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MARITAL PROPERTY - Equalization or division - Asset types - Debts

Monday, August 19, 2019 @ 9:28 AM  

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Appeal by the husband and cross-appeal by the wife from trial judgment respecting the division of matrimonial property and child and spousal support. The parties married in 1973 and separated in 1995. At the time of trial in 2012, all three children were independent. The husband argued the trial judge erred in not finding that the wife abused the process of the Court that resulted in costly and undue trial delays and in her treatment of the evidence and assessment of the credibility of witnesses. The wife alleged errors respecting the valuation and division of matrimonial property, the valuation of the husband’s income for the purposes of child and spousal support, and the judge’s decision not to award costs. The judge awarded the wife lifetime spousal support to give her an approximate monthly income of $10,000. Because the judge found that the wife could earn a reasonable income from investing the award relating to retroactive support and the business assets, she found that a spousal support award should be a modest top up variety by a monthly payment of $3,000. Because this award was contingent on her receiving the investment income, the judge ordered that payment be in the amount of $10,000 a month until all balancing payments were made by the husband.

HELD: Appeal and cross-appeal allowed in part.  As both parties’ conduct left much to be desired and both parties did not always adhere to the rules, procedures, and practices of the Court, the wife was not solely responsible for trial delays and her conduct of the litigation was not manifestly unfair to the husband. There was no unfairness or surprise occasioned by the way in which the husband’s evidence and his accountants was received or treated by the judge. There was no merit to the husband’s credibility assessment argument. The judge erred, however, in ordering the husband to arrange to pay the wife $7,286.66 from a trust created for the benefit of their son. In the absence of specific provision, trust law did not give authority to the husband to direct payment of monies from the trust MST. Only the sole beneficiary could arrange to pay the wife monies from the trust. The trial judge did not err in deciding not to include two significant debts the husband owed as matrimonial debts. The trial judge miscalculated the amount owing in the husband’s director’s account. The wife was thus entitled to an additional $424,488. The judge’s order that the husband pay $83,200 as retroactive child support for the youngest child was not varied. The judge articulated her reason for not awarding pre-judgment interest on the retroactive support award. The only error in the judge’s analysis on retroactive spousal support related to treating the 1999 payment to the wife’s company as an after-tax amount. She was thus entitled to an additional lump sum payment of $13,692. There was no unfairness or a reviewable error with respect to her practical method in determining the husband’s income for spousal support purposes. The support order was made indefinite which preserved authority for subsequent judicial intervention in accordance with the provisions of the Divorce Act. There was no basis to interfere with the judge’s decision not to award costs. The judge was well positioned to gauge and assess the conduct of the parties during this lengthy and challenging litigation.

Shears v. Shears, [2019] N.J. No. 214, Newfoundland and Labrador Court of Appeal, B.G. Welsh, L.R. Hoegg and F.P. O'Brien JJ.A., July 4, 2019. Digest No. TLD-August19019001