M.D.J. v. C.W.S., (2016) 485 Sask.R. 140 (CA)

• Judge: Caldwell, Herauf and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 17, 2016
• Jurisdiction: Saskatchewan
• Citations: (2016), 485 Sask.R. 140 (CA);2016 SKCA 117

M.D.J. v. C.W.S. (2016), 485 Sask.R. 140 (CA);

    676 W.A.C. 140

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. SE.029

C.W.S. (appellant/respondent) v. M.D.J. (respondent/petitioner)

(CACV2723; 2016 SKCA 117)

Indexed As: M.D.J. v. C.W.S.

Saskatchewan Court of Appeal

Caldwell, Herauf and Ryan-Froslie, JJ.A.

September 8, 2016.

Summary:

The parties separated after a three year relationship. They had one child. The mother sought sole custody of the child and supervised parenting time for the father. The father sought joint custody, child support, and a division of property.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at 462 Sask.R. 44, granted the mother sole custody with access for the father on alternating weekends. The father's property claim was dismissed. The father appealed, which resulted in a stay of proceedings of the custody and access order. The mother applied for an order lifting the stay. The father applied for an order that the costs of the mother's reply affidavit be paid by her.

The Saskatchewan Court of Appeal, per Jackson, J.A., in a decision reported at 465 Sask.R. 246; 649 W.A.C. 246, allowed both applications. The appeal hearing ensued.

The Saskatchewan Court of Appeal allowed the appeal to the extent of awarding the father $17,951.29 for his share of the equity in the family home.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 684

Husband and wife - Property rights during and after common law marriage or relationship - Family home - The parties were in a common law relationship from November 2009 to November 2012 - They lived in a house that the wife owned before the relationship began - The husband sought a division of property under the Family Property Act - The trial judge was not prepared to grant an unequal division of the home in favour of the wife, even though the spousal relationship was brief - The house was valued as of the date of adjudication (March 2015), while the date of application (January 2013) was used to set the amount owing against the house - While it was common for a court to recognize that the rising market resulted in the date of adjudication being used for the latter, it made no sense to have the husband, who had made no contribution to the mortgage since the date of application, receive a windfall of half of the payments made solely by the wife - The husband appealed, asserting that generally an asset and the associated debt should be valued as of the same date - The Saskatchewan Court of Appeal rejected this ground of appeal - The court agreed that, if at all possible, the same date should be used to value an asset and the debt associated with it - Here, no evidence was presented by either party to demonstrate the amount of the outstanding mortgage as of the date of adjudication - That lack of evidence left the trial judge with no option but to use the value of the Mortgage as of the date of application - See paragraphs 17 to 23.

Family Law - Topic 684

Husband and wife - Property rights during and after common law marriage or relationship - Family home - The parties were in a common law relationship from November 2009 to November 2012 - The husband sought a division of property under the Family Property Act - Both parties submitted appraisal reports regarding the value of the family home - The trial judge, in determining the division of assets, accepted the report of the wife's appraisers, valuing the home at $360,000, instead of the report of the husband's appraiser, who valued it at $420,000 to $440,000 - The judge found that the wife's report was the "best evidence" as the appraiser had attended "at and in the residence" while the husband had tendered a "drive-by appraisal" - The husband appealed the division of assets, asserting that the judge erred in weighting the parties' appraisal reports - The Saskatchewan Court of Appeal stated that "A finding by a trial judge that certain evidence 'represents the best evidence of value' is a finding of fact, and therefore can only be interfered with if the trial judge made a palpable and overriding error ... It was open to the trial judge to consider the limitations in the [husband's] appraisal when making his determination. The trial judge did not make a palpable and overriding error in his valuation of the family home. Accordingly, this ground of appeal is without merit." - See paragraph 25.

Family Law - Topic 684

Husband and wife - Property rights during and after common law marriage or relationship - Family home - The parties were in a common law relationship from November 2009 to November 2012 - The trial judge divided family property under the Family Property Act - The husband appealed, asserting that the trial judge erred in his distribution of the family home, as debts and liabilities not pertaining to the family home were used to calculate its value for division purposes - The Saskatchewan Court of Appeal agreed - The court stated that "Section 22 makes it clear that the family home is to be dealt with in a different fashion from the rest of the family property and is subject to special statutory consideration. This is reinforced by the fact that the family home is specifically defined in s. 2(1) of the Act. As well, the family home is expressly excluded from the definition of exempt property in s. 23 of the Act. Section 22 directs that the entire equity in the family home is to be equally divided by the parties. Equity is determined by a reduction in the value of the home only for any tax liability, encumbrance or other debt 'pertaining to the family home.'" - Applying that principle, the court determined that the equity in the home was $35,902.58 - An equal division resulted in an equalization payment of $17,951.29 to the husband - See paragraphs 36 to 42.

Family Law - Topic 694

Husband and wife - Property rights during and after common law marriage or relationship - Evidence - [See first and second Family Law - Topic 684 ].

Family Law - Topic 695

Husband and wife - Property rights during and after common law marriage or relationship - Valuation (incl. time for) - [See all Family Law - Topic 684 ].

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - [See all Family Law - Topic 684 ].

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - [See first and third Family Law - Topic 684 ].

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - The parties were in a common law relationship from November 2009 to November 2012 - In January 2013, the husband sought a division of property under the Family Property Act - The trial judge found that the debts as of the date of the application were "occasioned by [the wife] during the course of the relationship for [the parties'] mutual benefit" - On appeal, the husband asserted that the judge erred in that finding because (i) the MasterCard debt was incurred in January 2013, after separation, and likely for business purposes; and (ii) "[a]ll of the debt statements" were from approximately January 2013 - He further asserted, that the judge erred by dividing debts equally - Rather, he asserted that the judge should have considered whether fairness required an unequal distribution of property to reflect debt obligations - The Saskatchewan Court of Appeal stated that "Whether or not to order an unequal distribution of family property having regard to the debts of the parties is within the discretion of the trial judge ... The trial judge ... stated that the debts were 'occasioned by the [wife] during the course of the relationship for their mutual benefit' and 'accordingly' accepted those debts should be taken into account in the property division. This is not surprising since the [husband] provided no evidence that it would be improper to consider the debt incurred between separation and petition, or to rebut the evidence provided by the respondent that the debts were incurred for the parties' mutual benefit. Accordingly, I would not give effect to this ground of appeal." - See paragraph 16.

Family Law - Topic 880.1

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - General - Pre-marriage acquisitions - The parties were in a common law relationship from November 2009 to November 2012 - The husband sought a division of property under the Family Property Act - The trial judge found that the wife owned three rental properties at the commencement of the spousal relationship and that those properties were exempt from distribution under s. 23 of the Act - The husband submitted an appraisal which valued the properties at $506,000 as of December 3, 2012 - The wife accepted the appraisal - No other evidence regarding the value was presented - The wife testified that, as far as she knew, there had been no increase in the value of the properties following the appraisal - The parties agreed that the debt against the properties as of the date of application was $476,243.21 - The debt against the properties at the start of the spousal relationship was approximately $415,358.57 - The judge used the December 3, 2012 property value and subtracted from it the November 1, 2011 debt, and concluded the exemption should be valued at $90,641.43 - On appeal, the husband challenged the amount exempted - He asserted that the wife did not succeed in establishing that the conditions set in ss. 31(1) and 23(2) had been met as the only evidence of the properties' value was as of December 3, 2012, which was not the date the spousal relationship commenced - He also asserted that the judge erred by relying on the wife's "own speculation or uneducated guess" as to value - The Saskatchewan Court of Appeal stated that the correct value was the value at the "commencement of the spousal relationship" (s. 23(1)), not the value at the time of application - However, given the wife's testimony, there was evidence that allowed the trial judge to find that the December 2012 values were equal to the November 2011 values - Once the exemption was established, the onus shifted to the opposing party to establish that it would be unfair or inequitable to allow the exemption in whole or in part - The judge made a finding that the debts as of the date of the application were "occasioned by [the wife] during the course of the relationship for [the parties'] mutual benefit" - That included the increase in mortgages on the rental properties - The husband failed to demonstrate why allowing the full amount of the exemption would be unfair or inequitable - The judge's exercise of his discretion to allow the exemption was entitled to deference - The court refused to give effect to this ground of appeal - See paragraphs 26 to 32.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - [See all Family Law - Topic 684 ].

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs - The parties separated after a three year common law relationship - They had one child - The mother sought sole custody of the child and supervised parenting time for the father - The father sought joint custody, child support, and a division of property - The trial judge granted the mother sole custody with access for the father on alternating weekends - The father's property claim was dismissed - The judge awarded costs of the trial to the wife on the premise that she had been "predominately successful" both on the issue of custody and on the division of family property - The father's appeal from the substantive order was allowed to the limited extent that he was awarded $17,951.29 for his share of the equity in the family home - The Saskatchewan Court of Appeal stated that "... the decision of the trial judge relating to custody of the parties' son was upheld on appeal via an oral decision from this Court. Custody was the main focus of the trial and no doubt occupied the majority of trial time. The family property portion of the trial judge's reasons occupies only 10 pages of a 71-page decision. For these reasons, I am reluctant to interfere with the costs order made at trial even though the appellant had partial success on the appeal. I would not give effect to this ground of appeal." - See paragraph 44.

Practice - Topic 7030

Costs - Party and party costs - Entitlement to - Where success or fault divided - [See Family Law - Topic 966 ].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - [See second Family Law - Topic 684 ].

Counsel:

Davin Burlingham, for the appellant;

Sherry Fitzsimmons, for the respondent.

This appeal was heard on May 17, 2016, by Caldwell, Herauf and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. Herauf, J.A., delivered the following judgment for the court on September 8, 2016.