DATE: 20031118

DOCKET: C38647

COURT OF APPEAL FOR ONTARIO

RE: VIRGINIA ANN MacLEOD (Applicant/Respondent in Appeal) –and– HENRY MALCOLM MacLEOD and JANE ATKINS, also known as NANCY MAGNISH (Respondent/Appellant in Appeal)

BEFORE: O’CONNOR A.C.J.O., CATZMAN and DOHERTY JJ.A.

COUNSEL: Peter K. McWilliams Q.C. for the appellant

Julian W. Lipkowski for the respondent

HEARD: November 12, 2003

RELEASED ORALLY: November 12, 2003

On appeal from the judgment of Justice Casimir N. Herold of the Superior Court of Justice dated August 21, 2002.

E N D O R S E M E N T

[1] The respondent, Virginia Ann MacLeod alleged that a property jointly owned by her former husband and the appellant was fraudulently conveyed to the appellant alone to defeat Ms. MacLeod’s interests as a creditor of her former husband. The trial judge agreed and set aside the transaction.

[2] The trial judge identified the crucial factual issue at para. 25 of his reasons:

… the issue then to be determined is whether or not he [Mr. MacLeod] had a real interest as opposed to simply paper title in 385 Markland Drive.

[3] The trial judge reviewed the evidence relevant to that issue over several paragraphs. His ultimate finding is at para. 33 of his reasons:

There can be no doubt, in my view, that as between Mac and Magnish [the appellant] on one hand and the world at large on the other, the property was owned by the two of them each has to a one-half interest as joint tenants.

[4] The trial judge’s finding quoted above is a finding of fact. It is entitled to deference unless based on a misapprehension of material evidence, a failure to consider material evidence, or unless it can be characterized as unreasonable on the totality of the evidence. The appellant has not established any misapprehension of the evidence or any failure to consider relevant evidence and certainly on this record the trial judge’s finding cannot be characterized as unreasonable.

[5] With respect to question of costs, we think that the trial judge’s order as to costs as against the appellant adequately addresses the concerns that appellant’s counsel has raised about her potential liability for costs on various motions brought against MacLeod. Her responsibility for those costs can be addressed on the assessment ordered by Herold J.

[6] Costs are fixed in the amount of $5,000, inclusive of G.S.T. and disbursements.

Signed: “Dennis O’Connor A.C.J.O.”

“M.A. Catzman J.A.”

“Doherty J.A.”