C.A. No. 103909
NOVA SCOTIA COURT OF APPEAL
Cite as: Ffrench v. Ffrench, 1994 NSCA 139
Jones, Hallett and Chipman, JJ.A.
BETWEEN:
KERRI JAYNE FFRENCH ) Peter Van Feggelen
) for the Appellant
Appellant )
)
)
- and - ) The Respondent
) appeared in person
ROBERT ANDREW FFRENCH )
)
Respondent )
)
)
) Appeal Heard:
) May 26, 1994
)
) Judgment Delivered:
) May 26, 1994
)
)
THE COURT: Appeal allowed without costs to either party and the corollary relief judgment amended to reflect the terms of agreement reached by counsel, per oral reasons for judgment of Chipman, J.A.; Jones and Hallett, JJ.A. concurring.
The reasons for judgment of the Court were delivered orally by:
CHIPMAN, J.A.:
This is an appeal from a refusal by a Supreme Court Judge to include in a corollary relief judgment certain terms which the appellant says were agreed upon between counsel for the parties.
The trial of the proceeding was set for January 26, 1994. Prior thereto, correspondence had ensued between counsel relating to a number of matters. There was agreement that the divorce would not be contested and that neither the respondent nor his counsel would appear at the trial. The issues of custody access and support would not be finally resolved until further order. Agreement was reached respecting the division of matrimonial property. There was disagreement with respect to a number of debts incurred by the parties.
On the morning of the trial, appellant's counsel sent a fax to counsel for the respondent inter alia referring to an agreement reached between them that day with respect to debts as follows;
1. the appellant would assume responsibility for her student loan and the Visa and Sears accounts as of the date of separation,
2. the respondent would assume responsibility for the Maritime Telegraph and Telephone account and an account due to Adelaide Capital Corporation and as well reimburse the appellant for monies which had been garnisheed from her salary in November and December 1993 in connection with that debt.
Counsel for the appellant only attended the trial and led evidence in proof of the divorce. He then stated among other things that the above terms had been agreed upon between counsel. The Court granted the divorce and indicated that it was prepared to sign an order as to the corollary matters that had been agreed upon in the terms outlined by appellant's counsel. The matter was then adjourned to March 1, 1994.
Counsel for the appellant sent a draft order to counsel for the respondent and on February 28, 1994, the day before the adjourned hearing, respondent's counsel raised some questions relating to the form of the order and the manner in which some of the terms of the above noted agreement were expressed but did not dispute that she had agreed to the terms in the fax of January 27. As well counsel confirmed that she was no longer acting for the respondent. Subsequent correspondence from this counsel indicates some disagreement with details but not in principle respecting the agreement.
Apparently the respondent contacted the Court in person on or prior to March 1st. The matter was then set down for April 7th and on that day after hearing the appellant's counsel and respondent in person the Court granted a corollary relief judgment covering certain points that had been agreed upon but providing that the issue of the division of debts would be determined at the hearing of the custody and access issues.
A review of the record, including the affidavit of the appellant's counsel and the correspondence therein produced supports the conclusion that agreement had indeed been reached respecting certain debts and that the corollary relief judgment should have reflected this. The appeal is allowed and the judgment is amended by deleting paragraph 4 thereof and substituting the following;
4. (a) The petitioner will assume full responsibility for the following matrimonial debts; her Canada Student Loan, the Royal Bank Visa account of the respondent at the date of the separation and the Sears account of the respondent at the date of the separation.
(b) The respondent shall assume full responsibility for the Maritime Telegraph and Telephone Company account and the account of the Adelaide Capital Corporation and will reimburse the appellant for monies garnisheed from her salary in November and December 1993 in connection with that debt.
(c) Any issue respecting other matrimonial debts will be determined at the time of the hearing of the issues of custody, access and support.
There will be no costs awarded on this appeal.
J.A.
Concurred in:
Jones, J.A.
Hallett, J.A.