Lowenberg v. Lowenberg, (1998) 162 Sask.R. 254 (FD)

• Judge: Barclay, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 21, 1998
• Jurisdiction: Saskatchewan
• Citations: (1998), 162 Sask.R. 254 (FD)

Lowenberg v. Lowenberg (1998), 162 Sask.R. 254 (FD)

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. FE.005

Cynthia Lee Lowenberg (petitioner) v. Daryl Dwight Lowenberg (respondent) and Darcy Lowenberg (third party) and Edith Lowenberg (fourth party)

(1996 D.I.V. No. 523)

Indexed As: Lowenberg v. Lowenberg

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Barclay, J.

January 21, 1998.

Summary:

A husband and wife divorced. Proceedings were commenced to determine the division of matrimonial property.

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

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - A husband and wife owned a company - In 1987 and 1988, the husband's mother advanced funds to the company - In each case a promis­sory note was signed by the husband on the company's behalf - In 1990, 1992 and 1993, the mother loaned the husband money - The husband and wife divorced - No payments or attempts to collect on the loan were made - In an application for division of matrimonial assets, the mother made a claim for the amount owing and for rent owing for 1987, 1988 and 1989 - The Saskatchewan Court of Queen's Bench, Family Law Division, rejected the mother's claims - The pre 1990 promis­sory notes were statute barred - There was no evidence to suggest any part payment or written acknowledgment of the pre 1990 debts - In any event, the monies advanced were gifts, not debts - See paragraphs 57 to 101.

Family Law - Topic 880.3

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Gift, trust, bequest or award - [See Family Law - Topic 868.2 ].

Family Law - Topic 880.55

Husband and wife - Marital property - Distribution orders - Crops, subsidies, etc. - A husband asserted that a crop should be excluded from the division of matrimonial property - The parties used the money obtained from the crop's sale for general living expenses during the period between the application and the adjudication - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the pro­ceeds from the sale should be excluded from distribution, where the wife received as much of the disposable income from the sale as did the husband - See paragraphs 112, 113.

Family Law - Topic 4002.4

Divorce - Corollary relief - Maintenance awards - Circumstances when refused - A husband and wife divorced - Four years later, the wife sought spousal support - The wife received a generous division of matrimonial property - The wife had re­trained and was employed as a hair­dresser in her own establishment - She remarried, but the marriage only lasted for a short period of time - The Saskatchewan Court of Queen's Bench, Family Law Division, denied the wife spousal support, where she had not suffered any economic disad­vantage as a result of the marriage or its breakdown - See paragraphs 120 to 125.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that although there was authority for the proposition that spousal support was automatically terminated upon remarriage, it preferred to follow Wrobel v. Wrobel (Alta. Q.B.) which held that remar­riage amounted to a material change suffi­cient to meet the threshold test of s. 17(4) of the Divorce Act for a variation order - Although re­marriage did not auto­matically terminate a support order, the onus shifted to the reci­pient spouse to demonstrate that the eco­nomic loss from the first relation­ship con­tinued - See para­graph 123.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - Awards - To wife - Extent of obligation - [See Family Law - Topic 4017 ].

Cases Noticed:

Wolff v. Wolff (1985), 37 Sask.R. 19 (C.A.), refd to. [para. 72].

Wagner v. Wagner (1988), 69 Sask.R. 26 (C.A.), refd to. [para. 73].

Kochylema v. Fulton (1993), 114 Sask.R. 268 (Q.B.), refd to. [para. 73].

Wilson v. Wilson (1994), 119 Sask.R. 1 (Q.B.), affd. (1995), 131 Sask.R. 231; 95 W.A.C. 231 (C.A.), refd to. [para. 73].

Hudym v. Hudym, [1992] S.J. No. 114 (Q.B.), refd to. [para. 77].

Trapp v. Trapp, [1994] S.J. No. 394 (Q.B.), refd to. [para. 78].

Schaeffer v. Schaeffer, [1994] S.J. No. 88 (Q.B.), refd to. [para. 81].

Kelich v. Kelich, [1986] M.J. No. 41 (Q.B.), refd to. [para. 85].

Pinette v. Pinette (1987), 6 R.F.L.(3d) 212 (Man. Q.B.), refd to. [para. 86].

Burke v. Burke (1987), 47 Man.R.(2d) 216; 8 R.F.L.(3d) 393 (Q.B. Fam. Div.), refd to. [para. 89].

Wiens v. Wiens (1991), 31 R.F.L.(3d) 265 (B.C.S.C.), refd to. [para. 90].

Britton v. Britton, [1995] B.C.J. No. 1025 (S.C.), refd to. [para. 92].

Gordo v. Gordo, [1996] B.C.J. No. 2685 (S.C.), refd to. [para. 94].

Arvelin v. Arvelin (1996), 20 R.F.L.(4th) 87 (Ont. Gen. Div.), refd to. [para. 95].

Amaral v. Amaral (1993), 50 R.F.L.(3d) 364 (Ont. Gen. Div.), refd to. [para. 96].

Wasylyshyn v. Wasylyshyn (1987), 8 R.F.L.(3d) 337 (Ont. Dist. Ct.), refd to. [para. 98].

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17 (C.A.), refd to. [para. 112].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; [1993] 1 W.W.R. 481; 99 D.L.R.(4th) 456; 43 R.F.L.(3d) 345, refd to. [para. 121].

Cann v. Huxley (1987), 78 N.S.R.(2d) 422; 193 A.P.R. 422; 7 R.F.L.(3d) 430 (Fam. Ct.), refd to. [para. 123].

Wiebe v. Wiebe (1980), 16 R.F.L.(2d) 286 (Ont. Co. Ct.), refd to. [para. 123].

Wrobel v. Wrobel (1994), 160 A.R. 241; 8 R.F.L.(4th) 403 (Q.B.), refd to. [para. 123].

Authors and Works Noticed:

McLeod, James G., Annotation to Amaral v. Amaral (1993), 50 R.F.L.(3d) 364, pp. 366, 367 [para. 97].

Counsel:

R. Bradley Hunter and Donald M. Miller, for the petitioner;

Aaron A. Fox, Q.C., and James N. Kor­pan, for the respondent;

Barbara J. Cram, for the third party;

Ian D. McKay, Q.C., for the fourth party.

This matter was heard before Barclay, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following judgment on January 21, 1998.