D.M.B. v. D.B.B., (2015) 474 Sask.R. 1 (FD)

Judge:Krogan, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:February 27, 2015
Jurisdiction:Saskatchewan
Citations:(2015), 474 Sask.R. 1 (FD);2015 SKQB 65
 
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D.M.B. v. D.B.B. (2015), 474 Sask.R. 1 (FD)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. MY.018

D.M.B. (petitioner) v. D.B.B. (respondent)

(2010 DIV No. 577; 2015 SKQB 65)

Indexed As: D.M.B. v. D.B.B.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Krogan, J.

February 27, 2015.

Summary:

The parties began living together in 1988, married in 1990, and separated in 2010. They had three children. At issue in these divorce proceedings was spousal support, child support, and a division of family property.

The Saskatchewan Court of Queen's Bench, Family Law Division, determined the issues.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 631

Husband and wife - Marital property - Matrimonial home - Right to possession of - The parties were married in 1990 - They purchased a home in A. (the "A. residence") in 1996 - In 2001, they moved into a smaller residence in A. while the A. residence was being renovated - The renovations were completed in 2008 - In 2007, the parties' three children began attending school in V. - As a result, the parties leased a home in V. which the wife and children resided in - The wife travelled to A. to be with the husband on Tuesdays and Thursdays and every second weekend - The parties separated in 2010 - The husband remained in the A. residence - The wife continued to live in V., but wished to return to the A. residence - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the husband would keep possession of the A. residence - Unlike the husband, the A. residence had not been the wife's home for any extended period of time - She was neither a consistent nor full-time resident in the home - The court was unwilling to see the husband removed from the home he had lived in since 2008 - See paragraphs 351 to 353.

Family Law - Topic 868

Husband and wife - Marital property - Distribution orders - Property subject to distribution - [See Family Law - Topic 880.54 ].

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - The parties were married and lived in A. - In 2007, their three children began attending school in V. - As a result, the parties leased a home in V. which the wife and children resided in - The landlord decided to sell the house - The parties could not afford to purchase the house themselves, so the husband had a friend purchase it, and agreed to eventually purchase the house from the friend for the same price the friend had paid - The parties separated in 2010 - In 2011, the husband purchased the house for the friend's purchase price of $285,000 even though the value of the house had decreased to $239,000 - The house was then transferred to the husband's numbered company for $246,000 - The husband claimed that the difference between the price he paid and the actual value ($285,000 - $246,000 = $39,000) was family debt - The wife resisted the claim, asserting that she was not aware of the purchase of the home, which occurred after she petitioned for divorce - The Saskatchewan Court of Queen's Bench, Family Law Division, stated "Whether [the wife] was aware or unaware of [the husband] purchasing the house when he did, after the petition, it is clear that but for the needs of [the wife] and the children, arrangements to purchase the house would not have been made prior to the petition date. Thus $39,000.00 is considered to be family debt and will accordingly be borne by both parties." - See paragraphs 362 and 363.

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - The parties were married in 1990 - The wife was the sole director and shareholder of a company (PV) which she launched in 2006 - Salary was paid to the wife and to the parties' children from PV - PV's income also paid for family items such as groceries, clothing, gas, and amounts owing on a line of credit - PV operated at a loss in the years 2008 to 2010 - The wife petitioned for divorce in December 2010 - At that time, PV owed more than the value of its assets - The wife submitted that the PV debt should be considered family debt for property division purposes - The husband argued that the debt attached to the company and not the family - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the PV debt would be taken into consideration for equalization purposes - Income from PV was used for family expenditures - PV augmented the well-being of the family by providing a source of income - See paragraphs 395 to 399.

Family Law - Topic 880.47

Husband and wife - Marital property - Distribution orders - Particular property - Company shares, stock options, etc. - The parties were married in 1990 - The husband was an employee and shareholder of CE - The wife petitioned for divorce in December 2010 - Subsequently, CE was sold to FE - In October 2011, the husband's CE shares were sold to FE - He received cash for some of the shares in the amount of $13.20/share - He also received 60,450 FE shares that were to be held in escrow for one year - In May 2012, another company (U) purchased FE and thus all FE shares for $25.00/share - The wife sought a division of family property - She argued that the shares should be valued as of May 2012 - The husband argued that they should be valued as of the date of the petition or the date that CE was sold to FE - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the petition date would not be used for valuation purposes due to a lack of evidence respecting the shares' value on that date - Both parties' experts agreed that the price increase from $13.20 to $25.00 per share was entirely the result of market forces, and not because of the husband's efforts - It would be unjust and unconscionable for the court to exclude the wife from sharing in the increased value of the shares - The valuation date for the shares was the date of the deal between FE and U, which occurred just prior to adjudication - See paragraphs 370 to 388.

Family Law - Topic 880.47

Husband and wife - Marital property - Distribution orders - Particular property - Company shares, stock options, etc. - The parties were married in 1990 - The husband was an employee and shareholder of CE - The wife petitioned for divorce in December 2010 - In August 2011, 50,000 of the husband's CE shares were redeemed for a value of $7.94/share - The wife sought a division of family property - She argued that the shares should be valued as of their redemption date - The husband argued that they should be valued at the date of the petition ($3.50/share) - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the valuation date for the shares was August 2011 because (1) there was insufficient evidence to value the shares as of the petition date; and (2) there was an actual transaction which occurred in August 2011 that had accurately supplied the court with a per share value - See paragraph 389.

Family Law - Topic 880.54

Husband and wife - Marital property - Distribution orders - Particular property - Employment bonus - The parties were married - The husband received a profitability bonus of $50,000 from his employer for the years 2008 to 2009 - The parties separated in 2010 - As of the date of the wife's petition for divorce, the bonus had yet to be paid to the husband - The husband argued that the bonus was not family property - He wanted it to be considered income as he had claimed it on his income tax return when he received it - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that "This $50,000.00 amount, if income, should have been for the benefit of both [the husband] and [the wife]. However, [the wife] did not see that benefit in 2008 - 2009 when it was earned and when the parties were still together. Because of that, this sum is considered to be family property and subject to division." - See paragraphs 366 and 367.

Family Law - Topic 882

Husband and wife - Marital property - Considerations in making distribution orders - Relevant considerations - [See first Family Law - Topic 868.2 ].

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - [See both Family Law - Topic 880.47 and Family Law - Topic 890.5 ].

Family Law - Topic 890.5

Husband and wife - Marital property - Considerations in making distribution orders - Dissipation, disposal or impoverishment of assets - The parties were married - In August 2010, the husband's numbered company purchased a building that was over 100 years old for $100,000 - The parties separated in November 2010 - That winter, the building sustained water damage as a result of the husband's failure to heat it - A 2012 appraisal valued the building at $54,000 - This was predicated on the fact that with no heat, the building was simply cold storage - The wife did not accept this value, asserting that the decrease in value could have been avoided if the husband had properly cared for the building - The Saskatchewan Court of Queen's Bench, Family Law Division, agreed that the building's value would have approximately doubled if it had been continuously heated - However, the court also recognized that the building was old and its foundation was deteriorating - Accordingly, for property division purposes, the court set the value of the building at $90,000 - See paragraph 361.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs - [See Family Law - Topic 970 ].

Family Law - Topic 970

Husband and wife - Actions between husband and wife - Practice - Financial disclosure - A wife petitioned for divorce - She retained an expert (Matiko) to provide evidence regarding an estimate of the fair market value of the husband's financial interests - Matiko received 270 electronic files from the husband's lawyer - They were uncatalogued and unsorted - Files ranged in size from a few pages to over a thousand pages - Matiko requested specific information several times, all through counsel - That information was not forthcoming - In November 2013, on the eve of the trial, the husband provided a document dated October 2011 which addressed certain questions Matiko had been asking for several months - The Saskatchewan Court of Queen's Bench, Family Law Division, ordered the husband to pay 75% of Matiko's final invoice for his services to prepare for and write three reports - The husband had shown a decided lack of cooperation - If he had been forthcoming with both assistance and an orderly provision of disclosure materials, these costs could have been avoided - The cost of Matiko's court time would be borne by the wife alone as the husband's actions did not impact the necessity of Matiko's trial evidence - See paragraphs 410 to 415.

Family Law - Topic 2210

Maintenance of spouses and children - General principles - Calculation or attribution of income - The parties separated in November 2010 after a 20 year traditional marriage - They had three children - At the time of separation, the husband was earning about $250,000/year in the oil and gas sector as the Chief Financial Officer of a company (CE) with over 1200 employees - CE was sold to FE in August 2011 - The husband signed a three-year non-compete agreement with FE, remained on contract with FE and continued to be paid $250,000/year - The husband did not believe that FE would continue his employment in the long term, so he resigned in December 2011 - He accepted employment with an offshoot of CE in 2012, earning $10,000/month - However, he chose to pay his sole staff person $8,000/month - As a result, his employment income was less than $5,000 in each of 2012 and 2013 - The wife sought child support and spousal support - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the husband was intentionally underemployed - He walked away from a high-paying job and made no efforts to find a new position that would fall outside the scope of the non-compete agreement despite the fact that he had over 25 years of experience in the accounting field - The court imputed income of $250,000 to the husband - See paragraphs 240 to 261.

Family Law - Topic 2213

Maintenance of spouses and children - General principles - Extent of duty to support - [See Family Law - Topic 4022 ].

Family Law - Topic 2322

Maintenance of spouses and children - Maintenance of spouses - Principle of equality of standard of living - [See Family Law - Topic 4022 ].

Family Law - Topic 2342.1

Maintenance of spouses of children - Maintenance of children - Dependent child - [See first Family Law - Topic 4014 ].

Family Law - Topic 2344

Maintenance of spouses and children - Maintenance of children - Awards - Periodic payments - [See both Family Law - Topic 4014 ].

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - [See Family Law - Topic 4022 ].

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - [See second Family Law - Topic 4014 ].

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance awards - Periodic payments - [See both Family Law - Topic 4014 and Family Law - Topic 4022 ].

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - The parties separated - The father's income was $250,000 - The mother sought child support for their 26 year old daughter (V.) who continued to live with her - V. suffered from panic disorder, seizure disorder and agoraphobia, all of which were exacerbated by depression and anxiety - Her conditions had not improved despite consultations with various medical professionals - V.'s monthly expenses were about $2,700 - The Saskatchewan Court of Queen's Bench, Family Law Division, found that V. was unable to meet the requirements of university or employment due to her health issues - She did not have the capacity to withdraw from her parents' charge or obtain the necessaries of life - The Federal Child Support Guidelines provided for child support of $1,986/month - Although the father's income exceeded $150,000, he had not demonstrated a clear and compelling reason to depart from the Guideline amount under s. 4, or supplied an alternative amount for the court to consider - However, as the mother had agreed to share equally in V.'s monthly expenses, the father was ordered to pay $1,350/month - The court refused the father's request to stipulate a review date - The medical evidence indicated that there was no improvement in V.'s condition and no prognosis as to when she might experience improvement - It would not be prudent to identify a date for review in these circumstances - See paragraphs 306 to 325.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - The parties separated - The father's income was $250,000 and the mother's was about $50,000 - Their child (M.) attended university at a cost of $25,864 for tuition, fees and books - M. worked during the summer and earned about $16,000 - He lived in a condominium that the father purchased during the school year, and with the mother during the summer - The mother sought child support for M. - The Saskatchewan Court of Queen's Bench, Family Law Division, held that both parents had the means to contribute to M.'s education - M. was ordered to contribute $5,000 to his education - The balance would be paid by the parties on a pro rata basis - The father was ordered to pay the mother $400/month during the summer, and $100/month during the school year for simply maintaining M.'s bedroom in her home - See paragraphs 329 to 340.

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance awards - Considerations - Financial consequences of child care and household responsibilities - [See Family Law - Topic 4022 ].

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - [See Family Law - Topic 2210 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To spouse - Considerations - The parties began living together in 1988, married in 1990, and separated in 2010 - The husband was the Chief Financial Officer of a large company - His income was $250,000/year at the time of separation, but had ranged from $400,000 to $700,000 in the preceding years - The wife was the primary caregiver to the parties' three children - She pursued employment or business opportunities that allowed her to be available to the children - The parties relocated five times during the relationship, partly to assist the husband's career - The wife earned almost $50,000 in 2013 - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the wife was entitled to spousal support on a compensatory and non-compensatory basis - Her assumption of the caregiver role allowed the husband to achieve professional success - The wife was bright and capable - Her career would have advanced far beyond where it currently was if she had been able to focus on it during the marriage - Though she had been working diligently, it was unlikely that the wife would ever be self-sufficient to the point where she could approach the standard of living that she enjoyed prior to separation - A significant family property settlement would not compensate her for the economic disadvantages that she experienced as a result of the marriage breakdown - Given the equal and significant property division, and as an incentive for the wife to continue with her employment pursuits, support at the lower end of the range was appropriate - The husband was ordered to pay $5,700/month until further order of the court - See paragraphs 262 to 295.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 4022 ].

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance awards - Effect of division of matrimonial property - [See Family Law - Topic 4022 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines - Calculation or attribution of income - [See Family Law - Topic 2210 ].

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child support guidelines - Children over the age of majority - [See first Family Law - Topic 4014 ].

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Child support guidelines - Where income over $150,000 - [See first Family Law - Topic 4014 ].

Family Law - Topic 4045.14

Divorce - Corollary relief - Maintenance - Child support guidelines - Where child has income or capital - [See second Family Law - Topic 4014 ].

Family Law - Topic 4175

Divorce - Practice - Costs - General (incl. considerations) - [See Family Law - Topic 970 ].

Practice - Topic 4562

Discovery - Production and inspection of documents - General - Remedy for failure to produce - [See Family Law - Topic 970 ].

Practice - Topic 7085

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Expert witness fees - [See Family Law - Topic 970 ].

Cases Noticed:

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 235].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 239].

V.G.B. v. E.H. (2004), 250 Sask.R. 272; 2004 SKQB 280, refd to. [para. 246].

Donovan v. Donovan, [2000] 10 W.W.R. 214; 150 Man.R.(2d) 116; 23 W.A.C. 116; 2000 MBCA 80, refd to. [para. 258].

Chutter v. Chutter et al. (2008), 263 B.C.A.C. 109; 443 W.A.C. 109; 301 D.L.R.(4th) 297; 2008 BCCA 507, refd to. [para. 264].

B.H. v. R.H. (2012), 410 Sask.R. 85; 2012 SKQB 436 (Fam. Div.), refd to. [para. 273].

Fisher v. Fisher (2008), 232 O.A.C. 213; 288 D.L.R.(4th) 513; 2008 ONCA 11, refd to. [para. 273].

J.F. v. R.T. (2014), 463 Sask.R. 163; 2014 SKQB 385, refd to. [para. 276].

W. v. W., [2005] B.C.T.C. 1010; 19 R.F.L.(6th) 453; 2005 BCSC 1010, refd to. [para. 279].

Deringer v. Hill (2007), 308 Sask.R. 122; 2007 SKQB 206 (Fam. Div.), refd to. [para. 284].

Frank v. Linn (2014), 442 Sask.R. 126; 616 W.A.C. 126; 2014 SKCA 87, refd to. [para. 286].

Russell v. Russell (1999), 180 Sask.R. 196; 205 W.A.C. 196; 1 (C.A.), refd to. [para. 294].

Ethier v. Skrudland (2011), 366 Sask.R. 203; 506 W.A.C. 203; 2011 SKCA 17, refd to. [para. 300].

Thompson v. Ducharme (2004), 184 Man.R.(2d) 119; 318 W.A.C. 119; 1 R.F.L.(6th) 401; 2004 MBCA 42, refd to. [para. 302].

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. 305].

H.M.R. v. D.G.R., [2010] B.C.T.C. Uned. 647; 86 R.F.L.(6th) 86; 2010 BCSC 647, refd to. [para. 314].

Nolte v. Nolte (2001), 208 Sask.R. 88; 2001 SKQB 268 (Fam. Div.), refd to. [para. 315].

Blonski v. Blonski, [2010] O.T.C. Uned. 2552; 2010 ONSC 2552, refd to. [para. 316].

Rathwell v. Rathwell (2013), 427 Sask.R. 120; 591 W.A.C. 120; 2013 SKCA 133, refd to. [para. 324].

Geran v. Geran (2011), 371 Sask.R. 233; 518 W.A.C. 233; 2011 SKCA 55, refd to. [para. 329].

Woods v. Woods (1998), 171 Sask.R. 170 (Q.B.), refd to. [para. 331].

Simpson v. Palma (1998), 171 Sask.R. 89 (Q.B. Fam. Div.), refd to. [para. 332].

Bradley v. Zaba (1996), 137 Sask.R. 295; 107 W.A.C. 295 (C.A.), refd to. [para. 334].

Lasby-Gamble v. Gamble, [2007] Sask.R. Uned. 88; 41 R.F.L.(6th) 432 (Fam. Div.), refd to. [para. 348].

Hierath v. Hierath (2000), 200 Sask.R. 269; 2000 SKQB 459 (Fam. Div.), refd to. [para. 349].

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17; 3 R.F.L.(4th) 291 (C.A.), refd to. [para. 373].

Thompson v. Thompson et al., [2004] Sask.R. Uned. 35; 2004 SKQB 100 (Fam. Div.), affd. [2004] Sask.R. Uned. 236; 2004 SKCA 169, refd to. [para. 376].

Moore v. Moore (2013), 425 Sask.R. 58; 2013 SKQB 259 (Fam. Div.), refd to. [para. 380].

Cey v. Teske (2006), 286 Sask.R. 221; 2006 SKQB 315 (Fam. Div.), refd to. [para. 380].

Schwab v. Schwab (1995), 133 Sask.R. 200 (Q.B.), refd to. [para. 387].

Pletz v. Pletz (2000), 192 Sask.R. 40; 2000 SKQB 129, refd to. [para. 397].

Weigel v. Weigel (2012), 398 Sask.R. 70; 2012 SKQB 188 (Fam. Div.), refd to. [para. 398].

Authors and Works Noticed:

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines (2008), generally [para. 284].

Counsel:

Joanne Moser and James Vogel, for the petitioner;

Fred Zinkhan and Virgil Thomson, for the respondent.

This matter was heard before Krogan, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following judgment on February 27, 2015.

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