SMITH v SMITH, 2016 ABCA 376

Fraser, Paperny AND Greckol JJA

4.24: Formal offers to settle
5.10: Subsequent disclosure of records
5.16: Undisclosed records not to be used without permission

Case Summary

The parties in a divorce and matrimonial property Action appealed and cross-appealed various aspects of the Trial Judge’s Decision. The husband appealed the Trial Judgment on the basis that, among other things, the Trial Judge erred with respect to the spousal support award, division of matrimonial property and Costs. The Court of Appeal noted that the husband’s Appeal was “precipitated by the failure on the part of the appellant (husband) to provide financial disclosure before or during trial, as required”. The wife cross-appealed on the basis that the Trial Judge had erred with respect to the value of certain accounts, and declined the wife’s request to award double Costs because a Formal Offer was ambiguous with respect to the duration and scope of support payments.

The Court held that the husband’s account statements should have been provided under the disclosure provisions in Rules 5.10 and 5.16, the intent of which is to prevent trial by ambush. The Court also held that the husband’s evidence at Trial amounted to opinion evidence, which did not meet any recognized exception. Moreover, it contravened the process prescribed in the Rules for tendering expert opinion evidence, and offended the best evidence rule.

The Court noted that the Trial Judge’s Decision regarding Costs was highly discretionary, but the wife’s Formal Offer was clear with respect to the amount requested for division of matrimonial property, and that the wife beat that Offer at Trial. The Panel also noted that at least half of the Trial was dedicated to determining matrimonial property division, and that the failure to do so warranted appellate intervention. The Court awarded one half of the double Costs award sought, in addition to Trial Costs.

The Appeal was dismissed, and the Cross-Appeal allowed in part.

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