McKay v. Kennedy

McKay v. Kennedy Court Court of Appeal Date 1999-05-18 Citation 1999 NSCA 177 Docket CA 154070 Judge/Registrar/Adjudicator Glube, Constance R. (Honourable Chief Justice) (CA); Freeman, Gerald B. (Honourable Justice) (CA); Cromwell, Thomas A. (Honourable Justice) Document Type Decision Decision Content Date:19990518 C.A. 154070 NOVA SCOTIA COURT OF APPEAL Cite as: McKay v. Kennedy, 1999 NSCA 177 Glube, C.J.N.S.; Freeman and Cromwell, JJ.A. BETWEEN: BRIAN ARTHUR McKAY ) William M. Leahey ) for the appellant Appellant ) ) - and - ) ) ELEANOR GAY KENNEDY ) Mary Jane McGinty ) for the respondent Respondent ) ) ) ) ) Appeal heard: ) May 18, 1999 ) ) Judgment delivered: ) May 18,1999 ) ) THE COURT: Application for leave to appeal dismissed with costs per oral reasons for judgment of Cromwell, J.A.; Glube, C.J.N.S. and Freeman, J.A. concurring. CROMWELL, J.A.: (Orally) [1] This is an appeal from an interlocutory judgment signed by Justice MacAdam on February 9, 1999 in which he authorized the listing and sale of the matrimonial home at 24 Crown Drive. The order contemplated that the appellant, Mr. McKay, might be the purchaser and settled the distribution of proceeds. The issues raised on the appeal, for which leave is sought, relate to the terms of sale and the distribution of proceeds. [2] Necessary background to the present appeal is found in a consent order made by Goodfellow, J. in April, 1997 and an Agreement and Minutes of Settlement entered into between the parties in June of 1997. [3] The most relevant part of the consent order is found in paragraph 7, parts a, b and c : (a) Commencing in April, 1997 and each month thereafter until the family home at 24 Crown Drive, Halifax, Nova Scotia is sold, the Petitioner shall pay $200 per month toward the mortgage payment, the Respondent shall be entitled to the use of the rent from the rental portion of the home and shall be responsible to pay the balance of the mortgage not paid by the Petitioner: (b) The family home shall immediately be listed for sale upon such terms and conditions as the parties shall mutually agreement upon (sic). If the parties cannot agree on the terms, then either may apply to a court of competent jurisdiction for an Order fixing the terms of sale; (c) Upon the sale of the family home, the $200 monthly payment toward the mortgage by the Petitioner shall be refunded to him from the proceeds of the sale of the home before the proceeds are otherwise divided; [4] The Agreement recites that it governs all rights and obligations of the parties with respect to possession, ownership and division of property and that it is made in full and final satisfaction of their respective rights and obligations for a division of matrimonial and non-matrimonial assets. The Agreement also states that it is to be incorporated in, and form part of, the Divorce Judgment in this proceeding. For present purposes, the most relevant part of the Agreement is Article 28 which provides: 28. The parties mutually acknowledge that they are the owners of the matrimonial home situated at 24 Crown Drive, in the City of Halifax, Halifax Regional Municipality. The parties agree to immediately list the matrimonial home for sale. Upon the completion of the sale of the matrimonial home, the proceeds therefrom shall be allocated as follows: (a) Real Estate Commission closing costs and the outstanding balance on the mortgage shall be paid. (b) All arrears outstanding on the mortgage are to be the sole financial responsibility of the Respondent. (c) The parties have agreed that pending the sale of the matrimonial home and commencing with the month of April, 1997, the Petitioner is to pay to the Respondent Two Hundred ($200.00) Dollars to be used to assist the Respondent in covering the mortgage payment on the home. All such payments are to be returned by the Respondent to the Petitioner from the Respondent’s share of the proceeds of the sale of the home. (d) In the event that the Respondent is entitled to any reimbursement for relocation costs from her employer and in the event that such costs include reimbursement for real estate commission or other closing costs to be shared equally between the parties as set forth herein, the Respondent shall pay to the Petitioner one-half of any such reimbursement received by her. (e) The parties hereto shall be jointly responsible for any repairs or other related expenses for work to be done to the matrimonial home in order to prepare it for sale. The parties shall agree on such expenditures prior to them being incurred. In the event that any such expenditures are reimbursed to the Respondent, as part of her relocation expenses, the Respondent shall share equally such reimbursement with the Petitioner. (e) Upon payment of all of the above noted items, any amounts then remaining shall be divided equally between the parties hereto. (emphasis added) (There are two sub-parts called (e) in the document). [5] The mortgage was in arrears and the appellant made payments to bring it into good standing. However, he did not make several of the $200.00 per month payments to Ms. Kennedy to assist with the mortgage as he was supposed to under the consent order and the Agreement. [6] Justice MacAdam dealt with this by treating the payments made by Mr. McKay in two ways. He attributed the appropriate amount to the $200.00 per month payments which were supposed to have been made and gave credit for them as specified in the Order. The balance of the payments made by Mr. McKay were to be repaid to him out of Ms. Kennedy’s share of the proceeds. In other words, he was given 50% per cent credit for the amounts required to be paid in $200.00 monthly amounts and 100% credit for the balance. [7] The appellant argues that in doing this, Justice MacAdam, in effect, set aside the Agreement. We do not accept this argument. The consent order is clear that the payments of $200.00 per month were to be repaid to Mr. MacKay before the proceeds were otherwise divided. The Minutes of Settlement were ambiguous on this point. Although Article 28(b) and (c) seem to contemplate that these payments are to be returned from Ms. Kennedy’s share, Article 28(e) (the second (e)) contemplates payment before division. Justice MacAdam was, thus, faced with a problem of interpretation and application of the Agreement and resolved it in a sensible and just manner. [8] The appellant further argues that Justice MacAdam erred in failing to deduct notional disposition costs including real estate commission and legal fees even though his order was premised on the appellant purchasing the home in circumstances in which it appeared that no commission would become payable. The Agreement between the parties, while it addresses actual disposition costs in some detail, does not provide for deduction of notional disposition costs in these circumstances. Moreover, such costs, if incurred, could have been recovered from Ms. Kennedy’s employer. In light of the particular circumstances of this case, the judge did not err in finding that it was not appropriate to factor in notional costs of disposition. [9] The appellant also submits that the judge erred in ordering the appellant to pay a deposit equal to 10% of the gross value of the house. This issue is not raised in the notice of appeal and the appellant’s application to amend the notice of appeal was dismissed with costs by the Chambers judge on April 15, 1999. This issue in not properly before us and is manifestly without merit in any event. [10] The application for leave to appeal is dismissed. It is not necessary to deal with the respondent’s application to quash. [11] Having heard counsel, we are of the unanimous opinion that this appeal should not have been brought. To reflect that, the appellant shall pay the respondent her costs fixed at $2500 plus disbursements and payable forthwith. Cromwell, J.A. Concurred in: Glube, C.J.N.S. Freeman, J.A.