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Laws of Eve: When can the court correct itself?

Published:Monday | March 28, 2016 | 3:00 AM

Despite the best efforts of the court and the parties to an action, there are times when further applications have to be made after the court has pronounced its final order.

Regrettably, this was the case in Weir v Tree, involving a husband and wife in an action concerning matrimonial property. The claim was filed in the Supreme Court in 2008, and the court delivered its ruling in November 2009. An appeal of that decision was filed in 2011, and determined in March 2014.

It was, therefore, surprising to see yet another decision from the Court of Appeal involving the same parties handed down on March 4, 2016.

The first trial awarded the husband a half-share of the value of the dwelling house on the land in question, that had a value of $2,600,000. A judgment was entered for the husband in the amount of $1,300,000. On his appeal to the Court of Appeal, the husband sought a half-share in the family home (not just the dwelling house) and the first option to acquire the wife's interest in the home that had been his home for 28 years, and he succeeded. At that time, the court also ordered that an updated valuation report should be prepared and that the husband would have the option to purchase within three months of the 'order for sale'.

Issues concerning the timing of the updated valuation report, and the exercise of the husband's option to purchase, necessitated the filing of the application to the Court of Appeal by the husband in 2015 for further directions, or a variation of the court's order. Importantly, the valuation report did not reach the hands of the husband's attorney until June 17, 2014, exactly three months after the order was made. When the husband then tried to purchase the wife's interest in the property, she countered by saying that the time within which he could do so had lapsed and that she, instead, wanted to purchase his interest in the property.

 

MAJORITY DECISION

 

On these issues, the Court of Appeal's majority decision was in the husband's favour. The following findings of the court may be relevant to all applications for variation of a court order:

1 The court has the power to correct errors in an order that it had previously made, arising from accidental slips or omissions, so as to bring the order as drawn into conformity with that which the court meant to pronounce.

2 In order to determine what was the intention of the court which had made the original order, the court must have regard to the language of the order - taken in its context, and against the background of all the relevant circumstances, including (but not limited to): (i) the issues which the court that made the original order was called upon to resolve; and (ii) the court's reasons for making the original order.

3 The real issue for the court's consideration is whether there is anything to suggest that the actual language of the original order is open to question. It is not limited to the question of whether any ambiguity exists.

4 If the court made an accidental error, it needs to be corrected as soon as it becomes evident.

5 Additionally, if there was no prejudice to any third party, then even the delay of years in making the application would not deter the court from correcting the obvious error by inserting the words which had originally been omitted.

 

IRRESISTIBLE CONCLUSION

 

The determining factor on this appeal was what one member called the irresistible conclusion that "it was the intention of the court that the updated valuation should be first obtained before the property could be sold by private treaty or by public auction, and before the first option granted to the applicant [husband] could be exercised". The husband could not have made arrangements to acquire the wife's interest in the property without first receiving the valuation report to confirm the price he would need to pay for it.

While I make no pronouncement regarding the emotional state of the parties in this matter, in my experience, most matters that involve division of matrimonial property are impacted by emotional issues that cloud rational thought. It is unfortunate that more than two additional years of litigation, two hearing days in the Court of Appeal, significant expense and a 49-page judgment became necessary when three months' extension of time for the husband to purchase the wife's interest in the property might have resolved the matter.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com