Grosse v. Grosse, (2012) 407 Sask.R. 161 (FD)

• Judge: Danyliuk, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 08, 2012
• Jurisdiction: Saskatchewan
• Citations: (2012), 407 Sask.R. 161 (FD);2012 SKQB 464

Grosse v. Grosse (2012), 407 Sask.R. 161 (FD)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. DE.013

Theresa Stefanie Grosse (petitioner) v. Melville Burle Grosse (respondent)

(2009 Div. No. 308; 2012 SKQB 464)

Indexed As: Grosse v. Grosse

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Danyliuk, J.

November 8, 2012.

Summary:

Spouses separated in 2009 after 29 years' marriage and two sons, both adults. The wife petitioned for divorce. At issue was the appropriate valuation and division of family property and the wife's entitlement to spousal support.

The Saskatchewan Court of Queen's Bench, Family Law Division, ordered an equal division of family property, resulting in an equalization payment to the wife of $1,853,064.70. The husband's contingent beneficial interest in the growth in a 2006 family trust was shareable family property. Should the husband withdraw funds from the trust or otherwise benefit himself, that benefit was to be shared equally with the wife. The wife was to be paid $2,000 per month spousal support until the wife received her share of her husband's pension to be rolled over to a locked-in retirement account and she received the equalization payment.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions - Spouses separated in 2009 after 29 years' marriage - The wife was 54 - The husband was 61 - The portion of the husband's pension acquired during the marriage was $866,529.28 - The husband requested that he be permitted to pay a lump sum amount to equalize this asset - The wife preferred a roll-over to a locked-in retirement account so that there was a final pension division at source - The Saskatchewan Court of Queen's Bench, Family Law Division, ordered that $433,264.64 be directly rolled over from the pension fund to the account designated by the wife - See paragraphs 30 to 32.

Family Law - Topic 880.34

Husband and wife - Marital property - Distribution orders - Particular property - Intangible or unvested rights - Spouses separated in 2009 after 29 years' marriage and two sons - During the marriage, the husband acquired in his own name a significant number of revenue properties, which were rolled over into a company in 1995 - The husband held all of the shares - The value of the preferred shares ($3,710,100) was shareable family property - In 2006, for estate and tax planning purpose, a family trust was created - The purpose was to ensure sufficient assets for the spouses to retire on and a way of transferring future growth or wealth to their sons - Preferred share value was frozen - Growth in company's shares was reflected in growth shares and subject to the family trust (i.e., all growth transferred to the beneficiaries of the trust to defer tax until the death of the succeeding generation) - The husband was the sole trustee, with a virtually unfettered discretion to manage the trust, including removing the sons as beneficiaries and leaving himself as the sole beneficiary (i.e., revocable trust) - The creation of the trust was a joint decision made during the marriage - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the growth shares lodged in the family trust were shareable family property - The husband had the required control to have a contingent or beneficial interest in the family trust - That contingent beneficial interest constituted shareable family property - The court declined to value that contingent interest as of the trial date and order an equal division based on that value - The court granted an "if and when" order, which ensured that if and when the husband obtained any benefit from the trust in the future, that benefit would be held in trust to be shared equally with the wife - If the husband obtained no benefit, neither did the wife - The husband retained an unfettered discretion respecting management of the family trust - See paragraphs 41 to 85.

Family Law - Topic 880.39

Husband and wife - Marital property - Distribution orders - Particular property - Future income from trust fund or estate - [See Family Law - Topic 880.34 ].

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - Spouses separated in 2009 after 29 years' marriage - The wife petitioned for a divorce and sought a dividion of family property - The spouses held a number of registered investments, non-registered investments, bank accounts and other assets and debts - The Saskatchewan Court of Queen's Bench, Family Law Division, held that since the change in value of these assets from the date of the petition to the date of trial was solely driven by market forces, the valuation date for these assets was the trial date - See paragraphs 22, 25.

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - [See Family Law - Topic 4022.1 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - Spouses separated in 2009 after 29 years' marriage - The wife was 54 - The husband was 61 - The wife was out of the work force during the marriage, caring for their two sons - In the three years since separation, the wife had not sought employment, relying on unsubstantiated medical issues and the need to complete volunteer work - The wife's equal share of her husband's $866,529.28 employment pension was to be rolled over into a locked-in retirement account and she was to receive an equalization payment of $1,853,064.70 - The wife also had her own investment portfolio - The Saskatchewan Court of Queen's Bench, Family Law Division, held that upon separation there was an economic disadvantage created by the marriage which created a need - Given the substantial property settlement, the issue was whether that need continued after trial, three years later, especially where the wife made no effort to become self-sufficient - The court held that any disadvantage was remedied by the property settlement - Accordingly, the husband was to pay $2,000 per month spousal support, but only until the wife received her share of her husband's pension to be rolled over to a locked-in retirement account and she received the equalization payment - See paragraphs 92 to 100.

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance awards - Effect of division of marital property - [See Family Law - Topic 4022.1 ].

Cases Noticed:

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17; 3 R.F.L.(4th) 291 (C.A.), refd to. [para. 19].

Riley v. Riley (2011), 366 Sask.R. 110; 506 W.A.C. 110; 2011 SKCA 5, refd to. [para. 19].

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

Francis v. Francis, [1998] B.C.T.C. Uned. 425; 53 B.C.L.R.(3d) 50 (S.C.), refd to. [para. 54].

M.A.G. v. R.H.G., [2006] B.C.T.C. Uned. 855; 2006 BCSC 1677, refd to. [para. 54].

Kachur v. Kachur (2000), 274 A.R. 323; 14 R.F.L.(5th) 98; 2000 ABQB 709, refd to. [para. 54].

Wengenmeier v. Wengenmeier, [2004] B.C.T.C. Uned. 256; 2004 BCSC 281, refd to. [para. 54].

Tanner v. Jones (2012), 399 Sask.R. 7; 552 W.A.C. 7; 2012 SKCA 68, refd to. [para. 55].

Durakovic v. Durakovic, [2008] O.T.C. Uned. I71; 169 A.C.W.S.(3d) 614 (Sup. Ct.), refd to. [para. 56].

M.S. v. W.S., [2008] 2 S.C.R. 263; 375 N.R. 318; 255 B.C.A.C. 11; 430 W.A.C. 11; 2008 SCC 35, refd to. [para. 72].

Stein v. Stein - see M.S. v. W.S.

Tether v. Tether (2008), 314 Sask.R. 121; 435 W.A.C. 121; 2008 SKCA 126, refd to. [para. 72].

Horne v. Horne (2011), 502 A.R. 261; 517 W.A.C. 261; 98 R.F.L.(6th) 259; 2011 ABCA 116, refd to. [para. 73].

Miller v. Miller (2003), 259 N.B.R.(2d) 132; 681 A.P.R. 132; 36 R.F.L.(5th) 386; 2003 NBCA 37, refd to. [para. 80].

R.G. v. M.G. (2007), 418 A.R. 244; 2007 ABQB 273, refd to. [para. 82].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 43 R.F.L.(3d) 345, refd to. [para. 93].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 44 R.F.L.(4th) 1, refd to. [para. 93].

Counsel:

Gregory G. Walen, Q.C., and Leslie G. Tallis, for the petitioner;

Deryk J. Kendall and Iffat B. Ritter, for the respondent.

This matter was heard before Danyliuk, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following judgment on November 8, 2012.