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MARITAL PROPERTY - Equalization or division - Business, commercial or non-family assets

Friday, May 25, 2018 @ 8:24 AM  


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Appeal by the husband from the calculation of his former wife's interest in non-marital property. The parties began cohabiting in 1988 and married in 1990. They separated in 2011, but continued to reside under the same roof and remained an economic unit until September 2012. They had five children ranging in age from 17 to 24. The parties lived in the matrimonial home in Moncton with the children. The husband was trained as a lawyer. He worked as in-house counsel for an insurance company before being recruited to set up a real estate investment company, in which he acquired shares. In her petition for divorce, the wife sought, among other things, a division of marital property, including a share of the husband's business assets. The parties consented to equal ownership of Four Boys Holdings, a joint business asset of the parties. It did not operate as a typical business, but rather was used almost exclusively as a recipient of income from the flow through of fees received by Ashford Investments, a company owned by the husband. The trial judge acknowledged that Four Boys was a joint business venture and its ownership was equal under the Act. She established it had a value of $10 million. She awarded the wife a one-half interest in Four Boys and a 20 per cent interest in all of the other non-marital property owned by the husband. The husband appealed the decision of the trial judge on the grounds that she erred by excluding the value of Four Boys from non-marital property acquired during the marriage. He sought a declaration that since the non-marital property included Four Boys, the wife's 20 per cent share of non-marital property was satisfied with her 50 per cent interest in Four Boys. He also sought a declaration that the equalization payment of $881,000 he was ordered to make, representing the wife's 20 per cent share of non-marital property, be set aside.

HELD: Appeal dismissed. There was no formula set by law as to the percentage to be used or which assets should be divided. The judge relied on the correct sections of the Act and the jurisprudence of the Court. Because of the wife's significant contribution to the family unit, the judge determined that an equal division of matrimonial assets alone would not be equitable. She considered the requisite factors in making a division of non-marital property and made a division of 20 per cent, which was supportable. She considered the value of Four Boys in the division of the remaining non-marital assets and it properly factored into her analysis.

Gillespie v. Gillespie, [2018] N.B.J. No. 77, New Brunswick Court of Appeal, M.E.L. Larlee, B.L. Baird et R.T. French JJ.A., April 19, 2018. Digest No. TLD-May212018009