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MARITAL PROPERTY - Equalization or division - Recreational and farm property

Wednesday, August 07, 2019 @ 8:03 AM  


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Appeal by the wife from a trial decision respecting mobility, spousal support and division of property. The parties married in 2003 and separated in 2012. They had three children aged 14, 12 and 10 at the time of trial. The husband worked on his parents’ farm throughout the marriage. The wife did not work outside the home throughout most of the marriage. After the separation, she assumed part-time work with a local playschool but did not seek any other employment opportunities. The parties enjoyed a cooperative parenting arrangement after separation. The trial judge refused to permit the wife to move with the children 245 kilometres away so she could pursue her relationship with a new man. The trial judge concluded it was not in the children’s best interests to move with their mother as they were thriving in the care of two dedicated parents and were closely connected to their parents, extended family and their community. The trial judge rejected the wife’s assertion that the Hillis Half, the Oblander Quarter and selected farm machinery were either legally or beneficially owned by the husband but held that at the time of separation, the farm equipment was held as part of a farming partnership with his parents. For purposes of determining the amount of child and spousal support, the trial judge imputed an annual income to the wife of $22,298, equivalent to the annual salary of a minimum wage job. His decision to impute income to the wife was based on the husband’s uncontradicted statement about the availability of retail jobs in the area. The trial judge expressed concern over the apparent lack of effort on the wife’s part to achieve self-sufficiency and fixed the duration of spousal support at six and one-half years, less the four and one-half years the husband had already paid support. The wife disputed the income imputed to her and the duration of spousal support.

HELD: Appeal dismissed. The trial judge did not ignore or misinterpret the evidence the wife claimed was material to the mobility analysis and made no material error in his appreciation of the facts. The trial judge approached mobility from a child-centric perspective and carefully and thoroughly reviewed the capacity of each parent to care for the children, the quality of the children’s relationships with each parent and significant other persons, the personality and emotional needs of each child, the children’s physical, psychological and social needs, and the parties’ future plans for the children. There was an evidentiary foundation on which the trial judge rejected the wife’s characterization of the parties’ intentions at the time of the farm lands were purchased. The wife had no direct evidence to support her theory of the purported intentions of the husband’s parents or the husband’s beneficial ownership of the land other than what she alleged he had told her, which he denied. Given the absence of any agreement or any document describing the parties’ farming relationship, coupled with the seemingly ad hoc system the parents employed for their farm operation, there was a basis for the trial judge to have found that the farm equipment was jointly owned by the husband and his parents despite how the tax returns characterized ownership. The trial judge’s decision that it was more likely than not that a generational shift had not yet occurred and that the farm continued to be owned and operated as a joint venture between the husband and his parent was open to him and was well supported by the evidence adduced at trial. The wife had not identified an error in principle with how the trial judge addressed the issue of spousal support nor had she been able to point to any palpable and overriding error with respect to the facts.

M.L. v. A.L., [2019] S.J. No. 235, Saskatchewan Court of Appeal, G.R. Jackson, N.W. Caldwell and L.M. Schwann JJ.A., June 28, 2019. Digest No. TLD-August52019004