Digest: Gordon v Nielson, 2018 SKQB 207

Date:July 18, 2019

Reported as: 2018 SKQB 207

Docket Number: QB18190 , DIV 501/16 JCS

Court: Court of Queen's Bench

Date: 2019-07-18

Judges:

  • Wilkinson

Subjects:

  • Family Law � Family Property � Interspousal Contract

Digest: The parties were married in 2009 and separated in 2015. At the time of trial, their two daughters were aged ten and eight respectively. Since the separation the respondent husband had lived in the family home and the parties had interim joint custody and a shared parenting regime where the children lived with each parent on alternating weeks. Before their marriage, the parties executed a prenuptial agreement in 2008 in which they agreed that they would keep their respective property, assets and business interests entirely separate. The only shareable assets would consist of property explicitly placed in their joint names. If marital breakdown occurred, neither party would make any claims in relation to property or spousal support. Each of the parties obtained independent legal advice and they agreed that neither of them were at a disadvantage when they signed. In 2008, the respondent had secure employment and was earning $104,900 and the petitioner had just finished her medical training as a radiologist. After she purchased a share in a partnership, the petitioner organized her business affairs to minimize tax liability through two corporate structures and a family trust. A service corporation provided imaging services to, and was paid by, the professional corporation. An optimal allocation of salary and dividends for tax purposes was determined under the service corporation and salaries were paid to petitioner and the respondent and then dividends declared to its shareholder, a family trust. The trust was discretionary: the petitioner was the sole trustee and she could make distributions to herself, the respondent and the children as the designated beneficiaries. Between 2009 and 2010, the respondent lost two different positions due to corporate restructuring and was unemployed from 2010 to 2012. He then established a medical supply business and by 2015, it was earning a net income of $3,500 to $4,500 per month. Late in 2016, the respondent found a new position with an annual income of $86,000 as a pharmaceutical sales representative. He asserted that his business� revenues began to backslide when he was forced to take on this regular employment, as he no longer had time to devote to his company. From 2010 onward, the respondent�s economic contributions to the family were minimal to non-existent. The net earnings of his business were retained for its exclusive use. The petitioner�s professional earnings supported the family through the seven years of cohabitation. Most of her earnings flowed to the joint account through the income-splitting with the respondent. The issues between the parties were: 1) whether the prenuptial agreement was entitled to deference; 2) whether the respondent had a valid claim in express, constructive or resulting trust in relation to his joint interest in a lot transferred to the petitioner to protect the property from would-be creditors once he started his medical supply business; 3) whether the respondent had a right to spousal support on the basis that significant unanticipated changes occurred during the course of the marriage that made the prenuptial agreement incompatible with the parties� original intentions and the statutory support objectives of the Divorce Act. He claimed to be entitled to spousal support of $21,600 per month for a period of nine years, first on a...

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