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MARITAL PROPERTY - Equalization or division - Asset types - Business, commercial or non-family assets

Monday, October 28, 2019 @ 8:24 AM  

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Appeal by the husband from a judgment valuing family property and determining his income for support purposes. Cross-appeal by the wife from a time-limited spousal support award. The parties married in 1994. Their two children were born in 1996 and 1998. The parties separated in 2013. The children attended university. The husband worked in the oil fields and held ownership interests in two oil rig service companies. The wife held various part-time administrative positions. The trial judge valued one of the husband's corporate interests as at the date of trial rather than as a going concern and found that the other company had negative value due to certain contingent liabilities. That negative value was not included in family property on the basis that those future liabilities would be borne equally by shareholders. The final result required an equalization payment of $108,827 by the husband to the wife. The trial judge found that the husband's income was between $164,500 and $188,200 between 2013 and 2015, and that the wife's income was between $48,000 and $66,573 during that time. Child support was ordered pursuant to the Guidelines. The wife was awarded spousal support for a fixed seven-year term. The parties each appealed.

HELD: Husband's appeal allowed in part; wife's cross-appeal allowed. The trial judge did not err in the imputation of corporate pre-tax income to the husband. No error arose through imputation of the personal benefits received by the husband from the corporation pursuant to s. 19 of the Guidelines rather than attributing corporate income to the husband's income pursuant to s. 18. No error or misapprehension of the evidence in the application of s. 19 was established. The judge's reasons for imputation involved a careful examination of the law and evidence. However, in valuing one of the husband's companies, the trial judge erred in failing to account for the valuation expert's evidence correcting his initial calculations. The correction required an adjustment to the equalization payment by $59,400. No other error was established with respect to valuation. With respect to the cross-appeal, the wife established that the trial judge failed to sufficiently explain a departure from the Guidelines by limiting support to seven years. This was a traditional 21-year marriage that entitled the wife to support on a compensatory basis. The judge provided no indication as to how a time-limited award would compensate the wife for her long-term marriage and lost opportunities. The time-limited aspect of the order was replaced with an order for indefinite support.

Walker v. Walker, [2019] S.J. No. 353, Saskatchewan Court of Appeal, R.K. Ottenbreit, P.A. Whitmore and L.M. Schwann JJ.A., September 20, 2019. Digest No. TLD-October282019003