Fisher v. Fisher

Fisher v. Fisher Court Court of Appeal Date 1994-05-31 Citation 1994 NSCA 110 Docket CA 02828 Judge/Registrar/Adjudicator Freeman, Gerald B. (Honourable Justice) (CA); Hallett, J. Doane (Honourable Justice) (CA); Matthews, Kenneth M., (Honourable Justice) Document Type Decision Decision Content C.A. No. 02828 NOVA SCOTIA COURT OF APPEAL Cite as: Fisher v. Fisher, 1994 NSCA 110 Hallett, Matthews and Freeman, JJ.A. BETWEEN: RICHARD MARK FISHER ) Appellant in person ) Appellant ) ) - and - ) ) Michael V. Coyle ) for the Respondent SANDRA JANE DENNIS FISHER ) ) Respondent ) Appeal Heard: ) May 18, 1994 ) ) ) Judgment Delivered: ) May 31, 1994 ) ) ) ) ) ) ) ) THE COURT: Appeal allowed in part per reasons for judgment of Hallett, J.A.; Matthews and Freeman, JJ.A. concurring. HALLETT, J.A.: On this appeal the husband asserts that the learned trial judge who heard the parties divorce was assisted in reaching his decision as to the division of property and the level of support on the basis of the wife's false testimony. The husband has applied to this court to allow him to adduce fresh evidence on the appeal to prove that his former wife's evidence was false. His grounds of appeal are that the learned trial judge erred in ordering a "grossly unfair division of assets" in that he postponed the sale of the home and thus payment to the husband of his share of the matrimonial assets. The husband also asserts that the trial judge ordered "an unrealistic and unfair" level of support. The Trial Judge's Decision The parties had agreed that Mrs. Fisher would have custody of the children and there were access provisions for Professor Fisher. The parties had also agreed on the division of certain assets. However, there was disagreement on important questions respecting the matrimonial home and the level of support. Mrs. Fisher testified she was embarking on a five-year university program which would lead to a B.A. in costume studies and wanted to remain with the children in the matrimonial home until the course of her studies were completed. Mr. Fisher was of the opinion she should not waste her time on this course of studies as there were few employment opportunities in the field; his position was that Mrs. Fisher should seek employment as a secretary for which she is qualified and thus help support the children. Professor Fisher's annual income was $41,700; Mrs. Fisher was a homemaker and did not have any income. The learned trial judge decided that the needs of the children who had already suffered from the disruption associated with the breakdown of the marriage required the security of the family home. He accordingly decided to grant exclusive possession of the matrimonial home to Mrs. Fisher until June 30th, 1997, at which time it was to be sold and the proceeds divided equally between the spouses "so as to bring about an equal division of the matrimonial property". He went on to state at p. 6 of his decision: I am satisfied that an equal division is appropriate, in the circumstances of these people. The property also is to be sold earlier if any of the following conditions develop, that is, if Mrs. Fisher discontinues her studies at the university, or the children cease to be in her custody, or she moves out of the matrimonial home or remarries. The trial judge then looked at the other assets of the spouses, valued them and concluded that Mrs. Fisher would have to pay Professor Fisher the sum of $3,100 to "bring about an equal division". This sum could be paid at the time the home was disposed of as, in the trial judge's opinion, her financial position did not allow her to pay the sum forthwith. He went on to state that the sale of the home was being postponed, not for the benefit of Mrs. Fisher but for the children. The learned trial judge then dealt with the support issue and ordered Professor Fisher to pay $1,400 a month for the support of Mrs. Fisher and the children. He directed his attention to counsel's argument that Mrs. Fisher had a duty to become self-sufficient. The learned trial judge stated at p. 9 of his decision: ...both spouses have an obligation to make themselves financially self-sufficient insofar as possible. I do not presume to attempt to tell Mrs. Fisher what direction she should be taking insofar as her future career is concerned. In my view that is not the function of the Courts, but I think that in the circumstances of these people, what she is seeking to do is quite appropriate. After all, her husband, partly through her efforts, has had the advantage of attaining his academic goals and, in my humble opinion, she is entitled to the same consideration from him and I accept Mrs. DeWolfe's argument in that respect. However, that is not to say that she must not take all steps possible to try to provide income by her own means, either by part-time employment, summer employment, taking in a roomer, or whatever, to assist in the costs of maintaining herself and the children." The Fresh Evidence Application Professor Fisher has appeared on this appeal without counsel although he was represented by counsel at trial. He filed an affidavit in which he asserts his belief that Mrs. Fisher failed to disclose at trial that she had a balance of $4,244 in an account at the Royal Bank of Canada. In support of this contention he attached to his affidavit a copy of a withdrawal slip for an account showing a balance of $4,244 on January 12th, 1993. Mrs. Fisher filed two statements of property, one dated October 31, 1991, roughly two months after the separation in which statement she showed a savings account in the Bank of Montreal with a balance of $3,860. She filed a second statement of property sworn to on January 18th, 1993, the day before the trial, which showed a nil balance in the Bank of Montreal account but did not disclose the account in the Royal Bank. The trial was held on January 19 and February 2, 1993, at the conclusion of which the learned trial judge rendered an oral decision. The withdrawal slip shows an account number but not a name. In his affidavit Professor Fisher states: 8. THAT I obtained this statement quite by accident from a hall mirror, picked up and delivered from the matrimonial home to my apartment during the first week of February, 1993. 9. THAT, upon visiting the matrimonial home during the second week of February, 1993, I observed a clear glass cookie jar on the kitchen shelf containing dozens of similar Royal Bank statements. 10. THAT, while initiating my own bank account at the Royal Bank, Wolfville, during the last week of February, 1993, I asked the bank teller whether it would be possible to transfer directly maintenance payments from my account to the account of my ex-wife. I was told that it could easily be arranged, as Mrs. Fisher had held an account at this bank for some time. At trial Mrs. Fisher testified that she had four $1,000 bonds which had been given to her by her father but that she had cashed three of them to finance her education. She showed on her January 18, 1993 statement of property that she had one $1,000 bond with a value of $1,400. At the time of the trial Professor Fisher had been paying the sum of $1,470 a month for support of Mrs. Fisher and the children. The evidence would also indicate that Mrs. Fisher was getting some financial help from her mother-in-law and her father. In addition to the issue of the bank account, Professor Fisher also asserts that Dalhousie University does not have a five year B.A. program in costume studies. Attached to his affidavit is what he states to be a photocopy of the 1993/94 Dalhousie University calendar for Arts & Social Sciences which he says supports his assertion that Mrs. Fisher gave false evidence when she testified she was in a five year program. A review of the copy of the calendar, as submitted, supports Professor Fisher's assertion. The appeal was scheduled to be heard on December 6, 1993. On that date we granted Professor Fisher's motion for an adjournment so that he could bring forward his application to adduce fresh evidence in proper form. Professor Fisher was on his way to New Zealand at the time the hearing of the application and the appeal was then rescheduled for May 18, 1994. On May 4th, 1994, Professor Fisher filed a statutory declaration made by Dr. Graham Taylor dated the 19th of April, 1994. The declaration sets forth that Dr. Taylor is the Dean of Faculty of Arts & Social Sciences at Dalhousie; he declares as follows: 3. The Costume Studies Program of Dalhousie University is run through the Department of Theatre and is part of the Faculty of Arts and Social Sciences; 4. The Costume Studies Program is a course of two (2) years duration and in some situations, an exceptional student can participate in a third year of studies; 5. Changes initiated in 1994 to the Theatre Department will in the future allow students to pursue the Costume Studies Program as a part of a Bachelor of Arts Degree with a concentration in design and this course will be of three (3) and occasionally four (4) years in duration. 6. Students present enroled in the Costume Design Certificate Course will not automatically be eligible for this degree program. In addition, Professor Fisher has filed a declaration sworn by Romaine F. Fisher, who swears that she stayed at the home of the parties in December of 1991 and that Mrs. Fisher did not contribute to the purchase of the family car. With respect to this latter evidence it does not seem that anything in the learned trial judge's decision turned on the issue of who contributed to the purchase of the family car. The day before the hearing of the appeal Mrs. Fisher filed her own affidavit dealing with the allegation that she had "secret" assets which she failed to disclose. She also filed an affidavit sworn by Lynn Sorge, Chair of the Department of Theatre Studies at Dalhousie University. Mrs. Fisher's affidavit details the transfer of funds and deposits which gave the rise to her having this Royal Bank of Canada savings account with a balance of $4,320 on January 18, 1993. The account was opened on June 2, 1992 with a transfer to $2,100, being the balance she had left in her Bank of Montreal account which had been disclosed her in statement of property sworn to on October 31, 1991. She also deposited on January 2, 1992 the proceeds of the sale of a $1,000 bond for $1,450, to make up the opening balance of $3,550 as shown on the copy of the passbook entries which are attached to her affidavit. The affidavit documents the history of the Royal Bank of Canada account from that date showing deposits and withdrawals. In July 1992 she deposited the sum of $3,217 to the account which the affidavits states was the proceeds from the sale of two $1,000 bonds. On January 19, 1993 she deposited the sum of $1,469 which were the proceeds of the sale of the last of her four $1,000 bonds. These deposits were the only significant deposits apart from $800 in January of 1993 being a Christmas gift. Ms. Sorge's affidavit confirms that in order for Mrs. Fisher to get a degree, which in Ms. Sorge's opinion is needed by Mrs. Fisher in the current job market, she would need to take a five year program. Ms. Sorge's swears in paras. 7 and 8 of her affidavit as follows: "7. The other way Sandra Dennis could earn her degree and the way, in fact, that I have recommended that she proceed, is to take advantage of a long-standing credit transfer agreement between Dalhousie University and the Nova Scotia College of Art and Design (N.S.C.A.D.). This allows her to transfer 60 of the required 130 credit hours from the Dalhousie Costume Studies Program toward a Bachelor of Fine Arts Degree from N.S.C.A.D. I have recommended this course of studies to Sandra Dennis because I believe, based on my teaching and professional experience, that this course will best prepare her for the career plans she indicates and it will better allow her to work on her technical skills and will provide the better mix of theoretical and practical training she needs to work in the field. This will, in Sandra Dennis's case, involve a five year course of studies; 8. I have read the excerpt of the transcript of the proceedings in the Supreme Court where Sandra Dennis testified that she was involved in a five year course of studies. A copy of this excerpt is now produced and shown to me and attached hereto marked as Exhibit 'B'. I say, from my own personal knowledge, that Sandra Dennis's evidence on that occasion was, in fact, the truth." Applications to adduce fresh evidence on an appeal are made pursuant to Civil Procedure Rule 62.22 which provides: 62.22(1) The Court on application of a party may on special grounds authorize evidence to be given to the Court on the hearing of an appeal on any question of fact as it directs. (2) The evidence shall be taken by oral examination before the Court or by affidavit or deposition, as the Court directs. (3) The Court on an appeal may on special grounds inspect or view any place, property or thing. In Thies v. Thies (1992), 110 N.S.R. (2d) 177 this Court reviewed the tests for admission of fresh evidence on appeals in civil cases and the procedure to be followed when such an application is made. The Court followed the tests laid down by the Supreme Court of Canada in R. v. Palmer, (1979) 50 C.C.C. (2d) 193 that the evidence must be relevant, be reasonably capable of belief and that it should not be admitted, as a general rule, if by due diligence it could have been adduced at trial, and finally, the evidence must be such that "if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result." The procedure to be followed on such an application is as set forth by the Supreme Court of Canada in R. v. Nielson and Stolar, (1988) 40 C.C.C. (3d) 1. Although both Palmer and Stolar cases were criminal cases this Court has applied the law as stated therein in civil cases. We reserved decision on the application as we did not dismiss it prior to hearing the argument on the appeal. Professor Fisher has made the serious allegation that his former wife committed perjury in failing to disclose the Royal Bank savings account and in testifying she was engaged in a five year course of studies and in testifying she had exhausted her savings account. Until Mrs. Fisher responded to these allegations, the day before the hearing of the appeal, a review of her trial evidence and her statement of property dated January 18, 1993, made it appear as if the allegations might very well be true. Furthermore, the evidence was clearly relevant to the issue of postponement of the division of assets until Mrs. Fisher completed her course of studies. However there was always the question of whether the admission of the evidence could be expected to affect the result. Having now had an opportunity to consider Mrs. Fisher's affidavit and that of Ms. Sorge and having reviewed the transcript of the trial proceeding including the representations to the trial judge by Mrs. Fisher's counsel and having reviewed the trial judge's decision to determine the manner in which he arrived at his valuation of the spouses' respective assets, I am completely satisfied that the evidence brought forward by Professor Fisher should not be admitted for the following reasons. The balance of the Royal Bank of Canada savings account on January 18, 1993 was, in the main, a result of the sale by Mrs. Fisher of three bonds and the deposit of the proceeds of those sales. The position at trial was that the bonds were not matrimonial assets as they were a gift from Mrs. Fisher's father to her. The trial judge agreed. This finding has not been challenged on appeal and quite properly so as it is a correct finding. As a general rule, matrimonial property is divided as between the spouses on the basis of the matrimonial asset valuations as of the time of separation. The parties separated in September 1991. Mrs. Fisher had disclosed on her October 31, 1991 statement of property that she had a savings account at the Bank of Montreal in the amount of $3,860. In the submissions to the trial judge Mrs. Fisher's counsel outlined the assets of the parties that should be taken into account by the court in determining an appropriate equalization payment. Counsel included the savings account of $3,860; the savings account asset was not hidden. The learned trial judge in his decision expressly took it into account the savings account of $3,860 when calculating the assets of Mrs. Fisher. The Royal Bank of Canada account was simply the successor account to the Bank of Montreal account and never had more than $2,100 in it that was any part of the original $3,860 shown on the October 31, 1991 statement of property. Although the Royal Bank of Canada should technically have been shown on the statement of property sworn on January 18, 1993, it is not hard to understand how it could have been overlooked as the position of Mrs. Fisher was that she recognized that a savings account of $3,860 was to be taken into account in the division of property. When one under understands what has gone into creating the balance in the Royal Bank of Canada account on January 18, 1993,the testimony of Mrs. Fisher which Professor Fisher says was false takes on quite a different appearance. Without going into detail I am referring to her testimony at pp. 20, 25 and 29 of the transcript, which Professor Fisher emphasizes shows her untruthfulness. With respect to her evidence at p. 20, I am satisfied that she considered her "education savings" to be her bonds and her R.R.S.P. Professor Fisher puts great emphasis on her testimony at p. 25 as being a lie. She was being questioned by her own counsel about how she was able to make ends meet as she was showing a monthly deficit on her financial statement. The following questions and answers were given: "A. Well I am doing without some things, and I've gone through what was left of a joint savings account. Q. How much was that? A. It was 3 thousand and something. I'm not sure how much exactly." After examining the facts set forth in her affidavit and the entries in the passbook, this is a truthful assertion. She had gone through what was left of the Bank of Montreal savings account and it was disclosed on the October 31, 1991, statement of property. What she had in the Royal Bank account on January 18, 1993, were, for the most part, the proceeds of the sale of her bonds which were not matrimonial assets and were considered by her to be her education savings. Professor Fisher relies on testimony at p. 29 to prove that she lied to the trial judge. The following questions and answers are relevant to this issue: "Q. And you have depleted you Canada Savings Bonds in the approximate amount of $3,000? A. Hm hm. Q. To make up the deficit? A. To pay for my education." Her testimony on this issue was truthful as by then she had cashed three of her bonds and her affidavit shows the funds are essentially being used to pay tuition fees. Professor Fisher also points to certain evidence she gave with respect to the nature of the program she was taking towards a degree in Costume Studies as evidence that she misled the court. He asserts that there is no such thing as a five year degree program, there is only a two or three year diploma and certificate program at Dalhousie. On cross-examination at p. 39 the following questions and answers are relevant to this issue: "Q. You spoke about the program that you're involved in? You say it's a five year course? A. Five years. I anticipate that it will take me five years to get my degree. Q. How long is it usually? A. How long is it usually to get what? Q. A degree? A. Depends on what sort of degree you're taking about. Q. The degree that you are seeking to obtain? A. Five years." It is quite clear from Ms. Sorge's evidence that she is involved in a five year program. The only discrepancy in the evidence is that Mrs. Fisher did not disclose that it involves transferring to the Nova Scotia College of Art and Design. No one asked her that specific question and I am satisfied her evidence with respect to a five year program was not false. Professor Fisher has dragged this court through a needless exercise which I do not appreciate. Instead of making some enquiries of his former wife to explain the Royal Bank account and the duration of her course of studies, he chose to allege that she committed perjury and misled the trial judge. These were serious allegations and resulted in this court having to take his allegations seriously only to find that there is a reasonable explanation. The trial judge was not misled by the evidence of Mrs. Fisher. The evidence that she committed perjury is not credible. The fresh evidence could not affect the result. Accordingly, it should not be admitted. The application to adduce the fresh evidence ought to be dismissed. Therefore, there is no need to remit the matter to the trial judge to reconsider the issues in face of the new evidence as was done in the Thies case. I will now deal with the grounds of appeal raised by Professor Fisher. Grounds of Appeal Professor Fisher asserts that the learned trial judge erred in postponing the sale of the matrimonial home and in postponing the payment of the equalization sum of $3,100. He argues that the learned trial judge purported to make an equal division of matrimonial assets but, in fact, make an unequal division by reason of the postponement. He relies on the decision of Jenkins v. Jenkins (1992), 107 N.S.R. (2d) 18 in which Richard J. followed a decision of this court in Nolet v. Nolet (1985), 68 N.S.R. (2d) 370 which held that when postponement of the sale of the matrimonial home for a period of years is ordered, as was done in this case, it effects an unequal division of matrimonial assets. Counsel for Mrs. Fisher acknowledged before the learned trial judge that in seeking a postponement of the sale of the matrimonial home and, therefore, the division of the proceeds of the sale and postponement until then of the payment of the $3,100 equalization payment she was seeking an unequal division. Unless one were to conclude that there was a typing error and that the word "equal" was typed in the decision when it should have been "unequal", and that argument has not been raised, the trial judge's decision appears to contain some inconsistencies that would indicate some confusion as to the application of s. 13 of the Matrimonial Property Act, R.S.N.S. 1980, c. 9. The learned trial judge stated at pp. 5 and 6 of his decision as follows: " Dealing first with the issues under the Matrimonial Property Act, I have considered the positions put forward by the parties. I have taken into account the specific factors set out in s. 13 of the Matrimonial Property Act that the court is obliged to consider in determining an appropriate division of matrimonial property. I say without hesitation that my prime concern has been under s. 13(h), which refers to the needs of a child who has not attained the age of majority. I accept the position put forward by Mrs. DeWolfe, on behalf of her client, that the children have already suffered a serious disruption in their lives as a result of the separation and that it would be inappropriate and unfair to compound it by driving them out of their home at this time. I also look upon it as being a reasonable financial arrangement for Mrs. Fisher and the children in the present circumstances. I will, therefore, accede to the request of the petitioner that she be granted exclusive possession of the matrimonial home. I will not go to the extent that is requested, but I will order that she may have exclusive possession of the matrimonial home until June 30, 1997. At that time the property is to be sold and the net proceeds are to be divided equally between the parties, so as to bring about an equal division of the matrimonial property I am satisfied that an equal division is appropriate, in the circumstances of these people. The property also is to be sold earlier if any of the following conditions develop, that is, if Mrs. Fisher discontinues her studies at the university, or the children cease to be in her custody, or she moves out of the matrimonial home or remarries." Section 13(h) of the Matrimonial Property Act, Chap. 275 provides: " 13 Upon an application pursuant to Section 12, the court may make a division of matrimonial assets that is not equal or may make a division of property that is not a matrimonial asset, where the court is satisfied that the division of matrimonial assets in equal shares would be unfair or unconscionable taking into account the following factors: . . . (h) the needs of a child who has not attained the age of majority;" Section 13 only comes into play in determining if there should be an unequal division of matrimonial assets. An unequal division is premised on the court being satisfied, considering the s. 13 factors, that it would be unfair or unconscionable to make an equal division. There is no express finding by the trial judge of unfairness or unconscionability and it appears that he has fallen into error. Relief Sought on the Appeal of the Trial Judge's Decision & Disposition of the Appeal The appellant asks this court to order the immediate sale of the matrimonial home, the immediate payment of the $3100 equalization payment, and finally, a reduction of the support payment from $1400 a month to $1000. There is no specific provision in the Matrimonial Property Act respecting appeals to this court from matters decided under that Act. Therefore, the provisions of ss. 38 to 40 inclusive of the Judicature Act, R.S.N.S. 1989, C-240 [amended 1989, C-20, S.N.S. 1992, C-16] and Civil Procedure Rule 62.22 govern such appeals. The learned trial judge made an error in law in concluding that he had made an equal division of matrimonial assets notwithstanding that he had postponed the realization and division of the assets as provided in his decision. In my opinion, the result reached by the trial judge was understandable given the circumstances; he was concerned about the children's needs given the sudden departure of their father in September 1991 when, as Mrs. Fisher testified, he announced his intention to leave her and the children to "pursue a relationship in New Zealand". Because of the disruption to the family, Mrs. Fisher delayed the start of her planned university course of studies for one year. The issue, of course, is not whether it is desirable to allow Mrs. Fisher to stay in the matrimonial home with the children but whether making an unequal division of the matrimonial assets would be unfair or unconscionable considering the factors set out in s. 13 of the Matrimonial Property Act. In Donald v. Donald (1991), 103 N.S.R. (2d) 322, Chipman J.A. stated at p. 328: "In examining the factors set out in s. 13 to see if one or more of them should displace the entitlement of equality declared in the preamble of the Act, a court requires strong evidence showing that in all the circumstances an equal division would clearly be unfair and unconscionable on a broad view of all the relevant factors: Harwood v. Thomas (1981), 45 N.S.R. (2d) 414; 86 A.P.R. 414 (C.A.), at 417 per MacKeigan, J.A." The onus is on the party seeking the unequal division to produce strong evidence that would warrant anything other than an equal division. It is now May of 1994. Professor Fisher left the matrimonial home in September 1991. The children are now 9 and 7 years of age. There is limited money to go around. Ideally it would be better if the matrimonial home could be retained as ordered by the learned trial judge, but retention is expensive. As noted by Richard J. in Jenkins v. Jenkins families are required to move from time to time. It is a fact of life. It is now almost three years since Professor Fisher left the family home and the children have had the comfort of the matrimonial home for this period. There is not strong evidence that warrants a further delay in the division of assets. Professor Fisher has been deprived of his share of the matrimonial assets for a substantial period of time. Considering the factors in s. 13 of the Matrimonial Property Act, in my opinion, it is not unfair or unconscionable to now order an equal division of the matrimonial assets. Therefore, I would order that the matrimonial home, which is in both names, be sold forthwith. If the parties cannot agree on the method of sale or agree as to the acceptance of an offer if, as and when one is received, either of them may apply to the Supreme Court for directions on this subject. I will now deal with the support issue as raised on this appeal. In Moge v. Moge, [1992] 3 S.C.R. 813 the Supreme Court of Canada concluded that the wording of s. 21 of the Divorce Act, R.S.C. 1985 delineating the scope of appellant review from decisions of trial judges either on the hearing of the divorce or on a variation application, is essentially the same as s. 17 of the 1970 Divorce Act. The Supreme Court of Canada therefore confirmed the opinion of Wilson J. in Pelech v. Pelech, [1987] 1 S.C.R. 801 where at p. 824 Wilson J. accepted the views of Morden J.A. in Harrington v. Harrington (1981), 33 O.R. (2d) 150 where he stated at p. 154: As far as the applicable standard of appellate review is concerned I am of the view that we should not interfere with the trial Judge's decision unless we are persuaded that his reasons disclose material error and this would include a significant misapprehension of the evidence, of course, and, to use familiar language, the trial Judge's having "gone wrong in principle or (his) final award (being) otherwise clearly wrong": Attwood v. Attwood, [1968] P. 591 at p. 596. In other words, in the absence of material error, I do not think that this Court has an "independent discretion" to decide afresh the question of maintenance and I say this with due respect for decisions to the contrary . . . I have reviewed the evidence that was before the learned trial judge and have reviewed his decision. I am satisfied that he was well aware of the provisions ss. 15(7) and (8) of the Divorce Act, 1985, as is evidenced from that portion of his decision which I have previously quoted. I am not persuaded that the learned trial judge was wrong in the principles he applied to the support issue nor am I persuaded his award was clearly wrong. The learned trial judge recognized it would impose a financial burden on Professor Fisher but the payment of support in the amount of $1,400 a month was called for under the circumstances that existed at the time of the divorce hearing. If circumstances change it is always open to either party to apply for a variation of the support order. In summary, I would order that the matrimonial home be sold forthwith and the net proceeds of the sale, when finalized, divided equally between the parties at which time Mrs. Fisher should also pay the sum of $3,100 as ordered by the trial judge. Professor Fisher has not requested interest on the monies owing. With respect to costs, the success on the appeal was divided in that the requested reduction in the level of support was refused while Professor Fisher succeeded in obtaining the relief he sought respecting the sale of the matrimonial home. Each of the parties should bear their own costs of the appeal. With respect to the application to adduce fresh evidence, Professor Fisher should pay costs in the amount of $500 plus disbursements. Hallett, J.A. Concurred in: Matthews, J.A. Freeman, J.A. C.A. No. 02828 NOVA SCOTIA COURT OF APPEAL BETWEEN: RICHARD MARK FISHER ) ) Appellant ) - and - ) REASONS FOR ) JUDGMENT BY: SANDRA JANE DENNIS FISHER ) ) HALLETT, J.A. ) Respondent ) ) ) ) ) ) )