Schatz v. Doust,

• Jurisdiction: Saskatchewan
• Judge: Bayda, C.J.S., Tallis and Jackson, JJ.A.
• Neutral Citation: 2002 SKCA 129
• Court: Court of Appeal (Saskatchewan)
• Date: 12 September 2002
• Citation: 2002 SKCA 129,(2002), 227 Sask.R. 1 (CA),32 RFL (5th) 317,[2002] CarswellSask 770,[2002] SJ No 674 (QL),227 Sask R 1,287 WAC 1,(2002), 227 SaskR 1 (CA),287 W.A.C. 1,[2002] S.J. No 674 (QL),227 SaskR 1,227 Sask.R. 1

Schatz v. Doust (2002), 227 Sask.R. 1 (CA);

    287 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. DE.077

Wayne John Schatz (appellant/respondent) v. Carol Ann Doust (respondent/petitioner)

(No. 462; 2002 SKCA 129)

Indexed As: Schatz v. Doust

Saskatchewan Court of Appeal

Bayda, C.J.S., Tallis and Jackson, JJ.A.

November 26, 2002.

Summary:

Spouses separated after an 18 year common law relationship. They agreed on an equal division of assets. The issues to be determined included the value of a pregnant mare urine (PMU) business that the spouses had established during their relationship, the distribution of assets, how the distribution should be effected and spousal maintenance.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at [2001] Sask.R. Uned. 229, granted the husband ownership and sole control of the farm and PMU operation and ordered him to pay the wife the balance of her 1/2 share ($126,475.71). The court denied the wife maintenance and granted the husband relief from arrears of interim maintenance ($6,400). The husband appealed. The wife cross-appealed.

The Saskatchewan Court of Appeal dismissed the appeal subject to a variation of the award to $109,933.78 to correct mathematical errors. With respect to the cross-appeal, the court ordered the husband to pay the arrears of $6,400 and spousal maintenance of $400 per month until payment of the wife's distributive share under the judgment. If the judgment was not paid within 30 days, the matter was to be remitted to the Queen's Bench for appropriate directions respecting sale of the assets. The court awarded the wife costs of the appeal to be taxed on 2.5 times Column V.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - Spouses separated after an 18 year common law relationship - They agreed on an equal division of assets - The trial judge granted the husband ownership and sole control of the spouses' business and ordered him to pay the wife the balance of her 1/2 share ($126,475.71) - The trial judge denied the wife maintenance and granted the husband relief from arrears of interim maintenance ($6,400) - The wife received no share of the property or payment on the judgment - On appeal, she sought an equitable adjustment to compensate her for the husband having retained the benefits and income from their land and business - The Saskatchewan Court of Appeal held that it would be unfair to alter the course of litigation that had proceeded on the understanding of equal division - However, the resulting justice could be addressed in the maintenance order - The court ordered the husband to pay the $6,400 arrears in maintenance and $400 per month until payment of the wife's distributive share under the judgment - If the judgment was not paid within 30 days, the matter was to be remitted to the Queen's Bench for directions respecting sale of the assets - See paragraphs 56 to 66.

Family Law - Topic 880.55

Husband and wife - Marital property - Distribution orders - Particular property - Livestock, crops, inventories, subsidies, etc. - Quotas - Spouses separated - The value of their pregnant mare urine (PMU) operation was in dispute - The trial judge rejected the income approach, adopted a resale approach and determined the value of the PMU contract to be $150,765.72 based on the value of 7153 grams of estrogen (the allotted quota) - The trial judge fixed the value of the 32 mares at $38,400 - The husband asserted that the value of the mares should be deducted from the $150,765.72 because the mares were part of the PMU business - The Saskatchewan Court of Appeal stated that the trial judge's use of a resale approach was reasonable and that he was reasonably entitled to value the various components of the business - A global valuation would have resulted in a significant higher valuation - See paragraphs 39 to 51.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation - [See Family Law - Topic 880.55 ].

Family Law - Topic 2329

Maintenance of wives and children - Maintenance of wives - Considerations - [See Family Law - Topic 875 ].

Family Law - Topic 2523

Maintenance of wives and children - Enforcement - Orders - Arrears of maintenance - [See Family Law - Topic 875 ].

Practice - Topic 7110

Costs - Party and party costs - Special orders - Increase in scale of costs - General - Spouses separated - The issues to be determined included the value of their pregnant mare urine business - The spouses disputed the number of mares that they owned at the time of separation - The trial judge accepted the wife's testimony and referred to the husband having destroyed records that would have determined the issue - Both spouses appealed the trial judge's valuation of the business - The wife also appealed the order denying her support and relieving the husband from having to pay arrears in interim maintenance - The Saskatchewan Court of Appeal dismissed the appeals respecting the business's valuation of, but allowed the wife's appeal from the maintenance order - The court awarded the wife her costs of the appeal to be taxed on 2.5 times Column V - If the husband had made proper disclosure prior to trial, a major issue would not have engaged much time - The husband had deliberately attempted to mislead the court into believing that his former counsel had lost the missing records - This type of conduct was deserving of a rebuke in costs - See paragraphs 72 and 73.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - Spouses separated - The value of their pregnant mare urine operation was in issue - They disputed the number of mares owned at the time of separation - The husband asserted that his former counsel had lost his records which would have determined the issue - The trial judge accepted the wife's testimony and referred to the husband having destroyed the records - The husband appealed, challenging the finding - The wife sought leave to adduce fresh evidence of an affidavit from the husband's former solicitor - The solicitor emphatically refuted the suggestion that he had lost the records and stated that the records were not delivered to him, he had stressed the importance of records and he had requested all relevant records for the discovery process - The Saskatchewan Court of Appeal stated that the trial judge's finding stood without the fresh evidence and the evidence would not have affected the result - However, the court admitted the evidence where it indicated that the husband had deliberately deceived the court - The evidence might also be relevant in determining the appropriate relief - See paragraphs 30 to 34.

Cases Noticed:

Livesey (Jenkins) v. Jenkins, [1985] 1 All E.R. 106; 62 N.R. 23 (H.L.), refd to. [para. 27].

Ewing v. Ewing (No. 1) (1987), 56 Sask.R. 260 (C.A.), refd to. [para. 27].

Ewing v. Ewing (No. 2) (1987), 56 Sask.R. 263 (C.A.), refd to. [para. 17].

Vagi et al. v. Peters, [1990] 2 W.W.R. 170; 81 Sask.R. 253 (C.A.), refd to. [para. 27].

R. v. Foster and Walton-Ball (1982), 17 Sask.R. 37 (C.A.), refd to. [para. 27].

Rozen v. Rozen (2002), 173 B.C.A.C. 102; 283 W.A.C. 102 (C.A.), refd to. [para. 27].

Spasic Estate v. Imperial Tobacco Ltd. et al. (2000), 135 O.A.C. 126; 188 D.L.R.(4th) 577 (C.A.), refd to. [para. 29].

Public School Boards Association (Alta.) v. Alberta (Attorney General) et al., [2000] 2 S.C.R. 409; 260 N.R. 127; 266 A.R. 201; 228 W.A.C. 201, refd to. [para. 31].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 31].

Harper v. Harper, [1980] 1 S.C.R. 2; 27 N.R. 554, refd to. [para. 34].

Engel v. Salyn et al., [1993] 1 S.C.R. 306; 147 N.R. 321; 105 Sask.R. 81; 32 W.A.C. 81, reving. (1990), 81 Sask.R. 153 (C.A.), appld. [para. 47].

Kolibab v. Tenneco Canada Inc., [2000] 1 W.W.R. 590; 180 Sask.R. 278; 205 W.A.C. 278 (C.A.), refd to. [para. 47].

Russell v. Russell (1999), 180 Sask.R. 196; 205 W.A.C. 196 (C.A.), refd to. [para. 56].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384, refd to. [para. 63].

Counsel:

Joanne C. Moser, for the appellant;

W. Timothy Stodalka, for the respondent.

This appeal was heard on September 12, 2002, by Bayda, C.J.S., Tallis and Jackson, JJ.A., of the Saskatchewan Court of Appeal. Tallis, J.A., delivered the following judgment for the court on November 26, 2002.