Riley v. Riley, 2011 SKCA 5

• Judge: Jackson, Richards and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 17, 2010
• Jurisdiction: Saskatchewan
• Citations: 2011 SKCA 5;(2011), 366 Sask.R. 110 (CA)

Riley v. Riley (2011), 366 Sask.R. 110 (CA);

    506 W.A.C. 110

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JA.008

Frank William Riley (appellant/respondent) v. Colleen Sue Riley (respondent/petitioner)

(No. 1754; 2011 SKCA 5)

Indexed As: Riley v. Riley

Saskatchewan Court of Appeal

Jackson, Richards and Ottenbreit, JJ.A.

January 11, 2011.

Summary:

The parties separated in 2006 after almost 30 years of marriage. They had three adult children. The wife applied for (i) divorce; (ii) support for herself and one child who was attending university; (iii) an equal division of the family home; and (iv) an unequal division of the balance of the family property.

The Saskatchewan Court of Queen's Bench, in a decision reported at 332 Sask.R. 204, determined the issues. In deciding what constituted family property within the meaning of the Family Property Act, the trial judge excluded a house that the wife had purchased shortly before the application for divorce and corollary relief. The trial judge equally divided the family property, valued at approximately $700,000, including a cottage and an antique clock of significant sentimental value. With respect to spousal support, the trial judge held that the wife was entitled to a lump sum payment of $50,000. The trial judge also made an order for child support for the child attending university. The husband appealed, challenging the trial judge's conclusions in relation to the antique clock, the wife's home and the wife's entitlement to spousal support.

The Saskatchewan Court of Appeal dismissed the appeal.

Family Law - Topic 868

Husband and wife - Marital property - Distribution orders - Property subject to distribution - [See Family Law - Topic 876 ].

Family Law - Topic 870

Husband and wife - Marital property - Distribution orders - Appeals - The Saskatchewan Court of Appeal stated that "Given the provisions of the Family Property Act, with its emphasis on a 'fair and equitable' distribution of property, considerable deference is owed to the trial judge's overall decision as to entitlement and valuation ... While the standard of appellate review permits a court of appeal to intervene in the face of an error of law, a palpable and overriding error of fact, or an abuse of discretion, the court must be aware that disturbing one of a trial judge's many decisions as to entitlement to family property, or its valuation, may disturb the overall equities that have been achieved in arriving at what constitutes a fair and equitable distribution. The standard of appellate review in family law matters reflects this deference to the trial judge's overall distribution of family property" - See paragraph 5.

Family Law - Topic 870

Husband and wife - Marital property - Distribution orders - Appeals - [See Family Law -Topic 876 ].

Family Law - Topic 876

Husband and wife - Marital property - Distribution orders - Family or matrimonial assets - The trial judge found that a house on Snowberry Way that the wife had purchased shortly before the application for divorce and corollary relief was not "family property" within the meaning of the Family Property Act and, therefore, declined to award the husband any share in the increase in the value of the property - The trial judge found that the wife bought Snowberry Way from her own resources, and that the equities supported that she keep the increase in value in the home - The husband appealed - The Saskatchewan Court of Appeal held that the wife owned an interest in the Snowberry Way property when she applied under the Family Property Act to divide family property - Therefore, having regard for the definition of "family property" in the Act, the trial judge erred by finding that it was not family property - The trial judge also erred regarding his concern about the source of the funds, given his earlier finding that the down payment for the home came from the parties' joint bank accounts - However, while the trial judge's finding that the Snowberry Way property was not family property was an error of law which permitted appellate intervention, not every error of law in the identification of what constituted family property justified appellate intervention - The court had to consider the magnitude of the error in the context of the whole of the decision under appeal - An appellate court could not ignore other decisions made in the division of family property, and the impact on the overall fairness of the decision, if one aspect of the equities were to be changed - If the court were to remit the matter, it was apparent from the trial judge's assessment of the equities relating to the wife's home that there would be no change in his decision concerning who should benefit from the increased value of the home - The appeal was therefore dismissed on this point - See paragraphs 7 to 15.

Family Law - Topic 882

Husband and wife - Marital property - Considerations in making distribution orders - Relevant considerations - A husband appealed from an order distributing family property - The husband argued that the trial judge should have distributed an antique clock to him rather than to the wife and should have valued it differently - The Saskatchewan Court of Appeal dismissed the appeal - The trial judge did not ignore relevant evidence - He mentioned the husband's sentimental attachment to the clock stemming from his father's work on the clockworks as a professional jeweller and his own time, over the years, spent in ensuring the clock's smooth operation - However, the trial judge gave greater weight to the fact that the clock had been in the wife's family for three generations - It was clearly a relevant factor for a trial judge to consider the historical family connection, which proved to be the trump factor in this case - There was no basis to interfere with the trial judge's determination that the wife was entitled to this family heirloom - With respect to valuation, the trial judge had before him two experts, one who stated that the clock could fetch a significant amount if sold in the United States, and one who cautioned against such a valuation based on the volatility of the market and costs associated with packaging, insurance, storage and shipping - The latter expert suggested a more conservative value based on the Saskatchewan market alone - The trial judge chose the more conservative estimate - In doing so, he did not misapprehend the evidence or make an error in principle - See paragraphs 16 to 19.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - [See Family Law - Topic 882 ].

Family Law - Topic 4013

Divorce - Corollary relief - Maintenance awards - Interest on awards or arrears - A husband appealed from an order which distributed family property and awarded the wife lump sum spousal support of $50,000 - The husband had not paid any of the spousal support - The wife asked that interest be awarded on the outstanding spousal support order - Based on s. 77 of the Queen's Bench Act, unless a court ordered otherwise, a judgment for spousal support attracted interest from the date of judgment - The husband's counsel asked, in effect, that the court make an order directing that s. 77 did not apply, on the footing that he had wanted to effect an earlier distribution of some items of property, where his client had been successful, and, at the same time, pay the spousal support into court pending resolution of the appeal - The Saskatchewan Court of Appeal declined to make an order under s. 77 removing the husband's obligation to pay interest on the lump sum spousal support order from the time of entering the judgment in the Court of Queen's Bench - See paragraphs 25 to 29.

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Financial consequences of child care and household responsibilities - [See Family Law - Topic 4022 ].

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Leaving labour market for family responsibilities - [See Family Law - Topic 4022 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - Awards - To wife - Considerations - The parties separated in January 2006 after almost 30 years of marriage - The husband had been the financial provider while the wife, a registered nurse, had the primary responsibility for raising the parties' three children and had only worked casual and part-time hours - In 2006, the wife began working extra shifts and weekends and she earned $69,737.13 - In 2007, she continued to pick up extra shifts and to work overtime and she estimated that her income might reach $90,000 in that year - The wife had suffered a back injury in 2004 - The trial judge ordered the payment of lump sum spousal support of $50,000 to the wife on both an economic and compensatory basis - The judge found that the wife's seniority status had been affected by her long-time absence from the permanent full-time workforce - While her ability to earn income had not been seriously impaired, it was dependant upon her working overtime and taking shifts that other nurses her age no longer had to work - The husband's career, on the other hand, had progressed steadily over the years and his income was now upwards of $180,000 per annum - The husband appealed - The Saskatchewan Court of Appeal dismissed the appeal - See paragraphs 20 to 24.

Interest - Topic 3503

Statutory interest - On judgments - Pending appeal and pending delay of execution - [See Family Law - Topic 4013 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 5].

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6, refd to. [para. 5].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 5].

Russell v. Russell (1999), 180 Sask.R. 196; 205 W.A.C. 196; 179 D.L.R.(4th) 723 (C.A.), refd to. [para. 5].

Muranetz-Dubelt v. Dubelt (2010), 343 Sask.R. 215; 472 W.A.C. 215; 2010 SKCA 5, refd to. [para. 5].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 6].

Tether v. Tether, [2005] Sask.R. Uned. 233; 2005 SKQB 531, affd. (2008), 314 Sask.R. 121; 435 W.A.C. 121; 2008 SKCA 126, refd to. [para. 18].

Ewen v. Ewen, [1996] B.C.T.C. Uned. A83; 1996 CanLII 8472 (S.C.), refd to. [para. 18].

Williams v. Williams, [2003] N.B.R.(2d) Uned. 47; 2003 NBQB 125, refd to. [para. 18].

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. 21].

Mycyk et al. v. University of Saskatchewan, [2009] 8 W.W.R. 615; 331 Sask.R. 176; 460 W.A.C. 176; 2009 SKCA 71, refd to. [para. 26].

Tether v. Tether (2009), 329 Sask.R. 224; 2009 SKQB 9 (Fam. Div.), refd to. [para. 27].

LeVan v. LeVan (2008), 239 O.A.C. 1; 90 O.R.(3d) 1; 2008 ONCA 388, leave to appeal denied [2008] 3 S.C.R. vii; 391 N.R. 391, refd to. [para. 28].

Koiter v. Koiter (1996), 21 O.T.C. 3 (Gen. Div.), refd to. [para. 28].

Statutes Noticed:

Family Property Act, S.S. 1997, c. F-6.3, sect. 2(1) [para. 11].

Queen's Bench Act, S.S. 1998, c. Q-1.01, sect. 77 [para. 26].

Counsel:

David R. Barth, for the appellant;

Joanne C. Moser, for respondent.

This appeal was heard on November 17, 2010, before Jackson, Richards and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Jackson, J.A., on January 11, 2011.