Leitch v. Novac

[Indexed as: Leitch v. Novac]

Ontario Reports Court of Appeal for Ontario Lauwers, Hourigan and Thorburn JJ.A. April 17, 2020 150 O.R. (3d) 587 | 2020 ONCA 257

Counsel: Linda Rothstein, Dan Rosenbluth, Ilana Zylberman Dembo, Sheila Gibb and Stephanie Romano, for appellant. Avra Rosen and Kelly Eckert, for respondent Anthony Novac. Bryan Smith, Lindsey Love-Forester and Cynthia Kuehl, for respondents Michael Novac, Nelly Novac, Sonco Group Inc., The Novac 2011 Family Trust and The Novac Family Trust (2013).

The judgment of the court was delivered by HOURIGAN J.A.: —

I. Overview

[1] The appellant, Jennifer Leitch, commenced an application seeking a divorce and corollary relief from her husband, the respondent, Anthony Novac. She later amended her application to seek damages in conspiracy from Anthony, his father Michael Novac, his mother Nelly Novac, certain family trusts and a related corporation, Sonco Group Inc. ("Sonco"). Jennifer alleged that the respondents had conspired to keep money out of Anthony's hands specifically for the purpose of reducing her family law entitlements.

[2] The respondents to the conspiracy claim (apart from Anthony) brought a motion for partial summary judgment. In her responding motion, Jennifer requested summary judgment on the conspiracy claim declaring the existence of the conspiracy and that damages be assessed at trial. The hearing lasted nine days. Partial summary judgment was granted, dismissing Jennifer's conspiracy claim as not raising a genuine issue requiring trial. The motion judge concluded that while the appellant could not succeed in her conspiracy claim, she could still pursue at trial a claim to impute additional income to Anthony for the purpose of determining support.

[3] Jennifer appeals from the order granting partial summary judgment, as well as the costs award and an order for security for costs and the preservation of assets.

[4] These reasons explain why I would allow the appeal. In summary, the motion judge erred in law by bifurcating the issues and in her analysis of the tort of conspiracy. She also made a palpable and overriding error of fact about critical evidence that Jennifer relied on in support of her conspiracy claim and did not advert to other important evidence in her analysis.

[5] The motion judge's costs orders, including the order for security for costs and related relief, result from her partial summary judgment order and accordingly cannot stand.

II. Facts

(a) Background

[6] This is a factually complex case with multiple allegations. Recognizing that I would order a trial and it will be for the trial judge to make factual findings, the following very brief factual summary is offered to provide context for the issues to be determined on the appeal.

[7] Jennifer and Anthony cohabited for 17 years. They married on May 10, 1997 and separated on September 29, 2012. They have 15-year-old twins. Jennifer was a litigator for nine years of the marriage. After Anthony sold an online gaming platform for $11.5 million, Jennifer left litigation to pursue a graduate legal education. She then began to teach law part-time at Osgoode Hall and the University of Toronto. Since then, her annual income has typically been less than $30,000.

[8] Anthony is an entrepreneur who has been working in the casino and gaming industry for over 20 years. He has experience managing casinos and casino resorts. From 2009 to date, Anthony has done paid work for Sonco and its related corporations. Michael incorporated Sonco and it holds various real estate and gaming businesses. Anthony occupies senior positions with Sonco and other related entities.

[9] By the time the parties separated, their wealth had been significantly depleted. Jennifer sold the matrimonial home, which she owned, and she retained the net sale proceeds from the house in the amount of $1,066,361.

[10] As the matrimonial litigation unfolded, Anthony disclosed an income of $120,000 per year plus $5,000 per year for director fees. Jennifer's position was that Anthony had undisclosed additional income or an undisclosed ownership interest in the casino business.

(b) Alleged conspiracies

[11] Jennifer alleged six separate tortious conspiracies. On the appeal, she focuses her submissions on the alleged conspiracy related to the management of the River Cree Casino. The background of that project is as follows.

[12] In 2013, Michael was approached to manage the River Cree Casino in Alberta. The River Cree Casino is owned by the Enoch Cree Nation. Michael incorporated Sonco Gaming Management Inc. and, with Anthony's assistance, entered into a five-year contract with River Cree Casino. Michael and Anthony had an informal oral agreement that Anthony would be the project manager and receive 40 per cent of the management fees that were to be paid to Sonco Gaming Management Inc. over the life of the contract. In 2015, the Enoch Cree Nation decided to buy out the contract and manage the casino itself. It paid Sonco $5.75 million as part of the transaction (the "buyout").

[13] There are two disputed events that Jennifer alleges are at the heart of the River Cree Casino conspiracy.

[14] The first is Michael's decision to keep all of the proceeds from the buyout. The buyout price represented the net present value of Sonco Gaming Management Inc.'s fees. Jennifer argues that, had the contract been carried out, Anthony would have received 40 per cent of those fees. However, Anthony apparently received none of the proceeds of the buyout. Jennifer's position is that Anthony had equal control over this project with his father and was integral in negotiating and structuring the buyout.

[15] Jennifer asserts that Anthony should have been paid at least 40 per cent of the buyout. She pleads that the respondents conspired to temporarily divert Anthony's share of the proceeds so that she would receive less in support payments. Three documents are critical to this theory.

[16] The first two documents are memos to file drafted by Sonco's external accountant, Keith MacIntyre. Both memos were dated June 22, 2015, and are marked "DRAFT", with the reference line "Sonco Alta Sale". They were copied to MacIntyre's partner at Grant Thornton LLP, John Roy.

[17] Memo #1 lists "steps". Number eight is this:

8. Michael Novac takes his tax free proceeds and lends to Antony [sic] his portion as a loan that will be forgiven when Anthony's divorce is final.

[18] Seven more steps are listed under the heading "Alta and Estate". Numbers six and seven are as follows:

6. Michael Novac takes his tax free proceeds and lends to Antony [sic] his portion as a loan that will be forgiven when Anthony's divorce is final; This reduces Michael Novac's estate tax.
7. Michael Novac takes his tax free proceeds and lends to Antony [sic] his portion as a loan that will be forgiven when Anthony's divorce is final[.]

[19] Memo #2 is similar to the second part of Memo #1, with a few changes and additions. It was addressed to the Chief Financial Officer of Sonco, Richard Landzatt, and copied to Michael Novac. Numbers four and five read as follows:

4. Michael Novac takes his tax free proceeds and lends to Antony [sic] his portion as a loan that will be forgiven when Anthony's divorce is final; This reduces Michael Novac's estate tax; This keeps income out of Anthony's hands;
5. Michael Novac takes his tax free proceeds and lends to Antony [sic] his portion as a loan that will be forgiven when Anthony's divorce is final; Again this prevents income from being shown in Anthony's hands.

[20] The third critical document regarding this alleged conspiracy is an e-mail from Landzatt to MacIntyre and Kelsi Campbell, a colleague of MacIntyre's. It is dated August 18, 2015, which was shortly after the closing of the buyout on August 14, 2015 (the "August 18 E-mail"). In that e-mail, Landzatt states:

So based on this model the complete after tax cash flow, both corporate and personal, will be $5,030,772? This will be the cash available personally for distribution between Michael and Anthony?

They want to move some of the money now and I want to be certain that they have all the tax amounts set aside so they don't spend/invest it.

[21] The second part of the alleged River Cree Casino conspiracy is Anthony's decision to conceal management fees owing to him for the month of May 2015. In June 2015, Anthony directed Sonco employees not to distribute the May 2015 management fees due to him under his agreement with Michael. Anthony delayed disclosing the May 2015 fees as income to Jennifer. She did not discover the existence of these undisclosed fees until over two years later.

[22] Jennifer alleges that Anthony's failure to disclose his income was compounded by a series of misleading or inaccurate disclosures by Anthony, Michael and Sonco. Anthony concedes that he directed Sonco employees to hold back his May 2015 payment. However, he asserts that he did not conspire with any party to hide this income.

III. Decision Below

[23] The motion judge held that the conspiracy claim was appropriate for partial summary judgment. In addition to the extensive record before her, there had been five days of cross-examination on Michael and Anthony's evidence. She found that [at para. 239] "all parties have put their best foot forward" and that summary judgment would allow streamlining of the remaining issues for trial.

[24] The motion judge then set out the elements of the tort of conspiracy and referred to Frame v. Smith, in which the Supreme Court ruled that the tort did not apply in the context of custody or access claims. She went on to state that the same policy concerns from Frame applied to the support context and that the comprehensive legislation and guidelines contained in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.); Family Law Act, R.S.O. 1990, c. F.3; Federal Child Support Guidelines, SOR/97-175 and the Spousal Support Advisory Guidelines applied and provided a comprehensive code for dealing with support issues relating to both spouses and children.

[25] Ultimately, the motion judge concluded that there was no unlawful conspiracy on the facts of the case and made the following findings:

(a) there is no evidence of an agreement; (b) inaccurate representations by Anthony about his income were not made in concert with Michael; (c) the steps taken by Michael were not intended either actually or foreseeably to harm Jennifer; and (d) none of the actions of Michael or Anthony were wrong at law.

[26] The motion judge also concluded that Jennifer is unable to establish damages, at para. 313:

While Anthony is a trustee of the 2013 Trust, Jennifer is unable to establish that this entitled him to any portion of the River Cree buyout proceeds. Notwithstanding the two memos drafted by [Keith MacIntyre], there is insufficient evidence to show that any steps were taken with the intent of harming Jennifer. In fact, there is evidence that advice which might have been interpreted as an agreement to keep money away from Jennifer was never acted upon nor was it even considered by Michael. Michael decided to retain the proceeds, as it was his company that entered into the agreement with the Nation. He had the right to act in that manner.

[27] Regarding costs, the motion judge awarded $300,000 to Anthony for the costs of the summary judgment motion and the variation motion he brought to reduce his support payments, of which half would be enforceable as fees related to the payment/collection of support. She also awarded $40,000 in costs to Anthony to offset a costs award made against him for a November 2017 disclosure motion. The motion judge awarded $900,000 to the remaining respondents for the costs of the summary judgment motion.

[28] After the motion judge released her ruling on the summary judgment motion, but before she issued her decision on costs, Anthony brought a motion for a preservation and non-dissipation order under ss. 12 and 40 of the Family Law Act. The remaining respondents also brought a motion for security for costs seeking an order that Jennifer preserve her assets. The motion judge released her ruling on these motions one day after she released her decision on costs, granting an order that Jennifer preserve all of her assets as security for costs. This order effectively freezes all of Jennifer's assets. In so ruling, the motion judge relied on rule 24(13)(2) of the Family Law Rules, O. Reg. 114/99, which allows an order for security for costs if "[a] party has an order against the other party for costs that remains unpaid, in the same case or another case".

IV. Analysis

1. Did the motion judge err in law in awarding partial summary judgment?

[29] Partial summary judgment is reserved for issues that may appropriately be bifurcated without creating a material risk of inconsistent outcomes, and that may be dealt with expeditiously and cost-effectively: see Butera v. Chown, Cairns LLP, 2017 ONCA 783, at paras. 27-34.

[30] The motion judge's analysis of this case's suitability for summary judgment spans four short paragraphs. That analysis opens with the statement, [at para. 238] "Not much needs to be said on whether this case is suitable for summary judgment." She then refers to the extensive documentary evidence as well as the oral evidence of Anthony and Michael and states [at para. 239], "There is more than enough material on which the court may rely in order to make findings of fact and credibility." The motion judge also comments that dealing with the conspiracy claim by summary judgment will allow for a streamlining of any remaining issues for trial, clear the way for settlement of issues put on hold until determination of the conspiracy issue, and would support the policy and principles articulated in Hryniak v. Mauldin, 2014 SCC 7, as well as rule 2(3) of the Family Law Rules, of saving expense and time and dealing with cases fairly and justly and in a manner appropriate to their complexity and importance.

[31] At no point does the motion judge engage with the question of whether bifurcating the issues is appropriate. Specifically, the reasons are conspicuously silent as to whether there is an inherent risk here of inconsistent findings. I appreciate that the parties both took the position before her that partial summary judgment was appropriate. However, the motion judge was still required to turn her mind to the possibility of a material risk of inconsistent outcomes.

[32] Jennifer asserts that the risk of inconsistent outcomes here is genuine because "the factual footprint of the conspiracy claim is substantially the same as the support issues that remain for trial". Her submission is that, by finding that Michael had the right to allocate to himself the entire proceeds of the buyout, but also that it was open to a trial judge to impute to Anthony part of those proceeds as a remedy for the artificiality of Michael's allocation to himself, the motion judge created a material risk of inconsistent results.

[33] I agree with that submission.

[34] For Jennifer to convince a court that it is appropriate to attribute or impute additional income to Anthony, she would need evidence of Sonco's earnings as well as proof that Anthony had indirectly received some of it, would have received a portion of it but for the divorce, and/or would be receiving it in the future. All of this was precisely what Jennifer alleged the respondents were complicit in concealing from her. Notably, despite Jennifer's requests, Anthony did not disclose Sonco's business records when requested as part of the family law proceedings. It was only after Michael and Sonco were named in her conspiracy claim that she received the information that could form the basis of an assertion that additional income should be attributed to Anthony.

[35] Section 18(1) of the Federal Child Support Guidelines provides:

18(1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse's annual income as determined under section 16 [the "Total income" in the T1 General form issued by the Canada Revenue Agency] does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 [Pattern of income] and determine the spouse's annual income to include

(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or (b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation's pre-tax income.

[36] Attribution of income under s. 18 of the Federal Child Support Guidelines can depend on the degree of control exercised by the spouse over a corporation. Corporate income attribution may be appropriate even where the spouse does not control the corporation but where, for example, control is held by a cooperative relative, and there is a past practice of the spouse receiving compensation: see Potzus v. Potzus, 2017 SKCA 15, at paras. 19, 56. Thus, the very same evidence brought in support of the conspiracy allegation would be relevant to a request to attribute additional income for support purposes.

[37] The motion judge mentions several times that it will be open to Jennifer to ask the trial judge to attribute or impute more income to Anthony than he has declared. This is no more clearly stated than at para. 287 of her reasons:

While I agree that the buyout proceeds could be characterized as a lump sum of income derived from a future stream of payments, and that therefore Anthony may be entitled to a portion of it, conspiracy is too blunt an instrument to use to get at this for support purposes. A trial judge may well find that a portion of the buyout proceeds should be characterized as income for support purposes and that income would form part of the retroactive calculation of support. The Family Law Rules and the Child Support Guidelines have plenty of tools for the court to choose from to achieve those ends.

[38] For Anthony to be entitled to a portion of the buyout directly contradicts the motion judge's conclusion earlier, in para. 287 on the conspiracy claim, that "Anthony had no ownership interest in the buyout contract." It also directly contradicts her conclusion at para. 313, already mentioned above, that "Michael decided to retain the proceeds, as it was his company that entered into the agreement with the Nation. He had the right to act in that manner."

[39] The evidence about Anthony's interest in Sonco should have been considered alongside Jennifer's claims for support. The risk of inconsistent findings actually materialized in the motion judge's own inconsistent statements relating to the conspiracy claim and her assertions about avenues that remained open to Jennifer in her family law litigation.

[40] In short, this was not an appropriate case for partial summary judgment. The motion judge erred in law by failing to consider the substantial risk of inconsistent outcomes before bifurcating the proceeding.

2. Did the motion judge err in law in her analysis of the tort of conspiracy?

[41] The motion judge articulated a concern about the far-reaching implications of extending the tort of conspiracy where family members are involved. She worried that if the damages Jennifer requested were permitted, policy concerns would arise about claims for damages in every case where a payor spouse, in conjunction with a new spouse/relative/business partner, did not fully disclose income, unreasonably deducted expenses, or received income in the form of cash or goods. Her concern [at para. 328] was that conspiracy claims would "become the new norm". She concluded [at para. 327] that, given the existing mechanisms for recovery, damages for conspiracy "would effectively be a form of punitive damages". According to the motion judge, any concerns about bad faith conduct can be remedied by imputing income to the payor for the purposes of calculating support obligations or through costs awards.

[42] In rejecting the availability of the tort of conspiracy in the family law context, the motion judge was clearly motivated by the view that the family law statutory scheme creates a complete code for addressing all issues related to support and that there are sound policy reasons not to permit additional tort claims. In my view, it is not accurate to say, as the respondent does, that the trial judge's analysis of the availability of the tort was obiter. In fact, it obviously motivated her analysis of whether the tort had been established. Despite her stated acceptance that the case law does not preclude the application of the tort of conspiracy in family cases, her approach was that all claims should be determined under the family law regime and this approach imbued her analysis of whether the tort had been established.

[43] While the motion judge found that the tort had not been established on the facts even [at para. 329] "apart from any policy considerations", one of two reasons she provided for her conclusion [at para. 325] that "the facts of this case are [not] ripe for its application" was her concern [at para. 327] "about the far-reaching implications of extending the tort of conspiracy where family members are involved". The motion judge's statement that [at para. 287] "conspiracy is too blunt an instrument to use to get at [the buyout proceeds] for support purposes" suggests that she went beyond a mere finding that the test for conspiracy could not be satisfied on these facts.

[44] As the Supreme Court suggested in Leskun v. Leskun, 2006 SCC 25, at para. 34, nondisclosure is the cancer of family law. This is an apt metaphor. Nondisclosure metastasizes and impacts all participants in the family law process. Lawyers for recipients cannot adequately advise their clients, while lawyers for payors become unwitting participants in a fraud on the court. Judges cannot correctly guide the parties to a fair resolution at family law conferences and cannot make a proper decision at trial. Payees are forced to accept an arbitrary amount of support unilaterally determined by the payor. Children must make do with less. All this to avoid legal obligations, which have been calculated to be a fair quantification of the payor's required financial contribution. In sum, nondisclosure is antithetical to the policy animating the family law regime and to the processes that have been carefully designed to achieve those policy goals.

[45] There is a related malady that often works hand-in-hand with nondisclosure to deny justice in family law proceedings. The problem is what I will call "invisible litigants". These are family members or friends of a family law litigant who insert themselves into the litigation process. They go beyond providing emotional support during a difficult time to become active participants in the litigation. Usually, their intentions are good, and their interference makes no difference in the ultimate result. However, sometimes they introduce or reinforce a win-at-all-costs litigation mentality. These invisible litigants are willing to break both the spirit and letter of the family law legislation to achieve their desired result, including by facilitating the deliberate hiding of assets or income.

[46] If we were to accept the analysis of the motion judge, co-conspirators who engage in such behaviour could do so with impunity. Contrary to the observation of the motion judge, conspiracy is not a "blunt instrument" to respond to this misconduct. It is a valuable tool in the judicial toolbox to ensure fairness in the process and achieve justice. If the tort of conspiracy is not available, then co-conspirators have no skin in the game. Their participation in hiding income or assets is a no-risk proposition. If their conduct is exposed, all that happens is that the payor will be forced to pay what is appropriately owing. If there is to be deterrence, there must be consequences for co-conspirators who are prepared to facilitate nondisclosure.

[47] There is a further practical reason for permitting the use of the tort of conspiracy in family law claims. Where income or assets have been hidden with the assistance of a co-conspirator, often the family law litigant will be effectively judgment-proof. That, after all, is the whole purpose of the conspiracy. In those circumstances, the imputation of income or the inclusion of hidden assets into the net family property calculation will be a futile exercise, as the recipient cannot collect on what is owing. A judgment against a co-conspirator will often be the only means by which a recipient will be able to satisfy a judgment.

[48] The motion judge also erred in law in finding that a damage claim in conspiracy [at para. 327] "would effectively be a form of punitive damages" because the appellant would already have an imputation remedy under the family law framework. It would appear that the motion judge's concern was that permitting multiple claims would necessarily result in double recovery. This concern is based on a misunderstanding of the law of damages.

[49] Overlapping remedies arising out of the same loss are always subject to the limiting principle of double recovery. However, the risk of double recovery does not arise simply because there are two damages awards extant. It is only where a damages award is satisfied that the principle of double recovery operates to prevent recovery beyond the damages suffered: see SFC Litigation Trust (Trustee of) v. Chan, 2019 ONCA 525, at para. 133. There was no risk of overcompensation on the facts of this case.

[50] As noted, it is my view that this case should proceed to trial, and there is no reason why a claim in conspiracy cannot be asserted. It will be for the trial judge to decide if the appellant has established her claim on a balance of probabilities. That said, it is essential to clarify a further misconception of the law of conspiracy advanced by counsel for Michael that appears to have found favour with the motion judge.

[51] Michael's lawyer argues that the tort was not established because there was no evidence that the parties acted on the alleged agreement. By that submission, he means that there was no evidence that any money flowed from Michael to Anthony. It will, of course, be up to the trial judge to determine on a full record what Michael did with the funds. However, to be clear, a transfer of funds by loan, gift, or otherwise, is not the only way that the alleged co-conspirators could have acted in furtherance of the conspiracy. If the trial judge is satisfied that Anthony had an entitlement to funds and that a co-conspirator withheld the transfer of funds to him as part of a conspiracy with the understanding that he would receive the money at some future date, the withholding of the funds may itself be an act in furtherance of the conspiracy. It is not necessary to establish more than an acted-upon conspiracy to conceal Anthony's entitlement.

3. Did the motion judge make a palpable and overriding error of fact and fail to advert to important evidence?

[52] The palpable and overriding error of fact made by the motion judge concerned the August 18 E-mail. The motion judge's analysis of that document was limited to the following, at para. 180: "He [Michael] denied any awareness of an email from Kelsi Campbell to RL [Landzatt] advising that the closing was upcoming, and money would be available to Michael and Anthony. He does not know who Kelsi Campbell is."

[53] The e-mail was not sent from Campbell to Landzatt, but from Landzatt to Campbell and MacIntyre. Nor could it have concerned the "upcoming" closing, as the e-mail was sent days after the closing. At first glance, this may not seem like a significant error. However, this mistake coloured the motion judge's analysis of this critical piece of evidence. Arguably, the e-mail is consistent with Memo #1 and Memo #2 and suggests that, at the very least, there was an agreement that Anthony had an entitlement to a portion of the buyout proceeds. By misdescribing the August 18 E-mail as a communication from Campbell to Landzatt, the motion judge effectively minimized its importance. Implicit in her analysis was that Michael should not be expected to be aware of what an external accountant, who was unknown to him, had to say about the distribution of the buyout proceeds.

[54] Had the motion judge correctly analyzed the August 18 E-mail, she would have had to consider why it appeared that Sonco's CFO was suggesting immediately after the closing of the buyout that Anthony had an entitlement to a portion of the proceeds. She also would have been required to decide whether she should draw an adverse inference from the failure of Sonco to tender Landzatt as a witness.

[55] This error was compounded by her failure to analyze in her reasons a later e-mail, sent from Landzatt to MacIntyre and copied to Campbell, dated November 18, 2015, that included the following:

He's not using the house but we are hopeful it will sell sometime soon. I'll discuss the option with Michael but there are plans to take money out of the corp in 2016 to lend Anthony . . . so if we dividend out the entire amount this year and sell the house next year, there will still be an ability to reduce funds withdrawn next year. So maybe best to do it for 2015 as tax rates may go up?

[56] This e-mail is at least suggestive of an ongoing intention among the alleged co-conspirators to divert funds to Anthony. The motion judge was obliged to consider this significant piece of evidence in her reasons.

4. Should the costs orders stand?

[57] Given my conclusion that a new trial is needed, it is unnecessary to consider whether the motion judge erred in her costs award, or in ordering security for costs and making a preservation order. Those orders should be set aside. I would remit to the trial judge the issue of costs for the first trial.

[58] Nothing in these reasons should be considered an approbation of the quantum of costs awarded or of the motion judge's ancillary costs orders. There are aspects of these orders that are troubling. In particular, it is concerning that in making the order for security for costs and preservation of assets, the motion judge did not consider the justice of the case and whether Jennifer would be able to pursue her claims, including those on behalf of her children, in light of the order made.

[59] As stated in Yaiguaje v. Chevron Corp., 2017 ONCA 827, at para. 23, in a discussion of orders for security for costs, "Courts must be vigilant to ensure an order that is designed to be protective in nature is not used as a litigation tactic to prevent a case from being heard on its merits." In considering an order for security for costs, "[t]he correct approach is for the court to consider the justness of the order holistically, examining all the circumstances of the case and guided by the overriding interests of justice to determine whether it is just that the order be made": see Yaiguaje, at para. 25.

V. Disposition

[60] I would allow the appeal, set aside the order granting partial summary judgment, and order that the case proceed to trial before a different judge of the Superior Court. In making that order, I would reserve the costs below to the trial judge.

[61] As the appellant was entirely successful on this appeal, she is entitled to her costs of the appeal payable by the respondents on a joint and several basis. I would fix the amount of those appeal costs, in accordance with the agreement of the parties, in the all-inclusive amount of $50,000.

Appeal allowed.

Notes

1 For ease of reference, the parties will be referred to by their first names.