“The appellant in this case is effectively arguing that although the trial judge properly articulated the test, he exceeded his discretion by concluding in all the circumstances that the financial result of allowing the husband to benefit from the gift was sufficiently shocking to warrant an unequal division of net family property.
In P. (S.) v. R. (M.),1996 CanLII 162 (SCC), [1996] 2 S.C.R. 842, [1996] S.C.J. No. 81, Gonthier J. reiterated, in the context of another family law issue, that a court of appeal should not intervene in discretionary decisions of trial judges unless there is an error of law or an “egregious error of fact”. He quoted [at para. 33] from the Supreme Court’s earlier decision in M. (M.E.) v. L. (P.),1992 CanLII 113 (SCC), [1992] 1 S.C.R. 183, [1992] S.C.J. No. 4, at p. 206 S.C.R.:
In the case at bar, the record contained evidence which justified the trial judge in exercising his discretion to deny the compensatory allowance to the respondent. The Court does not have to decide whether it would have exercised its discretion in the same way. Questioning a trial judge’s findings of fact where there has been no error of law can only encourage appeals, a particularly unfortunate development in family matters. The Court must instead inquire whether the trial judge exercised his discretion judicially.”