Decisions of the Court of Appeal

COURT OF APPEAL FOR ONTARIO

CITATION: Schwartz v. Schwartz, 2012 ONCA 239

DATE:   20120417

DOCKET: C52195

O’Connor A.C.J.O., Simmons J.A. and Perell J. (ad hoc)

BETWEEN

Karen Schwartz

Applicant (Respondent)

and

David Schwartz and Vast-Auto Distribution Ltd. in its capacity as Judgment Creditor of David Schwartz

Respondent/Intervenor (Appellant)

Sean N. Zeitz, for the appellant Vast-Auto Distribution Ltd.

Mark Greenstein, for the respondent Karen Schwartz

Heard: March 16, 2012

On appeal from the judgment of Justice Hugh K. O’Connell of the Superior Court of Justice, dated May 4, 2010, with reasons reported at 2010 ONSC 2556.

Simmons J.A.:

(1) Introduction

[1]           The issues on this appeal arise from the competing claims against the title-holder of a matrimonial home by an unsecured judgment creditor and the title-holder’s spouse.

[2]           The appellant, Vast-Auto Distribution Ltd., appeals from an order made on a motion in a divorce proceeding setting aside a transfer of title to the couple’s matrimonial home from the respondent, Karen Schwartz, to David Schwartz.

[3]           O’Connell J. found that Ms. Schwartz was subject to undue influence by her husband when she made the transfer. In the alternative, the motion judge concluded that Mr. Schwartz was holding the title to the matrimonial home in trust for his wife, either by way of resulting or constructive trust.

[4]           Although present at the motion, Mr. Schwartz did not participate in the hearing. Instead, Vast-Auto made submissions opposing the relief sought by Ms. Schwartz.

[5]           The main issue on appeal is whether the motion judge made palpable and overriding errors in setting aside the transfer of the matrimonial home, and reinstating title to the home into Ms. Schwartz’s name. An additional issue on appeal concerns the process by which Ms. Schwartz obtained a final order on a motion without bringing a motion for summary judgment and without pleading the primary basis for the order relied upon by the motion judge.

[6]           For the reasons that follow, I would allow the appeal, in part, and remit the question of the extent of Ms. Schwartz’s beneficial interest in the matrimonial home is to the motion judge.

(2) Background

(i)   Title to the Matrimonial Home

[7]           David and Karen Schwartz were married on July 8, 1986. They purchased their present matrimonial home in October 1992 and took title in both their names.

(a) The Transfer to Ms. Schwartz in 2000

[8]           On January 31, 2000, the Schwartzes transferred the title to their matrimonial home into the name of Karen Schwartz, alone. The only evidence in the appeal record[1] about the reason for the January 2000 transfer is contained in the cross-examinations of Mr. Schwartz and Ms. Schwartz conducted for the purposes of the motion.

[9]           In response to a question on his cross-examination by the appellant’s counsel about the circumstances that led to the transfer, Mr. Schwartz answered:

A. There was no circumstances, it just said that it was the right thing to do. I never thought about it, like that way.

...

Q. Do you not recall or there’s no reason?

A. There’s no reason.

[10]      On her cross-examination, Ms. Schwartz explained that there was an estate rollover from Mr. Schwartz’s father to Mr. Schwartz and his brother. Mr. Schwartz’s accountant suggested the transfer of the matrimonial home into her name alone “because of business”. Ms. Schwartz confirmed that the transfer was made for natural love and affection and that there was no written agreement relating to the transfer. However, in response to other questions, Ms. Schwartz testified that her husband had always told her that it did not matter whose name the house was in, because they were both entitled to the matrimonial home.

(b) The Transfer to Mr. Schwartz in 2006

[11]      On March 6, 2006, Ms. Schwartz transferred the title to the matrimonial home into the name of Mr. Schwartz. Ms. Schwartz and Mr. Schwartz both gave evidence concerning why this was done.

[12]      In an affidavit sworn on August 14, 2009, Ms. Schwartz explained that during 2005 she sold clothing from the matrimonial home for about three months to earn some extra money for the family. The RCMP conducted an investigation and determined “there may be trademark infringement” related to her business. In September and October 2006, Ms. Schwartz received three letters from a lawyer regarding a possible trademark infringement claim.

[13]      In her affidavit, Ms. Schwartz described the reason for the transfer as follows:

My husband and I were concerned that there could be litigation against me for the possible trademark infringement.

…

As a result of the threat of litigation, it was decided in March of 2006 to transfer the matrimonial home into my husband’s name.

…

It is my position that the entire matrimonial home was gifted to [Mr. Schwartz] as a result of our concern about my being sued and that [Mr. Schwartz] is holding the matrimonial home in trust for me, and that I therefore have the beneficial interest in this property.

[14]      Ms. Schwartz also detailed her financial contributions to the home: i) a $30,000 down-payment from the spouses’ joint bank account; ii) a $25,000 payment toward the mortgage from a damage award she received in a personal injury lawsuit in 1989; and iii) a $50,000 payment toward the mortgage from an inheritance she received in 1996.

[15]      On her cross-examination, Ms. Schwartz confirmed that the 2006 transfer was done for natural love and affection. She said her husband suggested the transfer because he was afraid of a lawsuit – it was done to protect their house – and because “that’s the way he thinks”. At the time, Ms. Schwartz did not realize there might be any kind of civil suit. In her words, Mr. Schwartz had the paperwork for the transfer prepared and she “just went in and signed”.

[16]      During her cross-examination, both Ms. Schwartz and her counsel explained that the use of the word “gift” in her August 14, 2009 affidavit was an error. Counsel noted that he had not prepared the affidavit himself. And Ms. Schwarz testified she had no intention of gifting her interest to her husband. In fact, a few months after the March 2006 transfer, Mr. Schwartz had the paperwork prepared to put the house back into her name. However, the documents were never signed because of their separation.

[17]      At Ms. Schwartz’s cross-examination, her counsel indicated Ms. Schwartz would deliver a further affidavit to correct the error in the August 14, 2009 affidavit. In the supplementary affidavit sworn September 29, 2009, Ms. Schwartz stated:

In paragraph 12 of my previous affidavit, it erroneously states the matrimonial home was gifted to [Mr. Schwartz]. I never gifted this property to Mr. Schwartz. This was an error in the material that was not rectified when the affidavit was executed. The matrimonial home was transferred to Mr. Schwartz as a result of [Mr. Schwartz]’s abiding concern that I would be sued by various clothing companies as a result of our operating a home based jean business selling “knock off” casual wear. I never intended to transfer my share of the property to my spouse for no consideration. [Mr. Schwartz] at all times was holding my beneficial interest in the matrimonial home on my behalf in trust.

[18]      Mr. Schwartz was examined by appellant’s counsel as a witness in support of the pending motion. In his evidence, he said the March 6, 2006 transfer of the matrimonial home was made “[t]o protect our interests in the home.” He said his wife “had some problems selling some products that [were] infringements of copyright.” When asked about his intention once the risk of litigation subsided, he testified “the intention was to still hold on to Karen’s share in trust.” Moreover, he testified that there was a verbal trust agreement to that effect.

[19]      During the course of his examination, Mr. Schwartz also confirmed that Ms. Schwartz had, in fact, contributed the funds that she claimed to have contributed to the matrimonial home – either by way of contributions to their current home or to a previous home.

(ii) Mr. Schwartz’s Indebtedness to Vast-Auto

[20]      Vast-Auto is an unsecured judgment creditor of Mr. Schwartz. Unbeknownst to his wife, in December 2005, Mr. Schwartz applied to Vast-Auto for credit on behalf of his company, British Auto Supply Co. Ltd. As part of the credit application, Mr. Schwartz agreed to personally guarantee the indebtedness of British Auto. Although the Schwartzes’ matrimonial home was registered in Ms. Schwartz’s name at the time, Mr. Schwartz stated on the credit application that he was an owner of the home.

[21]      British Auto eventually defaulted on the Vast-Auto loan. On January 22, 2009, Vast-Auto obtained summary judgment against Mr. Schwartz for just over $500,000. Vast-Auto filed a writ of seizure and sale against Mr. Schwartz with the Sheriff of the Regional Municipality of York. The writ became effective on January 26, 2009. In June 2009, Vast-Auto began taking steps to enforce its writ of seizure and sale against the Schwartzes’ matrimonial home.

(iii)       Ms. Schwartz’s Application for a Divorce

[22]       The pleadings in Ms. Schwartz’s divorce application were not filed as part of the appeal record. However, during Ms. Schwartz’s cross-examination for the purpose of this motion, her counsel confirmed that Ms. Schwartz commenced her divorce application on May 7, 2009. According to the motion judge, among other relief, Ms. Schwartz claimed an interest in the matrimonial home by way of constructive or resulting trust. Prior to commencing the divorce proceeding, counsel for Ms. Schwartz prepared and filed a document against the title to the Schwartzes’ home confirming its designation as a matrimonial home.

(iv)        Ms. Schwartz’s Motions

[23]      After learning that Vast-Auto was taking steps to enforce its writ of seizure and sale against the matrimonial home, Ms. Schwartz brought two motions in the divorce proceeding concerning the ownership of the home.

[24]      In her first motion, Ms. Schwartz claimed, along with other unrelated relief: i) a declaration that she had a constructive or resulting trust interest in the matrimonial home; ii) in the alternative, an order that she may have a trust interest in the matrimonial home to be determined at trial; iii) an order staying Vast-Auto’s writ of seizure and sale; and iv) an order for exclusive possession of the matrimonial home.

[25]      Following cross-examinations and after delivering a supplementary affidavit to correct her August 14, 2009 affidavit, Ms. Schwartz delivered her second motion in which she claimed: i) an order permitting short service of the motion; and ii) an order setting aside the 2006 transfer of the matrimonial home from her to her husband.

[26]      As I have said, although present on October 8, 2009 when the motions were argued, Mr. Schwartz did not participate in the hearing. Instead, Vast-Auto made submissions opposing the relief sought by Ms. Schwartz.

(2) The Motion Judge’s Reasons

[27]      Although Ms. Schwartz stated in her initial affidavit filed in support of her first motion that “the entire matrimonial home was gifted to [Mr. Schwartz] as a result of our concern about my being sued”, the motion judge found that Ms. Schwartz did not intend to gift the home to her husband.

[28]      Instead, the motion judge concluded, at paras. 41 and 47, that the lawyer who acted on the transfer should have referred Ms. Schwartz for independent legal advice and, at para. 47, that Ms. Schwartz was subject to undue influence from her husband when she signed the transfer. In the alternative, the motion judge held, at para. 61, that Mr. Schwartz holds the title to the matrimonial home in trust for Ms. Schwartz, either by way of a resulting or constructive trust.

[29]      In reaching his conclusions, the motion judge found it significant that: i) Mr. Schwartz represented to Vast-Auto that he was an owner of the Schwartzes’ matrimonial home, and ii) Mr. Schwartz did not disclose to his wife that he had applied to Vast-Auto for credit. Rather, the motion judge found that, within a few months of the credit application and relying on his wife’s “fear” of the possibility of litigation, Mr. Schwartz “cajoled” Ms. Schwartz into transferring their matrimonial home to him at a time when her only creditors were hypothetical.

[30]      Further, the motion judge noted that, while stating in her affidavit that she gifted the matrimonial home to her husband, Ms. Schwartz also maintained, in the same affidavit, that her husband was holding the home in trust for her. In the end, at para. 55 of his reasons, the motion judge rejected as “untenable” the theory that, in transferring the matrimonial home to her husband, Ms. Schwartz intended to entirely divest herself of one of her few significant assets.

(3) The Process Issue

[31]       When this appeal first came on for a hearing, the panel raised a question concerning how Ms. Schwartz obtained a final order setting aside the transfer of the matrimonial home on a motion, without having brought a motion for summary judgment. The appeal was adjourned for one week to permit the parties to address the issue of whether a motion for summary judgment was necessary, and, if it was, whether the test for summary judgment had been satisfied. Mr. Schwartz did not participate in the appeal.

[32]      When the appeal was finally heard, counsel for Vast-Auto and Ms. Schwartz both confirmed that, whatever the outcome of the appeal, neither party wanted an order that the matter proceed to trial.

[33]      Neither party raised the issue of whether a motion for summary judgment was necessary before the motion judge. Both parties argued the motions in the court below on the basis that the motion judge was entitled to weigh the evidence before him and make necessary findings of fact. Neither party objected to that procedure for the purposes of appeal. Moreover, the parties agreed that the motion judge’s findings should be reviewed on a standard of palpable and overriding error.

(4) Vast-Auto’s Position on Appeal

[34]      Vast-Auto submits that the issues in the court below were: whether Ms. Schwartz gifted the matrimonial home to her husband; whether the presumption of resulting trust was rebutted; and whether Ms. Schwartz had an interest in the matrimonial home by way of constructive trust. The motion judge improperly made findings of undue influence only in response to Vast-Auto’s position, responding to an issue raised in oral argument, that lack of independent legal advice is not sufficient on its own to vitiate a conveyance.

[35]      Further, Vast-Auto argues that the motion judge made palpable and overriding errors in finding that Ms. Schwartz did not intend to gift the matrimonial home to her husband and that she was subject to undue influence from her husband when she made the transfer. In the view of Vast-Auto, the evidentiary record demonstrates that Ms. Schwartz knew exactly what she was doing when she transferred the matrimonial home to her husband – she gifted the home to her husband for the purpose of defeating creditors.

[36]      Moreover, Vast-Auto submits that absent the motion judge’s errors, Ms. Schwartz’s motions would inevitably have been dismissed. An order setting aside the transfer of the matrimonial home based on undue influence and lack of independent legal advice was simply not available when Ms. Schwartz knew what she was doing and transferred her interest in the matrimonial home for an illegal purpose. The same factors defeat her claims for a resulting or constructive trust.

(5) Ms. Schwartz’s Position on Appeal

[37]      Although Ms. Schwartz acknowledges that undue influence was not pleaded in her original application, she maintains it was properly in issue and argued in the court below. She also disputes Vast-Auto’s position that the motion judge made palpable and overriding errors in his findings.

(6) Discussion

[38]      In my view, Ms. Schwartz’s motions proceeded in a manner fraught with procedural irregularities. Nonetheless, given that neither party is taking issue on appeal with the motion judge’s entitlement to weigh the evidence and make findings of fact, I conclude that there is no basis on which to interfere with the motion judge’s central finding that Ms. Schwartz did not intend to gift the matrimonial home to her husband.

[39]      This conclusion supports the motion judge’s finding that Ms. Schwartz has an interest in the matrimonial home by way of resulting or constructive trust. However, it does not determine the extent of that interest. Nor, in my view, does it allow this court to overlook the procedural unfairness inherent in the finding of undue influence.

(i)   The Motion Judge’s Finding that Ms. Schwartz did not intend a Gift

[40]      As I have said, assuming that the motion judge was entitled to weigh the evidence and make findings of fact, I see no basis on which to interfere with his findings that Ms. Schwartz did not intend to gift her interest in the matrimonial home to her husband. Accordingly, on the facts of this case, the presumption of resulting trust established under s. 14 of the Family Law Act, R.S.O. 1990, c. F.3,[2] was not rebutted in relation to the 2006 transfer. Similarly, the conclusion that Ms. Schwartz did not divest herself of any interest she may have acquired in the home by way of constructive trust was not undermined.

[41]      In its recent decision in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, the Supreme Court of Canada confirmed the basic principle that a resulting trust may arise in the domestic context where there has been a gratuitous transfer of property. As Cromwell J., writing for the court, stated at para. 16:

[I]t is widely accepted that the underlying notion of the resulting trust is that it is imposed “to return property to the person who gave it and is entitled to it beneficially, from someone else who has title to it. Thus, the beneficial interest ‘results’ (jumps back) to the true owner”: [A. H. Oosterhoff, et al., Oosterhoff on Trusts: Text, Commentary and Materials, 7^th ed. (Toronto: Carswell, 2009)], at p. 25. There is also widespread agreement that, traditionally, resulting trusts arose where there had been a gratuitous transfer….

[42]      In Kerr, the Supreme Court of Canada also confirmed the view expressed in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 43-44, that where there is a gratuitous transfer, the actual intention of the transferor is the governing consideration. At para. 44 of Pecore, Rothstein J. noted that where a gratuitous transfer is being challenged, “[t]he trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention.”

[43]      Further, as Karakatsanis J. observed in Nussbaum v. Nussbaum (2004), 9 R.F.L. (6th) 455 (Ont. S.C.), at paras. 20 and 32, while the “intention to gift property trumps the presumption of resulting trust”, a party’s intention at the time of a conveyance is a question of fact. Further, as she stated, at para. 32, “[w]hile evidence that someone intended to fully evade creditors can be evidence that they intended to gift their entire interest in the property”, a party’s actual intention remains a question of fact to be determined based on the whole of the evidence.

[44]      In this case, in my view, it was open to the motion judge to find that Ms. Schwartz did not intend to gift her interest in the matrimonial home to her husband.

[45]      Although Ms. Schwartz used the word “gift” in her original affidavit, she claimed, in the same sentence, that Mr. Schwartz was holding the matrimonial home in trust for her. In the words of the motion judge, these two concepts “cannot ride together.”

[46]      Further, as the motion judge noted, the previously mentioned trademark holders did not write to Ms. Schwartz about their potential claims until more than six months after the transfer of the matrimonial home. In these circumstances, it was open to the motion judge to find that the threat of litigation was hypothetical at the time of the transfer.

[47]      Finally, as noted above, the motion judge concluded that it was untenable that a person in Ms. Schwartz’s position with few assets and a significant historical contribution to the matrimonial home would entirely divest herself of her interest in the home. This conclusion was entirely reasonable on the evidence.

[48]      I conclude that Vast-Auto’s argument that the motion judge made palpable and overriding errors in failing to find that Ms. Schwartz intended to gift the matrimonial home to her husband is no more than an argument that the motion judge could have drawn a different inference from the evidence.

[49]      That said, in making a finding that Ms. Schwartz had an interest in the matrimonial home by way of resulting and/or constructive trust, it was, in my view, incumbent on the motion judge to determine the extent of the interest held in trust by Mr. Schwartz for Mrs. Schwartz.

[50]      The record is clear that the Schwartzes acquired title to their home in 1992 in both their names. In 2000, the title was transferred to Ms. Schwartz for no consideration. In 2006, Ms. Schwartz transferred title to Mr. Schwartz for only nominal consideration. Further, there appears to be no dispute that the initial down payment for the home came from a joint bank account (or from the proceeds of sale of the parties’ first home, which was jointly owned), and that both Mr. and Ms. Schwartz made ongoing financial contributions to the acquisition of the parties’ homes.

[51]      In Kerr, the Supreme Court of Canada noted, at para. 19, that, in the face of a presumption of resulting trust, the onus of demonstrating that a gift was intended is on the person receiving the transfer. A question therefore arises on the face of the record concerning whether Ms. Schwartz acquired more than a 50 percent beneficial interest in the matrimonial home under the 2000 conveyance.

[52]      I am not aware of what, if any, position, Mr. Schwartz took in his pleadings concerning Ms. Schwartz’s claims for a resulting or constructive trust.

[53]      However, Vast-Auto did raise the issue of the extent of Ms. Schwartz’s interest, at least collaterally, in the affidavit of its representative, Mark Mandell. Mr. Mandell stated in his affidavit that if it were, in fact, proven that $30,000 of the initial down payment for the Schwartzes’ matrimonial home came from  joint funds he “expect[ed] that $15,000 would be attributed to Mr. Schwartz’[s] ownership interest”.

[54]      In my view, given the issues arising on the face of the record about the extent of Ms. Schwartz’s beneficial interest in the matrimonial home, it was incumbent on the motion judge to determine that issue as part of his finding that Ms. Schwartz had an interest in the home by way of resulting or constructive trust. In that regard, I note that the motion judge gave no reasons for concluding that Ms. Schwartz had a 100 percent beneficial interest in the matrimonial home by way of resulting trust. Nor did he make any specific findings about whether Ms. Schwartz’s financial contributions to the home entitled her to an interest in the home greater than that to which she was entitled by way of resulting trust. As these issues were not fully argued on appeal, I see no alternative but to remit them to the motion judge.

[55]      Moreover, in the event that the motion judge does determine that Ms. Schwartz has an interest in the matrimonial home by way of constructive trust in excess of the interest she holds by way of resulting trust, it will be necessary for the motion judge to consider whether Vast-Auto’s claims should affect the decision to award a remedial constructive trust: Thibodeau v. Thibodeau, 2011 ONCA 110, 104 O.R. (3d) 161, at para. 51; see also Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, at para. 45.

(ii) Undue Influence

[56]      Turning to the issue of undue influence, I conclude that this court cannot overlook the procedural unfairness arising from the manner in which the undue influence claim was advanced.

[57]      Even assuming that Ms. Schwartz raised the issue of undue influence during oral argument of the motion, she acknowledges that she did not plead undue influence in her original notice of application, nor is undue influence mentioned in either of her notices of motion. In the result, Vast-Auto never had the opportunity to question Mr. Schwartz about the theory of undue influence when examining him as witness. At the time of his examination, there was not yet any indication that a theory of undue influence would be relied upon.

[58]      Despite the parties’ common position that they do not wish this matter to proceed to trial, in my view, we cannot overlook the procedural irregularities that led to the finding of undue influence. In short, Vast-Auto was deprived of the opportunity to lead evidence on the issue.

[59]      For this reason, the finding of undue influence and the order setting aside the transfer of title from Ms. Schwartz to Mr. Schwartz cannot stand. Moreover, because undue influence was never pleaded, the motion to set aside the March 2006 transfer must be dismissed. In this regard I note that the motion judge’s findings about the trust claims will, in any event, determine the spouses’ respective beneficial interests in the matrimonial home.

(iii)       Procedural Issues relating to the Trust Claims

[60]      Despite Ms. Schwartz’s failure to bring a motion for summary judgment, the concerns about procedural unfairness relating to the finding of undue influence do not arise in relation to the motion judge’s trust findings.

[61]      The parties agree that Ms. Schwartz advanced a claim based on resulting and constructive trust in her notice of application. She did the same in her first notice of motion.

[62]      In the result, I am satisfied that the parties had an opportunity to put all relevant evidence before the court and to make whatever submissions they considered appropriate in relation to the issues of resulting and constructive trust.

[63]      In this regard, I note that the Family Law Rules, O. Reg. 114/99, allow for some procedural flexibility where such flexibility does not result in procedural unfairness.

[64]      Rule 2(2) of the Family Law Rules provides that “[t]he primary objective of [the] rules is to enable the court to deal with cases justly.” Rule 2(3) provides that dealing with cases justly includes: “ensuring that the procedure is fair to all parties; saving time and expense; [and] dealing with a case in ways that are appropriate to its importance and complexity”.

[65]      Further, rule 1(8) permits the court to deal with a failure to follow the rules by making any order that it considers necessary for a just determination of the matter. 

[66]      I note that there is no provision in the Family Law Rules similar to rule 37.13(2) of the Rules of Civil Procedure, which explicitly permits a motion to be converted to a motion for judgment.

[67]      I do not endorse the procedure adopted on this motion. However, having particular regard to the fact that neither party is objecting on appeal to the motion judge weighing the evidence and making findings of fact, and that both parties urge us not to remit the matter as whole for trial, I consider this an appropriate case in which to make an order under rule 1(8) of the Family Law Rules that Ms. Schwartz’s motion be converted to a motion for judgment and that the findings of the motion judge be subject to review on appeal on a standard of palpable and overriding error.

[68]      Nothing in these reasons should be taken as determining whether this court’s decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, applies to summary judgment motions under the Family Law Rules. Nor should these reasons be taken as endorsing the motion judge’s comments about the role of family law policy considerations in cases where the rights of third parties and family law litigants are at stake.

(7) Disposition

[69]      Based on the foregoing reasons, I would allow the appeal, in part. I would set aside the motion judge’s order setting aside the conveyance from Ms. Schwartz to Mr. Schwartz, and substitute an order that Ms. Schwartz has an interest in the matrimonial home by way of resulting and/or constructive trust as of March 6, 2006. I would remit the matter to the motion judge to determine the extent of Ms. Schwartz’s interest in the matrimonial home as of March 6, 2006. Subject to further order by the motion judge, I would restrain Vast-Auto from executing on its writ of seizure and sale against the matrimonial home pending determination of the extent of Ms. Schwartz’s interest in it. Finally, I would dismiss the motion to set aside the March 2006 conveyance.

[70]      As success on the appeal is divided, I would make no order as to costs of the appeal. I would remit the question of costs of the motion in the court below to the motion judge following a determination of the extent of Ms. Schwartz’s interest in the matrimonial home.  

                   Signature: “Janet Simmons J.A.”

                                      “ I agree Dennis O’Connor J.A. ”

                                      “I agree Perell J. (ad hoc)”

Released: “D.O’C.”  April 17, 2012