Harding v. Harding, (2014) 442 Sask.R. 8 (CA)

JudgeRichards, C.J.S., Caldwell and Herauf, JJ.A.
CourtCourt of Appeal (Saskatchewan)
Case DateApril 24, 2014
JurisdictionSaskatchewan
Citations(2014), 442 Sask.R. 8 (CA);2014 SKCA 74

Harding v. Harding (2014), 442 Sask.R. 8 (CA);

    616 W.A.C. 8

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. JL.026

Raymond Harding (respondent/appellant) v. Anita Harding (petitioner/respondent)

(CACV2390; 2014 SKCA 74)

Indexed As: Harding v. Harding

Saskatchewan Court of Appeal

Richards, C.J.S., Caldwell and Herauf, JJ.A.

July 4, 2014.

Summary:

Anita and Raymond were married in 1974. Anita had a son (Peter) from a prior relationship. Since the marriage, Anita and Peter had lived on the home quarter of Raymond's farm. Peter worked on the farm for many years. After a falling out in 1997, Peter commenced an action against Raymond for unpaid wages. In an attempt to help Peter receive what she felt he was entitled to, Anita filed a petition for the division of family property in 1998. Anita and Raymond continued to live together as spouses. The action languished from 1999 until shortly after Raymond's death in March 2011. In May 2011, Anita filed a notice of intention to proceed with the action. The executor of Raymond's estate applied to dismiss the action for want of prosecution.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at (2013), 413 Sask.R. 305, dismissed the application. The executor applied for leave to appeal.

The Saskatchewan Court of Appeal, per Ottenbreit, J.A., in a decision reported at (2013), 417 Sask.R. 111; 580 W.A.C. 111, granted the application.

The Saskatchewan Court of Appeal allowed the appeal and ordered that Anita's claim be struck for want of prosecution.

Family Law - Topic 629.2

Husband and wife - Marital property - Marital property legislation - Interpretation of - The Saskatchewan Court of Appeal stated that the scheme of s. 30 of the Family Property Act was "intended to ensure that a deceased's estate was put in the same position with respect to an action for the division of family property, whether made by or against the deceased, as the deceased would have been if he or she had not died. The section does not create a new right of action, rather it preserves whatever rights were vested in the deceased and the petitioner or respondent, as the case may be, at the time of the deceased's death." - See paragraph 19.

Family Law - Topic 957

Husband and wife - Marital property - Distribution orders - Practice - Survival of actions - [See Family Law - Topic 629.2 ].

Family Law - Topic 962

Husband and wife - Actions between husband and wife - Practice - Delay - Effect of - [See Practice - Topic 5360 ].

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - Anita and Raymond were married in 1974 - Anita and her son from a prior relationship (Peter) lived on Raymond's farm - Peter worked on the farm but had a falling out with Raymond in 1997 - He sued Raymond for unpaid wages - In an attempt to help Peter receive what she felt he was entitled to, Anita petitioned for a division of family property in 1998 - Anita and Raymond continued to live together as spouses - The action languished from 1999 until shortly after Raymond's death in 2011, at which time Anita filed a notice of intention to proceed with the action - The executor of Raymond's estate applied to dismiss the action for want of prosecution - The chambers judge found that there had been an inordinate delay, but it was in the interests of justice for the claim to proceed because s. 30 of the Family Property Act permitted a surviving spouse to apply for a family property order and tolerated the prejudice resulting from the death of a spouse or key witness - The Saskatchewan Court of Appeal allowed the executor's appeal - The chambers judge erred by assessing the implications of s. 30 as "tolerating" some of the prejudice that had befallen the estate - The effect of this error was an undue discounting of the prejudice suffered by the estate by reason of the delay, which occurred through a failure to consider all of the relevant factors under the "interests of justice" leg of the test for determining whether to strike an action for want of prosecution - The delay in this case was inexcusable - When fully considered and weighed, the relevant factors under the interests of justice inquiry failed to tip the scale back toward preservation of Anita's claim.

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - [See Practice - Topic 5360 ].

Practice - Topic 5362.5

Dismissal of action - Grounds - General and want of prosecution - Balance of interests - [See Practice - Topic 5360 ].

Practice - Topic 5363

Dismissal of action - Grounds - General and want of prosecution - Bars - General - [See Practice - Topic 5360 ].

Cases Noticed:

International Capital Corp. v. Schafer et al. (2010), 350 Sask.R. 160; 487 W.A.C. 160; 319 D.L.R.(4th) 155; 2010 SKCA 48, appld. [para. 7].

Rimmer v. Adshead, [2002] 4 W.W.R. 119; 217 Sask.R. 94; 265 W.A.C. 94; 2002 SKCA 12, refd to. [para. 15].

Donkin v. Bugoy - see Bugoy Estate v. Bugoy.

Bugoy Estate v. Bugoy, [1985] 2 S.C.R. 85; 61 N.R. 172; 44 Sask.R. 178, folld. [para. 19].

Statutes Noticed:

Family Property Act, S.S. 1997, c. F-6.3, sect. 30 [para. 12].

Counsel:

Eric J. Neufeld, Q.C., for the appellant;

Merrilee Rasmussen, Q.C., for the respondent.

This appeal was heard on April 24, 2014, before Richards, C.J.S., Caldwell and Herauf, JJ.A., of the Saskatchewan Court of Appeal. Caldwell, J.A., delivered the following reasons for the court on July 4, 2014.

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    ...of Transport), [1992] 1 SCR 3, [1992] 2 WWR 193, 132 NR 321, 88 DLR (4th) 1 Gartland S.S. Co. v R, [1960] SCR 315 Harding v Harding, 2014 SKCA 74, 442 Sask R 8 Haug v Haug Estate, 2017 SKCA 92, 32 ETR (4th) 189 Hawkeye Tanks & Equipment Inc. v Farr-Mor Fertilizer Services Ltd., 2002 SKC......
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    ...my discretion accordingly. [85]           The estate relies on Harding v Harding, 2014 SKCA 74, [2014] 9 WWR 658 [Harding], in support of its argument that Colleen should be deprived of a share of Kevin’s post‑petition income. ......
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    • Court of Appeal (Saskatchewan)
    • August 31, 2021
    ...paras 8–20; Morksy Construction Ltd. v Nickle Lake (Regional Park Authority), 2016 SKCA 110, 485 Sask R 32; and Harding v Harding, 2014 SKCA 74, [2014] 9 WWR 658. Dismissing an action on the basis of delay, without conducting the analysis described in ICC, constitutes an error in pri......
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16 cases
  • Suderman v Yakubowski‑Suderman,
    • Canada
    • Court of Appeal (Saskatchewan)
    • August 3, 2022
    ...my discretion accordingly. [85]           The estate relies on Harding v Harding, 2014 SKCA 74, [2014] 9 WWR 658 [Harding], in support of its argument that Colleen should be deprived of a share of Kevin’s post‑petition income. ......
  • Yashcheshen v Canada (Attorney General),
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    • August 31, 2021
    ...paras 8–20; Morksy Construction Ltd. v Nickle Lake (Regional Park Authority), 2016 SKCA 110, 485 Sask R 32; and Harding v Harding, 2014 SKCA 74, [2014] 9 WWR 658. Dismissing an action on the basis of delay, without conducting the analysis described in ICC, constitutes an error in pri......
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    ...“interests of justice” reason for the case to proceed on its merits. In a word, Caldwell J.A in Harding v Harding, 2014 SKCA 74, 442 Sask R 8, described it as a [57]                   ......
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4 books & journal articles
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    • Canada
    • Saskatchewan Law Society Case Digests
    • September 18, 2019
    ...of Transport), [1992] 1 SCR 3, [1992] 2 WWR 193, 132 NR 321, 88 DLR (4th) 1 Gartland S.S. Co. v R, [1960] SCR 315 Harding v Harding, 2014 SKCA 74, 442 Sask R 8 Haug v Haug Estate, 2017 SKCA 92, 32 ETR (4th) 189 Hawkeye Tanks & Equipment Inc. v Farr-Mor Fertilizer Services Ltd., 2002 SKC......
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    • Canada
    • Saskatchewan Law Society Case Digests
    • July 18, 2018
    ...Twohig, [1973] 4 WWR 378, 37 DLR (3d) 718 Gelinas v Saskatchewan Crop Insurance Corp., 2017 SKQB 270, 72 CCLI (5th) 114 Harding v Harding, 2014 SKCA 74, 442 Sask R 8 International Capital Corp. v Robinson Twigg & Ketilson, 2010 SKCA 48, 319 DLR (4th) 155, [2010] 7 WWR 407, 350 Sask R 16......
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