Felker v. Felker, 2005 ABQB 365

• Judge: Hillier, J.
• Court: Court of Queen''s Bench of Alberta (Canada)
• Case Date: Thursday December 09, 2004
• Citations: 2005 ABQB 365;(2005), 383 A.R. 391 (QB)

Felker v. Felker (2005), 383 A.R. 391 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. AU.040

Cherryl Lynn Felker (plaintiff/respondent) v. Terry Roy Felker (defendant/applicant)

(4801 118168; 2005 ABQB 365)

Indexed As: Felker v. Felker

Alberta Court of Queen's Bench

Judicial District of Calgary

Hillier, J.

May 18, 2005.

Summary:

The parties separated after an unstable relationship and very brief (12 week) marriage. The wife sought a distribution of property. The husband applied for a declaration of exemption for property acquired before the marriage.

The Alberta Court of Queen's Bench allowed the application, declaring that the husband was entitled to an exemption and that the exempted value of the property exceeded the market value.

Family Law - Topic 880.1

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - General - Including pre-marriage acquisitions - The parties separated after an unstable relationship and very brief (12 week) marriage - The wife sought a distribution of property - The husband applied for a declaration of exemption for property acquired before the marriage, including a farm and cow/calf operation - The wife submitted that the assets, particularly a cattle herd, could not be traced and that a full trial was required - The husband asserted that the decision to sell the herd, pay down farm debt and then reinvest in cattle had not destroyed the exemption - The Alberta Court of Queen's Bench allowed the husband's application - The court adopted a pragmatic approach to proof of asset exemption - None of the exempt assets, including any proceeds of cattle sales, were invested in joint title property - Further, the funds were traceable to farm assets or repayment of loans that enabled the husband to secure loans to repurchase a herd - The wife's position ignored the nature of the farming operation - There was no clear evidence to support the wife's assertion that forfeiture of the exemption was a live issue - See paragraphs 29 to 42.

Family Law - Topic 880.12

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Post-marital exchange of pre-marital exempt assets - [See Family Law - Topic 880.1 ].

Family Law - Topic 880.18

Husband and wife - Marital property - Distribution orders - Tracing - [See Family Law - Topic 880.1 ].

Cases Noticed:

K.L.S. v. T.E.S., [2004] A.R. Uned. 653; 2004 CarswellAlta 1351; 2004 ABQB 728, dist. [para. 20].

Kuyten v. Kuyten, [1999] A.R. Uned. 435; 1999 CarswellAlta 772; 1999 ABQB 646, dist. [para. 20].

Patterson v. Patterson, [1997] Sask.R. Uned. 139; 1997 CarswellSask 497 (Q.B. Fam. Div.), dist. [para. 20].

Casey v. Casey (1995), 138 Sask.R. 15; 1995 CarswellSask 481 (Q.B. Fam. Div.), dist. [para. 20].

Stochmanski v. Stochmanski (1997), 153 Sask.R. 91; 1997 CarswellSask 5 (Q.B. Fam. Div.), dist. [para. 20].

Schroeder v. Schroeder (2002), 163 Man.R.(2d) 57; 269 W.A.C. 57; 23 R.F.L.(5th) 361; 2002 CarswellMan 1 (C.A.), dist. [para. 20].

Billo v. Billo (1982), 27 R.F.L.(2d) 150; 1982 CarswellSask 57 (U.F.C.), dist. [para. 20].

Harrower v. Harrower (1989), 97 A.R. 141; 21 R.F.L.(3d) 369 (C.A.), refd to. [para. 25].

Jackson v. Jackson (1989), 97 A.R. 153; 68 Alta. L.R.(2d) 118 (C.A.), refd to. [para. 25].

Purich v. Purich (1998), 226 A.R. 351; 1998 ABQB 700, refd to. [para. 25].

Miller v. Miller (2002), 310 A.R. 21; 26 R.F.L.(5th) 152 (Q.B.), affd. (2004), 354 A.R. 321; 329 W.A.C. 321; 5 R.F.L.(6th) 380 (C.A.), appld. [para. 25].

Hughes v. Hughes (1998), 232 A.R. 224; 195 W.A.C. 224; 1998 ABCA 409, refd to. [para. 25].

Rosin v. Rosin (1994), 157 A.R. 184; 77 W.A.C. 184; 8 R.F.L.(4th) 319 (C.A.), folld. [para. 25].

Roenisch v. Roenisch (1991), 115 A.R. 255; 32 R.F.L.(3d) 233 (C.A.), refd to. [para. 34].

Cochard (Bankrupt), Re, [2004] A.R. Uned. 683; 2004 ABQB 439, refd to. [para. 48].

Cochard v. Cochard - see Cochard (Bankrupt), Re.

Kozyra v. Kozyra, 1998 ABQB 640, refd to. [para. 48].

World Wide Oil & Gas Inc. v. Church of Christ Development Co. et al. (1989), 95 A.R. 9 (Q.B. Master), refd to. [para. 49].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Handbook (2004), generally [para. 48].

Counsel:

J.E. Davison, for the plaintiff;

M.G. McGovern, for the defendant.

This application was heard on December 9, 2004, by Hillier, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who filed the following memorandum of decision on May 18, 2005.