Mucha v Mucha, 2024 ABCA 46

In the Court of Appeal of Alberta Citation: Mucha v Mucha, 2024 ABCA 46 Date: 20240213 Docket: 2303-0134A Registry: Edmonton Between: Marie Ann Mucha Respondent (Plaintiff) - and – John Allen Mucha Appellant (Defendant) _______________________________________________________ The Court: The Honourable Justice Jack Watson The Honourable Justice Frans Slatter The Honourable Justice April Grosse _______________________________________________________ Memorandum of Judgment Appeal from the Decision by

The Honourable Justice D.R. Mah Dated the 29th day of May 2023 (Docket: 4803-189173) _______________________________________________________ Memorandum of Judgment _______________________________________________________ I. Introduction [ 1 ] The appellant challenges an interim matrimonial property distribution order which required him to pay $700,000 to the respondent, Marie Ann Mucha -- largely so that she could obtain a property of her own to reside in. The parties commenced living together in February of 1977 and separated in 2019. She was then 19 and the appellant was 23.

The appellant has been residing at the matrimonial property since separation. The respondent has been residing with their daughter. The matrimonial property includes six parcels of farmland which was valued at $3.2 million in 2020. The parties disagree as to how much of this land should be included in the ultimate division of the property pursuant to

section 7 of the Matrimonial Property Act , RSA 2000, c M-8 . [ 2 ] The proceedings below were based on a statement of claim for divorce and for division of matrimonial property filed by the respondent on October 22, 2019. The appellant filed his statement of defence on January 3, 2020.

Inter alia , the respondent claimed for an equal distribution of matrimonial property in that action, for compensation arising from unjust enrichment of the appellant and for occupation rent payable by the appellant and for costs and interest. [ 3 ] The appellant’s statement of defence included that “The Defendant is agreeable to an equal division of matrimonial property, subject to exemptions being claimed by the Defendant.” He disputed the unjust enrichment and occupation rent claims on the basis that: The Defendant has been residing in the former matrimonial home since the date of separation and covering all associated costs.

The Plaintiff relocated to another property with either no accommodation costs or minimal costs. In other words, the appellant pled the position that their adult daughter’s providing housing for her mother meant that the respondent did not need spousal support in her pensioner years. [ 4 ] As for division of matrimonial property, the appellant has been running the farm operation since separation. For this operation the chambers judge was given an estimated value of land and farming assets worth over $4,200,000 including over $1,000,000 of equipment and land, plus various savings accounts.

Moreover, the appellant has been deriving all the revenue and benefits from the farming assets, although, as noted in his pleading and in his affidavit of January 31, 2023, he has asserted that he was “covering all associated costs” of the farming operation and working hard at the farm. [ 5 ] The appellant’s principal dispute about the valuation of the land under his control appears to relate to two quarters of land which, according to his affidavit dated January 31, 2023, he valued at $450,000 and $538,000 and about which he asserted “I do not believe should be included” in the division of property.

In that affidavit he also asserted that there was an “agreement within the Mucha family” about what was “part of the family farm and business prior to the marriage”. He added that “I understand that the law is somewhat different, but I would ask that these informal agreements be somehow taken into account and [recognized] along with disparity and financial contribution and effort.” [ 6 ] The appellant also suggested that there would be ‘double counting’ if the property were divided as the respondent proposed while, at the same time, he should also be required to pay spousal support.

As to this ‘double counting’ argument, it was not necessary for the chambers judge to consider what was said in Boston v Boston , 2001 SCC 43 , [2001] 2 SCR 413 about the source of spousal support after the property has been divided. [ 7 ] Meanwhile, as noted, the respondent has lived with the parties' adult daughter since the separation, deriving her income from a monthly pension of $2,572.65 and CPP. The respondent has also conceded that she retains control of approximately $917,000 in divisible matrimonial assets consisting of her own pension and investments.

The respondent claims exemption on an inheritance from her mother. II. Proceedings

[8] The respondent on January 17, 2023, filed an application for an interim spousal support order of $7500 per month, forpartition and sale of the matrimonial property or for an interim property advance of $900,000 and $200,000 in advance costs.

She saidthat since the parties’ separation, she has been left in diminished circumstances while the appellant continued to control and benefit frommost of the matrimonial assets. [9] For the specific motion before the chambers judge, the respondent’s central position was that interim distribution wouldallow her to buy her own home, which she estimated would cost between $350,000 and $700,000 in the Town of Westlock. [10] The appellant opposed the respondent’s application, arguing that the respondent had sufficient assets and income to purchasea house without spousal support or early property distribution.

This position resembled his pleadings and his position in his affidavit asnoted above. Amongst his grounds of opposition, the appellant disputed her level of contribution to the farm operations over the years --hence not conceding a joint venture under Kerr v Baranow, 2011 SCC 10, [2011] 1 SCR 269. [11] In ordering an interim matrimonial property distribution of $700,000 payable to the respondent, the chambers judge found thatthe appellant "had exclusive use and income generating benefit of the matrimonial assets for nearly four years while the [respondent]lives in somewhat reduced circumstances".

He noted that the appellant admitted in his January 31, 2023, affidavit that there was at least$2.35 million in matrimonial lands that needed to be split between the parties [see EKER at 251, para 22]. [12] The chambers judge said about the valuation differences including on the claim of the appellant to an agreement as todisaggregation of the lands occupied by the parties for over 40 years that “I don’t need to resolve today, nor should I.” We see no error inthis.

Similarly, the chambers judge, faced with a situation where the respondent’s situation was necessitous but not dire, also said“Overall, I am not satisfied that partition and sale is necessary here to solve the applicant’s issue about her living circumstances, and Idecline to make that order.” [13] The chambers judge therefore concluded as follows: I appreciate that the respondent does not want to liquidate any land any more than the applicant wants to liquidate her assets for thepurposes of acquiring this house in Westlock.

In terms of fairness, there is no reason why I should force the applicant to liquidate herassets in order to acquire housing when the respondent has by far control of the bulk of the matrimonial assets and presently and solelyenjoys the benefit. Further, I am not convinced that somehow the entire farming operation ceases to be viable if the respondent is forced to finance part of it.This was a submission by the respondent’s counsel, but there was little in the way of cogent or any evidence to back it up.

The fact is thatthe respondent is sitting on $3.2 million worth of free and clear land or, in the very least, $2.35 million of divisible land; plus, there is anongoing farming operation. In my view, any lender would jump at the chance to finance this operation. In addition, I am told there areother assets such as unsold grain that might be put to use to contribute to a matrimonial property advance.

In other words, the chambers judge not only was considering the means, needs and other circumstances of both of the parties but wasalso looking forward to what would be a just and equitable distribution of the property within ss 7 and 8 of the Matrimonial Property Act [14] In this Court, the appellant contended that the chambers judge should have considered that she could pay rent to liveelsewhere and was saved that cost by living with her daughter. That consideration was not ignored. Were she having to pay rent, spousalsupport could well be in issue.

But the chambers judge, having ordered the advance on property distribution, concluded that doing somade it unnecessary to award her spousal support at this time. III. Grounds of Appeal and Standard of Review [15] On appeal, the appellant argues that the chambers judge erred in law and mixed fact and law by failing to properly account forother assets available to the respondent to purchase a home, and a lack of demonstrated urgency for interim distribution. [16] The standard of review applicable to a discretionary order of this kind is deferential.

In Shaw v Boyda, 2014 ABCA 1 at para9, [2014] AJ No 1 (QL), leave denied [2014] SCCA No 91 (QL) (SCC No 35751) it was described in these terms reaching back 70years: 9 Where matrimonial property is being divided pursuant to legislation which confers discretion on the trial judge to do so, an appellatecourt can only intervene if the trial judge misdirected herself or the decision is so clearly wrong it amounts to an injustice: Panara v. DiAscenzo, 2005 ABCA 47, 361 A.R. 382 at para. 19, citing Elsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367, 96 N.R. 165at para. 16, which in turn cites Harper v.

Harper, (SCC), [1980] 1 S.C.R. 2, 27 N.R. 554 at para. 36, citing Re HullEstate, (ON CA), [1943] O.R. 778 at 785 (C.A.). See also Kuzik v Hagel, 2021 ABCA 241 at para 31, 58 RFL (8th) 6 citing: Kuehn v Kuehn, 2012 ABCA 67 at para 23, 524 AR 111;Campa v Campa, 2016 ABCA 187 at para 13; VAS v GLS, 2021 ABCA 7 at para 7. See also Friedlander v Claman, 2015 BCCA 355 atpara 26, 375 BCAC 260. Compare: Van de Perre v. Edwards, 2001 SCC 60 at paras 12-14, [2001] 2 SCR 1014; Canada v Fontaine,2017 SCC 47 at para 36, [2017] 2 SCR 205; and Canada (Transportation Safety Board) v.

Carroll-Byrne, 2022 SCC 48 at para 41citing Fontaine and Alberta authority, 475 DLR (4th) 274. [17] Further, as to fact finding the decision is reviewed for palpable and overriding error against the evidence they are given seeMorton v Morton, 2008 ABCA 144 at paras 2, 4-7, and 13, 52 RFL (6th) 248.

From the policy point of view, Kretschmer v Terrigno,2012 ABCA 345 at para 19, 77 Alta LR (5th) 300, the purposes of the Matrimonial Property Act include: ... to recognize “marriage as an economic partnership, founded on the presumption that the parties intend to share the fruits of theirlabour during and as a result of it, on an equal basis.”: Jensen v Jensen, 2009 ABCA 272 at para 1.…[T]he Act is designed to “protect

against inequities arising from the dissolution of marriage”. This is accomplished, in part, by the equitable division of matrimonial property. The “specific context and financial reality of the parties” is an important factor: Joncas v Joncas , 2017 ABCA 50 at para 27 , 49 Alta LR. (6th) 1. See also Aubin v Petrone , 2020 ABCA 13 at para 64 , 441 DLR (4th) 677, leave denied [2020] SCCA No 68 (QL) (SCC Nos 39037, 39038). IV. Discussion [ 18 ] The appellant cannot reasonably dispute the respondent’s entitlement to $700,000 on an interim basis on this record.

It is not even in dispute that at least that much would be ordered on an ultimate property division under the Matrimonial Property Act . While some of the authorities relied upon by the parties refer to uncertainty as to whether the language of ss 7 to 9 of the Act disallows advance distributions of matrimonial property on jurisdictional grounds, we do not read those sections that way. [ 19 ] For one thing, s 9(3)(

h) of the Act allows an order made that distributes property to be varied by a later order on application. This only makes sense if interim orders can be made. See also s 9(3)(j). Relatedly, sections 7-9 of the Family Property Act , RSA 2000 c F-4.7 accords with the language of the Matrimonial Property Act .

Section 8 of the Judicature Act , RSA 2000 c J-2 provides that a Court “has the power to grant and shall grant, either absolutely or on any reasonable terms and conditions that seem just to the Court, all remedies whatsoever to which any of the parties to the proceeding may appear to be entitled in respect of any and every legal or equitable claim properly brought forward by them in the proceedings”. This does not exclude interim remedies on such claims as are properly made. [ 20 ] This Court expressed no jurisdictional concern as to substantial advance orders as to property division in B(

H) v B(A) , 2014 ABCA 152 at paras 6 , 25 and 31, 45 RFL (7th) 1 and Fleming v Fleming , 2016 ABCA 88 at paras 19-23 , 616 AR 217. To be fair, it is not apparent that there was a jurisdictional objection at the time of the interim orders in those cases.

Similarly, in Parsons v Burkart , 2021 SKCA 2 , at paras 15-21 , 458 DLR (4th) 334, the Court accepted the jurisdiction to make an interim property disposition order (and an order that would be entitled to deference) but reversed the specific order for unfairness because it amounted to a final order effectively finishing the case. [ 21 ] Moreover, it is difficult to see what disadvantage there would be to the ultimate resolution of family law litigation from the perspective of either party to hold for authority to grant advance interim property distribution orders.

To begin, such an order would have to achieve a “just and equitable” result, which by its nature would not be unilateral “because a "just and equitable distribution" would provide relief to both parties”: Richardson v Richardson , 2018 ABCA 327 at para 9 , 75 Alta LR (6th) 1.

In Parsons the order was reversible because it failed to do so. [ 22 ] As for examples of where parties would seek such orders, one might note Gerlitz v Gerlitz , 2005 ABCA 424 at para 2 , [2005] AJ No 1708 (QL), where the payor spouse offered a transfer of property instead of advance costs -- although this Court ordered a cash advance instead.

As a different example, in Boutin v Boutin , 2023 SKCA 41 (see paras 6-15), [2023] 9 WWR 623 the parties entered a partial settlement as to pension division in advance of trial and continued the litigation on other issues, although the receipt of pension income formed part of those other discussions. Relatedly, awards of exclusive possession of a matrimonial home are far from rare, and there is an element of property transfer involved there also.

Orders for preservation also affect property rights: Richardson at para 21 ; Family Property Act , ss 19-20. [ 23 ] Speaking more generally, the grant of without prejudice interim awards on other topics could well influence the terms of an advance interim property distribution, and vice versa .

Accordingly, the existence of judicial discretion before trial is consistent, not inconsistent, with the statutory objective of an ultimately “just and equitable distribution” between the parties. [ 24 ] The appellant must ultimately rebut the presumptive equal division of matrimonial property under s 7(4) of the Matrimonial Property Act by establishing factors under s 8 of the Act which show it would not be just and equitable for the respondent to receive an equal share of all of the parcels which were part of the family operation over decades. [ 25 ] We agree with the respondent that the arguments of the appellant do not point to any material misapprehension of the evidence in the sense of being overriding error or showing an error in principle.

The appellant argued that the chambers judge erred in concluding the farmlands were unencumbered when, so he asserted to this Court, there was a mortgage of $180,000 on a parcel. If error, this would not be material. When that mortgage was placed would be material to whether any of it should count against the respondent.

And the quantum suggested to this Court is far short of relevance on the amount of the advance. [ 26 ] More broadly, we are satisfied that the appellant is effectively asking this Court to take a different view of the evidence and rebalance various factors to conclude that no award or a lower matrimonial property advance should have been made. That is not the role of this Court. [ 27 ] The division of matrimonial property is an exercise of discretion.

Appellate intervention will only be warranted if the chambers judge "misdirected himself on the facts or if the decision is so clearly wrong as to amount to an injustice". Deference is particularly appropriate with respect to interim orders, which will be subject to review at the time of trial. Generally, the "practical remedy for a [perceived] questionable interim support order is usually to expedite the trial, not to appeal the interim order": Garnett v Garnett , 2019 ABCA 282 at paras 4-6 .

A streamlined trial seems eminently suitable to the case under appeal: compare Rutter v Rutter 2023 ABCA 155 , [2023] AJ No 498 (QL); Kaushal v Kaushal , 2023 ABCA 155, [2023] AJ No 498 (QL). [ 28 ] The appellant’s main submission that there was no urgency to ordering the interim payment elevates the factor of urgency too high as a barrier to interim exercises of judicial discretion. To be sure, in Karagic v Karagic , 2017 ABCA 394 at para 16 and para 35, 63 Alta LR (6th) 78 there was urgency because the property was facing foreclosure.

But this Court in Karagic did not make urgency a mandatory requirement before interim disposition could be made: see also Garnett at para 24 .

[ 29 ] Nor do the other cases cited namely Blume v Blume , 2022 ABQB 539 , [2022] AJ No 972 (QL), Wolf v Wolf, 2019 ABQB 200 , 89 Alta LR (6th) 332 or Holmes v Holmes , 2023 ABKB 1 , [2023] AJ No 2 (QL) support the appellant’s position. In Wolf , at para 47 it was stated that “An interim distribution must not be made unless doing so "will not affect the final property rights of the parties" ( Melik v Ducholke 2003 ABQB 924 at para 4 ).” This was not a test of urgency. It was an expression of an example of a just and equitable outcome having regard to potential prejudice to a party.

Indeed, at para 46 Wolf noted on that point that “the Court can take into account the availability of other matrimonial assets to compensate for granting the order”. [ 30 ] The suggestion in Wolf that there should be ‘no effect’ on the ultimate division strikes us as not setting a condition precedent as to interim advances either. Rather, it as a factor in that case, and the decision in Wolf exemplifies the need to have regard to all the circumstances.

For example, Blume listed over 20 factors favoring an advance of $500,000 in a somewhat comparable situation to the case at bar. [ 31 ] In the end, Blume , Wolf and Holmes do not assist the appellant as they do not pronounce a basis to find either error of law or unjudicial decision making by the chambers judge here. Rather, the weight of those cases is that they provide points of reference by which a chambers judge (or a trial judge for that matter) could ascertain what is just and equitable.

The reasoning of the chambers judge here does not fall on the wrong side of the line, particularly when any prejudice to the position of the appellant is not indicated. Moreover, there is no merit to the appellant's overall suggestion that the "magnitude" of the interim award warrants appellate intervention on its own. V. Conclusion [ 32 ] The appeal is dismissed. We close by adding that as this Court said in Garnett at para 29 and Rutter , parties should carefully assess the merits of appealing interim orders, particularly those granted on a without prejudice basis.

We encourage the parties to move with greater alacrity towards final resolution of this dispute. Five years has already elapsed since separation. Appeal heard on February 5, 2024 Memorandum filed at Edmonton, Alberta this 13th day of February, 2024 Watson J.A. Slatter J.A. Authorized to sign for: Grosse J.A. Appearances: T. McLaughlin for the Respondent E.L. Bruveris (no appearance)

D. Bailey for the Appellant