Hrenyk v. Berden, (2011) 381 Sask.R. 238 (FD)

• Judge: Dawson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 12, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 381 Sask.R. 238 (FD);2011 SKQB 305

Hrenyk v. Berden (2011), 381 Sask.R. 238 (FD)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. AU.060

Beverly Ann Hrenyk (petitioner) v. Frank Stanley Berden (respondent)

(2008 F.L.D. No. 228; 2011 SKQB 305)

Indexed As: Hrenyk v. Berden

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Dawson, J.

August 12, 2011.

Summary:

A couple separated after a 14 year common law relationship. The petitioner (wife) applied for a final order determining the exemptions that she was entitled to in the division of family property. She also sought spousal support.

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

Family Law - Topic 861

Husband and wife - Marital property - Distribution orders - General - The Saskatchewan Court of Queen's Bench, Family Law Division, reviewed the process that the court had to adhere to in determining a division of family property under the Family Property Act - See paragraphs 13 to 15.

Family Law - Topic 880.1

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - General (incl. pre-marriage acquisitions) - The Saskatchewan Court of Queen's Bench, Family Law Division, outlined the two step analysis to be applied with regard to determining exemptions under s. 23(3) of the Family Property Act - See paragraphs 67 and 68.

Family Law - Topic 880.1

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - General (incl. pre-marriage acquisitions) - A common law couple separated - A settlement agreement allowed for an exemption for the husband's "pre-marital tools" from the property division - The Saskatchewan Court of Queen's Bench, Family Law Division, noted that while the husband owned some tools when cohabitation commenced, the extent and value of the tools was incapable of determination for lack of evidence - The court held, however, that it was certain that the husband had some tools when cohabitation began and, from what little evidence there was, valued the tools at $500 - The tools were found to be family property - However, the court ruled that it would be inequitable to allow the husband an exemption for the tools (Family Property Act, s. 23(4)) - See paragraphs 55 to 65.

Family Law - Topic 880.1

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - General (incl. pre-marriage acquisitions) - [See Family Law - Topic 880.35 ].

Family Law - Topic 880.7

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Award or settlement of damages for personal injuries - Approximately four years before a common law couple separated, the wife was injured in a motor vehicle accident - She received a total of $214,017 from Saskatchewan Government Insurance (SGI) respecting her injuries - She claimed that the award was exempt from a property division (Family Property Act (FPA), s. 23(3)(a)) - The Saskatchewan Court of Queen's Bench, Family Law Division, held that while the SGI monies constituted damages which potentially qualified for an exemption under s. 23(3)(a), the wife was not entitled to an exemption in this case - Some of the money had been spent on household goods (a car, motor home and boat) which did not give rise to an exemption - Other money was spent on a family home which was also excluded from the exemption provisions in s. 23 of the FPA - There was no other cogent evidence which traced the wife's damages to family property in existence - It appeared that the personal injury proceeds had been depleted - See paragraphs 72 to 77 and 85 to 90.

Family Law - Topic 880.35

Husband and wife - Marital property - Distribution orders - Particular property - Insurance - A couple separated after a 14 year common law relationship (2008) - Approximately four years before they separated, the wife was permanently injured in a serious motor vehicle accident and received $25,066 from the Co-operators Insurance for loss of her leg - She claimed an exemption for the $25,066 from the family property distribution - The Saskatchewan Court of Queen's Bench, Family Law Division, determined that the amount received from the Co-operators was money paid pursuant to an insurance policy and, therefore, qualified for an exemption (Family Property Act, s. 23(3)(b)) - However, the Co-operators insurance proceeds provided no exemption for the petitioner in this case - $10,500 of the funds was used to purchase household goods (i.e., a motor vehicle) and was therefore not exempt - The balance of the $25,066 had been spent and was not traceable to family property - See paragraphs 69 to 74 and 82 and 83.

Family Law - Topic 2213

Maintenance of wives and children - General principles - Extent of duty to support - A couple separated after a 14 year common law relationship - The wife was disabled because of a motor vehicle accident four years before separation - She claimed ongoing spousal support (Family Maintenance Act) - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the wife had been disadvantaged by the breakdown of the marriage relationship - She could not meet her needs and live independently because of her disability - An award of spousal support would equitably deal with the economic consequences of the breakdown of the relationship - A spouse whose ability to achieve economic independence after the relationship breakdown because of disability was first and foremost the financial responsibility of the former spouse - The husband could not walk away from supporting his wife while her health precluded her from achieving the full employment and income of which she would otherwise be capable of earning if fully recovered - The wife had an ongoing need for spousal support - See paragraphs 104 to 122.

Family Law - Topic 2482

Maintenance of wives and children - Awards - Considerations - [See Family Law - Topic 2213 ].

Family Law - Topic 2483

Maintenance of wives and children - Awards - Lump sum payments - A couple separated after a 14 year common law relationship - The wife was disabled and unable to work because of a motor vehicle accident four years before separation - She sought spousal support (Family Maintenance Act) - The Saskatchewan Court of Queen's Bench, Family Law Division, awarded a $55,000 lump sum maintenance - The wife was disadvantaged by the breakup and needed support to meet her ongoing expenses, especially given her disability and health issues - The parties were middle-aged - Little chance of improvement in the wife's financial circumstances - She needed a home and mobility aides - The parties had spent her insurance proceeds and damage award and the husband had benefited from those funds - The husband had not abided by a prior paid spousal support order - He owned a corporation which had income earning ability, but unable to pay periodic support at present - A lump sum was the only way to ensure that the wife was maintained - Also there were funds available from the sale of the marital home - See paragraphs 104 to 164.

Family Law - Topic 2486

Maintenance of wives and children - Awards - Effect of income or potential income of claimant - [See Family Law - Topic 2213 and Family Law - Topic 2483 ].

Cases Noticed:

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17; 3 R.F.L.(4th) 291, additional reasons (1994), 123 Sask.R. 122; 74 W.A.C. 122 (C.A.), refd to. [para. 13].

Pihach v. Mason (2006), 281 Sask.R. 259; 2006 SKQB 255 (Fam. Div.), refd to. [para. 63].

Deyell v. Deyell (1991), 90 Sask.R. 81 (C.A.), refd to. [para. 67].

Guderayan v. Meyers (2006), 290 Sask.R. 280; 2006 SKQB 535 (Fam. Div.), refd to. [para. 68].

Tanouye v. Tanouye, [1995] 3 W.W.R. 55; 128 Sask.R. 48; 85 W.A.C. 48; 10 R.F.L.(4th) 135; 121 D.L.R.(4th) 315 (C.A.), refd to. [para. 70].

Adams v. Orenchuk (1997), 154 Sask.R. 110 (Q.B. Fam. Div.), refd to. [para. 71].

East v. East (2000), 201 Sask.R. 264; 2000 SKQB 557 (Fam. Div.), refd to. [para. 76].

Girouard v. Girouard (1992), 79 Man.R.(2d) 274 (Q.B. Fam. Div.), refd to. [para. 76].

Nesbitt v. Nesbitt (1997), 159 Sask.R. 252 (Q.B. Fam. Div.), refd to. [para. 76].

Richmond v. Richmond (2009), 344 Sask.R. 271; 2009 SKQB 420 (Fam. Div.), refd to. [para. 79].

Charuk v. Charuk, [2001] Sask.R. Uned. 86; 2001 CarswellSask 227; 2001 SKQB 161 (Fam. Div.), refd to. [para. 83].

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. 106].

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. 107].

Peterson v. Peterson (2007), 301 Sask.R. 37; 2007 SKQB 316 (Fam. Div.), refd to. [para. 108].

Jean v. Jean (2006), 410 A.R. 260; 2006 ABQB 938, refd to. [para. 130].

Balaban v. Balaban (2001), 287 A.R. 369; 2001 ABQB 323, refd to. [para. 133].

Fisher v. Gerrard (1998), 174 Sask.R. 163 (Q.B. Fam. Div.), refd to. [para. 133].

MacNamara v. MacNamara, [2010] O.T.C. Uned. 3785; 87 R.F.L.(6th) 330; 2010 ONSC 3785, additional reasons [2010] O.T.C. Uned. 4089; 87 R.F.L.(6th) 344; 2010 ONSC 4089, refd to. [para. 137].

Osborne v. Osborne (1973), 14 R.F.L. 61 (Sask. Q.B.), refd to. [para. 149].

Hauff v. Hauff (1994), 95 Man.R.(2d) 83; 70 W.A.C. 83; 5 R.F.L.(4th) 419 (C.A.), refd to. [para. 150].

Topolnitsky v. Topolnitsky (1997), 118 Man.R.(2d) 276; 149 W.A.C. 276; 32 R.F.L.(4th) 196 (C.A.), refd to. [para. 151].

De Beeld v. De Beeld (1999), 129 B.C.A.C. 101; 210 W.A.C. 101; 2 R.F.L.(5th) 162; 1999 BCCA 515, refd to. [para. 152].

Pennington v. Pennington (1985), 49 R.F.L.(2d) 113 (B.C.C.A.), refd to. [para. 153].

Carmichael v. Carmichael (1976), 27 R.F.L. 325; 69 D.L.R.(3d) 297 (B.C.C.A.), refd to. [para. 153].

Theberge v. Theberge (1995), 17 R.F.L.(4th) 196 (Ont. C.A.), refd to. [para. 153].

Henderson v. Sharma-Henderson (1994), 7 R.F.L.(4th) 317 (Ont. C.A.), refd to. [para. 154].

Poisson v. Poisson (1993), 46 R.F.L.(3d) 105 (Ont. Gen. Div.), refd to. [para. 155].

Freeman v. Freeman, [2008] B.C.T.C. Uned. 543; 2008 BCSC 857, additional reasons 2008 BCSC 1462, refd to. [para. 156].

Statutes Noticed:

Family Property Act, S.S. 1997, c. F-6.3, sect. 23(3) [para. 66].

Authors and Works Noticed:

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: The Final Version (2008), generally [para. 156].

Counsel:

Reginald E. Sauer, for the petitioner;

Marilyn L. Elliott, for the respondent.

This application was heard before Dawson, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following judgment on August 12, 2011.