Tanouye v. Tanouye, (1994) 128 Sask.R. 48 (CA)

• Judge: Wakeling, Sherstobitoff and Lane, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: December 14, 1994
• Jurisdiction: Saskatchewan
• Citations: (1994), 128 Sask.R. 48 (CA);1994 CanLII 3884 (SK CA);121 DLR (4th) 315;[1995] 3 WWR 55;10 RFL (4th) 135;128 Sask R 48;85 WAC 48

Tanouye v. Tanouye (1994), 128 Sask.R. 48 (CA);

    85 W.A.C. 48

MLB headnote and full text

Barbara Wave Tanouye (petitioner/plaintiff/respondent) v. James Sieche Tanouye (respondent/defendant/appellant)

(Appeal File No. 1726)

Indexed As: Tanouye v. Tanouye

Saskatchewan Court of Appeal

Wakeling, Sherstobitoff and Lane, JJ.A.

December 14, 1994.

Summary:

A husband and wife separated in 1991 after eight years' marriage. They lived together off and on for nine years before they married. The wife petitioned for a divorce, and sought spousal maintenance and a division of marital property. The wife also claimed entitlement to premarriage property on the ground that they had a common law marriage.

The Saskatchewan Court of Queen's Bench, in a judgment reported 117 Sask.R. 196, granted the divorce, declined to award spousal maintenance, divided marital prop­erty and rejected the common law marriage claim. The husband appealed the division of marital property.

The Saskatchewan Court of Appeal allowed the appeal in part, varying portions of the trial judgment respecting the division of marital property.

Family Law - Topic 880.1

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Premarital acquisitions - Spouses married in 1983, separated in 1991 and divorced in 1993 - Before marriage, they had an on and off again relationship for nine years - The wife claimed a share of the increased value of a cottage since 1974 on the basis of her contributions to reno­vations and improvements - The trial judge held that given the wife's contribu­tions, it would be unfair and inequitable to allow the husband an exemption for the value of the cottage as of the date of mar­riage - The Saskatchewan Court of Appeal held that the trial judge did not err in exercising her discretion under s. 23(4) of the Matrimonial Property Act to disallow the husband's exemption - See paragraphs 34 to 40.

Family Law - Topic 880.7

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Award or settlement of damages - [See Family Law - Topic 880.43 ].

Family Law - Topic 880.12

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Post-marital exchange of premarital exempt assets - Section 23(3)(d) of the Matrimonial Property Act provided that property acquired as a result of an exchange of exempt property was exempt from distribution - The Saskatchewan Court of Appeal stated that "while it is not essential that the assets be exchanged for other assets of like nature, the court will nonetheless require that the party who is claiming the benefit of an asset exchange prove that exchange beyond mere specu­lation." - See paragraph 33.

Family Law - Topic 880.12

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Post-marital exchange of premarital exempt assets - [See Family Law - Topic 880.43 ].

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Pensions - Spouses married in 1983 after an intermittent nine year relationship - They separated in 1991 - The husband retired in 1990 after 32 years as a firefighter and received a monthly pension of $2,672 - The trial judge awarded the wife 1/4 of the monthly pension for as long as the husband received it, where they were married for 1/4 of the time total contributions were made - The Saskatchewan Court of Appeal held that the value of the pension at the date of marriage was exempt and any increase in value during the marriage was to be shared equally - The court stated that the trial judge's awarding of 1/4 of the monthly pension payments accom­plished that result - The court affirmed the result - See paragraphs 13 to 28.

Family Law - Topic 880.32

Husband and wife - Marital property - Distribution orders - Registered retirement savings plans - Spouses married in 1983, separated in 1991 and divorced in 1993 - Prior to marriage the husband had $15,000 in R.R.S.P.'s - On his 1990 retirement he received as contributions to his R.R.S.P.'s $14,400 for accumulated sick leave bene­fits since 1958 and $25,000 for reimburse­ment of contributions to the pension plan since 1958 - The trial judge held that only the premarital $15,000 accumulation was exempt from distribution - The remaining monies failed to meet the criteria of being owned at marriage and identifiable matri­monial property at the date of application - The Saskatchewan Court of Appeal held that $9,200 of the $25,000, being the value at the date of marriage, should also have been exempt - See paragraphs 13 to 28.

Family Law - Topic 880.43

Husband and wife - Marital property - Distribution orders - Damage awards - A husband received a $21,000 Japanese­Canadian reparation payment from the Canadian government - He used $20,000 to pay down the mortgage on apartment buildings he owned - The remainder could not be traced - He claimed that the pay­ment was exempt from distribution under s. 23(3)(a) of the Matrimonial Property Act as it constituted an "award or settlement of damages in tort" - The trial judge agreed that the payment could constitute an award of damages in tort, but held that the exempt character was lost when applied to the mortgage - The Saskatchewan Court of Appeal held that the $20,000 was exempt under s. 23(3)(d) of the Act, being property acquired in direct exchange for exempt property - See paragraphs 6 to 12.

Cases Noticed:

Deyell v. Deyell (1991), 90 Sask.R. 81 (C.A.), refd to. [para. 11].

Ehlers v. Ehlers (1990), 87 Sask.R. 103 (Q.B.), refd to. [para. 12].

Tataryn v. Tataryn (1984), 30 Sask.R. 282 (C.A.), refd to. [para. 25].

Pelech v. Pelech, [1987] 1 S.C.R. 801; [1987] 4 W.W.R. 481; 76 N.R. 81; 7 R.F.L.(3d) 225; 14 B.C.L.R.(2d) 145; 38 D.L.R.(4th) 641; 17 C.P.C.(2d) 1, refd to. [para. 39].

Talbot v. Henry (1990), 84 Sask.R. 170; [1990] 5 W.W.R. 251, refd to. [para. 39].

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6; [1987] 1 W.W.R. 190; 44 D.L.R.(4th) 1, refd to. [para. 39].

Carlson v. Carlson (1984), 34 Sask.R. 287 (C.A.), refd to. [para. 44].

Statutes Noticed:

Matrimonial Property Act, S.S. 1979, c. M-6.1, sect. 23(3)(a) [para. 9]; sect. 23(3)(d) [para. 11]; sect. 23(4) [para. 19].

Pension Benefits Act, S.S. 1992, c. P-6.01, generally [para. 23].

Counsel:

R. Lepage, for the appellant;

R.B. Hunter, for the respondent.

This appeal was heard on June 21, 1994, before Wakeling, Sherstobitoff and Lane, JJ.A., of the Saskatchewan Court of Appeal.

The judgment of the Court of Appeal was delivered on December 14, 1994, and the following opinions were filed:

Wakeling, J.A. (Lane, J.A., concurring) - see paragraphs 1 to 54;

Sherstobitoff, J.A. - see paragraph 55.