Lepage v. Lepage, (1999) 179 Sask.R. 34 (FD)

• Judge: McIntyre, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 18, 1999
• Jurisdiction: Saskatchewan
• Citations: (1999), 179 Sask.R. 34 (FD);1999 CanLII 12569 (SK QB);[1999] SJ No 174 (QL);179 Sask R 34

Lepage v. Lepage (1999), 179 Sask.R. 34 (FD)

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. AP.007

Beryl Gay Lepage (petitioner/respondent by counter-petition) v. Ronald Colin Lepage (respondent/petitioner by counter-petition)

(1997 D.I.V. No. 12)

Indexed As: Lepage v. Lepage

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

McIntyre, J.

March 18, 1999.

Summary:

Spouses divorced. The issues were division of matrimonial property and child and spousal support.

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 occupational rent - Spouses divorced - The wife and four chil­dren remained in the matrimonial home - The husband resided in an apart­ment - He paid both the costs of the apart­ment and the home - He claimed occupa­tional rent - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the claim - In this par­ticular circumstance, the most significant factor was that the matrimonial home was required in order to provide accommoda­tion to the four children - See paragraphs 189 to 192.

Family Law - Topic 854

Husband and wife - Marital property - Dis­tri­bution orders - Contracting out - En­force­able agreements - [See first Fam­ily Law - Topic 865 ].

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - Parties bought a house - They agreed that in the event of a sale, proceeds would be distributed according to their respective contributions - The agreement was entered into while the parties were living together prior to the husband's divorce - The agreement did not refer to marriage and served to protect the wife's contribution from any claim by the husband's then wife - The parties received no independent legal advice - There was no waiver of any mat­rimonial property claim - The parties married and subsequently divorced - At issue was the agreement's effect - The wife asserted that it was an interspousal agreement expressing the parties' intention to exempt their respective contributions from distribution (Matrimonial Property Act, s. 24) - Alternatively, the wife sought an unequal distribution (s. 22) - The Saskatchewan Court of Queen's Bench, Family Law Division, held that s. 24 did not apply - The court declined to award an unequal dis­tribution - Having regard to only extra­ordinary circumstances, an equal distribu­tion would not be unfair or inequi­table - See para­graphs 7 to 27.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - A wife sought an unequal division of the matrimonial home under s. 22 of the Matrimonial Property Act on the basis that she had used a considerable amount of her premarital assets to purchase the house - An unequal division under s. 22 could only occur where an equal distribution would be unfair and inequitable, having regard only to extraordinary circumstances - The Saskatchewan Court of Queen's Bench, Family Law Division, declined to award an unequal dis­tribution - The fact that a spouse entered a mar­riage with greater premarital assets and put some of those assets into the matrimonial home could not, by itself, constitute an extraordinary circumstance - See para­graphs 47 to 59.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Excep­tions - [See both Family Law - Topic 865 ].

Family Law - Topic 876

Husband and wife - Marital property - Distribution orders - Family or matri­monial assets - [See second Family Law - Topic 877 and Family Law - Topic 880.28 ].

Family Law - Topic 877

Husband and wife - Marital property -Distribution orders - Business, commercial or non-family assets - Spouses divorced - The husband was a partner in the account­ing firm Deloitte & Touche - The wife sought to value the husband's partnership interest, including goodwill - The Saskatchewan Court of Queen's Bench, Family Law Division, held that there could be goodwill associ­ated with the firm - However, in valuing the husband's part­ner­ship interest, it had not been shown that there was an element of goodwill associ­ated with the husband's interest that was exch­angeable or transferrable, or by which the husband might otherwise realize a mone­tary benefit - Accordingly, the hus­band's partnership interest should be valued on the basis of his entitlement under the terms of the partnership agree­ment in the event of voluntary withdrawal - See para­graphs 60 to 84.

Family Law - Topic 877

Husband and wife - Marital property -Distribution orders - Business, commercial or non-family assets - Spouses divorced - The husband was a partner in the account­ing firm Deloitte & Touche - The wife sought to value the husband's partnership interest - The husb­and asserted that income receivables, while an asset, were subsequently received by him as income - Furthermore, it was income upon which his support obligation was based and out of which he was expected to pay support - The husband asserted that considering these monies to be both an asset and income would result in double accounting -He also asserted that the valuation of the income receiv­ables and the issue of deferred tax liability needed to be dealt with on a consistent basis - The Saskatchewan Court of Que­en's Bench, Family Law Division, rejected the asser­tions - The court held, inter alia, that income receiv­ables were matrimonial property subject to division - See para­graphs 88 to 101.

Family Law - Topic 877

Husband and wife - Marital property -Distribution orders - Business, commercial or non-family assets - Spouses divorced - The husband owned a 50 percent interest in a partnership which owned rental prop­erties - The spouses disputed the valuation of the husband's interest - The husband asserted that, inter alia, liquidation costs should be considered in determining fair market value of his interest - The wife submitted that there should be no deduc­tion since it was un­likely that the prop­erties would be sold - The Saskatchewan Court of Queen's Bench, Family Law Division, held that liquidation costs were likely to be incurred at some point and in the circum­stances, a 50% discount of the liquidation costs would be appropriate - Given the discount, which might not be incurred for some time, a further discount for the husb­and's minority position was unreasonable - See paragraphs 111 to 118.

Family Law - Topic 880.1

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - General - Including premarriage acqui­si­tions - Spouses divorced - The husband had $5,779.52 in RRSP funds at the mar­riage date - At the application date, his RRSPs had a gross value of $113,784 - He claimed an exemption for the $5,779.52 - He asserted that since no RRSPs had been cashed, the funds held at the marriage date had not been disposed of and must be said to be part of the RRSP funds owned as of the application date - The wife asserted that the husband could not ade­quately trace the $5,779.52 and that there should be no exemption - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the evi­dence was clear that the $5,779.52 remained part of the husb­and's RRSP portfolio at the appli­cation date - The exemption was appro­priate - See para­graphs 28 to 40.

Family Law - Topic 880.18

Husband and wife - Marital property -Distribution orders - Tracing - [See Family Law - Topic 880.1 ].

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions - Spouses divorced - The hus­band, a partner at an accounting firm, benefitted from a non-contributory retire­ment allowance - Entitlement to the allowance was dependent upon a partner achieving a minimum number of years of service - The husband would only be entitled to his allowance if he remained a partner until and including 2003 - The wife sought distribution of the allowance - She characterized the retirement benefit as akin to a vested, but not matured pension plan - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the husband's interest, as of the date of com­mencement of proceed­ings, did not consti­tute matrimonial prop­erty - He made no contribution to the plan - He had no con­tractual right, as of the date of commence­ment of proceedings, to any benefit - There was no vesting of any interest at the date of commencement of proceedings - See paragraphs 102 to 110.

Family Law - Topic 880.30

Husband and wife - Marital property -Distribution orders - Particular property - Professional practice - [See all Family Law - Topic 877 ].

Family Law - Topic 880.32

Husband and wife - Marital property - Distribution orders - Particular property - Registered Retirement Savings Plans - [See Family Law - Topic 880.1 ].

Family Law - Topic 880.36

Husband and wife - Marital property - Distribution orders - Particular property Active business - [See third Family Law -Topic 877 ].

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation - [See all Family Law -Topic 877 ].

Family Law - Topic 3202

Separation agreements, domestic contracts and marriage contracts - General - What constitutes - [See first Family Law - Topic 865 ].

Family Law - Topic 3354

Separation agreements, domestic contracts and marriage contracts - Effect of agree­ment - In matrimonial property application - [See first Family Law - Topic 865 ].

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - When first married, the wife, a chartered accountant, worked as a senior manager in an accounting firm - The wife subsequently remained home to care for the children - She remained out of the work force for 11 years and was now unable to become a partner with a national accounting firm - She currently worked part-time, earning $27,000/year - She sought compensatory spousal support - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the wife was entitled to spousal support on account of the econ­omic disad­vantage arising from the mar­riage and its break­down - The court con­sidered that the wife was capable of earn­ing $50,000 - The court also gave priority to the child sup­port, presently payable by the husband at $4,886/month - According­ly, ongoing monthly spousal support was inappropriate - The court ordered the husband to pay $75,000 lump sum spousal support - See paragraphs 149 to 188.

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance awards - Considerations - Leaving labour market for family responsibilities - [See Family Law - Topic 4011 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation of income - At issue was the husband's income under the Federal Child Support Guidelines - The husband, a partner in an accounting firm, asserted that the court should use "actual income" as opposed to reported income in determining income under the Guidelines -He argued that compulsory RRSPs and all actual business expenses should be deducted from the actual cash receipts - He sought to deduct from cash receipts, the reserve added back to his income - The Saskatchewan Court of Queen's Bench, Family Law Division, rejected the assertion - Income under the Guidelines was deter­mined by reference to sources of income from the T1 General - Specifics were determined by reference to income tax returns and/or financial state­ments - If the legislators had intended cash flow or actual receipts to be the measure of income, they could have said so - It was not appropriate to deduct compulsory RRSPs - See para­graphs 134 to 136.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines - Shared custody - Section 9 of the Federal Child Support Guidelines allowed for adjustments to the table amount where a parent had custody for at least 40% of the time - A father sought to invoke s. 9, stating that since the children were attending school full-time, his access times on alternative Friday evenings and mid-week evenings alterna­ting Tuesdays and Thursdays should be credited as a full day access - On that interpretation, the children spent an aver­age of 45% of their time with him - The Saskatchewan Court of Queen's Bench, Family Law Division, rejected the asser­tion, noting that courts had rejected attempts to invoke s. 9 by artificially re­moving time from the equa­tion such as time spent in school or artifi­cially convert­ing a partial day to full day of access - It was appropriate to consider the quality of time spent by each parent with the children to determine if the par­enting arrangement was shared parent­ing under s. 9 - See paragraphs 142 to 145.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Support guidelines - Where income over $150,000 - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that: "where income exceeds $150,000, the table amount of support is considered appropriate unless it is other­wise demonstrated. That is the way in which the provisions are structured and it is the only approach which is consistent with the stated objectives." - See para­graph 141.

Cases Noticed:

Delaire v. Delaire (1995), 134 Sask.R. 296; 101 W.A.C. 296 (C.A.), refd to. [para. 12].

Kofoed v. Fichter (1990), 87 Sask.R. 143 (Q.B.), refd to. [para. 12].

Stochmanski v. Stochmanski (1997), 153 Sask.R. 91 (Q.B. Fam. Div.), refd to. [para. 12].

Gardiner v. Gardiner (1987), 54 Sask.R. 246 (Q.B.), refd to. [para. 19].

White v. White (1995), 138 Sask.R. 168 (Q.B. Fam. Div.), refd to. [para. 30].

Ingbrigtson v. Ingbrigtson (1990), 85 Sask.R. 153 (Q.B.), refd to. [para. 32].

Deyell v. Deyell (1991), 90 Sask.R. 81 (C.A.), refd to. [para. 33].

Sarvajc v. Turner (1996), 140 Sask.R. 101 (Q.B. Fam. Div.), refd to. [para. 37].

Tanouye v. Tanouye (1994), 128 Sask.R. 48; 85 W.A.C. 48 (C.A.), refd to. [para. 39].

Haughn v. Haughn (1983), 25 Sask.R. 33 (C.A.), refd to. [para. 54].

Bricker v. Bricker (1982), 24 Sask.R. 269 (Q.B.), affd. (1984), 38 Sask.R. 80 (C.A.), refd to. [para. 56].

Waller v. Waller (1998), 164 Sask.R. 161 (Q.B.), folld. [para. 75].

Christian v. Christian (1991), 37 R.F.L.(3d) 26 (Ont. Gen. Div.), refd to. [para. 76].

Dibbley v. Dibbley (1986), 5 R.F.L.(3d) 381 (Ont. H.C.), refd to. [para. 76].

Drake v. Drake (1995), 18 R.F.L.(4th) 36 (Ont. Gen. Div.), refd to. [para. 76].

Corless v. Corless (1987), 5 R.F.L.(3d) 256 (Ont. U.F.C.), refd to. [para. 79].

Strang v. Strang (1992), 137 N.R. 203; 125 A.R. 331; 14 W.A.C. 331; 39 R.F.L.(3d) 233 (S.C.C.), refd to. [para. 88].

Tataryn v. Tataryn (1984), 30 Sask.R. 282; 38 R.F.L.(2d) 272 (C.A.), refd to. [para. 104].

Russell v. Russell (1997), 155 Sask.R. 213 (Q.B. Fam. Div.), refd to. [para. 115].

Wilson v. Wilson (1998), 165 Sask.R. 241 (Q.B.), refd to. [para. 132].

Francis v. Baker (1997), 30 O.T.C. 369; 28 R.F.L.(4th) 437 (Gen. Div.), affd. (1998), 107 O.A.C. 161; 34 R.F.L.(4th) 317 (C.A.), refd to. [para. 141].

Ryba v. Schoenroth (1998), 178 Sask.R. 223 (Q.B. Fam. Div.), refd to. [para. 144].

Johnson v. Punga, [1998] Sask.R. Uned. 198 (Q.B. Fam. Div.), refd to. [para. 144].

Strachan v. Strachan (1996), 145 Sask.R. 196; 23 R.F.L.(4th) 259 (Q.B. Fam. Div.), refd to. [para. 154].

MacDonald v. Rasmussen (1997), 161 Sask.R. 103 (Q.B. Fam. Div.), refd to. [para. 158].

Rosin v. Rosin (1993), 46 R.F.L.(3d) 242 (Alta. Q.B.), refd to. [para. 158].

Moge v. Moge (1992), 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 43 R.F.L.(3d) 345 (S.C.C.), refd to. [para. 160].

Wilgosh v. Wilgosh (1998), 166 Sask.R. 96 (Q.B. Fam. Div.), refd to. [para. 190].

Statutes Noticed:

Matrimonial Property Act, S.S. 1997, c. M-6.11, sect. 22(1), sect. 24 [para. 6].

Authors and Works Noticed:

McLeod, James G., and Mamo, Alfred A., Matrimonial Property Law in Canada (1993) (1998 Update - Release 4), vol. 1, pp. I-110, I-111 [para. 89]; I-112 [para. 92]; I-134 [para. 161].

O'Neill, P. Joseph, Pensions as Marital Property: Valuation, Allocation and Related Mysteries (1983), 16 Creighton L. Rev. 743, generally [para. 105].

Counsel:

James A. Morrison, for the petition­er/respondent by counter-petition;

Deryk J. Kendall, for the respon­dent/petitioner by counter-petition.

This matter was heard by McIntyre, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following judgment on March 18, 1999.