Hillsdon v. Hillsdon, (2015) 481 Sask.R. 197 (FD)

• Judge: Chow, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 26, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 481 Sask.R. 197 (FD);2015 SKQB 255

Hillsdon v. Hillsdon (2015), 481 Sask.R. 197 (FD)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. SE.015

Sharon Lynn Hillsdon (petitioner) v. Peter Donald Hillsdon (respondent)

(20104 DIV No. 49; 2015 SKQB 255)

Indexed As: Hillsdon v. Hillsdon

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Chow, J.

August 26, 2015.

Summary:

The parties met in 1978 and married in 1980, after living together for approximately 1.5 years. They raised two daughters. By October 2009, the husband had left the family home at the wife's request. The following February, the wife petitioned the court for a divorce, and an equal division of the family home, property and costs. In March 2010, the husband filed an answer, opposing only the wife's claim for costs. In February 2011, the wife amended her petition to include a claim for spousal support under the Divorce Act and the Family Maintenance Act.

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

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that "While the remedy of occupational rent is available in appropriate circumstances, it is to be engaged sparingly. While the conduct of the parties is one factor to be taken into account, ouster is not required, and a spouse's decision to unilaterally vacate the home should not operate as a bar to the awarding of occupational rent. Moreover, ... where entitlement to occupational rent has been established on the facts, expert evidence, while preferable, is not necessary." - See paragraph 95.

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - The husband left the family home at the wife's request - He claimed that he was entitled to occupational rent because the wife was permitted to reside in the family home, mortgage free, while he had to lease an apartment and rent storage for various items of personal property, including the family's trailer, which the wife insisted be removed from the family home - The Saskatchewan Court of Queen's Bench, Family Law Division, rejected the claim - Aside from a brief period following their separation, the wife had been solely responsible for the costs associated with maintaining the family home - As there was no mortgage, much of this cost was charged against the line of credit registered against the title - No evidence suggested that there had been any increase or decrease in the home's value which might properly be attributable to the wife's efforts - Nor was there any evidence that, apart from a brief period, either of the parties bore the responsibility of supporting their daughters, who were grown and independent - While the husband testified to having suggested to the wife that the family home be sold, and that she find more affordable accommodation appropriate to her needs, there was little or no evidence of the husband having ever moved for a sale, or advancing a demand for occupational rent before, nor any credible evidence of his having experienced financial difficulties as a result of being deprived of the home's equity - On the contrary, he had vacationed regularly since having vacated the family home, and had managed to purchase RRSP's and maintain money on deposit - The remedy was discretionary and the evidence failed to demonstrate that an award of occupational rent would be equitable and just in all of the circumstances - See paragraphs 93 to 98.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions (incl. bridging benefits and pension annuities) - On February 2, 2010, a wife petitioned the court for a divorce, and an equal division of the family home, property and costs - The husband provided a valuation of his pension entitlement, prepared by Johnston, as at the date of application - Based on various assumptions contained within the report, Johnston concluded that the pre-tax value of the husband's defined benefit plan ranged from $443,853 to $1,034,828 - The Saskatchewan Court of Queen's Bench, Family Law Division, was satisfied that the appropriate valuation of the date for the husband's pension was the date of application (February 2, 2010) - Further, the court accepted that the appropriate value for division purposes was $433,853 - Similarly, the court accepted that the value of the wife's pension benefits, as at the date of application, was $105,221.22 - See paragraphs 60 to 64.

Family Law - Topic 880.32

Husband and wife - Marital property - Distribution orders - Particular property - Registered Retirement Savings Plans, R.E.S.P.'s, Income Funds, unregistered investments, etc. - A wife petitioned for a divorce, and an equal division of the family home, property and costs - In addition to the parties' respective pensions, at the time of application, the wife had registered investments in the amount of approximately $9,600 while the husband had approximately $51,829 worth of such assets - The husband asked the court to discount the foregoing amounts by 25% to account for any potential income tax liability - The Saskatchewan Court of Queen's Bench, Family Law Division, held that, in the circumstances, and in the absence of any evidentiary basis, it would be most appropriate to distribute these assets as between the parties, in specie, and as such, decline to make any allowance for any potential tax liability - See paragraphs 65 to 67.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - The Saskatchewan Court of Queen's Bench, Family Law Division, referred to case law respecting the valuation date for property under the Family Property Act - See paragraphs 52 to 56.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - In February 2010, a wife petitioned the court for a divorce, and an equal division of the family home, property and costs - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that "Where an increase or decrease in the value of real property is primarily the result of market forces, such property is generally valued as at the date of adjudication as opposed to application." - The only evidence of the value of the family home, net of any encumbrances, was $490,000, as of August 23, 2012 - The court accepted that value as of the date of adjudication - There was also uncontroverted evidence that the value of the family cottage was $46,500 as of August 23, 2012, which the court accepted was the fair value of this property as at the date of adjudication - See paragraphs 57 to 59.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - [See Family Law - Topic 880.28 and Family Law - Topic 880.32 ].

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - [See Family Law - Topic 4010 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Family Law - Topic 4010 ].

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance awards - Periodic payments - The parties met in 1978 and married in 1980, after living together for approximately 1.5 years - They raised two daughters - By October 2009, the husband had left the family home at the wife's request - The following February, the wife petitioned the court for a divorce, and an equal division of the family home, property and costs - In March 2010, the husband filed an answer, opposing only the wife's claim for costs - In February 2011, the wife amended her petition to include a claim for spousal support under the Divorce Act and the Family Maintenance Act - The Saskatchewan Court of Queen's Bench, Family Law Division, determined that the husband's annual income was $184,455, and the wife's was $72,708 - The husband had had the financial ability to accumulate RRSPs since 2010, maintain cash deposits of approximately $10,000, and vacation in Mexico at least four times since the parties' separation - By contrast, the wife had been obliged to draw heavily upon a line of credit to maintain herself and the home - While the wife's depression and anxiety might have pre-dated the parties' marriage, the conditions existed throughout the relationship, and had been, to some extent, prolonged or exacerbated by the relationship and its breakdown - The court ordered ongoing spousal support of $3,000/month - The court also awarded retroactive spousal support - During the 39 months preceding trial, the wife had been obliged to draw, on average, approximately $2,700/month from a line of credit - While the court was cognizant of the husband's position that some of these expenses might have been unnecessary, it was equally cognizant of the fact that some of this debt was incurred or attributable directly to the maintenance of the family home, thereby conferring some benefit upon him as well - The court held that the wife was also entitled to a retroactive award of $2,700/month from the date of filing her amended petition in February 2011 to the date of trial in January 2014 - The most appropriate method of repayment would be to off-set some or all of this amount against the division and distribution of the family property and debt - Further, the support obligations were reviewable upon the retirement of either party - See paragraphs 77 to 92.

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance awards - Considerations - Financial consequences of child care and household responsibilities - The parties met in 1978 and married in 1980, after living together for approximately 1.5 years - They raised two daughters - By October 2009, the husband had left the family home at the wife's request - In February 2010, the wife petitioned for a divorce, and an equal division of the family home, property and costs - In February 2011, the wife amended her petition to include a claim for spousal support under the Divorce Act and the Family Maintenance Act - The Saskatchewan Court of Queen's Bench, Family Law Division, found that the wife was clearly entitled to spousal support, on both a compensatory and non-compensatory basis - While the husband was an involved father who took an active role in the lives and upbringing of his daughters, nonetheless the wife was primarily responsible for their needs - Further, the disproportionate assumption of the responsibilities of child care, including the decision to take maternity leave following the birth of each of their daughters, and thereafter to return to the labour force on a part-time basis for some period so she could provide for the needs of the children, resulted in an economic disadvantage to the wife and a corresponding ability on the part of the husband to advance his career - See paragraphs 71 to 76.

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance awards - Considerations - Leaving labour market for family responsibilities - [See Family Law - Topic 4021.1 ].

Counsel:

Merv Phillips and Leane Phillips, for the petitioner;

Alison Mitchell, for the respondent.

This case was heard by Chow, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following decision on August 26, 2015.