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MARITAL PROPERTY - Division of family property on death

Wednesday, May 22, 2019 @ 8:40 AM  


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Appeal by the executor from a decision holding the chambers judge could not entertain an application for an interim distribution of family property based on the material before him and awarding the respondent solicitor–client costs payable by the appellant personally. The deceased and respondent were married for 22 years. The appellant was the deceased’s son. The deceased’s will left the entire estate to his children. The deceased and respondent resided in a condominium registered in the appellant’s name. The respondent continued to reside in the condominium after her husband died. She then commenced a family law action for division of property and spousal support. She settled her claim by entering into an occupancy agreement with the respondent regarding the condominium. Notwithstanding the filing of the notice of discontinuance of her action, the Minutes of Settlement recognized that the distribution of personal property still had to be decided. The appellant then made several applications to gain access to the condominium and remove property he considered to be family property. The assets had little resale value and were identified as necessary for the respondent to continue living in her residence.

HELD: Appeal allowed in part. The Chambers judge did not err by refusing an interim distribution of the family property or by interpreting the application and the affidavits as demanding something more than the distribution of personal property, such as access and control, which were matters that had been previously denied. The chambers judge erred, however, by awarding $5,000 as solicitor–client costs. The respondent did not claim solicitor–client costs and the Chambers judge had no information before him upon which to base an award of solicitor–client costs. An earlier chambers judge appeared to have condoned the appellant’s previous conduct. The Minutes of Settlement were ambiguous and could reasonably lead a self-represented litigant to the conclusion that no further application could be considered in the Family Law action. Enhanced costs of $4,000 were awarded to the respondent payable by the appellant.

Tolin Estate v. Galbraith, [2019] S.J. No. 143, Saskatchewan Court of Appeal, G.R. Jackson, N.W. Caldwell and R. Leurer JJ.A., April 12, 2019. Digest No. TLD-May202019004