Stokes v. Stokes, (2001) 206 Sask.R. 161 (FD)

• Judge: McIntyre, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 24, 2001
• Jurisdiction: Saskatchewan
• Citations: (2001), 206 Sask.R. 161 (FD);2001 SKQB 257

Stokes v. Stokes (2001), 206 Sask.R. 161 (FD)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. MY.065

Kenneth Craig Stokes (petitioner) v. Katharine June Stokes (respondent)

(1998 D.I.V. No. 02600; 2001 SKQB 257)

Indexed As: Stokes v. Stokes

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Yorkton

McIntyre, J.

May 24, 2001.

Summary:

A couple separated after a 15 year mar­riage. At issue were division of matrimonial property, custody and access and child sup­port.

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

Family Law - Topic 627

Husband and wife - Martial property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - A couple separated upon the husband leaving the matrimonial home - The wife stayed in the home with the two children of the marriage - The husband claimed occu­pational rent - The Saskatchewan Court of Queen's Bench, Family Law Division, refused to award occupational rent where the husband's act of leaving the matri­monial home was a unilateral act - See paragraph 88.

Family Law - Topic 627.1

Husband and wife - Martial property - Real property - Other than matrimonial home - Occupation rent - A wife sought occupational rent for farmland - The Saskatchewan Court of Queen's Bench, Family Law Division, considered whether there should be an other than equal distri­bution to account for the fact that the husband had exclusive use and benefit of the farm assets between the parties' separa­tion and the date of application - The court stated that there was a similarity to an adjustment made on account of post-ap­plication farm income inasmuch as the common element was one party's exclusive use and benefit to the other's exclusion - The distinction was that no one had com­menced proceedings claiming a division of matrimonial property and putting the other party on notice - The court held that an adjustment for pre-application farm income was not appropriate in this case - See paragraphs 78 to 86.

Family Law - Topic 627.1

Husband and wife - Martial property - Real property - Other than matrimonial home - Occupation rent - A couple sepa­rated - The husband continued to farm their land - The wife sought an other than equal distribution of matrimonial property based upon the rental value of hay lands - The husband had 140 acres of hay land which would produce 420 to 490 bales which could be sold for $11 per bale - There was no evidence as to what a land­lord might expect to receive by way of rent - The hay land would produce revenue of $4,620 to $5,390 per annum - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the rental value would be the net return after deduct­ing a landlord's usual expenses - The court ordered an other than equal distribution of $1,000 per year - See paragraph 87.

Family Law - Topic 868

Husband and wife - Marital property - Distribution orders - Property subject to distribution - A husband held joint title with his mother to certain land and joint title with his mother and brother to other land - His mother had transferred the properties into their joint names without consulting her sons - The wife claimed that the lands were matrimonial property in which the husband held a one-half and one-third interest, respectively - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the transfer was for estate planning purposes and the lands had nil value for the purposes of the Matrimonial Property Act - The mother remained the sole beneficial owner, receiv­ing the benefit of the property and re­sponsible for the expenses - See paragraphs 5 to 17.

Family Law - Topic 873

Husband and wife - Marital property - Distribution orders - Bars - Unfair and inequitable - A couple separated after a 15 year marriage - The husband sought an unequal distribution on account of farm­land that was gifted to him and land and machinery that he inherited from his father - The Saskatchewan Court of Queen's Bench, Family Law Division, awarded the wife 25% of the value of the machinery and of the gifted and inherited farmland, apart from the home quarter - The court considered that the wife would probably receive a substantial inheritance at some point, and a substantial portion of the divisible matrimonial property resulted from the generosity of the husband's father - An equal distribution of the machinery and of the gifted and inherited farmland assets, other than the home quarter, would be unfair and inequitable - See paragraphs 33 to 51.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - A couple separated after a 15 year marriage - The husband claimed that as a result of finan­cial circumstances he was forced to auction a significant amount of his machinery - The auction was to take place within days of the close of the trial - Under the agree­ment signed with the auctioneer there would be selling costs of $23,634 - The husband had also sold eight quarters of land of a value of $265,885 in 1999 - He testified that the economics of the farm had resulted in a change in the nature of his farming operation - The Saskatchewan Court of Queen's Bench, Family Law Division, ordered an other than equal distribution in the amount of $23,634 - See paragraphs 58 to 59.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - A couple separated after a 15 year marriage - The husband's mother purchased a cabin for $45,000 for him to live in - The husband put $10,000 to $12,000 from the parties' farm account for renovations - The mother sold the property for $65,000 ($20,000 increase in value) - The Saskatchewan Court of Queen's Bench, Family Law Division, considered that while the cabin was not divisible matrimonial property per se, the husband did use family funds for the purpose of renovations, thereby in­creasing its value - Thus, it was ap­propriate to make an other than equal distribution in the amount of $20,000 - See paragraph 65.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - [See both Family Law - Topic 627.1 and Family Law - Topic 873 ].

Family Law - Topic 880.3

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Gift, trust, bequest or award - [See Family Law - Topic 873 ].

Family Law - Topic 882

Husband and wife - Marital property - Considerations in making distribution orders - Relevant considerations - Income tax - A couple separated - The husband intended to continue farming but testified that, as a result of economics, he was forced to significantly change the size and nature of his farm operation - He sought an other than equal distribution of matri­monial assets on account of tax conse­quences resulting from the tax payable on recapture related to buildings and machin­ery - The Saskatchewan Court of Queen's Bench, Family Law Division, ordered an other than equal distribution equal to 75% of estimated tax with respect to the tax lia­bility arising out of the actual sale of machinery - The court considered that the husband might have been partly motivated by a desire to trigger an actual tax conse­quence, he might defer at least a portion of the tax by making further purchases, and he saved tax through the undepreciated capital cost that he had claimed since separation - See paragraphs 67 to 77.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation - [See Family Law - Topic 868 ].

Family Law - Topic 890.5

Husband and wife - Marital property - Considerations in making distribution orders - Dissipation or disposal of assets - An application for division of matrimonial property was brought 19 months after separation - The wife sought an other than equal distribution because, inter alia, the husband had made a $10,000 MasterCard prepayment just prior to separation - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the wife had not shown that there was anything about the transaction that made an equal division of matrimonial property unfair and inequitable - Both parties incurred ex­penses and expended funds over the 19 months - Dissipation involved conduct which jeopardized a household's financial security by the squandering of property - Transactions in the usual course of busi­ness between the separation and application would not normally give rise to an other than equal distribution - See paragraphs 60 to 63.

Family Law - Topic 1897

Custody and access - Considerations in awarding custody - Status quo - The par­ties disputed custody of their two sons, aged 15 and 12 - The mother was the primary caregiver and psychological parent until the separation in June 1996 - From September 1999, they had been in their father's care - The Saskatchewan Court of Queen's Bench, Family Law Division, found that the father had used and manipu­lated the children to take his side and to undermine and discredit their mother and that both parties had failed to act in the children's best interests - However, the stability that the children required would be best achieved by leaving them in their father's care - The court made no custody order, in order to give the children an opportunity to repair their relationship with their mother - The court awarded the mother reasonable access, to include alter­nate weekends and an equal sharing of school vacations or breaks - See para­graphs 91 to 113.

Cases Noticed:

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17 (C.A.), refd to. [para. 4].

Swystun v. Davidson, [1997] Sask.R. Uned. 053; 29 R.F.L.(4th) 298 (Q.B.), refd to. [para. 14].

Marciniuk v. Marciniuk (1992), 98 Sask.R. 211 (Q.B.), refd to. [para. 14].

Moen v. Schultz (2000), 190 Sask.R. 223 (Q.B.), refd to. [para. 14].

Eftoda v. Eftoda (1987), 58 Sask.R. 259 (Q.B.), affd. (1988), 70 Sask.R. 221 (C.A.), refd to. [para. 14].

Patterson v. Patterson, [1997] Sask.R. Uned. 139 (Q.B.), refd to. [para. 14].

Wilgosh v. Wilgosh (1998), 166 Sask.R. 96 (Q.B.), appld. [para. 15].

Crowe v. Crowe (2001), 205 Sask.R. 241 (Q.B.), refd to. [para. 30].

Seaberly v. Seaberly (1985), 37 Sask.R. 219 (C.A.), refd to. [para. 31].

Wilson v. Wilson (1994), 119 Sask.R. 1 (Q.B.), refd to. [para. 31].

Chamberlin v. Chamberlin, [1999] Sask.R. Uned. 181 (Q.B.), refd to. [para. 32].

Haughn v. Haughn (1983), 25 Sask.R. 33 (C.A.), refd to. [para. 34].

Richie v. Richie (1994), 121 Sask.R. 197 (Q.B.), refd to. [para. 37].

Good v. Good (1998), 167 Sask.R. 196 (Q.B.), refd to. [para. 41].

Fischer v. Fischer (1996), 151 Sask.R. 57 (Q.B.), refd to. [para. 42].

Raczynski v. Raczynski (1998), 171 Sask.R. 1 (Q.B.), refd to. [para. 59].

Pomaranski v. Pomaranski (1998), 167 Sask.R. 5 (Q.B.), refd to. [para. 59].

Carlson v. Carlson (1984), 34 Sask.R. 287 (C.A.), refd to. [para. 70].

Beutler v. Beutler, [1997] Sask.R. Uned. 34 (Q.B.), refd to. [para. 80].

M.A.A.C-P. v. G.J.P., [1999] Sask.R. Uned. 121 (Q.B. Fam. Div.), refd to. [para. 97].

Thatcher v. Thatcher (1980), 2 Sask.R. 290 (C.A.), refd to. [para. 109].

Haider v. Malach (1999), 177 Sask.R. 285 (C.A.), leave to appeal denied (1999), 249 N.R. 398; 189 Sask.R. 319; 216 W.A.C. 319 (S.C.C.), refd to. [para. 110].

Counsel:

Kevin J. Bell, for the petitioner;

Wayne M. Rusnak, for the respondent.

This case was heard by McIntyre, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following decision on May 24, 2001.