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MARITAL PROPERTY - Variation or amendment of orders

Thursday, May 20, 2021 @ 6:16 AM  


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Appeal by the husband from a decision refusing to vary a corollary relief order awarding the wife one-half of a shareholder loan owed to the husband and over $42,000 in trial costs. The parties’ dispute as to whether the loan constituted matrimonial property was at the heart of their trial. The value assigned to the loan was to a significant degree based on evidence within the husband’s sole control. The husband applied to vary the corollary relief order claiming an incorrect figure was used to quantify the loan. Relying on later acquired information, he claimed the correct amount to be transferred to the wife, representing her one-half interest, was $2,700, not the $27,833 identified in the trial order.  

HELD: Appeal dismissed. The judge had no jurisdiction to vary the portion of the trial order that addressed division of matrimonial property. The Matrimonial Property Act provided no authority for a judge to consider a variation of the division of property. The slip rule was not available here. There was no error presented for the judge to fix but an attempt by the husband to put before the application judge different evidence than that which was presented by him at the divorce trial. Permitting the husband to now revisit the value of the loan would be akin to rewarding him for not having provided complete disclosure in both the divorce trial and the application. The judge properly applied the applicable test and conducted the appropriate analysis as to whether the husband’s application met the criteria under which it would have been suitable to reconsider the trial order. There was no basis for varying the costs award. The judge considered the provisions of Rule 77 and the associated tariff and made no error.

Donner v. Donner, [2021] N.S.J. No. 126, Nova Scotia Court of Appeal, E. Van den Eynden, C.A. Beaton and J.E. Scanlan JJ.A., March 23, 2021. Digest No. TLD-May172021007