Williams v. Williams, 2011 SKCA 84

• Judge: Jackson, Richards and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 14, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKCA 84;(2011), 375 Sask.R. 145 (CA)

Williams v. Williams (2011), 375 Sask.R. 145 (CA);

    525 W.A.C. 145

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JL.029

Audley Williams (appellant) v. Bonita Williams (respondent)

(1688; 2011 SKCA 84)

Indexed As: Williams v. Williams

Saskatchewan Court of Appeal

Jackson, Richards and Ottenbreit, JJ.A.

June 30, 2011.

Summary:

The parties married in 1988 and separated in 2004. There were three children of the marriage, who resided with the mother. The mother sought a divorce, a division of property and child support.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at (2008), 322 Sask.R. 226, granted a divorce and addressed the issue of child support through the division of family property. The family home was valued for the purposes of division as at the date that the petition issued ($190,000), rather than as at the trial date ($415,000). The mother was ordered to pay the father one half of the net family property of $108,056. The father's obligation to pay child support ceased and all arrears were expunged. The father appealed.

The Saskatchewan Court of Appeal allowed the appeal. The home was valued at its current agreed-upon value of $350,000. The father was entitled to a one half share, which was reduced by $20,728 on account of arrears of child support and to provide support for the children to age 18.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - [See all Family Law - Topic 888 ].

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - [See all Family Law - Topic 888 ].

Family Law - Topic 884

Husband and wife - Marital property - Considerations in making distribution orders - Maintenance obligations - [See all Family Law - Topic 888 ].

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - The trial judge valued the family home for the purposes of division at the date that the mother's petition issued ($190,000), rather than at the trial date ($415,000) due to (1) the father's failure to contribute financially to the family's welfare in the decade preceding the trial; (2) the fact that the mother had primary care of the parties' three children in the family home; (3) the father's failure to pay child support and the unlikelihood that he would in the future; and (4) the mother's assertion that she could not afford more than a $50,000 equalization payment without having to sell the home - The father's arrears of child support were expunged - The Saskatchewan Court of Appeal allowed the father's appeal - The trial judge made a fundamental error in selecting the application date as the date of valuation - The factors relied on by the trial judge for his decision were neither appropriate nor relevant - The trial judge's focus on the father's "lack of financial contribution" was particularly problematic - The starting presumption in any claim for distribution of property was joint contribution - Neither the parties' conduct nor the parties' means or needs affected the earned right of each party to share in the family property - Section 20 of the Family Property Act stated that the Act's purpose was to recognize "joint contribution" - With those words, the legislature had signalled its intention to overcome stereotypes about the value of contribution and to minimize arguments about the quality and value of spousal contributions - The appropriate date of valuation was the adjudication date - See paragraphs 28 to 34.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - The trial judge valued the family home for the purposes of division at the date that the mother's petition issued ($190,000), rather than at the trial date ($415,000) due to (1) the father's failure to contribute financially to the family's welfare in the decade preceding the trial; (2) the fact that the mother had primary care of the parties' three children in the family home; (3) the father's failure to pay child support and the unlikelihood that he would in the future; and (4) the mother's assertion that she could not afford more than a $50,000 equalization payment without having to sell the home - The father's arrears of child support were expunged - The Saskatchewan Court of Appeal allowed the father's appeal - Under s. 22(1) of the Family Property Act, the court was to distribute the family home equally unless that would be, inter alia, "unfair and inequitable to the spouse who has custody of the children" - A failure to pay child support might contribute to unfairness and inequity associated with having custody of children, but an unequal distribution could not become the sole means of enforcing child support orders - A parent's failure to pay child support did not disentitle him or her to share in the increase in value of the family home where the increase arose from market forces and was far in excess of the outstanding child support - Nor could the fact that an award against the custodial parent might require selling the family home be determinative - The appropriate date of valuation was the adjudication date - See paragraphs 35 to 50.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - The trial judge valued the family home for the purposes of division at the date that the mother's petition issued ($190,000), rather than at the trial date ($415,000) due to (1) the father's failure to contribute financially to the family's welfare in the decade preceding the trial; (2) the fact that the mother had primary care of the parties' three children in the family home; (3) the father's failure to pay child support and the unlikelihood that he would in the future; and (4) the mother's assertion that she could not afford more than a $50,000 equalization payment without having to sell the home - The father's arrears of child support were expunged - The Saskatchewan Court of Appeal allowed the father's appeal - The trial judge erred in principle and exceeded his discretion by granting an unequal distribution of the increase in value of the family home - While the father should not be permitted to "walk away with one-half of the family property without fulfilling an outstanding child support obligation", he was not presumptively disentitled to any part of the increase in value due to his failure to pay $9,196 (the amount of arrears outstanding at trial) - Child support had to be addressed separately - The home was valued at its current agreed-upon value of $350,000 - The father was entitled to a one half share, which was reduced by $20,728 on account of the current arrears of child support and to provide support for the children to age 18 - See paragraphs 51 to 58.

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of division of matrimonial property - [See third Family Law - Topic 888 ].

Cases Noticed:

Muranetz-Dubelt v. Dubelt (2010), 343 Sask.R. 215; 472 W.A.C. 215; 2010 SKCA 5, refd to. [para. 3].

Riley v. Riley (2011), 366 Sask.R. 110; 506 W.A.C. 110; 2011 SKCA 5, refd to. [para. 3].

Tataryn v. Tataryn (1984), 30 Sask.R. 282; 6 D.L.R.(4th) 77 (C.A.), refd to. [para. 18].

Russell v. Russell (1999), 180 Sask.R. 196; 205 W.A.C. 196; 179 D.L.R.(4th) 723 (C.A.), refd to. [para. 18].

Michalishen v. Michalishen (2002), 227 Sask.R. 107; 287 W.A.C. 107; 2002 SKCA 128, refd to. [para. 18].

Ouellet v. Ouellet (2007), 305 Sask.R. 35; 2007 SKQB 298 (Fam. Div.), refd to. [para. 19].

Dobson v. Dobson (2005), 275 Sask.R. 135; 365 W.A.C. 135; 2005 SKCA 136, refd to. [para. 19].

Ioanidis v. Ioanidis (2007), 297 Sask.R. 41; 2007 SKQB 233 (Fam. Div.), refd to. [para. 19].

Zawada v. Zawada, [2007] Sask.R. Uned. 7; 2007 SKQB 35 (Fam. Div.), refd to. [para. 19].

Lomax v. Lomax (2000), 198 Sask.R. 240; 2000 SKQB 457 (Fam. Div.), refd to. [para. 23].

Goodwin v. Goodwin (2005), 272 Sask.R. 1; 2005 SKQB 438 (Fam. Div.), refd to. [para. 23].

N.G.M. v. T.B.M. (2005), 274 Sask.R. 121; 2005 SKQB 547 (Fam. Div.), refd to. [para. 23].

Mahajan v. Mahajan (2008), 312 Sask.R. 66; 2008 SKQB 66 (Fam. Div.), refd to. [para. 23].

Knuttila v. Appel (2006), 282 Sask.R. 94; 2006 SKQB 278 (Fam. Div.), refd to. [para. 23].

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17 (C.A.), refd to. [para. 29].

Sandbeck v. MacLaren, [2008] 12 W.W.R. 272; 321 Sask.R. 212; 2008 SKQB 36, refd to. [para. 34].

Phillips v. Phillips (2010), 362 Sask.R. 124; 500 W.A.C. 124; 324 D.L.R.(4th) 534; 2010 SKCA 117, refd to. [para. 38].

Ruskin v. Dewar (2005), 269 Sask.R. 80; 357 W.A.C. 80; 256 D.L.R.(4th) 70; 2005 SKCA 89, refd to. [para. 39].

Wolff v. Wolff (1985), 37 Sask.R. 19 (C.A.), refd to. [para. 42].

Morrison v. Morrison (1985), 38 Sask.R. 92 (C.A.), refd to. [para. 43].

Rossal v. Rossal (1987), 61 Sask.R. 169 (C.A.), refd to. [para. 44].

Olson v. Olson, [1987] S.J. No. 712 (Q.B.), affd. (1988), 67 Sask.R. 257 (C.A.), refd to. [para. 45].

Lerner v. Lerner (2008), 321 Sask.R. 78; 2008 SKQB 308, refd to. [para. 49].

Biletski v. Biletski, [2008] Sask.R. Uned. 8; 2008 SKQB 67, refd to. [para. 50].

Murantz-Dubelt v. Dubelt (2008), 313 Sask.R. 183; 2008 SKQB 97 (Fam. Div.), refd to. [para. 51].

Authors and Works Noticed:

McLeod, James Gary, and Mamo, Alfred A., Matrimonial Property Law in Canada (1993) (Looseleaf Update), vol. 3, pp. S-46 to S-48 [para. 50].

Counsel:

Iffat Ritter, for the appellant;

Deidre Aldcorn, for the respondent.

This appeal was heard on February 14, 2011, by Jackson, Richards and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal. On June 30, 2011, Jackson, J.A., delivered the following written reasons for judgment for the court.