Campbell v. Campbell, (2012) 395 Sask.R. 36 (FD)

• Judge: R.S. Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 26, 2012
• Jurisdiction: Saskatchewan
• Citations: (2012), 395 Sask.R. 36 (FD);2012 SKQB 39

Campbell v. Campbell (2012), 395 Sask.R. 36 (FD)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. MY.004

Bruce Kevin Campbell (petitioner) v. Shelley Ann Campbell (now Rankin) (respondent)

(1999 DIV. No. 371; 2012 SKQB 39)

Indexed As: Campbell v. Campbell

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

R.S. Smith, J.

January 26, 2012.

Summary:

The parties were married in 1988. The wife had a four year old child from a previous marriage. The parties then had two children of their own. They separated in 1999, when the children were aged 15, 9.5 and 6. The parties did not go to trial until November 2011, when the wife sought retroactive spousal support, retroactive child support and her full share of the current value of the family home. In his reply, the husband also claimed retroactive child support and alleged that the parties had arrived at a comprehensive oral agreement respecting family property in 2002, which he conceded he had not yet complied with.

The Saskatchewan Court of Queen's Bench, Family Law Division, held that the evidence did not establish that a comprehensive oral agreement existed. The court valued the family home as of the date of trial (minus the necessary repairs to make it saleable), denied the wife's claim for retroactive spousal support, awarded the husband three years of retroactive child support and s. 7 expenses and ongoing child support and s. 7 expenses.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - The parties married in 1988 - The wife had a four year old child from a previous marriage - The parties then had two children of their own - They separated in 1999, when the children were aged 15, 9.5 and 6 - The parties did not go to trial until November 2011 - The husband had remained in the family home with the children - The wife, whose income was significantly less than the husband's, had not paid child support or received spousal support - The husband had borne all the costs of the family home - The parties agreed that, with the exception of the family home, the family property should be divided equally at the time the petition issued in 1999 - In 1999, the family home was worth roughly $133,000, and had a mortgage of around $94,000 - In 2011, the family home (when put in saleable condition) had an appraised value of $354,500 - The husband argued that it should be valued at the time of the petition or, alternatively, be divided unequally - The Saskatchewan Court of Queen's Bench, Family Law Division, held that it was well settled that when market forces caused an increase in the value of real property, the general rule in Saskatchewan was to value it as of the trial date - Further, there was a very high bar to clear for any party propounding that the valuation date for the family home should be the petition date or, alternatively, that there should be an unequal division of family home equity under s. 22(1) of the Family Property Act - The facts in this case did not rise to that level - However, the court would make adjustments for unpaid child support and s. 7 expenses - See paragraphs 54 to 65.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - [See Family Law - Topic 865 ].

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - [See Family Law - Topic 865 ].

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retroactive orders - [See Family Law - Topic 2371 ].

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - The parties married in 1988 - The wife had a four year old child from a previous marriage - The parties then had two children of their own - They separated in 1999, when the children were aged 15, 9.5 and 6 - The parties did not go to trial until November 2011 - The husband had remained in the family home with the children - The wife, whose income was significantly less than the husband's, had not paid child support or received spousal support - The Saskatchewan Court of Queen's Bench, Family Law Division, valued the family home as of the date of trial (minus the necessary repairs to make it saleable), denied the wife's claim for retroactive spousal support, awarded the husband three years of retroactive child support and s. 7 expenses and ongoing child support and s. 7 expenses - The court held that while the husband had waived child support, at this juncture, with the wife demanding her full share of the family property and specifically her current half share of the family home, the ad hoc arrangements respecting the waiver of child support came to an end - The wife's income improved substantially in 2008 - While the court could not say that the husband had not met the children's needs, their life would have been easier and fuller had child support been payable - The retroactive child support award did not amount to a hardship to the wife as it simply reduced the amount of the cheque she would receive from the husband - See paragraphs 77 to 97.

Family Law - Topic 2371

Maintenance of wives and children - Defences or bars - Cohabitation of wife - The parties married in 1988 and separated in 1999 - They did not go to trial until November 2011 - The issues included the wife's request for retroactive spousal support - The husband earned significantly more than the wife - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the claim for retroactive spousal support - The court stated that "[the husband] might complain that it seems incongruous that a husband should be obligated to pay spousal support when his wife has left him for another man. Anomalous perhaps, but nonetheless recognized in law." - Here, the wife's request for retroactive spousal support was brought after almost 12 years of separation - The court stated that "Respectfully, that circumstance overruns the boundaries of a tolerable legal incongruity." - The court also considered, inter alia, that the three children of the marriage had remained with the husband and the wife had paid no child support - See paragraphs 46 to 53.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Family Law - Topic 2353 and Family Law - Topic 2371 ].

Family Law - Topic 4022

Divorce - Maintenance awards - To wife - Considerations - [See Family Law - Topic 2371 ].

Family Law - Topic 4022.1

Divorce - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 2371 ].

Cases Noticed:

Nicholas v. Nicholas (1988), 70 Sask.R. 241 (Q.B.), refd to. [para. 47].

L.G. v. G.B., [1995] 3 S.C.R. 370; 186 N.R. 201; 1995 CanLII 65, refd to. [para. 48].

Lowenberg v. Lowenberg (1998), 162 Sask. R. 254 (Q.B.), refd to. [para. 49].

Duarte v. Ulmer, [2008] Sask.R. Uned.; 2008 SKQB 303, refd to. [para. 50].

Lerner v. Lerner (2008), 321 Sask.R. 78; 2008 SKQB 308, refd to. [para. 52].

Williams v. Williams (2011), 375 Sask.R. 145; 525 W.A.C. 145; 2011 SKCA 84, folld. [para. 58].

Ouellet v. Ouellet (2007), 305 Sask.R. 35; 2007 SKQB 298 (Fam. Div.), refd to. [para. 58].

Dobson v. Dobson (2005), 275 Sask.R. 135; 365 W.A.C. 135; 2005 SKCA 136, refd to. [para. 58].

Ioanidis v. Ioanidis (2007), 297 Sask.R. 41; 2007 SKQB 233 (Fam. Div.), refd to. [para. 58].

Zawada v. Zawada, [2007] Sask.R. Uned. 7; 2007 SKQB 35 (Fam. Div.), refd to. [para. 58].

Williams v. Williams (2008), 322 Sask.R. 226; 2008 SKQB 390 (Fam. Div.), refd to. [para. 59].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, appld. [para. 83].

Zaba v. Bradley (1996), 137 Sask.R. 295; 107 W.A.C. 295; 18 R.F.L.(4th) 1 (C.A.), refd to. [para. 106].

Zaba v. Bradley (1996), 140 Sask.R. 297 (Q.B.), refd to. [para. 106].

Darlington v. Darlington (1997), 99 B.C.A.C. 134; 162 W.A.C. 134; 32 R.F.L.(4th) 406 (C.A.), refd to. [para. 106].

Beutler v. Maki (2005), 273 Sask.R. 198; 2005 SKQB 393 (Fam. Div.), refd to. [para. 106].

Rebenchuk v. Rebenchuk (2007), 212 Man.R.(2d) 261; 389 W.A.C. 261; 35 R.F.L.(6th) 239; 2007 MBCA 22, refd to. [para. 106].

Statutes Noticed:

Family Property Act, S.S. 1997, c. F-6.3, sect. 22(1) [para. 57].

Counsel:

Ian McKay, Q.C., for the petitioner;

M.L. Senko, for the respondent.

This case was heard by R.S. Smith, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following decision on January 26, 2012.