Richmond v. Richmond, (2009) 344 Sask.R. 271 (FD)

• Judge: R.S. Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 26, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 344 Sask.R. 271 (FD);2009 SKQB 420

Richmond v. Richmond (2009), 344 Sask.R. 271 (FD)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. NO.035

Linda Esther Richmond (petitioner) v. Brian Allan Richmond (respondent)

(2007 Div. No. 515; 2009 SKQB 420)

Indexed As: Richmond v. Richmond

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

R.S. Smith, J.

October 26, 2009.

Summary:

Spouses separated in 2007 after a 32 year traditional marriage. The 59 year old husband's income from workers' compensation benefits and Canada Pension Plan disability benefits was $47,000 per year. A portion of his workers' compensation benefits was held in trust for the husband until he turned 65. At that point, benefits ended and the trust funds would be used to purchase an annuity. The 61 year old wife was in receipt of workers' compensation benefits since August 2009, totalling almost $20,000 annually. At issue in this divorce and family property proceeding was spousal support, whether the trust funds and/or the balance of the wife's motor vehicle accident settlement were exempt from distribution, and the valuation of family property.

The Saskatchewan Court of Queen's Bench, Family Law Division, awarded the wife $650 per month spousal support and held that the $3,969.92 in interim support arrears was to be accounted for in the final distribution of family property. The court valued and equally divided the family property. The wife was not entitled to an exemption for what she alleged was the balance of the settlement, because the settlement funds had been treated as a family asset and the account had intermingled with it other sundry deposits. The value of the husband's workers' compensation pension ($107,542.30 at date of petition) was also family property to be equally divided.

Family Law - Topic 880.7

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Award or settlement of damages for personal injuries - Spouses separated in 2007 after 32 years' marriage - Both were injured in a 1985 motor vehicle accident - The husband received a $10,000 settlement award, which was used for family expenses - The wife, more severely injured, received a $100,000 settlement award - The bulk of those funds were also used for family purposes, but some of the funds remained in a $17,446.18 investment account, which also contained other funds deposited by the spouses - The wife claimed that the investment account was exempt from family property under s. 23(3)(a) of the Family Property Act - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the account was family property to be equally divided - The settlement award would be exempt only if the funds were kept separate from other family assets and the balance in the account could be traced back to the settlement award - Neither condition was met - The settlement funds had always been treated as a family asset and "the account had intermingled with it sundry other deposits" - See paragraphs 38 to 42.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions (incl. pension annuities) - [See Family Law - Topic 880.42 ].

Family Law - Topic 880.31

Husband and wife - Marital property - Distribution orders - Particular property - Annuities - [See Family Law - Topic 880.42 ].

Family Law - Topic 880.42

Husband and wife - Marital property - Distribution orders - Particular property - Workers' compensation awards - The 59 year old husband received workers' compensation benefits until age 65 - From those benefits, a percentage was set aside and held in trust by the Workers' Compensation Board - At age 65, benefits terminated and the balance held in trust ($107,542.30 at the date of the divorce petition) would be used by the husband to purchase an annuity/pension - The husband claimed that the amount held in trust was exempt under s. 23(3)(a) of the Family Property Act, since it reflected a settlement for a workplace injury and was paid for by diverting a portion of his present workers' compensation benefits - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the $107,542.30 was family property to be equally divided - The annuity was established to substitute for the lack of full Canada Pension Plan contributions by an employee while in receipt of workers' compensation benefits - The annuity possessed the common attributes of a pension - The court stated that "the monthly workers' compensation cheque is meant to replace income and the WCB Pension is created using a portion of those funds which operates to place the [husband], and those like him, in a situation similar to other workers who have a pension and at age 65 cease working. In the case of those other workers, in the event of a family breakdown, their pension is subject to division as part of the larger family property process. It is illogical that the [husband], in like circumstances to someone who has an earned pension, should be able to assert an exemption based on the fact that his pension exists by reason of the largesse of the Saskatchewan taxpayer" - See paragraphs 43 to 52.

Cases Noticed:

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. 15].

Tanouye v. Tanouye (1994), 128 Sask.R. 48; 85 W.A.C. 48 (C.A.), refd to. [para. 41].

D.B. v. J.A.B. (2002), 226 Sask.R. 161; 2002 SKQB 469 (Fam. Div.), refd to. [para. 41].

C.R.L. v. R.E.L., [1998] Sask.R. Uned. 5 (Q.B. Fam. Div.), refd to. [para. 41].

Hilderman v. Hilderman (1985), 34 Man.R.(2d) 177; 45 R.F.L.(2d) 190 (Q.B. Fam. Div.), refd to. [para. 41].

Young v. Young (1985), 5 R.F.L.(3d) 37 (B.C.S.C.), refd to. [para. 45].

Dobson v. Dobson (2003), 234 Sask.R. 78; 2003 SKQB 203 (Fam. Div.), refd to. [para. 45].

Ioanidis v. Ioanidis (2007), 297 Sask.R. 41; 2007 SKQB 233 (Fam. Div.), refd to. [para. 45].

Lowe v. Lowe (2006), 206 O.A.C. 293; 22 R.F.L.(6th) 438 (C.A.), refd to. [para. 45].

Adams v. Orenchuk (1997), 154 Sask.R. 110 (Q.B. Fam. Div.), refd to. [para. 47].

Statutes Noticed:

Family Property Act, S.S. 1997, c. F-6.3, sect. 23(3)(a), sect. 23(3)(d) [para. 38].

Authors and Works Noticed:

McLeod, James Gary, and Mamo, Alfred A., Annual Review of Family Law (2008), p. 343 [paras. 15, 16].

Counsel:

V. Watson, for the petitioner;

J. English, for the respondent.

This matter was heard before R.S. Smith, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following judgment on October 26, 2009.