Frank v. Linn,

• Jurisdiction: Saskatchewan
• Judge: Foley, J.
• Neutral Citation: 2013 SKQB 28
• Date: 28 January 2013
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Frank v. Linn (2013), 412 Sask.R. 164 (FD)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. MR.001

Darla Frank (petitioner) v. Robert Linn (respondent)

(2008 F.L.D. No. 328; 2013 SKQB 28)

Indexed As: Frank v. Linn

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Foley, J.

January 28, 2013.

Summary:

The parties cohabitated from September 1992 to September 2008. The wife applied for a division of the parties' family property under the Family Property Act and spousal support under the Family Maintenance Act.

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

Family Law - Topic 695

Husband and wife - Property rights during and after common law marriage or relationship - Valuation (incl. time for) - The parties cohabitated from September 1992 to September 2008 - The wife applied for a division of the parties' family property under the Family Property Act - At issue, inter alia, was the appropriate date for the valuation of specific assets, including the family home, the wife's farmland, the wife's company shares, the parties' RRSPs and the husband's pension - The parties agreed that the application date should be used when valuing the household goods (including vehicles), their accounts receivable, the farm buildings, their bank accounts and the husband's corporate interests - The Saskatchewan Court of Queen's Bench, Family Law Division, held that based on the evidence and the factors set out in the case law, the family home, the farmland, the Trans Canada shares and the parties' RRSPs should all be valued as of the date of adjudication - The husband's RRSP could be adjusted with respect to the contributions made by him following the application date - See paragraphs 5 to 22.

Family Law - Topic 695

Husband and wife - Property rights during and after common law marriage or relationship - Valuation (incl. time for) - The parties cohabitated from September 1992 to September 2008 - The wife applied for a division of the parties' family property under the Family Property Act - At issue, inter alia, was the value of the husband's corporate interests - The Saskatchewan Court of Queen's Bench, Family Law Division, discussed how the value should be determined and concluded that the husband's corporate interests were worth $2,846,400 - See paragraphs 40 to 91.

Family Law - Topic 695

Husband and wife - Property rights during and after common law marriage or relationship - Valuation (incl. time for) - The parties cohabitated from September 1992 to September 2008 - The wife applied for a division of the parties' family property under the Family Property Act - A number of the parties' assets had a "contingent" tax liability associated with them - The husband claimed that the potential tax with respect to the disposition of his corporate interests should be taken into account in valuing those shares for distribution purposes - The Saskatchewan Court of Queen's Bench, Family Law Division, found that a discount of 50% for both the contingent tax relating to the shares and the redundant assets was appropriate - See paragraphs 136 to 153.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - The parties cohabitated from September 1992 to September 2008 - The wife applied for a division of the parties' family property under the Family Property Act - In 1997, the wife's father passed away - Her brother inherited the farmland and machinery - He gave a quarter of the farmland to the wife - During the relationship, the farmland remained in the wife's sole name - She leased out the land to members of her family and paid the taxes on it - The rent was not held in a separate account - The wife asserted that the farmland should be excluded from the family property - The husband opposed the exclusion, asserting that the wife had not rebutted the presumption that the land be shared equally - The Saskatchewan Court of Queen's Bench, Family Law Division, ordered equal division of the farmland - Firstly, the wife did not inherit the land from her father - It was received as a gift from her brother and there was no evidence her brother placed any restrictions on the "sharing" of that gift - The evidence established that the husband had a good relationship with the wife's family, including her father, mother and brother - Secondly, the registration of the land in the wife's sole name and the fact she managed it, while relevant, were less important than how the parties viewed the land during the spousal relationship - While the wife testified she viewed it as separate property, there was no evidence on this point from the husband - Finally, of significant importance was the fact that the land was gifted in December of 1997, the third year of a 14-year spousal relationship - In the circumstances, the wife had failed to establish that it would be unfair and inequitable to share the land equally - See paragraphs 119 to 135.

Family Law - Topic 880.1

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - General (incl. pre-marriage acquisitions) - The parties cohabitated from September 1992 to September 2008 - The wife applied for a division of the parties' family property under the Family Property Act - Both parties claimed exemptions with respect to property they brought into the relationship - The wife claimed an exemption for shares, RRSPs and her bank accounts - The husband claimed an exemption for the fair market value of his corporate interests - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the onus rested on the spouse claiming an exemption to establish first that the asset was family property (i.e. that it was in existence at the date of the court application or had been "exchanged" for an asset that was in existence as of that date) - Secondly, that they owned the asset at the commencement of the spousal relationship and, finally, the fair market value of the asset when the spousal relationship started - Once those facts had been established, there was a presumption in favour of the exemption - The onus then shifted to the other spouse to show that allowing the exemption would be "unfair and inequitable" - The court allowed the wife's request for an exemption for the shares and RRSPs but denied the exemption for the bank accounts - The court also denied the husband's request for an exemption - See paragraphs 92 to 116.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - [See all Family Law - Topic 695 ].

Family Law - Topic 2329

Maintenance of spouses and children - Maintenance of spouses - Considerations (incl. pensions) - The parties cohabitated from September 1992 to September 2008 - Before the relationship, the wife was employed as a journey person instrumentation mechanic earning $75,000 - The husband was a self-employed business man who earned over $800,000 - Both parties had sons from prior relationships - During the relationship, the wife remained at home to care for the children - At the time of separation, the wife was 52 years old and unemployed - The husband was 50 years old and continued to be involved in his business which had expanded considerably - The wife applied for spousal support under the Family Maintenance Act - The Saskatchewan Court of Queen's Bench, Family Law Division, found that the wife was entitled to spousal support on both a compensatory and non-compensatory basis - With respect to the compensatory basis, the wife gave up her 12-year career and her debt-free home to live with the husband - She used the money from the sale of her home to pay off the husband's debts - She took on the role of a traditional wife and mother - With respect to the wife's non-compensatory claim for support, when the parties separated the wife was unemployed - She had been out of the work force for 16 years - Her only sources of income were a salary paid to her from the business, rental income from her farmland and a small amount of investment income - She was financially dependent upon the husband - That financial dependence gave rise to the wife's non-compensatory need for support - The court ordered the husband to pay monthly spousal support of $10,000 for an indefinite period of time - See paragraphs 160 to 204.

Cases Noticed:

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17 (C.A.), refd to. [para. 4].

Russell v. Russell (1999), 180 Sask.R. 196; 205 W.A.C. 196; 1 R.F.L.(5th) 235 (C.A.), refd to. [para. 17].

Michalishen v. Michalishen (2002), 227 Sask.R. 107; 287 W.A.C. 107; 2002 SKCA 128, refd to. [para. 17].

Menzies v. Menzies, [2002] Sask.R. Uned. 179; 31 R.F.L.(5th) 348; 2002 SKQB 453 (Fam. Div.), refd to. [para. 17].

Williams v. Williams (2011), 375 Sask.R. 145; 525 W.A.C. 145; 2011 SKCA 84, refd to. [para. 19].

Franken v. Franken (1997), 45 O.T.C. 205; 33 R.F.L.(4th) 264 (Gen. Div.), dist. [para. 57].

Baldwin v. Ward (1998), 164 Sask.R. 81; 36 R.F.L.(4th) 193 (Q.B. Fam. Div.) revd. (1999), 180 Sask.R. 124; 205 W.A.C. 124; 2 R.F.L.(5th) 56 (C.A.), dist. [para. 57].

Kuderewko v. Kuderewko, [2006] Sask.R. Uned. 182; 2006 SKQB 502 (Fam. Div.), refd to. [para. 59].

Rosenau v. Rosenau (2004), 267 Sask.R. 1; 2004 SKQB 275, refd to. [para. 59].

Elik v. Elik, 1988 CarswellOnt 3399 (Sup .Ct.), refd to. [para. 59].

Waller v. Waller (1998), 164 Sask.R. 161; 39 R.F.L.(4th) 300 (Q.B.), refd to. [para. 59].

Halpin v. Halpin, [1997] 2 W.W.R. 745; 83 B.C.A.C. 241; 136 W.A.C. 241; 26 R.F.L.(4th) 30 (C.A.), dist. [para. 82].

Ganson v. Ganson (1996), 17 O.T.C. 340 (Gen. Div.), dist. [para. 82].

Vilcu v. Vilcu - see Vilcu v. Grams.

Vilcu v. Grams (1999), 172 Sask.R. 201; 185 W.A.C. 201 (C.A.), refd to. [para. 109].

Seaberly v. Seaberly (1985), 37 Sask.R. 219 (C.A.), refd to. [para. 124].

Wilson v. Wilson (1994), 119 Sask.R. 1 (Q.B.), refd to. [para. 127].

Townsend v. Townsend (2002), 224 Sask.R. 1; 2002 SKQB 340 (Fam. Div.), refd to. [para. 127].

Good v. Good, [1998] 9 W.W.R. 517; 167 Sask.R. 196 (Q.B. Fam. Div.), refd to. [para. 127].

Carlson v. Carlson (1984), 34 Sask.R. 287 (C.A.), refd to. [para. 141].

Dembiczak v. Dembiczak (1985), 42 Sask.R. 314; 48 R.F.L.(2d) 113 (C.A.), refd to. [para. 141].

Deyell v. Deyell (1991), 90 Sask.R. 81 (C.A.), refd to. [para. 141].

P.M. v. S.M. (2012), 393 Sask.R. 229; 546 W.A.C. 229; 2012 SKCA 55, refd to. [para. 141].

James v. Belosowsky (2012), 403 Sask.R. 12; 2012 SKQB 316 (Fam. Div.), refd to. [para. 142].

Rick v. Brandsema - see N.R. v. B.B. et al.

N.R. v. B.B. et al., [2009] 1 S.C.R. 295; 385 N.R. 85; 266 B.C.A.C. 1; 449 W.A.C. 1; 2009 SCC 10, refd to. [para. 143].

Huck v. Huck, [2004] O.T.C. Uned. 816; 9 R.F.L.(6th) 362 (Sup. Ct.), refd to. [para. 143].

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. 163].

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. 163].

Chutter v. Chutter et al. (2008), 263 B.C.A.C. 109; 443 W.A.C. 109; 60 R.F.L.(6th) 263; 2008 BCCA 507, refd to. [para. 185].

W. v. W., [2005] B.C.T.C. 1010; 19 R.F.L.(6th) 453; 2005 BCSC 1010, refd to. [para. 185].

Bell v. Bell (2009), 272 B.C.A.C. 207; 459 W.A.C. 207; 69 R.F.L.(6th) 21; 2009 BCCA 280, refd to. [para. 185].

Martin v. Martin, [2004] O.T.C. 1139; 12 R.F.L.(6th) 415 (Sup. Ct.), affd. (2006), 214 O.A.C. 140; 40 R.F.L.(6th) 32 (C.A.), refd to. [para. 185].

Messer v. Messer (1997), 163 Sask.R. 101; 165 W.A.C. 101; 33 R.F.L.(4th) 426 (C.A.), refd to. [para. 188].

Holmes v. Matkovich (2008), 258 B.C.A.C. 86; 434 W.A.C. 86; 59 R.F.L.(6th) 60; 2008 YKCA 10, refd to. [para. 192].

Jens v. Jens (2008), 260 B.C.A.C. 185; 439 W.A.C. 185; 57 R.F.L.(6th) 31; 2008 BCCA 392, refd to. [para. 192].

Ross v. Ross (1995), 168 N.B.R.(2d) 147; 430 A.P.R. 147; 16 R.F.L.(4th) 1 (C.A.), refd to. [para. 196].

Authors and Works Noticed:

McLeod, James G., and Mamo, Alfred A., Matrimonial Property Law in Canada (1993), Looseleaf, vol. 1, p. V-2 [para. 64].

Payne, Julien D., Payne on Divorce (4th Ed. 1996), pp. 252, 253 [para. 189].

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines (2008), generally [para. 198].

Counsel:

R. Bradley Hunter, Q.C., and Kathleen A. Peterson, for the petitioner;

Lindsay A. Wacholtz and Neil N. Karkut, for the respondent.

This application was heard by Foley, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, who delivered the following judgment on January 28, 2013.