Edward v. Edward Estate and Skolrood, (1987) 57 Sask.R. 67 (CA)

• Judge: Bayda, C.J.S., Vancise and Wakeling, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 15, 1987
• Jurisdiction: Saskatchewan
• Citations: (1987), 57 Sask.R. 67 (CA);1987 CanLII 982 (SK CA);39 DLR (4th) 654;[1987] 5 WWR 289;8 RFL (3d) 370;27 ETR 152;[1987] SJ No 423 (QL);57 Sask R 67;5 ACWS (3d) 323

Edward v. Edward Estate (1987), 57 Sask.R. 67 (CA)

MLB headnote and full text

Stephanie Edward (applicant/respondent) v. Stephanie Edward, Administratrix of the Estate of Harold Willard Edward (respondent/respondent) and Shirley Skolrood (respondent/appellant)

(No. 8951)

Indexed As: Edward v. Edward Estate and Skolrood

Saskatchewan Court of Appeal

Bayda, C.J.S., Vancise and Wakeling, JJ.A.

June 15, 1987.

Summary:

A husband died intestate. He was survived by his widow and a daughter from a previous marriage. The widow applied under the Matrimonial Property Act for a distribution of the matrimonial property and under the Dependants' Relief Act for provision for her from the deceased's estate. The application was opposed by the deceased's daughter.

The Saskatchewan Unified Family Court in a decision reported in 44 Sask.R. 266, awarded the widow all of the deceased's property pursuant to the Dependants' Relief Act. The deceased's daughter appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 2121

Family law - Divorce - Recognition of foreign decrees - General - The Saskatchewan Court of Appeal affirmed that a trial judge was correct to apply the rule in Indyka v. Indyka, [1967] 3 W.L.R. 510 (H.L.), to determine whether to recognize a husband's 1955 California divorce in Saskatchewan - The court affirmed that there was a "real and substantial connection" between the parties and the state of California and that the divorce was valid in Saskatchewan - See paragraph 33.

Courts - Topic 11

Stare decisis - Authority of judicial decisions - Application of judgments - Prospective or retrospective - The Saskatchewan Court of Appeal stated that traditionally in England and in Canada, judicial decisions have been given both retrospective and prospective effect - The law declared by a court decision applies to both future and past transactions - See paragraph 18.

Courts - Topic 11

Stare decisis - Authority of judicial decisions - Application of judgments - Prospective or retrospective - The Saskatchewan Court of Appeal referred to the principle of "prospective overruling", whereby the court decides an existing case under the old rule but warns that future cases will be decided under a new rule now being announced - The Court of Appeal rejected this technique on the ground that in exercising this technique the court would be usurping the function of the legislature - Thus the court held that in Saskatchewan the overruling of a precedent should be given retrospective effect - See paragraphs 26 to 31.

Devolution of Estates - Topic 410

Devolution - Effect of other awards - Matrimonial property distribution awards - The Saskatchewan Court of Appeal held that a surviving spouse is entitled, pursuant to s. 30(3) of the Matrimonial Property Act, to his or her share under the Intestate Succession Act, irrespective of the disposition of the surviving spouse's application for a matrimonial property order - See paragraph 47.

Family Law - Topic 885

Husband and wife - Marital property - Distribution orders - Considerations - After death of spouse - The Saskatchewan Court of Appeal held that where, after the death of one spouse, the surviving spouse applies for a matrimonial property order, all of the matrimonial assets, i.e. the assets of both the husband and wife less the respective debts, should be considered - The judge then determines the surviving spouse's share of those assets as if the deceased spouse had not died - If that share is less than the value of the assets which the surviving spouse has already received, he or she is entitled to a matrimonial property order for the difference out of the deceased spouse's estate - If that share is the same as or more than the value of the assets the surviving spouse has already received, the judge must simply dismiss the application - The judge in that case, however, would not make a matrimonial property order in favour of the deceased spouse's estate, as such is precluded by s. 36 of the Matrimonial Property Act - See paragraph 46.

Family Law - Topic 6625

Dependents' relief legislation - Persons entitled to relief - Widow - General - A widow claimed relief under the Dependants' Relief Act - The deceased's daughter from a previous marriage questioned the validity of the widow's marriage to the deceased - The daughter contested the validity of her father's 1955 California divorce from his second wife - The Saskatchewan Court of Appeal affirmed that the divorce should be recognized in Saskatchewan, that the widow was legally married and therefore entitled to claim against the deceased's estate as a dependent - See paragraph 33.

Family Law - Topic 6663

Dependents' relief legislation - Entitlement - Requirement of need - After 27 years of marriage, a husband died intestate - The matrimonial home was bought by the husband two years before the marriage - The wife paid the mortgage for 23 years - The husband was in failing health for the last 14 years of marriage, solely cared for and supported by the wife except for his pension income - Husband had one child from a previous marriage, who was financially independent - The Saskatchewan Court of Appeal affirmed that the husband did not make reasonable provision for the wife's maintenance - The court affirmed that the widow was entitled to the whole of the husband's property - See paragraphs 34 to 41.

Family Law - Topic 6692

Dependents' relief legislation - Awards - Considerations - Other statutes - After a husband died intestate, his widow applied for a matrimonial property order and for dependant's relief - The husband's daughter objected that the trial judge awarded the widow all the husband's estate under the Dependants' Relief Act - The daughter contended that the judge should have first awarded one-half the matrimonial property to the widow and one-half to the husband's estate - Accordingly, the value of the husband's estate for distribution under the Dependants' Relief and Intestate Succession Acts would be increased; the widow's share of matrimonial assets and entitlement on intestacy would have adequately provided for her maintenance and no dependant's relief would be justified - The Saskatchewan Court of Appeal rejected this argument, because of s. 36 of the Matrimonial Property Act - See paragraphs 42 to 50.

Cases Noticed:

Indyka v. Indyka, [1967] 3 W.L.R. 510 (H.L.), appld. [para. 17].

R. v. Dunn (1977), 21 N.S.R.(2d) 334; 28 A.P.R. 334, refd to. [para. 19].

Hornett v. Hornett, [1971] P. 255, refd to. [para. 22].

Angelo v. Angelo, [1968] 1 W.L.R. 401, refd to. [para. 22].

Mather v. Mahoney, [1968] 1 W.L.R. 1773, refd to. [para. 22].

Rowland v. Rowland (1973), 42 D.L.R.(3d) 205 (Ont. H.C.), refd to. [para. 23].

Bevington v. Hewitson (1974), 4 O.R.(2d) 226 (H.C.), refd to. [para. 23].

MacNeill v. MacNeill (1974), 53 D.L.R.(3d) 486 (Ont. H.C.), refd to. [para. 23].

Holub v. Holub, [1976] 5 W.W.R. 527 (Man. C.A.), refd to. [para. 24].

Hill v. Hill (1981), 10 Sask.R. 276, refd to. [para. 24].

Great Northern R. Co. v. Sunburst Oil & Ref. Co. (1932), 287 U.S. 358, refd to. [para. 26].

Griffin v. Illinois, (1956), 351 U.S. 12, refd to. [para. 27].

Mire v. Northwestern Mutual Ins. Co. (1971), 23 D.L.R.(3d) 322 (Alta. C.A), refd to. [para. 28].

Ex p. Hudson, [1972] A.C. 944, refd to. [para. 28].

Miliangos v. Frank (Textiles) Ltd., [1976] A.C. 443, refd to. [para. 28].

Morgans v. Launchbury, [1972] 2 All E.R. 606, refd to. [para. 28].

Bugoy Estate v. Bugoy, [1985] 2 S.C.R. 85; 61 N.R. 172; 44 Sask.R. 178, not appld. [para. 43].

Statutes Noticed:

Matrimonial Property Act, S.S. 1979, c. M-6.1, sect. 30(1) [para. 46]; sect. 30(3) [para. 47]; sect. 35(c) [para. 50]; sect. 36 [para. 46]; sect. 37 [para. 50].

Dependants' Relief Act, R.S.S. 1978, c. D-25, sect. 2(1)(d) [paras. 34-35]; sect. 4(2) [paras. 34-35]; sect. 9(1) [paras. 34, 36]; sect. 9(5) [paras. 34, 36]; sect. 9(6) [paras. 34, 37-39]; sect. 9(7) [paras. 34, 40].

Intestate Succession Act, R.S.S. 1978, c. I-13, generally.

Authors and Works Noticed:

Blackstone's Commentaries (4th Ed. 1771), vol. 1, pp. 69-70 [para. 18].

Lloyd, Introduction to Jurisprudence (4th Ed. 1979), pp. 856 [para. 26]; 857 [para. 30].

Friedland, M.L., Prospective and Retrospective Judicial Lawmaking (1974), 24 U.T.L.J. 170 [para. 28].

Weiler, Paul, Legal Values and Judicial Decision-Making (1970), 48 Can. Bar Rev. 1 [para. 28].

Counsel:

H. Kloppenburg, for the appellant;

K. Ford, for the respondent.

This appeal was heard before Bayda, C.J.S., Vancise and Wakeling, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered by Bayda, C.J.S., on June 15, 1987.