Brokopp v. Brokopp, (1996) 181 A.R. 91 (CA)

• Judge: Belzil, McFadyen and Russell, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 30, 1996
• Citations: (1996), 181 A.R. 91 (CA)

Brokopp v. Brokopp (1996), 181 A.R. 91 (CA);

    116 W.A.C. 91

MLB headnote and full text

Herman Brokopp and Clarence Allan Brokopp (appellants) v. Sandra Jo-Ann Brokopp (respondent)

(Appeal No. 9303-0910-AC)

Indexed As: Brokopp v. Brokopp

Alberta Court of Appeal

Belzil, McFadyen and Russell, JJ.A.

January 30, 1996.

Summary:

A husband appealed the distribution of marital assets. The wife appealed, claiming one half the value of farmland owned by the husband's father.

The Alberta Court of Appeal allowed the husband's appeal in part. The court dismissed the wife's claim.

Family Law - Topic 880.3

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Gift, trust, bequest or award - A husband's father granted a husband and wife 80 acres of farmland to farm - The father intended to bequeath the farmland to the son and declared that a home and improvements would remain the husband's property - The husband and wife built a house on the land and made improvements - The couple separated - The trial judge secured payment of the wife's share of marital property against the husband's farmland - The Alberta Court of Appeal held that the husband had a gifted vested beneficial interest in the farmland - The beneficial interest formed part of the marital property and was exempt from distribution because it was acquired by gift - The interest was sufficient to support a charge as security for the wife's share of marital property - See paragraphs 14 to 18.

Family Law - Topic 880.13

Husband and wife - Marital property - Distribution orders - Enforcement - Charging orders - [See Family Law - Topic 880.3 ].

Family Law - Topic 880.18

Husband and wife - Marital property - Distribution orders - Tracing - The Alberta Court of Appeal stated that "exemptions are allowed for property brought into the marriage which can be traced either directly or indirectly. The exemption applies to the original property or its substitute which is still owned by the parties. If the property is dissipated without being converted into some other asset owned by the parties, it is no longer traceable, or exempt." - The court also stated that "the dissipation of assets by one party following separation does not defeat the tracing of those assets by the other party to the date of separation" - See paragraphs 6, 11.

Family Law - Topic 880.21

Husband and wife - Marital property - Distribution orders - Compensation in lieu of property division - A husband's father gave the husband and wife 80 acres of farmland to farm - The husband and wife moved a house onto the land and made improvements - The father intended to bequeath the land to the husband and acknowledged in writing that house and improvements remained the property of the husband - The couple separated - The wife sought one half the value of the land, claiming that the father was unjustly enriched - The Alberta Court of Appeal rejected the wife's claim, holding that the father was not unjustly enriched because the husband had a gifted vested beneficial interest in the property - See paragraphs 15 to 18.

Cases Noticed:

Harrower v. Harrower (1989), 97 A.R. 141; 68 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 6].

Jackson v. Jackson (1989), 97 A.R. 153; 68 Alta. L.R.(2d) 118 (C.A.), refd to. [para. 7].

Dillwyn v. Llewelyn (1862), 45 E.R. 1285, appld. [para. 15].

Statutes Noticed:

Matrimonial Property Act, R.S.A. 1980, c. M-9, sect. 7(1), sect. 9(3)(c) [para. 18].

Counsel:

B.P. Mardy, for the appellants;

R.K. Vickerson, Q.C., for the respondent.

This appeal was heard on April 3, 1995, before Belzil, McFadyen and Russell, JJ.A., of the Alberta Court of Appeal.

On January 30, 1996, the following memorandum of judgment was delivered by the court.