P.M. v. S.M., (2011) 370 Sask.R. 196 (FD)

• Judge: McMurtry, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 25, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 370 Sask.R. 196 (FD);2011 SKQB 126

P.M. v. S.M. (2011), 370 Sask.R. 196 (FD)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. MY.019

P.M. (petitioner) v. S.M. (respondent)

(2008 D.I.V. No. 118; 2011 SKQB 126)

Indexed As: P.M. v. S.M.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

McMurtry, J.

March 25, 2011.

Summary:

The parties separated in 2007. They were married for 29 years and raised three children while pursuing successful careers. The husband's career was more remuneratively advantageous than the wife's, resulting in the accumulation of significant assets. A trial was necessary to resolve issues of division of family property, spousal support and support for the adult children pursuing post-secondary education.

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

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 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - In this family property litigation, the husband claimed occupation rent from August, 2009, until September , 2010 - During that period of time, he was paying monthly rent while the wife was living mortgage free at the matrimonial home - The Saskatchewan Court of Queen's Bench, Family Law Division, held that this was not an exceptional case warranting the payment of occupation rent - The wife was making use of her capital asset while occupying it, as was the husband when he purchased his - Before that, none of the criteria that would warrant occupation rent were in play in this case - See paragraphs 52 to 54.

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - [See Family Law - Topic 900 ].

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - The parties separated in August of 2007 - They agreed that the family property ought to be divided equally - They disagreed, however, on the appropriate valuation date of certain of the assets - The "value" of any asset that fell to be distributed according to the Family Property Act (Sask.), was determined under s. 2(1) of the Act - The Saskatchewan Court of Queen's Bench, Family Law Division, with few exceptions, valued most assets as of the date the petition was issued, March of 2008, rather than the trial date, October of 2010 - It had not been possible to choose one valuation date for all assets - See paragraphs 4 to 8.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - The parties separated in August of 2007 - They disagreed on the appropriate valuation date of the wife's Saskatchewan Teachers' Superannuation Benefit Plan, a "best earnings" defined benefit pension plan - As the wife got closer to retirement, the value of her pension increased, as in Francis v. Cook (2007) (Sask.Q.B.) - The value as of the date of application was $458,010.30, and $698,868 as of the date of trial - The husband sought to use the value as of the date of trial, arguing that market forces had driven up its value since the application date - The Saskatchewan Court of Queen's Bench, Family Law Division, agreed with the wife, for the reasons given in Francis v. Cook, that it was not appropriate to value the pension as at the date of trial - No other evidence was produced at trial as to why the pension would increase so dramatically, including evidence that would suggest that it was market forces that drove up the value of the plan - See paragraphs 9 to 15.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - The parties separated in August of 2007 - Both parties had contributed to their respective RRSPs between 2008 and 2010 - Each RRSP had increased 12% - The Saskatchewan Court of Queen's Bench, Family Law Division, in keeping with the comments of the court in Russell v. Russell (1999), did not believe it would be fair to the husband to value his RRSPs at the time of adjudication, when the wife's pension (a "best earnings" defined benefit pension plan) was to be valued at the date of application - In this case, fairness to the parties dictated valuing all registered assets at the date of application - See paragraphs 16 and 17.

Family Law - Topic 890.5

Husband and wife - Marital property - Considerations in making distribution orders - Dissipation or disposal of assets - In this family property litigation, the husband asserted that the wife had dissipated family property through gambling - The Saskatchewan Court of Queen's Bench, Family Law Division, found no evidence of dissipation within the meaning of the Family Property Act - "[F]or dissipation to exist, a spouse must have 'squandered' a significant portion of the family property and the squandering must have jeopardized the financial security of the family unit. In other words, it must put the financial security of the spouses at risk" - No evidence was led to show losses greater than acknowledged by the wife or to show that her gambling problem was not now under control - "The gambling engaged in by [the wife] is lawful in this province. Therefore, it is reasonable that parties may participate in a certain amount of it before they can be successfully accused of dissipating property" - See paragraphs 46 to 51.

Family Law - Topic 900

Husband and wife - Liability for spouse's debts - Debts incurred by spouse - For family purposes - The parties separated in August of 2007 - In this family property litigation, the husband claimed an income tax debt of $16,357.47 owing for the taxation year 2007 - The wife objected to paying a share of the tax burden as she made her own remittances through source deductions and she argued that the husband was able to manipulate the timing of his tax payments - The husband's tax return showed tax payable of $235,866.05 for 2007 - The Saskatchewan Court of Queen's Bench, Family Law Division, held that, regardless of when the husband paid it, the tax was still due before the application date, therefore it was a family debt for which the wife was responsible to the husband for $8,178.73 - See paragraph 56.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - The parties separated on August 24, 2007 - The chambers judge, in her decision of July 6, 2009, awarded the wife interim spousal support of $7,000 per month, commencing February of 2009 - In this divorce proceeding, the wife sought retroactive spousal support from September of 2007 to January of 2009 - The Saskatchewan Court of Queen's Bench, Family Law Division, agreed with the wife that she was entitled to spousal support from the date of separation - The court disagreed with the husband's response that the chambers judge considered spousal support retroactive to the date of separation - The court accepted that a total of $24,075 paid by the husband during the period of time before February 1, 2009, was relative to spousal support, but that the remainder of the monies were paid pursuant to an interim division of family property - In the result, the court ordered retroactive spousal support of $94,925, being $7,000 for the 17 months, less $24,075 - See paragraphs 109 to 111.

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - The husband had been paying court ordered interim spousal support since 2009 - In this divorce proceeding, the wife sought ongoing support - She argued that the husband's 2009 income was not representative of his income and that a four year average would more accurately foretell his income into the future - The Saskatchewan Court of Queen's Bench, Family Law Division, agreed that the husband's 2009 income was not representative of what he was currently able to earn - However, a three year average was more consistent with the practice of the court - For the purposes of determining spousal support, the court used that average as the husband's income - See paragraphs 79 and 80.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Awards - Support guidelines - [See Family Law - Topic 4022 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - Awards - To wife - Considerations - The parties, before their separation in 2007, were married for 29 years and raised three children while pursuing successful careers - The husband (56) was a commissioned, commercial real estate broker - He had been paying court ordered interim spousal support of $7,000 since February 2009 - He now sought to terminate all spousal support or to pay a short-term order only - Using the wife's 2009 income and the husband's average income over three years, the Spousal Support Advisory Guidelines recommended spousal support in the range of $11,223 to $14,963 each month, of unlimited duration - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that "I must do justice to the parties by looking at their particular circumstances" - In the result, the court set spousal support at $8,000 until December 31, 2019, and thereafter at $3,000 monthly - At $8,000 monthly, the division of available resources would be 65.03% and 34.97% - That was an equitable sharing of resources, given the length of the marriage, and the roles the parties assumed during the marriage - It would also allow both parties to maintain the lifestyle they enjoyed during their long-term marriage - See paragraphs 97 to 101.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - Awards - To spouse - Extent of obligation - [See Family Law - Topic 4022 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - In this divorce proceeding, the husband testified that the parties decided, as a couple, to pay for their children's first post-secondary degree without question and a second degree "if it was meaningful" - He requested reimbursement for one-half of the tuition costs he paid (without any consultation with the wife), as a debt of the marriage - The Saskatchewan Court of Queen's Bench, Family Law Division, treated the tuition costs as a s. 7 Guidelines expense - Accordingly, the wife was only responsible for her proportionate share of those costs - See paragraphs 102 to 108.

Cases Noticed:

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17 (C.A.), refd to. [para. 6].

Russell v. Russell (1999), 180 Sask.R. 196; 205 W.A.C. 196 (C.A.), refd to. [para. 7].

Francis v. Cook (2007), 295 Sask.R. 36; 2007 SKQB 136, refd to. [para. 13].

Best v. Best, [1999] 2 S.C.R. 868; 242 N.R. 1; 123 O.A.C. 1, refd to. [para. 14].

Phillips v. Phillips (2010), 362 Sask.R. 124; 500 W.A.C. 124; 324 D.L.R.(4th) 534; 2010 SKCA 117, refd to. [para. 50].

Good v. Good (1998), 167 Sask.R. 196 (Fam. Div.), refd to. [para. 53].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 73].

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. 73].

Fisher v. Fisher (2008), 232 O.A.C. 213,;88 O.R.(3d) 241 (C.A.), refd to. [para. 85].

Miller v. Miller (2002), 310 A.R. 21; 2002 ABQB 225, refd to. [para. 86].

Yemchuk v. Yemchuk (2005), 215 B.C.A.C. 193; 257 D.L.R.(4th) 476; 355 W.A.C. 193; 430; 2005 BCCA 406, refd to. [para. 91].

Leepart v. Leepart (2009), 321 Sask.R. 257; 2009 SKQB 47 (Fam. Div.), refd to. [para. 92].

Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50; 2001 SCC 43, refd to. [para. 95].

Statutes Noticed:

Family Property Act, S.S. 1997, c. F-6.3, sect. 2(1) [para. 5].

Authors and Works Noticed:

Canada, Department of Justice, Spousal Support Advisory Guidelines: The Final Version - see Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: The Final Version.

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: The Final Version (2008), generally [para. 91].

Counsel:

F.C. Zinkhan, for the petitioner;

James J. Vogel, for the respondent.

This trial was heard before McMurtry, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following judgment, with reasons, dated March 25, 2011.