Haring v. Haring, 2011 BCCA 65

• Judge: Rowles, Bennett and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 11, 2011
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 65;(2011), 299 B.C.A.C. 258 (CA)

Haring v. Haring (2011), 299 B.C.A.C. 258 (CA);

    508 W.A.C. 258

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. FE.037

Maureen Louise Haring (respondent/plaintiff) v. Josef Rudolph Haring (appellant/defendant)

(CA037385; 2011 BCCA 65)

Indexed As: Haring v. Haring

British Columbia Court of Appeal

Rowles, Bennett and Garson, JJ.A.

February 11, 2011.

Summary:

A wife sought a divorce after 36 years of marriage. She sought a division of family assets. The trial held, inter alia, that certain publically-traded shares received by the wife through inheritance were not family assets. The husband appealed, arguing that the trial judge erred in law in finding the shares not to be family assets or, alternatively, erred in not reapportioning the family assets in his favour under s. 65 of the Family Relations Act.

The British Columbia Court of Appeal allowed the appeal in part. The husband succeeded in his argument that some of the shares ought to have been declared to be family assets. He was unsuccessful respecting the other shares and in his argument that the family assets ought to have been reapportioned.

Family Law - Topic 876

Husband and wife - Marital property - Distribution orders - Family or matrimonial assets - A wife sought a divorce after 36 years of marriage - She sought a division of family assets - The wife had inherited TransCanada stock (now valued at $9,700) and Bank of Montreal Stock (now valued at $10,900) from two aunts - The trial judge held these shares were not family assets - The British Columbia Court of Appeal allowed the husband's appeal respecting these shares - There was no evidence that the husband made a contribution to either of those stocks - However, there was evidence from which it could be found, either directly or by inference, that both the capital and the income from the shares were, at least occasionally, used for general family purposes - See paragraphs 38 to 40.

Family Law - Topic 877

Husband and wife - Marital property - Distribution orders - Business, commercial or non-family assets - A wife sought a divorce after 36 years of marriage - She sought a division of family assets - In 1986, she had inherited Bank of Nova Scotia shares worth about $10,000 and $80,000 cash from her father - Thereafter, the dividends were used exclusively to acquire more shares and none of them was ever sold - The inherited cash was eventually used for family purposes - As of the date of trial, the shares had a value of $359,000 - The trial judge held these shares were not family assets - He found that, unlike other shares inherited by the wife, these ones were "never tapped into" and were "set aside and never used by the family" - He also rejected an argument that the shares were intended to be used for future financial security of the family - The British Columbia Court of Appeal dismissed the husband's appeal respecting these shares - The trial judge's conclusion that the Bank of Nova Scotia shares were "a non-family asset" accorded with the provisions of Part 5 of the Family Relations Act and the jurisprudence - See paragraphs 28 to 37.

Family Law - Topic 880.3

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Gift, trust, bequest or award - [See Family Law - Topic 876 and Family Law - Topic 877 ].

Family Law - Topic 880.47

Husband and wife - Marital property - Distribution orders - Particular property - Company shares, stock options, etc. - [See Family Law - Topic 876 and Family Law - Topic 877 ].

Cases Noticed:

Hefti v. Hefti (1998), 110 B.C.A.C. 44; 178 W.A.C. 44; 57 B.C.L.R.(3d) 171; 40 R.F.L.(4th) 1 (C.A.), refd to. [para. 27].

Lindholm v. Lindholm et al. (1999), 18 B.C.T.C. 356; 71 B.C.L.R.(3d) 118 (S.C.), additional reasons (2000), 20 B.C.T.C. 321; 76 B.C.L.R.(3d) 167; 2000 BCSC 269, refd to. [para. 27].

Graff v. Graff (1987), 19 B.C.L.R.(2d) 234; 11 R.F.L.(3d) 392 (C.A.), refd to. [para. 27].

Ogilvie v. Ogilvie (1995), 65 B.C.A.C. 205; 106 W.A.C. 205; 14 B.C.L.R.(3d) 296; 17 R.F.L.(4th) 16 (C.A.), refd to. [para. 27].

Elsom v. Elsom (1982), 35 B.C.L.R. 293 (S.C.), affd. (1983), 49 B.C.L.R. 297 (C.A.), refd to. [para. 32].

Schlatter v. Schlatter (1982), 41 B.C.L.R. 278; 32 R.F.L.(2d) 119 (C.A.), refd to. [para. 32].

Stuart v. Stuart (1996), 73 B.C.A.C. 30; 120 W.A.C. 30; 21 B.C.L.R.(3d) 65; 22 R.F.L.(4th) 26 (C.A.), refd to. [para. 32].

Brainerd v. Brainerd (1989), 22 R.F.L.(3d) 113 (B.C.C.A.), refd to. [para. 32].

Wang v. Poon, [2008] B.C.A.C. Uned. 129; 84 B.C.L.R.(4th) 199; 2008 BCCA 442, refd to. [para. 32].

Evetts v. Evetts (1996), 85 B.C.A.C. 19; 138 W.A.C. 19 (C.A.), refd to. [para. 33].

Underhill v. Underhill (1983), 34 R.F.L.(2d) 419; 45 B.C.L.R. 244 (C.A.), refd to. [para. 35].

Bindley v. Muliner (2001), 154 B.C.A.C. 74; 252 W.A.C. 74; 200 D.L.R.(4th) 759; 2001 BCCA 380, refd to. [para. 35].

Todd v. Freeman et al. (2005), 218 B.C.A.C. 127; 359 W.A.C. 127; 46 B.C.L.R.(4th) 207; 2005 BCCA 519, refd to. [para. 35].

J.K.S. v. H.G.S. (2008), 257 B.C.A.C. 16; 432 W.A.C. 16; 83 B.C.L.R.(4th) 102; 2008 BCCA 245, refd to. [para. 35].

Whitaker v. Whitaker (2010), 287 B.C.A.C. 171; 485 W.A.C. 171; 5 B.C.L.R.(5th) 316; 2010 BCCA 248, refd to. [para. 35].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40; 172 D.L.R.(4th) 577, refd to. [para. 44].

Gold v. Gold (No. 2) (1993), 32 B.C.A.C. 287; 53 W.A.C. 287; 82 B.C.L.R.(2d) 180 (C.A.), refd to. [para. 47].

Counsel:

L.N. MacLean, for the appellant;

F.C. Lowther, for the respondent.

This appeal was heard at Vancouver, British Columbia, on March 16, 2010, before Rowles, Bennett and Garson, JJ.A., of the British Columbia Court of Appeal.

Rowles, J.A., delivered the following judgment for the court on February 11, 2011.