Benson v. Benson, (1994) 120 Sask.R. 17 (CA)

• Judge: Cameron, Sherstobitoff and Lane, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 08, 1994
• Jurisdiction: Saskatchewan
• Citations: (1994), 120 Sask.R. 17 (CA);1994 CanLII 4554 (SK CA);1994 CanLII 4554 (BS SC);3 RFL (4th) 291;[1994] SJ No 732 (QL);120 Sask R 17;68 WAC 17

Benson v. Benson (1994), 120 Sask.R. 17 (CA);

    68 W.A.C. 17

MLB headnote and full text

Frederick Allison Benson (appellant) v. Linda May Benson (respondent)

(File No. 1144)

Indexed As: Benson v. Benson

Saskatchewan Court of Appeal

Cameron, Sherstobitoff and Lane, JJ.A.

April 8, 1994.

Summary:

A wife applied for an equal division of matrimonial property acquired since the spouses began cohabitation in 1967. The husband and wife did not marry until 1978 and separated in 1989.

The Saskatchewan Court of Queen's Bench, Unified Family Court, in a judgment reported 99 Sask.R. 211, determined the value of matrimonial property and ordered an equal division. The husband appealed. The wife cross-appealed, claiming, inter alia, that the trial judge erred in failing to award her costs.

The Saskatchewan Court of Appeal, Lane, J.A., dissenting, allowed the husband's appeal in part and dismissed the wife's cross-appeal.

Family Law - Topic 868

Husband and wife - Marital property - Distribution orders - Property subject to distribution - Spouses cohabited as hus­band and wife since 1967, although they did not actually marry until 1978 - They separated in 1989 - The husband claimed the value of farmland and machinery as of the date of the marriage (1978) should be exempt from distribution - The Saskatchewan Court of Appeal held that the trial judge correctly exempted only marital property owned by the husband as of the date cohabitation commenced - It would be unfair and inequitable under s. 23(4) of the Matrimonial Property Act to exclude property acquired between the date of cohabitation and marriage - The court held that the value of farmland and ma­chinery at the date of cohabitation was exempt - See paragraphs 51 to 71.

Family Law - Topic 873

Husband and wife - Marital property - Distribution orders - Bars - Unfair and inequitable - [See Family Law - Topic 868 ].

Family Law - Topic 874

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - A man and woman com­menced cohabitation as husband and wife in 1967 - They married in 1978 and sep­arated in 1989 - Both contributed to the farming operation and the care of the family home - The husband sought an unequal distribution of marital property, primarily because of his parents' financial contribution in starting the farm - The trial judge ordered an equal division of all marital property - The trial judge found that the parents' generosity was intended to benefit both the husband and wife - The Saskatchewan Court of Appeal affirmed an equal division of marital property - See paragraphs 73 to 75.

Family Law - Topic 880.1

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - The Saskatchewan Court of Appeal set out the two stage process in determining exemptions from marital property under the Matrimonial Property Act - First, the spouse claiming an exemption had to establish that the conditions of ss. 23(1) and 23(2) were met - If so, the spouse was prima facie entitled to the exemption - Secondly, the spouse opposing the ex­emption had to establish that the exemp­tion should be disallowed having regard to the considerations in ss. 23(5) and 21(2)(a) to (p) of the Act - See paragraphs 44 to 56.

Family Law - Topic 880.1

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Pre-marriage acquisitions - [See Family Law - Topic 868 ].

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation - Time for - Spouses cohabited as husband and wife since 1967, although they did not actually marry until 1978 - They separated in 1989 - The spouses agreed to value marital property as of the date of trial, rather than the date of the application - The wife held a $25,000 term deposit certificate and a life insurance policy on her husband (cash surrender value) on the date of the application, but had disposed of both by the date of trial - The Saskatchewan Court of Appeal held that the trial judge erred in excluding the application date value of both from marital property to be equally divided - One spouse could not defeat the primary object of the Matrimonial Property Act by dis­posing of property before trial - The pre­trial agreement on valuation was not to be interpreted to preclude the trial judge from valuing some property as of the date of application - See paragraphs 29 to 49.

Family Law - Topic 955

Husband and wife - Marital property - Distribution orders - Practice - Costs - A husband and wife separated after 22 years of cohabitation and marriage - The wife applied for and obtained an equal division of marital property - The trial judge, without reasons, denied the wife costs - The wife claimed her husband's conduct constituted exceptional circumstances justifying departure from the general rule that each party bear their own costs in matrimonial property applications - The Saskatchewan Court of Appeal refused to interfere with the trial judge's exercise of his discretion - The trial judge committed no error - The wife failed to clearly ask for costs on the basis she now sought them - Accordingly, the trial judge had no reason to depart from the general rule, because the wife failed to establish, at trial, that there existed exceptional circum­stances justifying costs in her favour - See paragraphs 86 to 103.

Family Law - Topic 966

Husband and wife - Actions between - Practice - Costs - [See Family Law - Topic 955 ].

Cases Noticed:

Rathie v. Rathie (1980), 2 Sask.R. 361; 17 R.F.L.(2d) 265 (Q.B.), refd to. [para. 19].

Beaudry v. Beaudry (1982), 17 Sask.R. 400 (C.A.), refd to. [para. 32].

Schlichting v. Schlichting (1984), 34 Sask.R. 254 (C.A.), refd to. [para. 32].

Tataryn v. Tataryn (1984), 30 Sask.R. 282; 38 R.F.L.(2d) 272 (C.A.), refd to. [para. 33].

Mitchell v. Mitchell (1992), 100 Sask.R. 149; 18 W.A.C. 149; 41 R.F.L.(3d) 220 (C.A.), refd to. [para. 33].

Medernach v. Medernach (1987), 56 Sask.R. 240 (C.A.), refd to. [para. 34].

Gresham v. Gresham (1988), 72 Sask.R. 9; 17 R.F.L.(3d) 209 (C.A.), refd to. [para. 34].

Deyell v. Deyell (1991), 90 Sask.R. 81 (C.A.), refd to. [para. 54].

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6; [1988] 1 W.W.R. 481; 44 D.L.R.(4th) 1, refd to. [para. 62].

Smigarowski v. Mugliston (1951), 2 W.W.R.(N.S.) 108 (Sask. C.A.), refd to. [para. 89].

Mildenberger v. Francis (Rural Municipal­ity) (1954), 13 W.W.R.(N.S.) 528 (Sask. C.A.), refd to. [para. 89].

Walker v. McKinnon Industries, [1951] 3 D.L.R. 577 (Ont. Prov. Ct.), refd to. [para. 90].

Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042; [1983] 1 A.C. 191 (H.L.), refd to. [para. 90].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241; 38 D.L.R.(4th) 321; 18 C.P.C.(2d) 273; 25 Admin. L.R. 20, refd to. [para. 90].

Saskatchewan Power Corp. v. Doe (John) et al., [1988] 6 W.W.R. 634; 69 Sask.R. 158 (C.A.), refd to. [para. 90].

Burge v. Burge (1986), 46 Sask.R. 144; 50 R.F.L.(2d) 380 (Q.B.), refd to. [para. 92].

Ramsay v. Ramsay (1994), 119 Sask.R. 81 (Q.B.), refd to. [para. 92].

Wildman v. Wildman (1986), 50 Sask.R. 72; 3 R.F.L.(3d) 337 (C.A.), refd to. [para. 93].

Ewing v. Ewing (No. 2) (1987), 56 Sask.R. 263 (C.A.), refd to. [para. 94].

Miller v. Miller (1992), 102 Sask.R. 161 (Q.B.), refd to. [para. 94].

Qually v. Qually (1989), 18 R.F.L.(3d) 69 (Sask. C.A.), refd to. [para. 94].

Logan v. Logan (1986), 6 R.F.L.(2d) 152 (Sask. U.F.C.), refd to. [para. 94].

Olah v. Olah (1980), 8 Sask.R. 446; 20 R.F.L.(2d) 238 (Q.B.), refd to. [para. 94].

Eftoda v. Eftoda (1988), 70 Sask.R. 221 (C.A.), refd to. [para. 94].

Bugoy Estate v. Bugoy, [1985] 2 S.C.R. 85; 61 N.R. 172; 44 Sask.R. 178, refd to. [para. 117].

Board of Education of Long Lake School Division No. 30 v. Schatz et al. (1986), 49 Sask.R. 244 (C.A.), refd to. [para. 118].

McIntyre v. Royal Trust Co., [1945] 2 W.W.R. 364 (Man. K.B.), refd to. [para. 124].

Seaberly v. Seaberly (1985), 37 Sask.R. 219 (C.A.), refd to. [para. 132].

C.R.S. v. C.M.S. (1986), 3 R.F.L.(3d) 347 (Sask. Q.B.), refd to. [para. 143].

Slinn v. Slinn - see C.R.S. v. C.M.S.

Ewing v. Ewing (No. 1) (1987), 56 Sask.R. 260 (C.A.), refd to. [para. 143].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 43 R.F.L.(3d) 345, refd to. [para. 145].

Lawrence v. Lawrence (1981), 47 N.S.R.(2d) 100; 90 A.P.R. 100; 25 R.F.L.(2d) 130 (C.A.), refd to. [para. 149].

Gold v. Gold (No. 2) (1993), 32 B.C.A.C. 287; 53 W.A.C. 287 (C.A.), refd to. [para. 150].

Scott v. Scott (1993), 144 A.R. 264 (Q.B.), refd to. [para. 152].

Statutes Noticed:

Matrimonial Property Act, S.S. 1979, c. M-6.1, sect. 21(1) [para. 32]; sect. 21(2)(b), sect. 21(2)(c), sect. 21(2)(d) [para. 53]; sect. 21(2)(e) [paras. 53, 120, 127]; sect. 23(1), sect. 23(2), sect. 23(4), sect. 23(5) [paras. 52, 120]; sect. 23(5)(a) [paras. 53, 120]; sect. 23(5)(c) [para. 120]; sect. 23(6) [paras. 52, 120].

Authors and Works Noticed:

Turiff, Gordon, An Analysis of the Judicial Approach to Costs Risks in Family Cases (1993), vol. 51, Part 1, The Advocate, p. 53 [para. 150].

Counsel:

R. Wiebe, for the appellant;

B. Wilkinson and S. Schnell, for the re­spondent.

This appeal and cross-appeal were heard on September 17, 1993, before Cameron, Sherstobitoff and Lane, JJ.A., of the Saskatchewan Court of Appeal.

On April 8, 1994, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Cameron, J.A. (Sherstobitoff, J.A., con­curring) - see paragraphs 1 to 104;

Lane, J.A., dissenting - see paragraphs 105 to 154.