Harper v. Harper

Harper v. Harper
Collection
Supreme Court Judgments
Date
1979-06-28
Report
[1980] 1 SCR 2
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves; McIntyre, William Rogers
On appeal from
British Columbia
Subjects
Evidence
Family law
Decision Content
Supreme Court of Canada
Harper v. Harper, [1980] 1 S.C.R. 2
Date: 1979-06-28
Hazel Maggie Jennie Harper (Plaintiff) Appellant;
and
Eldon Stewart Harper (Defendant) Respondent.
1979: May 10; 1979: June 28.
Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Husband and wife—Divorce—Interest of divorced wife in matrimonial home—Discretionary jurisdiction of trial judge—Review of trial judge’s discretion—Family Relations Act, 1972 (B.C.), c. 20, s. 8.
Evidence—Court of Appeal misled by wrongful assertion in notice of appeal as to title to property—Motion for leave to adduce new evidence—Motion granted—Party not disclosing true facts—Candour expected from counsel and solicitors.
The appellant, the divorced wife of the respondent, brought an action claiming an undivided one-half interest in what was their matrimonial home. The action proceeded through trial and to the British Columbia Court of Appeal on the footing that the title to the property was, as between the respondent and the Director of the Veterans’ Land Act in the Director who was shown as the registered owner under the British Columbia Land Registry Act. The house on the property had been constructed through financing arrangements under the Veterans’ Land Act , now R.S.C. 1970, c. V-4 , as amended, and title was put in the name of the Director pursuant to that Act.
The appellant brought her action under the Family Relations Act, 1972 (B.C.), c. 20, on May 9, 1975. Prior to the enactment of this statute, she had commenced a so-called trust action in 1971 when she was still formally married to the respondent, and a lis pendens was registered against the property in that action. It, however, remained dormant and she later sought relief under s. 8 of the Family Relations Act. In her statement of claim, dated August 8, 1975, the appellant asserted, which was a fact, that the property in question was occupied by the respondent and was registered in the name of the Director of the Veterans’ Land Act . The appellant alleged that the “lands and premises were purchased by the Plaintiff and Defendant on or about May 8th, 1962 with funds borrowed jointly from the Port Alberni Credit Union and were transferred into the name of the Director of the Veterans’ Land Act on the 13th of August 1962”. She also alleged that the “lands and premises were used as the matrimonial home by the Plaintiff and Defendant from the date of the completion of the construction of the premises on or about June 1st, 1963 until the 21st day of December 1968, when the Plaintiff left the matrimonial home, fearing for her mental health”.
Alleging, further, that the ownership of the land and premises had always been considered a joint venture, the appellant claimed an undivided half interest in the property “as a result of her contributions towards the economic wealth of the family as a whole”. The respondent denied the aforementioned allegations, and the case went to trial accordingly. The trial judge concluded, on the evidence and notwithstanding that the registered title was in the Director of the Veterans’ Land Act , that the appellant should have a one-quarter interest in the net value of the property. He noted that the respondent had remarried and that the appellant planned to remarry.
On appeal, the British Columbia Court of Appeal allowed the appeal on the ground that the now respondent had no interest in the property which was entirely in the Director of the Veterans’ Land Act .
Leave to appeal to this Court was given principally to consider the validity and applicability of the Veterans’ Land Act and, in the result, both the Attorney General of British Columbia and the Attorney General of Canada intervened.
A motion by the appellant in this Court, returnable at the hearing of the appeal, to adduce fresh evidence by way of an affidavit sworn by Douglas E. Humphrey, Director, Property and Securities Division, in the Veterans’ Land Act Administration, was granted, with reasons to be delivered later. The affidavit disclosed that on July 29, 1974, the respondent applied to the Regional Director, Veterans’ Land Act for a conveyance to him of the property in which title had theretofore been in the Director of the Veterans’ Land Act . A conveyance dated July 31, 1974, was executed in the respondent’s favour and, pursuant to a letter from the Royal Bank of Canada which had advanced $5,916.69 to discharge the respondent’s indebtedness under the Veterans’ Land Act , the conveyance was sent to the bank to be held as security.
Held (Pigeon, Estey, Pratte and McIntyre JJ. dissenting in part): The appeal should be allowed and a one-third interest awarded to the appellant in the property, the calculation of the value of the appellant’s interest to be subject to the prior claim of the Royal Bank of Canada for the sum of $5,916.69 advanced by it to discharge the respondent’s indebtedness on the property and the respondent to register his title thereto forthwith in the appropriate Land Registry Office.
Per Laskin C.J. and Martland, Ritchie, Dickson and Beetz JJ.: The special grounds for the admission of new evidence by this Court under the proviso to s. 67 of the Supreme Court Act include a situation where there has been a failure of an officer of the Court, e.g. a trustee in bankruptcy, to bring all the relevant matters to the Court’s attention, although the matters were not newly discovered but existed before trial. Equally, they will yield to a situation where a solicitor as an officer of the Court has not brought to the Court’s attention pre-existing matters of which he had knowledge or where a party to the proceedings has misled the Court as to facts in issue or has misled his own solicitor or counsel, with the result that the action has proceeded on an erroneous factual basis.
The Court of Appeal was misled by the assertion in the now respondent’s notice of appeal that “legal title” to the property was in the Director of the Veterans’ Land Act . In fact, as between the respondent and the Director it was in the respondent long before the action was begun. The transfer of title to the respondent did not become known to appellant’s counsel until the leave to appeal to this Court was granted.
There was no justification for the resistance of counsel for the respondent to the admission of the evidence contained in the Humphrey affidavit. Its admission would mean only that the constitutional issue could be put to one side and the claim of the appellant determined on a proper factual basis as between her and the respondent. Refuge in the pleadings at trial and in the record at trial, as sought by counsel for the respondent, irrespective of the wrongful assertion as to title by the respondent on appeal to the Court of Appeal and, again, in his affidavit on taxation of costs after the appeal was determined in his favour, would mean insistence on a state of facts which were untrue and which would involve this Court in a constitutional exercise which would be unnecessary if the truth had been told.
The new evidence sought to be adduced would not have involved any change in the cause of action, but bespoke a failure of candour by the respondent in order to take advantage of the appellant if he could. No Court can condone attempts to mislead it; and if the respondent put his counsel in an unenviable position, the Court was entitled to have their co-operation in clarifying the record once they became aware of the true state of the title.
As to the merits of the appellant’s claim, the question was whether the trial judge’s award of a one-quarter interest in the property should be affirmed and the appeal allowed accordingly, or whether a larger interest should be awarded. Although an appellate Court, and especially an ultimate Court, should ordinarily refrain from interfering with the exercise by a trial judge of the type of broad discretionary jurisdiction conferred by s. 8 of the Family Relations Act, there was the fact that the trial judge acted on certain irrelevant considerations and ignored relevant ones and that the Court of appeal was misled as to the legal title and thus did not address itself to the exercise of the discretionary authority of the trial judge. In all the circumstances, it would be equitable and just that the appellant be awarded a one-third interest in the property, and that it be based on the present value of the property, less the sum of $5,916.69 advanced by the Royal Bank to discharge the respondent’s indebtedness to the Director of the Veterans’ Land Act .
Dormuth and Ursel v. Untereiner and Muskovitch, [1964] S.C.R. 122; Brown v. Gentleman, [1971] S.C.R. 501; Rathwell v. Rathwell, [1978] 2 S.C.R. 436, referred to.
Per Pigeon, Estey, Pratte and McIntyre JJ., dissenting in part: The fundamental question raised in this Court was narrow and simple. Should this Court, on the record of this appeal, review the exercise of the discretion of the trial judge under s. 8 of the Family Relations Act? An appellate Court should be extremely reluctant to interfere with the exercise of a discretionary power by a trial judge. However, there are cases where justice demands that the exercise of discretion be reviewed. This was one such case because the trial judge had proceeded on the basis of certain irrelevant and erroneous considerations. Also, the new evidence adduced in this Court raised serious questions as to the credibility of the respondent, and it was not at all clear that the trial judge would have reached the conclusion that he did had he been made aware of the true facts.
It was impossible to weigh the relative contributions of the spouses to the joint venture, and it would require a very extensive and elaborate hearing to thrash out in detail all the admissible evidence that could be garnered in support of their completing claims with respect to the acquisition of this home. Family law as it has evolved in this country has not found it necessary or indeed in the public interest to require parties to these differences to so litigate their disputes.
A court exercising its discretion under s. 8 of the Family Relations Act is not in any way bound by the line of cases in this Court and in England which have limited the discretion of a trial judge under the various Married Women s Property Act statutes. Also, as was the view of Hinkson J.A. in Deleeuw v. Deleeuw (1977), 5 B.C.L.R. 106, it is not a necessary prerequisite to obtaining relief pursuant to the provisions of s. 8 that an applicant “show that he or she has in some real way contributed to the acquisition of the property in question or has done something to enhance or maintain its value…”
It has become a reality of life and indeed of family law, at least in the common law provinces of this country, that trial judges in all levels of the courts have recognized as a general principle that the husband and wife divide up family properties on a 50/50 basis unless the circumstances otherwise require. There may be a great number of instances where the general rule of 50/50 is moderated or adjusted by reason of the origin of specific assets or by reason of unusual contributions.
While it might be said that the recognition of the one-half interest in the wife is judicial legislation bringing about a community of property without expressly so stating and without deferring on such a policy matter to the Legislature, such was not the case, even though in many provinces such a result has been reached by legislation. The realities of life today require a recognition in the courts that the parties enter into not the marital contract but the ensuing social joint venture on the basis that each spouse will play his or her assigned role without deliberate and final agreement, and certainly without daily or periodic accounting. The common and basic intent is clearly a sharing of the good with the bad, the debts and the assets. In this proceeding it was clear that the wife was not forced to found her claim to an interest in the husband’s property on the fact of marriage alone. The process of valuation of contribution has its economic limits when applied to an interspousal dispute. Here the record revealed sufficient of their respective contributions to allow allocation by approximation. The trial judge had misdirected himself and thereby the exercise of discretion became reviewable. A proper exercise of discretion would find the wife entitled to a one-half interest in the matrimonial home.
The appeal should be allowed and an order directed that the lands and premises be valued at the date of judgment either by agreement between the parties or in a manner as provided, and that there be deducted from such valuation (a) the sum of $5,916.69 being the moneys paid by the respondent to the Director, Veterans’ Land Act , and (b) the sum of $3,786 being the contribution by the husband to the premises, and that the net remaining value be divided one-half to the appellant and one-half to the respondent; and that the respondent register his title to the lands forthwith in the appropriate Land Registry Office.
APPEAL by the plaintiff from a judgment of the Court of Appeal for British Columbia, reversing a judgment of Stewart L.J.S.C., in an action taken pursuant to s. 8 of the Family Relations Act, 1972 (B.C.), c. 20. Appeal allowed and a one-third interest awarded to the appellant, Pigeon, Estey, Pratte and McIntyre JJ. dissenting in part.
Robert Doell and Miss Deborah Acheson, for the plaintiff, appellant.
John W. Horn, for the defendant, respondent.
The judgment of Laskin C.J. and Martland, Ritchie, Dickson and Beetz JJ. was delivered by
THE CHIEF JUSTICE—This appeal, which is here by leave of this Court granted on March 7, 1978, concerns the entitlement of the appellant, the divorced wife of the respondent, to an interest in what was their matrimonial home. The action proceeded through trial and to appeal to the British Columbia Court of Appeal on the footing that the title to the property was, as between the respondent Harper and the Director of the Veter- ans’ Land Act in the Director who was and is shown as the registered owner under the British Columbia Land Registry Act. The house on the property had been constructed through financing arrangements under the Veterans’ Land Act , now R.S.C. 1970, c. V-4 , as amended, and title was put in the name of the Director pursuant to that Act.
The appellant brought her action under the Family Relations Act, 1972 (B.C.), c. 20, on May 9, 1975. Prior to the enactment of this statute, she had commenced a so-called trust action in 1971 when she was still formally married to the respondent, and a lis pendens was registered against the property in that action. It has, however, remained dormant and she later sought relief under s. 8 of the Family Relations Act, which reads as follows:
8. (1) Where the court makes an order for dissolution of marriage or judicial separation, or declaring a marriage to be null and void, and it appears that a spouse is entitled to any property, it may, not more than two years from the date of the order, make any order that, in its opinion, should be made to provide for the application of all or part of the property, including settled property, for the benefit of either or both spouses or a child of a spouse or of the marriage.
(2) Where the court makes an order under subsection (1), it may order that the property be sold and direct the disposition of the proceeds.
In her statement of claim, dated August 8, 1975, the appellant asserted, which was a fact, that the property in question was occupied by the respondent and was registered in the name of the Director of the Veterans’ Land Act . Paragraphs 6 and 7 of the statement of claim are as follows:
The aforesaid lands and premises were purchased by the Plaintiff and Defendant on or about May 8th, 1962 with funds borrowed jointly from the Port Alberni Credit Union and were transferred into the name of the Director of the Veterans’ Land Act on the 13th of August 1962.
The aforesaid lands and premises were used as the matrimonial home by the Plaintiff and Defendant from the date of the completion of the construction of the premises on or about June 1st, 1963 until the 21st day of December 1968, when the Plaintiff left the matrimonial home, fearing for her mental health.
Alleging, further, that the ownership of the land and premises had always been considered a joint venture, the appellant claimed in para. 9 of her statement of claim an undivided half interest in the property “as a result of her contributions towards the economic wealth of the family as a whole”. The respondent denied the allegations in paras. 6, 7 and 9 above mentioned, and the case went to trial accordingly. The trial judge, His Honour Judge Stewart, acting as a Local Judge of the Supreme Court of British Columbia, concluded, on the evidence and notwithstanding that the registered title was in the Director of the Veterans’ Land Act , that the appellant should have a one-quarter interest in the net value of the property. He noted that the respondent had remarried and that the appellant planned to remarry. He said this in the concluding portion of his reasons:
As far as I can judge each party was as much to blame as the other for the breakdown of their marriage. No attempt at reconciliation was made by either. The defendant eventually obtained the divorce some five years after the separation and at that time the plaintiff made no effort to advance a claim to the home property. Thereafter the defendant started to build a new life for himself around the home in which the plaintiff claims a half interest. His new wife has invested a substantial amount in improvements. He has one child of the marriage with him. He is contributing to the maintenance of those now with the plaintiff. I have concluded that an allocation equivalent to a one‑quarter interest in the net value of the property would be fair.
If the parties are unable to agree on value and the steps required to give effect to this application of the property, I will deal with the matter after hearing counsel, who may also wish to speak to costs.
The respondent appealed on May 5, 1976, being represented on the hearing of the appeal by Mr. J.W. Horn. His counsel at the trial was R.A. Scoffield, who also signed the notice of appeal. That notice contained the following assertions in paras. 1 and 2 thereof:
1. The learned Judge erred in the law in holding that the Appellant is a spouse “entitled to….property” the subject of the case at bar, where the legal title to such property is held by the Director, the Veterans’ Land Act .
2. The learned Judge erred in law in holding that the Respondent is a spouse “entitled to …. property” the subject of the case at bar, where the legal title to such property is held by the Director, the Veterans’ Land Act .
In his factum on the appeal, counsel for the appellant, respondent on the appeal to the British Columbia Court of Appeal, said this in para. 7 of the factum:
The indebtedness of the Director was retired in 1974 but the husband has not exercised his right pursuant to s. 11 of the Veterans’ Land Act to call for title to be placed in his name.
An affidavit produced in support of the now respondent Harper pointed out that there was nothing in the record to support the aforementioned statement.
The British Columbia Court of Appeal allowed the appeal on the ground that the now respondent had no interest in the property which was entirely in the Director of the Veterans’ Land Act . In the course of his reasons for the Court, Farris C.J.B.C. said this:
… The title to the land has remained in the Director ever since the conveyance to him. At the trial, no evidence apparently was led to show … the present state of the account between the veteran husband and the Director.
Mr. Doell, Counsel for the wife Respondent, was unable to point to any evidence in the Appeal Book to support his statement in the factum, paragraph 7, that the indebtedness of the Director was retired in 1974. So that is the factual situation. It is clear to me, from an examination of the documents, that the arrangements with the Director of Veterans’ Land Act , were made pursuant to Part II of the Veterans’ Land Act .
Section 59(1) provides for a reconveyance by the Director to the veteran, when all the necessary payments have been made. We do not know from the evidence here, whether all the necessary payments have been made.
Section 60, subsection 2 of the Act provides:
“Nothing in this Part, and nothing in any contract or collateral agreement entered into under section 55 or 57 shall be construed as conferring upon or vesting in any veteran, prior to the conveyance to that veteran by the Director under subsection 59(1) of the land in respect of which the contract or agreement was entered into, any right, title, interest or estate in that land.”
So, at the time of trial, no conveyance having been made to the veteran, by the Director, the veteran had no right, title, interest or estate in the land.
This application is brought under Section 8 of the Family Relations Act, which provides, as has been noted above: “it appears that a spouse is entitled to any property.”
At the time of the trial, he was not entitled to any property, because the conveyance, the title was in the Director, and Section 60, subsection 2, expressly says he is not.
Now this was not an action where an application was made, or where it was alleged in the pleadings that all the money had been paid, that the husband veteran had the right to acquire title, and for an application that an injunction be granted ordering him to apply and obtain title. That was not the basis upon which this case was presented. It was on the basis of a claim under Section 8, for an order in relation to the land, and as I have said, the husband at that stage had no entitlement to it.
Then there is the further difficulty in this case, that there was no evidence as to the present value of the property in question.
It seems to me that in exercising the discretion that is given under Section 8, it can only be properly exercised if you know what you are dividing, and its value.
…
Now those proceedings, take place after the exercise of the discretion by the Trial Judge, and in my view, he had no material before him upon which he could exercise a judicial discretion, which is required under Section 8 of the Family Relations Act.
Leave to appeal to this Court was given principally to consider the validity and applicability of the Veterans’ Land Act and, in the result, both the Attorney General of British Columbia and the Attorney General of Canada intervened.
I have enlarged on the pleadings and on the position taken on appeal to the provincial Court of Appeal because of a motion by the appellant in this Court, returnable at the hearing of her appeal, to adduce fresh evidence by way of an affidavit sworn by Douglas E. Humphrey, Director, Property and Securities Division, in the Veterans’ Land Act Administration. The affidavit discloses that on July 29, 1974, the respondent applied to the Regional Director, Veterans’ Land Act for a conveyance to him of the property in which title had theretofore been in the Director of the Veterans’ Land Act . A conveyance dated July 31, 1974, was executed in the respondent’s favour and, pursuant to a letter from the Royal Bank of Canada which had advanced $5,916.69 to discharge the respondent’s indebtedness under the Veterans’ Land Act , the conveyance was sent to the bank to be held as security.
The general principles which govern the admission of new evidence in this Court were stated in Dormuth and Ursel v. Untereiner and Muskovitch[1], at p. 131, where Ritchie J., speaking for the majority, referred to an earlier case in this Court concerning the admission of evidence discovered after trial and sought to be admitted in a provincial Court of Appeal. He then continued as follows:
The above statements were made with respect to the role of a court of first appeal in relation to evidence discovered after the trial but, in my view the same considerations apply when evidence is tendered for the first time before this Court on appeal from a provincial Court of Appeal. The special grounds required in an application made under the proviso to s. 67 include, in my opinion, being able to show that the evidence could not have been discovered by reasonable diligence before the conclusion of the hearing in the Court of Appeal and being able also to satisfy this Court that the evidence, if accepted, would be practically conclusive.
It is clear that Justice Ritchie did not lay down an exhaustive test for the admissibility of fresh evidence in the Supreme Court, saying only what the special grounds under the proviso to s. 67 include. In my opinion, they also include a situation where there has been a failure of an officer of the Court, e.g. a trustee in bankruptcy, to bring all the relevant matters to the Court’s attention, although the matters were not newly discovered but existed before trial: see Brown v. Gentleman[2]. Equally, in my opinion, they will yield to a situation where a solicitor as an officer of the Court has not brought to the Court’s attention pre-existing matters of which he had knowledge or where a party to the proceedings has misled the Court as to facts in issue or has misled his own solicitor or counsel, with the result that the action has proceeded on an erroneous factual basis.
In view of the disposition of the appeal by the British Columbia Court of Appeal (the appeal was heard on November 15, 1977 and disposed of on that day in oral reasons for judgment), it is clear that that Court was misled by the assertion in the now respondent’s notice of appeal that “legal title” to the property was in the Director of the Veterans’ Land Act . In fact, as between the respondent and the Director it was in the respondent long before the action was begun. In his affidavit in support of the motion to adduce new evidence, counsel who appeared for the appellant in the Courts below made the following assertions in paras. 21, 22, 23, 25 and 26:
21. THAT I became aware that the indebtedness of the Director had been retired in 1974 in the fall of 1977 prior to the hearing before the British Columbia Court of Appeal, by reason of a telephone call placed to a Mr. Birrell at the Office of the Director, Department of Veterans’ Affairs, Victoria, British Columbia, on or about the 9th day of September, 1977. 22. THAT I was not advised that legal title had been delivered to the Defendant Eldon Stewart Harper during that conversation.
23. THAT the factum of the Appellant, Eldon Stewart Harper, was filed on May 24, 1977. The following is alleged in the statement of facts of that factum:
“8. The Defendant applied to the Director of Veteran’s Land Act for financing to build a home and the application was granted. (A.B. p. 179, 1.24)
9. A contract was entered into with the Director on the 13th day of September, 1962, (A.B. p. 163, Exhibit 7) and the property was conveyed to the Director on the 3rd day of August, 1962. (A.B. p. 174, Exhibit 8)
10. The Title remained in the Director at the time of action. (A.B. p. 153, Exhibit 3).”
The aforementioned facts of factum are annexed hereto and marked as Exhibit “II” to this my Affidavit.
…
25. THAT in the taxation of the Defendant’s bill of costs in the Family Relations Act action a further Affidavit of Eldon Stewart Harper was sworn the 5th day of January, 1978 and filed January 9, 1978. THAT annexed and marked as Exhibit “I” hereto is a copy of the aforementioned Affidavit which reads, in paragraph 2:
“THAT I am purchaser by unregistered agreement for the sale of land where The Director, The Veterans’ Land Act , is Vendor of lands and premises situate in the Alberni Assessment District, Beaver Creek Improvement District, Province of British Columbia, more particularly known and described as:
Lot 24, District Lot 166, Alberni District, Plan 1474,
(hereinafter referred to as the “Premises”).”
26. THAT on or about the 11th day of July, 1978, I received an anonymous telephone call from a male person who disclosed that he was calling from Ottawa. That person advised me that legal title to the said matrimonial property had been reconveyed to the veteran in 1974.
It appears, therefore, that the transfer of title to the respondent did not become known to appellant’s counsel until the leave to appeal to this Court was granted. Counsel for the respondent in this Court said that he became aware in late 1977 that respondent’s debt to the Director of the Veterans’ Land Act had been satisfied but he did not know of any transfer of title to the respondent. This Court does not have any affidavit from Mr. Horn’s instructing solicitor, Mr. R.A. Scoffield, who represented the respondent at the trial and who signed the notice of appeal to the British Columbia Court of Appeal, as to what he knew or whether his client the respondent had omitted to tell him about the conveyance from the Director of the Veterans’ Land Act . Certainly, if there was any knowledge of the conveyance, the proper course would be to disclose it (in answer to the usual notice to produce relevant documents) or to refuse to continue acting for the respondent.
Before this Court, counsel for the respondent took a technical position on the motion to adduce fresh evidence, contending that he was under no obligation to assist the appellant in her action and that he was entitled to stand by the record of the proceedings before and at trial. It is evident, however, from the material that I have convassed that the respondent could not properly rest on those proceedings, certainly not after the matter went to appeal and certainly not in the light of what was included in the affidavit of Mr. Humphrey and of Mr. Doell, the appellant’s counsel. (I should say here that Mr. Doell did not argue the motion for leave to adduce new evidence.) There are the further relevant facts that we are concerned with a claim to an interest in the matrimonial home, a family issue to be judged equitably, and that by reason of the non-disclosure of the conveyance, a serious constitutional issue was necessarily raised which brought interventions from the provincial and federal Attorneys‑General.
I am bound to say—all members of this Court reacted the same way—that I was unable to understand the resistance of counsel for the respondent to the admission of the evidence contained in the Humphrey affidavit. Its admission would mean only that the constitutional issue could be put to one side and the claim of the appellant determined on a proper factual basis as between her and the respondent. Refuge in the pleadings at trial and in the record at trial, as sought by counsel for the respondent, irrespective of the wrongful assertion as to title by the respondent on appeal to the Court of Appeal and, again, in his affidavit on taxation of costs after the appeal was determined in his favour, would mean insistence on a state of facts which were untrue and which would involve this Court in a constitutional exercise which would be unnecessary if the truth had been told.
The new evidence sought to be adduced would not involve any change in the cause of action, but bespeaks a failure of candour by the respondent in order to take advantage of the appellant if he could. No Court can condone attempts to mislead it; and if the respondent put his counsel, be he Mr. Scoffield or Mr. Horn, in an unenviable position, the Court is entitled to have their co-operation in clarifying the record once they have become aware of the true state of the title.
At the conclusion of the hearing of the motion for leave to adduce new evidence, the Court was unanimously of the opinion that the motion should be granted, with costs of the motion to the successful appellant and with reasons to be delivered later. The reasons have been set out in what has gone before, and I turn now to the merits in the light of the newly admitted evidence.
The constitutional question has now disappeared and counsel for the respective Attorneys‑General asked to withdraw, having no submissions to make on the merits. They were, accordingly, excused and, although they felt they should have some costs in view of the unnecessary trouble to which they were put, a not unreasonable position for them to take, I think it best to follow this Court’s general rule that no costs are awarded to or against any intervenant.
On the merits of the appellant’s claim, the question is whether the trial judge’s award of a one‑quarter interest in the property should be affirmed and the appeal allowed accordingly, or whether a larger interest should be awarded. Counsel for both parties expressed the wish that this case be finally resolved here and not be sent back for retrial and, in my opinion, this wish should be accommodated.
Section 8(2) of the Family Relations Act leaves a large discretion to the trial judge. In my view, the observations of the British Columbia Court of Appeal that there was no proper basis for the exercise of a judicial discretion must be taken in the light of its concern with the application of the Veterans’ Land Act . I am of the same view in respect of the Court of Appeal’s statement that there was a further difficulty in the case because of the absence of evidence as to the present value of the property. Since title is now in the respondent, I do not think that the question of lack of evidence as to value of the property can militate against the making of an order in the appellant’s favour.
I have already quoted the considerations that moved the trial judge to his conclusion that the wife should be allowed a one-quarter interest in the property. There are a number of comments to be made on the considerations on which the trial judge appears to have acted. Whether or not attempts at reconciliation were made, the appellant’s claim cannot be discounted on the ground that no such attempts were made by either spouse. Again, it was wrong to suggest a failure by the appellant to advance a claim to the matrimonial property at the time of the divorce when it is clear that since the institution of her trust action in 1971 she had asserted an interest in the matrimonial home. Furthermore, the fact that the husband had started to build a new life for himself in the home and was contributing to the maintenance of the children residing with the appellant are not grounds for affecting her claim to a property settlement; see Rathwell v. Rathwell[3], per Dickson J., at p. 462. In my opinion, the trial judge ought to have also considered as a factor in the appellant’s favour that the respondent has had the use and occupation of the subject property for some ten years since the parties separated. I do not think that this can be discounted by reason of the respondent’s remarriage and of the fact that his new wife has paid for some improvements to the property by an outlay of about $5,000.
Although an appellate Court, and especially an ultimate Court, should ordinarily refrain from interfering with the exercise by a trial judge of the type of broad discretionary jurisdiction conferred by s. 8 of the Family Relations Act, there is the fact that the trial judge acted on certain irrelevant considerations and ignored relevant ones and that the British Columbia Court of Appeal was misled as to the legal title and thus did not address itself to the exercise of the discretionary authority of the trial judge. In all the circumstances, it would be equitable and just that the appellant be awarded a one-third interest in the property, and that it be based on the present value of the property, less the sum of $5,916.69 advanced by the Royal Bank to discharge the respondent’s indebtedness to the Director of the Veterans’ Land Act .
The proper order to make is that this appeal be allowed, that the judgments on appeal and at trial be set aside and that a one-third interest be awarded to the appellant in the property, that the calculation of the value of the appellant’s interest be subject to the prior claim of the Royal Bank of Canada for the sum of $5,916.69 advanced by it to discharge the respondent’s indebtedness on the property and that the respondent register his title thereto forthwith in the appropriate Land Registry Office. If the parties cannot agree on the sum of money representing the interest herein accorded to the appellant, the question should be referred either to the trial judge or to another Local Judge of the Supreme Court of British Columbia for determination upon such appraisal evidence as may be brought before him. The respondent shall pay to the appellant the sum agreed upon or determined by the Local Judge, and the property shall be charged therewith until payment, with interest at five per cent per annum from the date of this judgment, or the Local Judge may order a sale of the property to realize the appellant’s interest.
The appellant is entitled to costs throughout as well as to costs of the motion to adduce new evidence.
The reasons of Pigeon, Estey, Pratte and McIntyre JJ. were delivered by
ESTEY J. (dissenting in part)—This appeal concerns the award of an interest to the wife in the family home pursuant to an action brought under s. 8 of the Family Relations Act, 1972 (B.C.), c. 20. The trial judge awarded an undivided one-quarter interest in the wife with a reference to the Registrar of the Court to determine the value thereof in the event the parties cannot agree. The Court of Appeal set aside the award and dismissed the wife’s action. This Court is invited to restore the trial judgment but revise the allocation to the wife upwards from a ¼ to a ½ interest.
A preliminary matter of some importance arose with reference to the conduct of the husband’s case, particularly in the Court of Appeal. These circumstances are reviewed by the Chief Justice and need not be repeated for my purposes here. I am concerned with the disposition of the basic appeal after the new evidence has been admitted by this Court.
The evidence introduced by and on behalf of the two spouses is typical in a matrimonial dispute where, after the divorce, proceedings are launched under provincial legislation to divide up the family assets. Unfortunately, this has been done in this action in a very expensive manner. A short chronology of events is all that is required to set the stage. The parties were married in 1949. Neither brought any assets into the marriage. There are seven children of the marriage. The family lived in rented accommodation until 1962 when the property which is the subject-matter of this dispute was purchased. The parties separated in 1968. The wife and the three infant children lived separate and apart in the City of Victoria. One of these children is now living with the respondent. In 1971 she brought an action in the Supreme Court of British Columbia for a declaration that the husband held an undivided one‑half interest in the matrimonial home in trust for and on behalf of the appellant. At that time, it is now clear that the title to the matrimonial home was in fact and in law in The Director, Veterans’ Land Act . The Family Relations Act, supra, was proclaimed in force on July 1, 1972. After the commencement of this Act, the trust action was held in abeyance.
The respondent brought an application for divorce on the basis of three years separation, and a Decree Abs