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DOMESTIC CONTRACTS AND SEPARATION AGREEMENTS - Types

Tuesday, February 05, 2019 @ 8:35 AM  


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Appeal by Gerhardt from refusal of a declaration and vesting order pursuant to the Family Property Act. In 2016, Gerhardt and Miller ended their 9.5-year common-law relationship. Upon separation, they executed an inter-spousal contract that dealt with property and support. The agreement stipulated that Miller retained exclusive ownership and possession of the family home and his construction company's equipment and assets. Each party retained their CPP benefits and personal property. Miller retained assets of greater value and was therefore required to make equalization payments to Gerhardt under the agreement. Additionally, Miller was required to make lease payments on Gerhardt's vehicle. In 2017, Miller passed away prior to completion of his payment obligations. The contract stated that Miller's Estate was bound by the agreement's terms but made no provision for security for Miller's payments. Gerhardt applied for division of family property, claiming Miller owed $78,000 in equalization and vehicle lease payments that should not form part of Miller's Estate. The chambers judge declined jurisdiction on the basis that any remedy for breach of an inter-spousal contract required an action in contract rather than an application under the Family Property Act. Gerhardt appealed.

HELD: Appeal dismissed. The monies owed by Miller to Gerhardt were created by contract and were in the nature of a contractual debt obligation rather than family property. The sums sought by Gerhardt were not identifiable family property divisible over time, nor payable from discrete funds in existence as at the date of the contract. The fact that the amounts payable were not referable to funds in existence on the date the contract was signed precluded the vesting order sought by Gerhardt. The chambers judge correctly refused the relief sought in finding that Gerhardt's remedy, if any, was in contract.

Gerhardt v. Miller Estate, [2018] S.J. No. 494, Saskatchewan Court of Appeal, R.K. Ottenbreit, N.W. Caldwell and P.A. Whitmore JJ.A., December 13, 2018. Digest No. TLD-February42019004