant’s unjust enrichment claim: he resolved the parties’ division of assets issues under the Matrimonial Property Act, R.S.N.S. 1989, c. 275 and was correct in law to have done so. There was no need in this case for the trial judge to have done a valuation of the assets. It is apparent his decision to order an unequal division of the matrimonial assets was made in the context of the parties’ brief marriage, the property holdings they each brought into the relationship, and the appellant’s misconduct in relation to the respondent’s inheritance monies.

 

 

Nova Scotia Court of Appeal

Citation: Wintrup v. Adams, 2023 NSCA 19

Date: 20230329

Docket: CA 509130

Registry: Halifax

Between:

Roberta Lynne Wintrup

Appellant

v.

Bradley Guy Adams

Respondent

Between:

 

Docket: CA 512462

Registry: Halifax

 

 

Roberta Lynne Wintrup

Appellant

v.

Bradley Guy Adams

Respondent

 

 

Judges:	Bryson, Scanlan, Derrick, JJ.A.
Appeal Heard:	February 1, 2023, in Halifax, Nova Scotia
Held:	Appeals dismissed with costs, per reasons for judgment of Derrick, J.A.; Bryson and Scanlan, JJ.A. concurring.
Counsel:	Richard A. Bureau and Ryan Christen, for the appellant Christine Doucet, Ashley Donald, for the respondent

Reasons for judgment:

Introduction

[1]             Ms. Wintrup and Mr. Adams met in Qatar in late 2008. A friendship turned romantic. Despite an unconventional relationship that involved considerable periods of time apart, they married on June 30, 2014 in British Columbia. They were divorced by way of Corollary Relief Order issued August 20, 2021 by the Nova Scotia Supreme Court, Family Division. In a written decision (the “Merits” decision)[1], Justice Samuel Moreau denied spousal support to Ms. Wintrup and ordered an unequal division of property. Ms. Wintrup has appealed these determinations. She brought a separate appeal against Justice Moreau’s costs order issued January 26, 2022.

[2]             The trial before Justice Moreau was heard over four days. By order issued October 30, 2020, in advance of the trial, Mr. Adams was permitted to attend from Saudi Arabia by video conference without a commissioner. The appellant says this too was an error.

[3]             As these reasons explain, I am not persuaded by the appellant’s arguments the trial judge committed reversible errors and I would dismiss both appeals.

Overview of the Issues

[4]             The appellant’s Notice of Appeal in relation to the Merits decision set out seventeen grounds of appeal. In her factum she collapsed these into five issues:

          1)      Dismissal of the appellant’s claims for unjust enrichment and/or constructive trust.

          2)      Classification and division of property between the parties;

          3)      Failure to value the assets in issue;

          4)      Permitting the respondent to appear by video-conference from Saudi Arabia without a commissioner present; and

          5)      Dismissal of the appellant’s claim for spousal support.

[5]             I have decided to address the issues in a different order than the appellant. I will consider them as follows: spousal support; the classification and division of assets; the valuation of assets; unjust enrichment; and the appearance of Mr. Adams by video-conference. I will review the facts and standards of review as they apply to each issue. After my reasons on the grounds of appeal relating to the Merits decision I will address the Costs appeal.

Brief Factual Overview

[6]             The parties met in Doha, Qatar where the appellant, a registered nurse, was teaching nursing at the College of the North Atlantic through the University of Calgary. The respondent was a logistics manager on construction sites. They were in their fifties and previously married. They were independent professionals with well-established careers and considerable assets. The appellant had a teenage daughter living in Canada and the respondent had children living in the U.K.. They did not have any children together.

[7]             Each party came into the relationship owning real property. The appellant’s properties were located in Bedford, Nova Scotia—Windstone Close and Moirs Mill. The respondent owned a property in Ontario—the Consecon property—and three properties in Scotland: Cleve Park and George Street in Perth, and Eden Street in Dundee. They also each had pensions and bank and investment accounts.

[8]             The appellant has appealed the trial judge’s findings in relation to her acquisition in August 2014 of a property at Spinnaker Drive in Halifax. As I will explain, the appellant used funds she had withdrawn from the respondent’s Scotiabank account for the purchase. The appellant has attacked the trial judge’s conclusion she surreptitiously withdrew a total of $200,000 from the Scotiabank account. The judge’s adverse findings against the appellant led to an unequal division of what the judge found to be matrimonial assets.

[9]             The facts relating to the parties’ relationship and the breakdown of the marriage were relevant to the trial judge’s assessment of the spousal support and property division issues. They are reviewed below as background for those grounds of appeal.

 

Issue #1 – Spousal Support

[10]         Following a review of s. 15.2 of the Divorce Act[2] and applicable legal principles from the caselaw, the trial judge concluded the appellant was not entitled to either compensatory or non-compensatory spousal support.

[11]         In assessing the appellant’s claim for spousal support, the trial judge was required by section 15.2(4) of the Divorce Act to take into account “the condition, means, needs and other circumstances of each spouse” including the length of their cohabitation and the functions performed by each during their cohabitation. He addressed spousal support for: (1) recognition of economic advantage or disadvantage arising from the marriage or its breakdown, and (2) relief of economic hardship arising from the breakdown of the marriage. These are the compensatory and non-compensatory models of spousal support.[3]

[12]         The trial judge’s spousal support determination was an exercise of discretion following his application of the law to the facts. The Supreme Court of Canada set out the policy rationale for the considerable deference afforded trial judges on appeal in family law matters:

[12]  There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.[4]

[13]         This Court has held that appellate interference in a support order occurs only where a trial judge has made an error in principle, has significantly misapprehended the evidence or made a decision that is clearly wrong.[5]        

          The Parties’ Cohabitation and Marriage

[14]         The appellant asserted she had been economically disadvantaged by the marriage. She argued for non-compensatory support on the basis of what she claimed were interdependencies in the relationship, her relocating to be with the respondent and her health issues. On appeal she argued the trial judge should have ordered compensation for the period the parties cohabited and recognized the disadvantage she experienced as a result of the marriage.

[15]         The trial judge found this to have been a short-term, non-traditional marriage. This characterization was not disputed although the appellant sought to persuade the judge there had been a four-year period of cohabitation prior to the marriage and a reconciliation following a separation in June 2015. She advanced two claims the trial judge had to address: (1) that she and the respondent were in a common law relationship from 2010 to June 2014, and (2) that the marriage in June 2014 did not end until July 25, 2016. The respondent identified a much shorter relationship and took the position that he and the appellant had been living separate and apart since June 28, 2015.

[16]         In closing submissions at trial the appellant acknowledged that the determination of the parties’ separation date is a factual analysis, dependent on the circumstances of each case.

[17]         The trial judge reached his conclusions on the basis of ample evidence about the circumstances of the parties’ relationship and its breakdown.

[18]         The appellant’s initial employment in Qatar was for a one-year contract and when it ended in June 2009 she returned to Halifax where she worked full-time from July 2009 to March 2011.

[19]         The appellant and the respondent kept in touch. The respondent made two trips to Halifax during the fall of 2009. In March or April 2010, the appellant visited the respondent in Doha and they travelled to India together for a brief holiday.

[20]         In May 2010, the respondent, who had been working in Yemen, came to Nova Scotia and resided with the appellant in the home she owned at Windstone Close. In his evidence, he described this as a decision to take an extended holiday in Canada. In the summer of 2010 he and the appellant went away on separate trips: she went to Spain and he travelled to Oregon. In September 2010 the respondent left Nova Scotia to be with his ailing father in Ontario. After his father died in March 2011, the respondent returned to Qatar after briefly visiting the appellant in Nova Scotia. They maintained contact and had seen each other during the time the respondent’s father was declining.

[21]         The appellant did not relocate to Qatar with the respondent in 2011. Starting in May 2011, the appellant worked in Northern Ontario on short-term contracts for Health Canada. During the summer of 2011 she took short visits to see the respondent in Qatar and Ontario. By the fall of 2011, she was back in Halifax where she worked under contract for Health Canada until June 2012. She then went to Doha to stay with the respondent. In late August, she and the respondent spent two weeks in Ontario at the Consecon home the respondent’s father had transferred to him shortly before he died. After a brief visit to Halifax with the appellant, the respondent returned to Qatar and the appellant accepted a short-term contract with Health Canada until December 2012.

[22]         From December 2012 until late April 2013, the appellant stayed with the respondent in his apartment in Doha. They took holidays together in Oman and Thailand. The appellant returned to Halifax in April 2013. She joined the respondent at the Consecon property in Ontario in August 2013.

[23]         In late August 2013, the appellant moved to Qatar. She and the respondent started living together in September. The appellant was on a two-year teaching contract with the College of the North Atlantic. As noted earlier, the parties married in June 2014. The appellant left Qatar in June 2015 and returned to Halifax.

[24]         The parties’ relationship was turbulent and fractious throughout. During the time the appellant claimed she was in a common law relationship with the respondent, she tried to break it off. Six weeks after their June 2014 wedding the appellant advised the respondent she wanted a divorce. It was in August 2014 that the appellant withdrew the funds from the respondent’s Scotiabank account which the trial judge found to have been done without his knowledge or consent.

[25]         The trial judge found the parties to have cohabited only from September 2013 until June 2015, when they lived together in Qatar. The trial judge further found the marriage ended on June 28, 2015, as the respondent claimed.

[26]         The parties agreed there was a separation on June 28, 2015. As the trial judge held, the appellant’s email of July 6, 2015 to the respondent confirmed this.

[27]         The subject line of the appellant’s July 6, 2015 email was “Status of things”. It said in part the following:

I am fine. I am at peace, and very happy. I will be totally honest in saying that I have not been this happy in as long as I can remember. I am not coming back to live in the Middle East, and I do not wish for our relationship to continue. I am not going to go into the many, many reasons that you will try to deconstruct being the smart ass that you are as to why the relationship is over to me. More than anything I wish to be left in peace and not harassed.

…

…DO NOT come to Halifax this summer…I am seriously DONE and don’t wish to have any contact, except to define the terms of our divorce, which needs to happen after 1 year of separation. I will use June 28^th as the first day. I will print this incase [sic] I need to contact the authorities should you show up banging at the door. Don’t do it.

I know this is not what you want to hear but I would rather be honest and hurt you than continue to pretend, which has hurt me immensely. I could not find happiness with you no matter how hard I tried and I believe with all my heart that our marriage was a mistake. Please know this, understand this, respect this, and respect my wishes. Roberta

[28]         The appellant maintained to the trial judge that the June 2015 separation was followed by a period of reconciliation between December 2015 and July 25, 2016. The respondent acknowledges they spent time together and were intimate during this period but, even though he desired it, no reconciliation occurred.

[29]         The trial judge assessed the evidence:

[64]  During the period December, 2015 to April, 2016, the parties spent significant periods of time together.

[65]  Ms. Wintrup puts the total number of days at 78 and Mr. Adams approximately 75. This time together included trips to Asia and Australia.

[66]  I accept the parties engaged in sexual relations during this period. I also accept Mr. Adams wished to reconcile with Ms. Wintrup.

[67]  Parties may live separate and apart and engage in sexual relations:[6]

[68]  Subsequent to receiving the July 6, 2015 email, Mr. Adams requested Ms. Wintrup rescind same in writing. She never did.

[69]  Pertinent to this discussion is the intention of the parties during the relevant period and not how each now chooses to delineate same period given the benefit of hindsight.

[70]  The evidence in this case leads me to the conclusion that between December, 2015 and July 25, 2016, the parties did not reconcile:

* In her initial Petition for Divorce, filed March 13, 2017, and Amended Petition for Divorce filed July 27, 2017, (Ms. Wintrup was represented by legal counsel when the Amended Petition was filed), Ms. Wintrup claimed the date of separation as June 28, 2015.

* On both her 2015 and 2016 Income Tax and Benefit returns Ms. Wintrup indicates Divorced with respect to marital status.

* The parties' communications evidenced at Exhibit 2 Vol 1 Tab 3 (I) and (K).

[71]  Even if I were to accept that December, 2015 to July 25, 2016, was a period of reconciliation, I am satisfied the legislated 90 day threshold (even within the context of the parties' relationship) was not met.

[30]         The communications referred to by the trial judge included the appellant’s emails to the respondent. On September 6, 2015, she excoriated him for talking to her daughter, adding: “I WILL divorce you because you are pathetic. Stay OUT of my life”. On March 14, 2016, she told the respondent she did not want to be “trapped in your world”. She made it plain she had found the relationship to be disappointing and unsatisfactory. On June 5, 2016, she wanted the respondent to stop messaging her, reiterating a consistent theme: “I do not wish to continue our relationship or marriage…” In a text exchange in June 2016, the appellant told the respondent she did not care to repair their broken relationship. On June 12, 2016, she admonished him to, “Move on and leave me to get on with my life”. She otherwise consistently ignored or rebuffed the respondent’s overtures.

[31]         The trial judge’s conclusion that even if there had been reconciliation between the parties it fell short of the legislated period that would have nullified the separation was a reference to s. 8(3) of the Divorce Act. It provides that a period of living separate and apart is not interrupted by a resumption of reconciliation-driven cohabitation less than ninety days. As the judge noted, even according to Ms. Wintrup, the parties’ “reconciliation” lasted only 78 days.

[32]         The trial judge’s determination there was no evidentiary basis to support cohabitation, as the appellant claimed, from May 2010 to June 28, 2015, “Even within the non-traditional context of their relationship”, is entitled to deference on appeal. The deferential standard of review also applies to the trial judge’s finding that the marriage had irrevocably broken down at the end of June 2015.

[33]         Short-term and unconventional aptly described the parties’ unsuccessful, fraught relationship.

          The Appellant’s Economic Independence

[34]         The evidence before the trial judge demonstrated the appellant’s financial self-sufficiency before, during and after the marriage. The record indicates the extent of the appellant’s economic independence and her ability to support herself using her professional qualifications and skills, including after the marriage broke down.

[35]         The trial judge did not accept the appellant’s claim that her move in 2013 to live with the respondent in Qatar “impacted her career trajectory, employment security and seniority within the Nova Scotia Health Authority” where she had worked previously. He noted the appellant had stated an intention to work in the Middle East for three years. In evidence was an email the appellant sent her estranged husband, Doug Wintrup, on October 9, 2010 indicating this as her goal.

[36]         In June 2015 the appellant had to leave Qatar as her employment there had ended, terminating her work permit and residence visa. Once back in Nova Scotia she collected Employment Insurance benefits and received pension income.

[37]         In early 2016, the appellant visited Australia where she was joined by the respondent. In October 2016 she had surgery for carpal tunnel syndrome in Nova Scotia. From Christmas 2016 to February 2017, the appellant travelled for eight weeks to Malaysia, Singapore and Thailand. She had a second carpal tunnel surgery in Nova Scotia the spring of 2017. In April 2017 she took a three-week holiday in Greece and Cyprus.

[38]         From May to December 2017 the appellant worked under contract with Health Canada. In January 2018 she took a four-week trip to Africa and climbed Mount Kilimanjaro in Tanzania. In July 2018, the Nova Scotia Health Authority hired the appellant on an eighteen-month contract dealing with long-care homes.

[39]         When the Nova Scotia Health Authority contract ended in January 2020, the appellant took a four-week vacation in Indonesia. On returning to Nova Scotia she drew Employment Insurance benefits until she obtained a casual position with the Covid team of the Health Authority in May 2020. This allowed her to begin contributing to the pension plan again.

[40]         The trial judge noted the appellant’s annual income for 2017 through 2020 from all sources was: $37,872 (2017); $69, 980 (2018); $118,042 (2019); and approximately $52,000 from employment income with the Covid team of the Nova Scotia Health Authority during May to December 2020. He made the following findings of fact:

[92]  Ms. Wintrup is a Registered Nurse with considerable experience. She was not dependent on Mr. Adams during their relationship and marriage and has remained self-sufficient subsequent to separation. She owns three rental properties in the Halifax area. The evidence substantiates her ownership of an RRSP of significant value, nine accounts (bank accounts and investment accounts) of varying values (some containing significant funds), a LIRA and a modest pension from the University of Calgary.

[93]  Ms. Wintrup remains capable of being employed in her field and has not demonstrated any economic (or otherwise) disadvantage as a result of the breakdown of her relationship and marriage to Mr. Adams. Her lifestyle has not been negatively impacted.

[41]         The trial judge found the appellant had not established a claim for compensatory spousal support.

[42]         For her non-compensatory support claim the appellant relied on post-separation medical conditions affecting her fine motor skills—the bilateral carpal tunnel syndrome and osteoarthritis. She testified she had been unable to work while she healed from the surgery.

[43]         The appellant’s medical conditions were unrelated to the marriage breakdown and unforeseeable by the parties. They offered no basis for grounding an entitlement to support.

[44]         The trial judge’s finding there was insufficient evidence to warrant non-compensatory support is unassailable. The parties’ brief relationship and the fact they did not have an integrated economic union was inconsistent with non-compensatory spousal support.[7]

 

Conclusion

[45]         The trial judge’s rejection of the appellant’s claims for spousal support was an exercise of his discretion that was well supported in the record. He applied the correct legal principles. I would dismiss this ground of appeal.

Issue #2 – The Classification and Division of Property

[46]         The appellant sought an equal division of assets pursuant to s. 12 of the Matrimonial Property Act.[8] The respondent asked for a s. 13 unequal division. The following chart indicates their positions on the proper classification of the seven properties—the Consecon property, the three Scottish properties, and the three Nova Scotia properties.

Property	Owned By	Ms. Wintrup	Mr. Adams
Consecon	Mr. Adams	Marimonial Home	Inheritance
Cleve Park	Mr. Adams	Matrimonial Asset	Settlement
George Street	Mr. Adams	Business Asset	Business Asset
Eden Street	Mr. Adams	Matrimonial Asset	Business Asset
Spinnaker	Ms. Wintrup	Matimonial Asset	Matrimonial Asset
Windstone	Ms. Wintrup	Business Asset	Matrimonial Asset
Moirs Mill	Ms. Wintrup	Business Asset	Matrimonial Asset

[47]         In classifying the properties, the trial judge made the following findings:

Consecon Property

[108]  The Consecon Property - This property is located at 821 Stinson Block Road, Consecon, Ontario. Mr. Adams inherited this property from his late father, Bill Adams, who passed away on March 3, 2011.

[109]  Ms. Wintrup maintains this property should be classified as a matrimonial home and therefore, subject to an equal division.

[110]  The parties never resided at the Consecon property. There were short visits (two weeks being the longest visit) to the property in the years 2010 through and including 2014. The property was used for vacation purposes and intermittently occupied by tenants.

[111]  Ms. Wintrup assisted with the tenants by arranging some of the rental aspects and utilities. She also assisted with the clean up and upkeep of the property during some of the visits. She stored some personal items at the property.

…

[113]  Mr. Adams takes the position that the Consecon property is an inheritance and therefore, exempt from division. This property was used (albeit minimally) for matrimonial purposes.

[114]  I am satisfied the Consecon property meets the definition of a matrimonial asset as contemplated by the case law. This property was not a matrimonial home.

Cleve Park

[115]  The Cleve Park property - This property is located at 18 Cleve Park, Perth, Scotland. It is the former matrimonial home of Mr. Adams and his first wife, Carla Assenti. They were divorced in 2013. As per the divorce agreement, Mr. Adams paid 1,200 GBP per month for the upkeep of the home. Ms. Assenti remained in the home until 2015/2016. It was sold on July 28, 2016.

[116]   Mr. Adams received 80,849.59 GBP from the proceeds of the sale.

[117]  Ms. Wintrup argues this property is a matrimonial asset. She contends funds from the parties' joint account in Qatar was used to benefit this property. Mr. Adams argues the payments made with respect to this property (mortgage payments) were required by his divorce settlement with Ms. Assenti.

[118]  Ms. Wintrup never visited nor made any financial contribution to this property. Mr. Adams argues an exception as per s. 4(1)(a) of the Matrimonial Property Act on the basis that the funds derived from the sale were as a result of a prior settlement.

[119]  This property should not be categorized as a matrimonial asset as a comingling of funds by parties cohabitating is not sufficient to merit categorization as a matrimonial asset given the method of acquisition and settlement agreement.

[120]   I am satisfied this property is exempt from division as per s. 4(1)(a) of the Matrimonial Property Act. As such, the funds from sale of this property are not subject to division.

George Street      

[121]  The George Street property - This property is located at 30E George St., Perth, Scotland. Ms. Wintrup concedes this property is a business asset and not subject to division.

 

Eden Street

[122]  The Eden Street property - This property is located at 4H Eden Street, Dundee, Scotland. Ms. Wintrup argues this property is a matrimonial asset. Mr. Adams takes the position it is a business asset and exempt from division.

[123]  This property is not used to generate income. Based on the evidence, it appears Mr. Adams uses this residence as a U.K. address and for storage. As guided by the case law, I classify this property as a matrimonial asset.

Spinnaker Drive

[124]   The Spinnaker property - This property is located at 225 Spinnaker Drive, Halifax, Nova Scotia.

[125]    It is utilized by Ms. Wintrup as a rental property. It is a matrimonial asset.

[126]    Significant funds from a Scotiabank account owned by Mr. Adams was used for the down-payment on this property.        

Windstone Close

[127]  The Windstone Close property - This property is located at 20 Windstone Close, Bedford, Nova Scotia. Ms. Wintrup's position is that this property is a business asset. Mr. Adams argues it should be categorized as a matrimonial asset. Mr. Adams resided with Ms. Wintrup at this property for a short period in 2010. He assisted with minor tasks. He did not pay rent. There is agreement he contributed toward expenses. Ms. Wintrup has since used this property as a rental property.

[128]  I conclude this property should be classified as a matrimonial asset.

Moirs Mills

[129]  The Moirs Mills property - This property is located at 96 Moirs Mill Road, Bedford, Nova Scotia. Mr. Adams' position is that it is a matrimonial asset. Ms. Wintrup maintains it is a rental property and as such, a business asset. Mr. Adams had a brief visit to this residence in 2012, during which he helped with minor repairs to the home. Ms. Wintrup resided in this residence from June, 2011 to June, 2012. I classify this property as a matrimonial asset.

[48]         The appellant concedes the classification and division of property is subject to a highly deferential standard of review on appeal.

[49]         In classifying the assets each party owned during their marriage, the trial judge took note of all the relevant provisions of the Matrimonial Property Act. He referred to the definition of “business assets” under s. 2 of the Act. He identified relevant exemptions to what the Act defines as matrimonial assets. Applicable to this case were business assets (s. 4(1)(e)), and “settlements received by one spouse from a person other than the other spouse…” (s. 4(1)(a)) – the funds Mr. Adams received on the sale of the Cleve Park matrimonial home as a divorce settlement from his first marriage. The trial judge reviewed sections 12 and 13 of the Act. He found “considerable guidance” in this Court’s decision in Roberts v. Shotton.[9]

[50]         Noting the 12-month marriage in Roberts v. Shotton, the trial judge excerpted quotes included in that decision following a recital of the Matrimonial Property Act’s purpose:

[16]      The Act was not, however, implemented as a tool to arbitrarily redistribute or equalize wealth between married persons. I agree with the comment of Davison, J. in Zimmer v. Zimmer, (1989), 90 N.S.R. (2d) 243 (N.S.S.C.T.D.) at p.253:

The legislature did not intend for the Matrimonial Property Act to be used as a vehicle for one party to profit by entering into a short marital relationship and departing with a profit by reason of the contribution made to the marriage by his or her spouse. . .

And that of Baker, J. in Jensen v. Jensen, [1994] B.C.J. 2603 (B.C.S.C.) at p.29:

In my view, the authorities establish that the division of assets, following the breakdown of a marriage of very short duration between two mature adults, should not result in a considerable financial windfall to one of the parties. Marriage is not a legal institution created for the redistribution of wealth.

[51]         Taking account of the parties’ short period of cohabitation and the date and manner of the acquisition of the assets, with the exception of the Spinnaker Drive property, the trial judge dealt with the assets owned by the parties by leaving them in the hands of the party who owned them originally:

Pursuant to Section 13 (d) and (e) of the Matrimonial Property Act Ms. Wintrup shall retain the Moirs Mills property, the Windstone property, pension with the University of Calgary, LIRA (RBC)(V.G. Hospital Pension), RRSP and the entirety of her accounts (banking and investing) in her sole interest.

Pursuant to Section 13 (d) and (e) of the Matrimonial Property Act Mr. Adams shall retain the Consecon property, the Eden Street property, British Military Pension and the entirety of his accounts (banking and investing) in his sole interest.[10]

[52]         As I noted earlier, the George Street property and the funds from the sale of the Cleve Park property were exempt from division as a business asset and a divorce settlement, respectively.

[53]         I will briefly address two errors in the trial judge’s reasons. I find them both to be inconsequential.

[54]         The trial judge referred to the respondent inheriting the Consecon property from his father. This was incorrect. The evidence at trial established the Consecon property had been transferred to the respondent before his father died. It was not inherited. Despite the judge’s error he did not treat the Consecon property as an inheritance and therefore exempt from division under s. 4(1)(a) of the Act. He classified it as a matrimonial asset.

[55]         The trial judge mistakenly viewed the parties as having a joint account in Qatar. This error emerges towards the end of the judge’s reasons where he states that other than “…the Qatari joint account, the parties’ finances were not integrated”.[11] When classifying the parties’ property, he had noted the appellant argued that funds “from the parties’ joint account in Qatar” were used to make mortgage and upkeep payments for the Cleve Park property.[12]

[56]         The parties did not hold a joint account in Qatar. The respondent used his own money to pay for expenses associated with the Cleve Park property as required by the divorce agreement with his first wife. The trial judge’s “joint account in Qatar” error does not undermine his finding that the Cleve Park sale proceeds were exempt from classification as a matrimonial asset. He was correct to have found they fell under s. 4(1)(a) of the Matrimonial Property Act as a settlement of the respondent’s divorce.

Spinnaker Drive and the Funds Taken from the Respondent’s Scotiabank Account

[57]         The trial judge’s ultimate determination on the division of property was an unequal division in favour of the respondent. This outcome was driven by his conclusions about the funds the appellant took from the respondent’s Scotiabank account and her acquisition of the Spinnaker Drive property.

[58]         The parties had one joint account—a Scotiabank account which the respondent used to pay expenses associated with the Consecon property. The respondent maintained he was unaware that, through an error made by the bank, the appellant had been granted access to all his Scotiabank accounts. Notably, this included an account the respondent held jointly with his sister that contained money he had inherited from his father (the “inheritance account”). The estate had been settled in March 2014 and the respondent received over $200,000 which he left in the inheritance account.

[59]         The trial judge noted the following evidence relating to the Scotiabank account and the purchase of Spinnaker Drive:

•        On August 7, 2014, the appellant withdrew $80,000 from the inheritance account. She deposited the money into the parties’ joint Scotiabank account.

•        On August 9, 2014, the appellant made two further withdrawals from the inheritance account totaling $120,000. She deposited those funds into the joint Scotiabank account.

•        That same day, the appellant withdrew $200,000 from the parties’ joint account.

•        On August 20, 2014, the appellant, who in the previous three days had raised the prospect of a house purchase with the respondent, sent him photographs of the Spinnaker Drive property.

•        On August 22, 2014, the appellant informed the respondent that he was the “proud half owner” of a new house.

•        The appellant used $80,000 from the inheritance account as the downpayment for Spinnaker Drive. The fate of the remaining $120,000 which the appellant claimed to have invested in the stock market could not be determined “with an acceptable degree of certainty”.[13]

•        The respondent deposed in an affidavit for trial that he believed the downpayment for the house had come from the appellant’s savings over the previous eleven months. He further said: “At no time during our conversations leading up to the purchase did she ask me to contribute financially to the purchase nor did I give her permissions [sic] to use any funds in any of my accounts for this purpose”.

[60]         The appellant offered a different version of events. She testified that on August 7, 2014, while they were together in Ontario, she and the respondent had transferred $80,000 from the inheritance account into their joint account. She said the respondent wanted her to invest the funds she subsequently withdrew. She acknowledged in cross-examination that she transferred all $200,000 she had withdrawn from the inheritance account first into the parties’ joint account and then into an account solely in her name at the Royal Bank of Canada.

[61]         The trial judge rejected the appellant’s evidence about the respondent’s knowledge and consent. He found that on August 7, 2014, the appellant viewed the marriage to be over and had a motive to deceive the respondent. He found the respondent’s evidence about the parties’ relationship in August 2014 and the withdrawal of the $200,000 from the inheritance account to be “credible and logical”.[14]

[62]         The trial judge based his conclusions on communications between the parties, in person on August 7, 2014, and by Skype once the respondent was back in Qatar and the appellant was in Halifax. The communications occurred over the same period of time the appellant was withdrawing money from the inheritance account.

[63]         The trial judge accepted the respondent’s evidence that on August 7, 2014, as he and the appellant were on their way from the Consecon property to the airport—he was returning to Qatar and the appellant was headed for Halifax—the appellant told him she wanted a divorce. The respondent was “flabbergasted”—the marriage had occurred less than two months earlier. The appellant followed this up with Skype messages to the respondent in the period of August 9 to August 15, 2014, in which she indicated she wanted him to vacate the Qatar apartment with all his belongings, stating, “as far as I’m concerned, we are over”. The respondent later learned that two weeks after the marriage, the appellant had contacted the British Columbia Family Court inquiring about an annulment.

[64]         The trial judge concluded:

[151]  I am satisfied Mr. Adams did not provide Ms. Wintrup with his consent to withdraw $200,000 from the account held jointly with his father and sister and also that he later believed the entire amount was invested in the Spinnaker property.

[65]         Earlier in his reasons the trial judge had reviewed s. 13 of the Matrimonial Property Act which permits the unequal division of matrimonial assets where an equal division “would be unfair or unconscionable”. He noted the principles regarding matrimonial asset division delineated by Forgeron, J. in Gouthro v. Gouthro[15] including that “[t]he determination of whether an equal division will produce an unfair or unconscionable result is a fact-based decision”. Justice Moreau dealt with the Spinnaker Drive property as follows:

[153]  As regards the Spinnaker property, I find Mr. Adams has substantiated a claim for an unequal division in his favour. Ms. Wintrup withdrew the funds used for the down-payment from Mr. Adams' Scotiabank account held jointly with his father and sister without his consent.

[154]  But for Ms. Wintrup's surreptitious actions, the Spinnaker property may not be a factor in this case. Mr. Adams may not have agreed to make that investment.

[155]  Based on the sum of the evidence, it is not possible to determine with an acceptable degree of certainty the fate of the remaining $120,000. Ms. Wintrup maintains it was invested in the stock market.

[156]  I am satisfied it would be unfair or unconscionable for Ms. Wintrup to retain one half of the Spinnaker property. I find Mr. Adams is entitled to $268,019 ($200,000 + $68,019, which represents interest at 5% per annum compounded annually since 2014) from Ms. Wintrup with respect to the Spinnaker property. According to Ms. Wintrup's Statement of Property sworn November 20, 2019, 225 Spinnaker was valued at $360,000 as per Mr. Malay's appraisal. The amount due Mr. Adams is approximately 74% of the stated value.

[66]         The trial judge’s determination that the respondent was entitled to a return of the $200,000 in the form of an unequal division of the Spinnaker Drive property is entitled to deference.

          The $68,019 Award to the Respondent

[67]         The final issue to be examined in relation to the trial judge’s division of assets is the $68,019 he awarded to the respondent which he described as “interest at 5% per annum compounded annually since 2014”.[16]

[68]         In closing written submissions the respondent indicated he was looking for “interest” on the money the appellant removed from the inheritance account:

Mr. Adams seeks interest in the among of $68,019 on the $200,000, which represents 5 per cent per annum compounded annually since 2014, representing the lost investment income he could have earned had Ms. Wintrup not taken such funds…

[69]         In the appellant’s submission, the trial judge had no jurisdiction to award what was effectively prejudgment interest on the $200,000.

[70]         The respondent says the $68,019 was a feature of the trial judge’s order for an unequal division of property, and not prejudgment interest.

[71]         It is necessary to determine what the trial judge ordered: was the $68,019 prejudgment interest or was it part of the order for an unequal division of the matrimonial assets?

[72]         Pursuant to s. 41(i) of  the Judicature Act[17], prejudgment interest is awarded on debts and damages. There is no provision in the Matrimonial Property Act for prejudgment interest. The legislation provides for property division. Orders made under it are not orders relating to debt or damages. Where, as here, the claim is for a division of matrimonial assets and not for debt or damages, there is no jurisdiction to order prejudgment interest.[18] The trial judge had no authority to order prejudgment interest but he did have the discretion to make an unequal division of the assets. Was the $68,019 part of that unequal division?

[73]         The appellant’s covert withdrawal from the inheritance account led to the trial judge finding it would be unfair or unconscionable for her to retain an equal share of the Spinnaker Drive property. He ordered the appellant to pay $268,019 to the respondent as the remedy.

[74]         It is apparent from the trial judge’s reasons that he based the award on the “manner of acquisition” by the appellant of Spinnaker Drive, even though it is not explicitly stated. He clearly recognized the respondent had been fraudulently deprived of his money since August 2014. Including $68,019 in the award was intended to rebalance the inequity and restore the respondent to the position he would have been in had the appellant not plundered his inheritance account.

[75]         The appellant’s actions denied the respondent the opportunity of obtaining even some modest growth from his inheritance. The evidence established he viewed this money quite differently from funds he gave the appellant to invest for their joint benefit:

…That money was part of something that’s core value to me. That money was my inheritance. I wasn’t going to gamble with it. I would put it in a mutual fund, but that’s about all I was going to do with it.

[76]         I am satisfied the trial judge was not awarding prejudgment interest on the $200,000 but was engaged in a legitimate exercise of his discretion to unequally divide Spinnaker Drive in order to avoid an unjust result. While it would have been preferable for the trial judge not to have adopted the terminology used by the respondent in final submissions, describing the $68,019 as “interest”, his intent was clear. The trial judge was explicit the $268,019 was an unequal division of the Spinnaker Drive property:

[156]  I am satisfied it would be unfair or unconscionable for Ms. Wintrup to retain one half of the Spinnaker property. I find Mr. Adams is entitled to $268,019 ($200,000 + $68,019, which represents interest at 5% per annum compounded annually since 2014) from Ms. Wintrup with respect to the Spinnaker property. According to Ms. Wintrup's Statement of Property sworn November 20, 2019, 225 Spinnaker was valued at $360,000 as per Mr. Malay's appraisal. The amount due Mr. Adams is approximately 74% of the stated value.

                                                                                                [emphasis added]

[77]         The trial judge recognized that simply ordering the appellant to pay the respondent $200,000 would not have been fair. Ordering $268,019 to remedy what would otherwise have been an inequity was within the trial judge’s discretion and subject to deference on appeal.[19]

          Conclusion

[78]         The trial judge’s unfavourable credibility findings in relation to the appellant and his unequal division of the matrimonial property are subject to a high degree of appellate deference. I find no basis to disturb his conclusions.

[79]         I would dismiss the classification and division of property ground of appeal.

Issue #3 – Property Valuation

[80]         The trial judge did not set out valuations for the matrimonial assets. The appellant says that makes it impossible to know if his decision on the division of the assets “makes sense”.

[81]         In the circumstances of this case, the trial judge did not need to undertake a valuation of the assets. It is apparent the trial judge’s decision to order an unequal division of the matrimonial assets was made in the context of this brief marriage and the property holdings the parties brought with them into the relationship. In the circumstances of this case, he was entitled to exercise his discretion without resorting to valuations.

[82]         I would dismiss this ground of appeal.

Issue #4 - Unjust Enrichment/Constructive Trust

[83]         The appellant amended her Petition for Divorce twice. In the second amendment dated April 8, 2019, she made a claim for “monetary damages for unjust enrichment of the respondent”. Her claim was aimed at the Consecon property owned by the respondent. She brought the unjust enrichment claim in addition to seeking to have Consecon classified as a matrimonial home and divided equally. She also sought damages for unjust enrichment in relation to the Cleve Street and George Street properties in Perth.

[84]         The appellant claimed to have contributed significantly to the Consecon property—maintenance of the property, arranging rentals, dealing with tenant inquiries and handling bills. The appellant based her unjust enrichment claim in relation to the respondent’s Scottish properties on payments from the respondent’s Qatari accounts during the period of 2013-2016, during which the appellant said the parties were in a common law relationship and then a marriage.

[85]         The trial judge made short work of the unjust enrichment claims. After dealing with the Consecon property and the Perth properties under the Matrimonial Property Act he held:

[160]    I am satisfied that the doctrine of unjust enrichment is not applicable in this case. Case authorities suggests this doctrine should be utilized in cases involving unmarried persons.

[86]         Appellate review of the trial judge’s dismissal of the appellant’s unjust enrichment claims looks at whether he was correct in law to do so. I am satisfied he was.

[87]         The Matrimonial Property Act has a broad, remedial focus. Its Preamble identifies the need “to recognize the contribution made to a marriage by each spouse.” It seeks to support that recognition by providing “in law for the orderly and equitable settlement of the affairs of the spouses upon the termination of a marriage relationship”.[20] The Act’s presumption of an equal division of matrimonial assets affords a low threshold for obtaining relief.

[88]         The trial judge resolved the parties’ division of assets issues under the Act. This was the correct route to have taken. Having found it appropriate to apply the Act, the trial judge did not need to engage in any further analysis of the common law remedy of unjust enrichment.

[89]         The appellant has criticized the trial judge for suggesting that only unmarried couples can obtain an unjust enrichment remedy. This criticism is without merit. The trial judge did not say that a claim of unjust enrichment can never be made out where parties have been married: he simply indicated it was not appropriate for determining the division of assets in this case. This was a correct conclusion.

[90]         I would dismiss this ground of appeal.

Issue #5 – Permitting the Respondent to Appear by Video-conference

[91]         The divorce trial ran from November 24 to November 27, 2020. The Covid-19 global pandemic had been upending court proceedings and international travel since it was officially identified eight months earlier. The respondent was living and working in Saudi Arabia. At a pre-trial conference in September 2020, counsel on his behalf requested an adjournment of the trial because of travel restrictions due to the pandemic. The appellant opposed the adjournment.

[92]         The trial judge noted that the respondent’s adjournment request was denied at a pre-trial conference on October 1, 2020. On October 27, 2020, the respondent’s counsel filed a written request to have the respondent appear for trial from Saudi Arabia by video conference without a commissioner. The appellant was opposed.

[93]         By Order issued October 30, 2020, the trial judge allowed the respondent’s remote attendance without a commissioner. The recitals in the Order indicate the judge considered:

•        Civil Procedure Rules 51.08 and 56.

•        The Nova Scotia Supreme Court (Family Division) Notice #11 to the Bar, Atlantic Bubble – October 9, 2020.

•        The unique context and circumstances of the global Covid-19 pandemic and “attendant guidelines and restrictions both in the Kingdom of Saudi Arabia and Province of Nova Scotia”.

[94]         The trial judge set out in the Merits decision his reasons for permitting the respondent’s attendance at the trial by video without a commissioner. The trial judge said:

[36]  In addition, in order to leave and re-enter Saudi Arabia, he would have had to arrange for private Covid-19 tests.  In contemplating Mr. Adams' request to appear by video conference without a commissioner, I weighed the following factors; the customary mandatory requirement that a litigant be present in person so that the opposing party have the opportunity to pose questions (if they so choose) and also that the trier of fact have the opportunity to observe the litigant during that process, versus the very serious health concerns brought about by the prospect of international travel during the global pandemic. In travelling from Saudi Arabia to Halifax, Mr. Adams would have had to transfer flights in one or two European cities and the Canadian cities of Toronto or Montreal. Upon arrival in Nova Scotia he would have been subject to a mandatory fourteen day self-isolation period before being allowed to move about in the general public.

[35]  Mr. Adams is not from Nova Scotia and so securing accommodations in which to self-isolate proved problematic.

[36]  In addition, in order to leave and re-enter Saudi Arabia, he would have had to arrange for private Covid-19 tests.

[95]         As the trial judge noted, the Civil Procedure Rules permit testimony by video conference (Rule 51.08) and the obtaining of evidence from a witness who does not personally attend court by transmission of the evidence without a commissioner via video conference while court is in session (Rule 56.01(2)(c)).

[96]         The trial judge recited what the Rules require:

[40]      Civil Procedure Rule 56.08 states:

56.08 (1) An order for transmission without a commissioner may be made in writing or orally, before or during the trial or hearing in which the evidence is to be received.

(2)        The order must include a requirement for the administration of an oath or affirmation that accords with the laws of the place from which the evidence is to be transmitted.

(3)        The judge who presides at the trial or hearing must be satisfied on each of the following:

(a)        the required oath or affirmation is administered;

(b)        the witness is in a room with doors closed;

(c)        no one other than the witness is in the room, except as permitted by the judge;

(d)       the witness agrees to comply with all directions of the court, not to communicate with others during examination unless the judge permits, not to look at a note or other thing containing information unless the judge permits, and to report to the judge anything unusual that happens in the room.

[97]         In addition to reviewing statutory sources of jurisdiction that govern the operation of the Nova Scotia Supreme Court, such as found in the Judicature Act[21], the trial judge commented on the inherent jurisdiction of the court to control its own processes.[22] He cited this Court’s statement in Goodwin v. Rodgers that inherent jurisdiction is to be used “where it is just and equitable to do so”.[23] He went on to review the relevant provisions of the Canada Evidence Act and Nova Scotia Evidence Act on the taking of evidence by solemn affirmation.[24] He concluded his analysis by stating:

[45]  The Legislation and inherent jurisdiction creates and provides the Supreme Court (Family Division) with a broad power to regulate its own practice and procedure.

[46]  In deciding whether to grant Mr. Adams' request to appear for trial by video conference without a commissioner, significant consideration was given to the Supreme Court of Nova Scotia (Family Division) Notice # 11 to Bar issued on October 9, 2020.

[47]  Prior to hearing Mr. Adams' evidence I was satisfied of the following:

 a.        that the required oath or affirmation would be properly administered;

 b.        that Mr. Adams was in a room with the door(s) closed;

 c.        that no other person was in the same room in which Mr. Adams was present to provide his evidence; and

 d.        Mr. Adams agreed to comply with all directions provided by this Court, including but not limited to communication with others during examination, not to look at a note or other things containing information and to report to me anything unusual happening in the room he was in.

[48]  During the entirety of this four-day trial Mr. Adams appeared on screen as if physically present in the courtroom.

[49]  There were no technological glitches (save for a minor connection issue on one occasion, which was immediately rectified), which would question the solemnity of the proceeding.

[50]  The global pandemic is an uncommon circumstance and given its nature, requires unique and creative procedures (Notice to Bar # 11) to ensure the health and safety of the public, including court staff and the judiciary while maintaining the ability to keep our courts functioning in a proficient manner.

[51]  The inherent jurisdiction of the Court and broad powers imposed by the legislation enables procedures such as appearance by video conference for trial in the manner as occasioned in this case.

[52]  I am satisfied that during this trial all Court procedures were adhered to and Mr. Adams' appearance by video conference without a commissioner did not compromise nor affect the Court's jurisdiction nor the fairness of the proceeding.

[98]         The appellant has complained the trial judge’s decision to allow the respondent to appear for the trial by video from Saudi Arabia without a commissioner failed to follow the requirements of the Civil Procedure Rules and led to procedural unfairness. The appellant says the trial judge neglected to include in his order the provision in s. 56.08(2) of the Rules that: “The order must include a requirement for the administration of an oath or affirmation that accords with the laws of the place from which the evidence is to be transmitted”.

[99]         The appellant also says the trial judge failed to acknowledge that attendance by a party in court was an exception to the Directives issued under the Health Protection Act,[25] in the Supreme Court of Nova Scotia (Family Division)’s Notice #11 to the Bar of October 9, 2020.[26]

[100]    Notice #11 provided that a party to a proceeding could enter Nova Scotia for participation in a legal proceeding. The trial judge did not note this, but his description of the respondent facing a mandatory fourteen-day self-isolation upon entry to Nova Scotia “before being allowed to move about in the general public” was correct. The Public Health Order in place at the time—provisions of which are contained in Notice #11—required a party to a legal proceeding to self-isolate/self-quarantine “for the period they are in Nova Scotia other than when they are in court”. Notice #11 had this to say about that requirement:

While the Unified Family Court and the provincial Family Court may exempt persons from the requirement to self-quarantine, the Unified Family Court and the provincial Family Court have chosen not to do so, absent compelling circumstances as determined by the presiding judge in consultation with the Associate Chief Justice of the Family Division of the Supreme Court.

[101]    The trial judge appropriately recognized the onerous conditions the respondent would have faced had he been required to travel from Saudi Arabia to attend the divorce trial in person.

[102]    The trial judge’s order issued October 30, 2020 did not include a recital in accordance with Civil Procedure Rule 56.08(2) that the administration of an oath or affirmation accords with the laws of Saudi Arabia. In light of how careful and thorough the trial judge was otherwise in his assessment of the factors structuring his discretion, this omission is of no significance.

[103]    The appellant also attacked the validity of the respondent’s evidence on the basis the transcript of the trial does not reveal any oath or affirmation being administered to the respondent when he testified on November 26 and 27, 2020. The transcript is silent but the record is not.

[104]    The transcript indicates the trial judge had the following exchange with the respondent at the start of his direct examination on November 26^th:

            The Court:     Mr. Adams, can you hear me?

            Mr. Adams:   Yes, sir. Yes, I can.

            The Court:     Okay. Before you take the oath, I just wanted to confirm you are in a room with all the doors closed.

            Mr. Adams:    Yes, My Lord, I’m in a room with no one else here, and the doors are closed.

            The Court:     Okay. And you agree to continue to comply with my directions.

            Mr. Adams: Yes, I do, My Lord.

            The Court:     Okay. Thank you.

[105]    The transcript then indicates: “Mr. Bradley Guy Adams, (Affirmed).”

[106]    The same inquiries were undertaken by the trial judge when the respondent’s testimony continued on November 27^th. Following the exchange, the transcript notes: “Bradley Guy Adams, (Previously affirmed).

[107]    I have listened to the court recording from the start of the respondent’s evidence on November 26^th, 2020. The court clerk audibly asks the respondent to solemnly affirm, which he does. This is simply not reflected in the typed transcript.

[108]    The appellant’s objections have no merit. The trial judge was entitled to determine how best to conduct the trial proceedings. He exercised his discretion to permit the trial to proceed as scheduled and in a manner that avoided placing an onerous burden on the respondent during an unprecedented global pandemic. The appellant did not object to the process undertaken for the respondent’s testimony. By way of solemn affirmation the respondent pledged to give truthful evidence. The appellant’s counsel was unimpeded in his extensive cross-examination.

[109]    The appellant has failed to establish any basis for a finding of procedural unfairness or reversible error. I would dismiss this ground of appeal and the appeal of the Merits decision.

Costs Appeal

[110]    In a Costs Order issued on January 26, 2022, the trial judge ordered the appellant to pay the respondent costs of $55,000 within 90 days of the issuing of the Costs Order.[27]

[111]    The appellant had proposed the parties each bear their own costs or in the alternative, that costs should be awarded according to Tariff “A” under the Civil Procedure Rules rather than a lump sum. The Tariff amount proposed by the appellant was $24,750.

[112]    The respondent sought a lump sum costs award of $84,919, arguing that costs calculated under the Tariff would not adequately compensate him, the successful party. He noted his legal fees totalled $96,611.24.

[113]    Both parties offered a rationale for their respective positions.

[114]    The trial judge made the $55,000 lump sum costs award on the basis of finding:

•     The trial took four days with extensive pre- and post-trial filings and “several voluminous exhibits”.

•     The respondent was the successful party on the issues of spousal support, the money surreptitiously taken by the appellant from the inheritance account, and the date of separation.

•     The appellant failed to articulate the required “very good reason”[28] for the parties bearing their own costs or a reason to support the suggestion that a costs award was inappropriate.

•     Awarding costs is at the court’s discretion.

•     An award of costs calculated in accordance with the Tariff would not do justice between the parties.

[115]    The trial judge indicated he had “reviewed Civil Procedure Rule 77[29] and the case law referenced by each party” and “considered the arguments submitted”.[30]  He concluded his reasons:

[17]      I am satisfied that the amount as ordered does justice between the parties when considering, but not limited to the following:

•         The extent of the proceedings and fees involved;

•         The monetary value of the amount in dispute;

•         The pre-trial conduct of the parties which affected the extent and expense of the proceeding;

•         Ms. Wintrup’s withdrawal of her consent to participate in three scheduled settlement conferences;

•         The offer to settle made by Mr. Adams; and

•         The success realized by Mr. Adams.

[116]    The appellant raised six grounds of appeal in her factum, a distilling of the eighteen grounds of appeal in her Notice of Application for Leave to Appeal and Notice of Appeal. She indicated she has paid the costs and was seeking to have the award either reversed or lowered.

[117]    In her factum the appellant sets out the errors she alleges the trial judge committed:

          (1)     Failure to consider the respondent’s actions with respect to the trial process.

          (2)     Failure to calculate the tariff amount and departing from the tariff.

          (3)     Misapprehension of the facts surrounding the appellant’s actions in relation to the settlement conferences.

          (4)     Failure to consider what the respondent’s expenses were with no consideration of his pre-trial conduct.

          (5)     Consideration of the settlement offers when determining costs.

          (6)     Ordering the costs to be paid in sixty days. (I note this is an error as the trial judge ordered the costs to be paid in 90 days.)

          Standard of Review

[118]    A trial judge’s determination of costs is highly discretionary. It attracts significant deference on appeal. This Court will only intervene “where satisfied the hearing judge applied wrong principles of law or the decision is so clearly wrong as to amount to an injustice”.[31]         

          Analysis

[119]    The trial judge’s reasons on costs were economical. I will also be economical in dealing with the appellant’s grounds which have not persuaded me appellate intervention is justified.

          Issues #1 and #4 –Failure to Consider the Conduct of the Respondent

[120]    The appellant says the respondent’s actions prior to trial (such as, failing to answer interrogatories; late or incomplete disclosure) and during the trial (unnecessary cross-examination of a property appraiser where the trial judge accepted the valuation for the properties) created delay and increased the length of the proceedings. Civil Procedure Rule 77.07 indicates these considerations should be taken into account in awarding costs.

[121]    The trial judge was well aware of the conduct of both parties over the four years between the appellant’s original Petition for Divorce and the divorce trial. There was no requirement for him to provide a detailed analysis of how he factored  their conduct into his assessment of an appropriate costs award.  

 

          Issue #2 – Failure to Calculate the Tariff/Departing from the Tariff

[122]    The trial judge had the Tariff amount proposed by the appellant—$24,750. He concluded it would not do justice between the parties. As a result, he decided on a lump sum. He was entitled to depart from the Tariff on this basis. As this Court held in Armoyan v. Armoyan, “The basic principle is that a costs award should afford substantial contribution to the party’s reasonable fees and expenses…”[32] Armoyan also stands for the principle that: “The propriety of a lump sum award may be tested by comparing the proposed tariff award to the actual legal fees and expenses”.[33] The respondent indicated his legals fees totaled nearly $97,000.

[123]    The appellant argues the “amount involved” in this case for calculating the Tariff should be limited to the $200,000 she withdrew from the inheritance account. Using this metric the appellant says the trial judge should have been looking at a costs range of $20,563 to $28,938.  

[124]    This is not a tenable position. There was no dispute between the parties that the case involved complex issues, some of which were non-monetary, such as the date of separation. The trial judge acknowledged the complexity of the case and properly took it into account in determining a lump sum was necessary to do justice between the parties.

Issue #3 – Misapprehension of the Facts re: the Appellant’s Conduct in relation to the Settlement Conferences

[125]    There were four settlement conferences scheduled in this matter: November 5, 2018; November 5, 2019, April, 1, 2020; and November 18, 2020. Only the November 18, 2020 settlement conference went ahead. No settlement was achieved.

[126]    The trial judge stated in the Merits decision that the settlement conference scheduled for November 5, 2018 was adjourned at the appellant’s request. The next settlement conference was set for November 5, 2019. On October 29, 2019 the appellant withdrew her consent to participate. The parties were given a new date of April 1, 2020. On November 27, 2019 the appellant withdrew her consent to participate on April 1, 2020.

[127]    The appellant did participate in the November 18, 2020 settlement conference. Given the conclusions reached by the trial judge on a number of issues, participation by the appellant in the earlier settlement conferences, well before the trial, could have narrowed what had to be litigated and reduced the amount of time consumed by these proceedings.

[128]    The trial judge did not misapprehend the facts: the appellant chose not to participate in three of four scheduled settlement conferences. He was entitled to take that into account in determining an appropriate award of costs.

          Issue #5 – Consideration of Settlement Offers

[129]    The appellant has criticized the trial judge for “failing to properly assess settlement offers”.[34] She is apparently referring to the trial judge’s conclusion that in awarding costs of $55,000 he considered “the offer to settle made by Mr. Adams…”[35]

[130]    The appellant says the offer the trial judge took into account was contained in an October 25, 2020 email from the respondent’s counsel to her counsel in which the following was said:

I have spoken to Brad and he continues to be willing to participate in a settlement conference, and I continue to believe it would be helpful for both parties to have the perspective of a judge without the cost of a trial. For now, his position remains firm that Ms. Wintrup must pay him back the funds removed from his inheritance bank account ($200,000) as well as the car loan ($30,000). He will forgive the other investment funds that he has provided to her over the years, which he understood she was investing on his behalf. Thank you.

[131]    The appellant says this was not a settlement offer but merely an indication the respondent was willing to participate in the upcoming November settlement conference. In the alternative, she says it “mirrored settlement conference offers”. In either event, the appellant argues the trial judge should have ignored it.

[132]    The October 25, 2020 email from the respondent’s counsel indicating his position was plainly a settlement offer of $230,000 that if accepted, would have avoided the parties proceeding to trial. The trial judge was perfectly entitled to take it into account in assessing costs.

          Issue #6 – Ordering the Costs to be Paid in 60 Days

[133]    The appellant was ordered to pay the costs to the respondent in 90, not 60 days. Judges in family matters typically allow time for the payment of costs. This forbearance is well within the bounds of judicial discretion. The trial judge here chose to afford the appellant a grace period. Doing so is representative of his fair and even-handed approach. The appellant has no basis for complaint.

          Conclusion

[134]    The trial judge exercised his discretion to award $55,000 in costs in a principled fashion after applying the relevant legal principles and considering the relevant factors. He settled on a costs amount that he found did justice between the parties. There is no basis for appellate intervention. I would dismiss the Costs appeal.

Costs on Appeal

[135]    The respondent indicated that if he was successful on appeal he would be seeking $22,000 representing 40 percent of the costs awarded by the trial judge. He is also entitled to the $750 in costs awarded by Justice Bourgeois payable in the cause following the appellant’s unsuccessful application for a stay of the trial judge’s order that she pay the respondent $268,019.[36]

[136]    I would order the appellant to pay the respondent $22,750 for costs of the appeal from the Merits decision and the stay application. I would award no costs on the costs appeal.

Derrick, J.A.

Concurred in:

Bryson, J.A.

 

Scanlan, J.A.