Long v Long, 2023 ABKB 473

Court of King’s Bench of Alberta Citation: Long v Long, 2023 ABKB 473 Date: 20230816 Docket: 4810 024376 Registry: Red Deer Between: David Garfield Long Plaintiff/Defendant by Counterclaim - and - Merrigold Jeannette Long Defendant/Plaintiff by Counterclaim Corrected judgment: A corrigendum was issued on September 22, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Justice M.H.

Hollins _______________________________________________________ [ 1 ] The parties were married for just over 30 years and are both in their 70’s now. They had a traditional farm family arrangement, running cattle on their land. Ms. Long kept the house, taught piano lessons and was primary caregiver to the children.

[ 2 ] They separated in or around December of 2008, at which time Mr. Long moved onto one of the jointly owned quarters of land while Ms. Long remained in the matrimonial home on the home quarter. Mr. Long continued to run their cattle operation until late 2017 or early 2018, at which time he sold the cattle and most of the related equipment. Mr. Long then purchased a house in Rimbey in the name of his new partner, Ms.

Eileen Banks, and moved in with her. [ 3 ] The first order of business is to grant a Divorce Judgment, which I hereby do, there being no objections to doing so and all the requirements therefor being satisfied. [ 4 ] In addition, there were no issues of child support (their children are all adults now) or spousal support.

All that remained for trial was the division of matrimonial property, primarily the parties’ farmland and equipment, along with some investments and savings. [ 5 ] As the parties separated before January 1, 2020, the division of their matrimonial property is governed by Matrimonial Property Act , RSA 2000, c.M-8 , as provided for in the transitional

section of the Family Property Act , RSA 2000, c.4.7, s.39(2). Sections 7 and 8 of the Matrimonial Property Act ( MPA ) are reproduced at Appendix “A” to these Reasons. [ 6 ] Section 7(4) MPA directs me to distribute the property equally between these parties unless it would not be just and equitable to do so. There are some statutory considerations that can result in unequal distribution. One is where property is exempt from distribution (s.7(2)) and so is never included in the divisible property.

Another is where one spouse has dissipated matrimonial property in advance of trial ( s.8 (l)) and the court adjusts the distribution to account for that. Both those considerations are at issue in this lawsuit. [ 7 ] Both parties have claimed disputed exemptions. Ms. Long also claims that Mr. Long has dissipated matrimonial assets. To divide their matrimonial property, I need to resolve the following issues: 1. Claimed Exemptions a. the portion of the farmland that was a gift to Mr. Long from his parents; b. the cattle owned by Mr. Long prior to the marriage; and c. the inheritances and gifts received by Ms.

Long from her family during the marriage. 2. Alleged Dissipation by Mr. Long a. the rental income from the land; b. sale proceeds of the cattle; c. sale proceeds of equipment; and d. his investments. 3. Reimbursement a. Ms. Long’s expenses for the repair and maintenance of the farmland and the matrimonial home ( s.8 (

c) Matrimonial Property Act ) [ 8 ] Ms. Long was represented by counsel. Mr. Long was not. This case illustrates the difficulties in trying to make a fair disposition of property when virtually all the evidence has come from one side. Although I attempted through the trial, and somewhat in these Reasons, to draw reasonable inferences when necessary, there is no question that Mr. Long has been disadvantaged because of his inability or refusal to participate fully in this process, including his failure to provide the information required to advance his case. [ 9 ] Mr.

Long is reported to suffer from some mental health issues, although no filed medical evidence was provided to me. In answer to my inquiries about his capacity to represent himself at trial, I received an equivocal letter from his physician. Noting that there were no power of attorney, court-ordered guardianship or appointed litigation representatives and that Mr. Long wished to proceed, we did so. [ 10 ] I must also point out that Mr. Long’s written closing argument contained a great deal of information that was not put in evidence at the trial.

I appreciate his wish to address matters in the written argument, with the apparent assistance of Ms. Banks, which were not dealt with properly or thoroughly at trial. However, I cannot and do not consider anything in Mr. Long’s written argument that was not testified to at trial. 1. Exemptions a. The Land & Buildings [ 11 ] There are 5 distinct parcels of land, 4 quarter sections and 1 one-half quarter section. The most recent valuation of this property, commissioned by Ms.

Long and conducted by Serecon Inc in July of 2022, is indicated below: Land Description Land Value Buildings and Improvements Value Total Value NE 12-42-28-W4M (home quarter) $973,000 $224,000 $1,197,000 NW 12-42-28-W4M $1,236,000 $11,000 $1,247,000

NW 24-42-28-W4M $1,192,000 $8,000 $1,200,000 NW 22-42-28-W4M (where Mr. Long resided after separation) $1,087,000 $69,000 $1,156,000 N ½ of NE 22-42-28 W4M $591,000 $7,000 $ 598,000 $5,398,000 [ 12 ] Since separation, Ms. Long has continued to reside on the home quarter (NE 12-42) in the matrimonial home and has had effective possession of two adjacent quarters (NW 12-42 and NW 24-42). Before moving into Rimbey, Mr. Long lived for some time after separation in a trailer located on the half quarter

section (N½ of NE 22-42) and has had effective possession of a quarter adjacent to that one (NW 22-42) throughout. [ 13 ] The parties hope not to have to sell the land but rather to somehow split it between them. While this would have better accomplished in a mediation than at trial, I acknowledge the desirability of doing so. At this point, they seem agreed that, ideally, Ms. Long would retain NW 12-42 and NE 12-42 and that Mr. Long would retain NW 22-42 and N½ of NE 22-42.

They disagree about who should get NW 24-42, basically because they do not agree on who will owe what to whom once everything is accounted for. Accordingly, I will revisit any specific disposition of the land after that accounting. [ 14 ] The divisible value is the increase in the land from the time of purchase to trial. However, Mr. Long says that, when they acquired the land from his parents, they purchased it for a price that was well below market value.

The result, in his view, is that using the purchase price as opposed to the then-market value will result in an artificially high number to divide. [ 15 ] After the parties married in 1978, Mr. Long’s parents, Roy and Grace Long, entered into a rent-to-own arrangement with them. Although it was a written agreement, its terms are a bit confusing and include obligations to also purchase equipment and to pay certain bills relating to the land.

It may be more accurately described as a conditional sales agreement because Roy and Grace were obligated to transfer title upon completion of the payments, as in fact they did. [ 16 ] Pursuant to that agreement, David and Merrigold paid rent every year in varying amounts. In 1992, Grace Long acknowledged that the final payment had been made and transferred all the parcels to David and Merrigold jointly on or about September 8, 1992 for the amount paid, $90,000. There was also testimony and some supporting documentation indicating that Mr. Long had also paid a $10,000 deposit at the outset of the arrangement.

Accordingly, it is appropriate to quantify the purchase price as $100,000. [ 17 ] Mr. Long’s evidence was that his parents had agreed to sell them the land at below market value. He says that the $100,000 purchase price was based on a 1971 appraisal of the property, which would have been worth more by 1979. He argues that the difference between the market value of the land and the $100,000 purchase price was a gift to him and thus exempt under s.7(2) (

a) of the MPA . [ 18 ] I would accept that inference as reasonable on a balance of probabilities, given the familial relationship and the apparent desire of Mr. Long’s parents to have him continue operating the family farm. However, the problem for Mr. Long is that he presented absolutely no evidence of what this higher value in 1979 was.

He said it was a “fair amount” higher but he never attempted to quantify that difference, even by estimate, and he presented no historical appraisals to show the difference in value that he describes as a gift. [ 19 ] I cannot grant an unquantified exemption nor can I extrapolate the amount from the evidence I have. Even the $300,000 value that was indicated in the Transfer of Land is from 1992 - 13 years after the purchase price was agreed on - and thus of no assistance. I recognize a $10,000 exemption in respect of the downpayment made by Mr. Long alone, which was not contested.

Beyond that, I cannot confirm any exemptions in favour of Mr. Long. [ 20 ] The current total value of the land, according to the valuation commissioned by Ms. Long and conducted by Serecon Inc in July of 2022, is $5,398,000, distributed as indicated in the table above. Mr. Long testified that he thought the values were too high but again, presented no expert appraisals saying differently. [ 21 ] Mr. Long says that the land is not worth $5,398,000 in total but offers no suggestion of what the value is in his opinion.

He commissioned no appraisals of his home, nor made any attempt to estimate what the valuation should be. In view of this, I accept the Serecon values for the land, along with the respective buildings and improvements on each parcel. [ 22 ] All but the one-half quarter

section (listed last in the table above) generate some lease revenue or have that potential, ranging from $1,900 to $5,975 per year. As I was advised that this lease revenue was taken into account in Serecon’s valuation of the land, I do not propose to address it further other than in the context of Ms. Long’s claim for dissipation of that revenue. b. Mr.

Long’s claim for exempt cattle [ 23 ] As mentioned earlier, if property is deemed as exempt property under the MPA , then it is not included in the joint divisible property and remains the sole property of the person who successfully claims the exemption. [ 24 ] Mr. Long says that he and his father were running cattle together before he and Ms. Long met and married. Ms. Long concedes this, agreeing that Mr. Long owned some cattle of his own before they married. [ 25 ] However, similar to the problem with his claim regarding the higher value of the land, Mr.

Long has given me no evidence whatsoever of how many cattle he owned at the time of marriage, other than saying he thought it was about “half of the existing herd”. Unfortunately, there is absolutely no evidence regarding the size of the Long family cattle herd in 1979. Half of that herd could have been 2 animals or 200 animals. [ 26 ] The first relevant information I have, which comes from Ms. Long, is a herd valuation completed in 2009, soon after separation. At that time, there were 286 animals in total, valued at $136,400. I have no idea how that compares to the size of the herd in

1979. While it might be possible, depending on the farm records, to trace exempt animals through their progeny to the animals owned 30 years later, no attempt was made to do this. Even if I treated the cattle as fungible - which would be a questionable approach giving the principles of tracing [1] - I still have no idea how many animals Mr. Long is claiming are exempt. [ 27 ] Given that this is his burden to prove, I cannot grant him an exemption for any of the cattle. c. Ms. Long’s claimed exemption for family gifts and inheritances [ 28 ] Ms.

Long has a number of accounts containing funds that she says are exempt from distribution. As Mr. Long is not contesting these, I will not spend a great deal of time on them. [ 29 ] From her parents and a cousin, Ms. Long claims exempt inheritances of $164,924. In addition, she claims exemptions for the shares gifted to her by her parents in Elred Resources Ltd, a company that receives and distributes revenues from oil leases. [ 30 ] At trial, Mr. Long confirmed that he makes no claims for any of these amounts and so I am not including them in the divisible property. 2. Dissipation a.

Rental Income [ 31 ] Over the 15 years that they have been separated, both parties have received rental income for various parcels of land. Some oil lease payments came in the form of cheques made out to them jointly but both parties have also made arrangements with other third- party neighbours to receive rental income to the exclusion of the other. [ 32 ] The private leases have been with Philip DenOudsten, Schickerowski Farms and Peony Farms. Ms. Long has received $88,427.50 in lease revenue from 2011 to 2022, inclusive, under these leases. However, for many of these years, Ms.

Long has provided evidence that the amounts received were one-half of the total rents paid and that Mr. Long was receiving the other half. [ 33 ] Ms. Long’s evidence on which payments were divided and which were not is unclear. She believes that Mr. Long was receiving rental income for NW 22-42 (the pasture) and for the ½ NE 22-42, without accounting for that. However, I have no evidence of any leases on those properties or what they might generate, apart from Ms. Long’s evidence that, at least in some years, Mr. DenOudsten paid them both equally.

Given that she has retained some private lease revenue without sharing it, I can do no better than to call this a wash. [ 34 ] With respect to the oil leases, those cheques have been deposited into a joint account. To the end of 2022, they total $101,395.40. Ms. Long says that Mr. Long withdrew $7,600 from that account in 2009, one-half of which ($3,800) should be conceptually returned to the total of divisible property. I agree. b. Cattle Sales [ 35 ] After the parties separated, Mr. Long took sole responsibility for the cattle operation.

He managed the operation until late 2017, when he began to sell off the remaining animals and the equipment as he wanted to retire from active ranching. He sold the last of the animals in early 2018. [ 36 ] Ms. Long makes a claim for one-half the proceeds of the sale of the animals. However, she has included as “proceeds” the annual revenue generated by the sale of animals shipped each year to auction.

In my view, this is not a proper approach. [ 37 ] Cattle ranching involves annual expenditures for feed, vitamins, veterinary care, transportation, auction fees, etc. as well as capital expenditures for fencing, sheds and other structures and equipment. Ms. Long contributed nothing to the expenses of the ranching operation. [ 38 ] The return on the payment of those expenses are the animals which are sold each year, whether for slaughter or to third parties who are looking to add to their own herds.

In the Long’s case, the revenue prior to the 2017 liquidation seems to have exclusively or nearly exclusively from auction sales. [ 39 ] Ms. Long is not entitled to share in the revenue from an operation that was funded and operated solely by Mr. Long, although she is entitled to share in the proceeds of the liquidation of that business. It is akin to joint ownership of rental property. If after separation, one party does all the work to maintain, repair, market and rent the property, the rental income should belong to that party.

However, the value of that property, once realized or at trial, is divisible. [ 40 ] The value of the cattle herd and equipment is divisible but only once, not every year. It would be a windfall to Ms. Long to share in the proceeds of annual auction sales without having contributed to any of the ongoing expenses of the operation, nor having contributed any labour. [ 41 ] Ms. Long says that the total proceeds of sales between 2009 and 2018 were $1,287,897.37, net of the auctioneers’ costs. For the reasons above, she is not entitled to one-half that amount.

She is entitled to one-half of the value of the business when it was liquidated, there being no argument advanced that Mr. Long operated the business in any way which devalued it over time. [ 42 ] The liquidation of the cattle operation appears to begin in November of 2017 when 99 animals were sold at once. The historical sales records indicate that most animals were sold in the spring each year and never that many at one time. The liquidation continues in January of 2018, when another 114 animals are sold. The total proceeds for these sales are $297,241, after which there are

no animals remaining. [2] [ 43 ] Mr. Long kept the entire proceeds for his own use. He purchased the house in Rimbey in Ms. Banks’ name and gave her either $20,000 or $25,000. Mr. Long’s written argument goes into some detail about how this money was paid to Ms. Banks as reimbursement or wages, as opposed to a gift. That is irrelevant. Mr. Long was entitled to use his one-half of the proceeds of the sale of the business however he wished. He was not, however, entitled to use Ms. Long’s one-half, which is what he did. He owes Ms. Long $148,620.50. [ 44 ] Ms.

Long also advanced a claim for the value of the livestock feed. As the feed was a consumable, in other words, purchased and consumed on a frequent if not annual basis, there was no value to it other than as a necessary expenditure for the cattle operation: Lovich v Lovich , ibid . No amounts are added to the figure above for any leftover feed if there was any. c. Farm Equipment [ 45 ] The same reasoning holds for the use and eventual disposition of the farm equipment. To the extent that equipment was bought and sold between 2009 and 2018 while Mr. Long was running the farm, Ms.

Long cannot claim half of everything sold without having contributed to the ongoing capital needs of the farm business. [ 46 ] However, the liquidation of equipment in and since 2018 does result in divisible proceeds. Both parties have sold equipment but, as with virtually all the categories of property in this case, only Ms. Long has provided any documentation accounting for this. Ms. Long provided a spreadsheet with all the information she could find on the values and dates of sale of all the farm equipment. Of these items, Mr.

Long said that the New Holland Round Baler, valued at $20,000, was actually sold in 2021 for $12,000. [ 47 ] Ms. Long has kept the proceeds of all equipment that she sold in a separate bank account containing $65,794.53. She says that the equipment either retained by or sold by Mr. Long without accounting for any proceeds, totals $142,310.00. Reducing that total in respect of the baler referred to above, I set his retained value at $134,310. The total available from equipment sales is therefore set at $200,104 ($65,794 of which is still in the bank account referred to above by Ms. Long). d. Mr.

Long’s Investments [ 48 ] The information available to me on the parties’ financial assets was incomplete and difficult to follow. The gist appears to be that Ms. Long has largely segregated her funds, certainly since separation and has continued to accumulate financial assets, some of which are held jointly with “JLK”, which I presume is one of their children. [ 49 ] At the time of separation, Mr. Long had some financial assets, which he no longer has.

His explanation at trial was that he used his own savings and investments to run the farm, after which he used the remainder to meet his living expenses as he had no other income. [ 50 ] If I am reading the attachment to her written argument correctly, Ms. Long’s proposed equalization includes none of her financial assets and attributes $294,197 in dissipated financial assets to Mr.

Long. [ 51 ] First, I return to the underlying principle of matrimonial property division, namely that equal distribution is presumed unless one of the factors in s.8(1) MPA is present to the extent that it would be unjust and inequitable to divide the property equally. A finding of dissipation resulting in unequal distribution is not to be undertaken lightly; Cox v Cox , 1998 ABQB 987 at para.34. [ 52 ] In Cox , supra , Justice Paperny, then of this Court, reviewed a number of cases dealing with alleged dissipation.

Her conclusion was that dissipation required some element of intent to dissipate and would not necessarily apply to money spent for reasonable living expenses, unless that meant unnecessarily depleting a joint asset when the party’s own income could have been used. For example, using joint funds for vacations, or gambling or to pay one’s own legal debts, are all examples of dissipation in case law. [ 53 ] However, in this case, Mr. Long did not have any apparent income with which to support himself. I appreciate that Ms.

Long appears to have been more financially responsible but she also had many more resources at her disposal and was extremely careful to keep her own money from distribution. [ 54 ] Looking at Ms. Long’s updated Statement of Matrimonial Property and agreeing to leave out any accounts held jointly with “JKL” (on the basis that I have no information on them, nor did the parties address what should happen with them), I can see the following: 1. The parties have shares in Servus with a total value of $13,241. 2. Mr.

Long, at the time of separation, had investments worth $109,641 and RRSP’s worth approximately $88,225. There are no significant funds remaining, according to his testimony. 3. Ms. Long has $317,889 in RRSP’s. 4. There are a number of insurance policies with no value indicated. Of the ones with cash values attributed to them, Mr. Long holds $30,741 and Ms. Long holds $29,925. This is close enough that I do not intend to include these in divisible property. [ 55 ] Ms. Long is presumably ready to share her $317,889 but argues that Mr.

Long has improperly dissipated his $289,331 over the 15 years of their separation. I do not agree. [ 56 ] The best I can decipher, Mr. Long has spent approximately $200,000 since the parties separated, 14 years before trial. That is $14,285 per year. Even assuming that he was or should have been self-sustaining in the cattle ranching business and only had to live off his savings and investments since 2018, it is still only $40,000 per year, keeping in mind that I have treated the one-half proceeds of the

sale of the herd as dissipated. As per Cox, supra at para.46, that is simply not unreasonable for him to have depleted his financial assets at that rate over such a long separation. [ 57 ] Accordingly, I find that the joint financial assets for division total $331,130. 3. Reimbursement for Expenses to Maintain the Matrimonial Property [ 58 ] Long wants to be reimbursed for expenses she incurred for the maintenance and repair of the jointly owned land.

Section 8 (

c) MPA envisions these kinds of claims, where one party has paid for the upkeep of matrimonial assets without contribution from the other. [ 59 ] In 2014, the parties received a notice from their municipality, requiring them to remove a noxious week, Burdock, from their properties. Her testimony was that she attempted to discuss this with Mr. Long, as it was required maintenance of their jointly owned land, but that he was unresponsive. In the end, she paid the bill of $6,098. She is looking for repayment of half of that amount, $3,049. [ 60 ] Mr.

Long also failed to pay his proper share for the farm insurance policy from 2010 to 2022. The total premiums over that time were $36,252, one-half of which was $18,126. Mr. Long paid $2,024 and still owes $16,102. [ 61 ] Lastly, there were roof repairs in 2010 totalling $3,431.13, one-half of which is the responsibility of Mr. Long if he is to share in the value of the matrimonial home. For this repair, he owes $1,715.56. [ 62 ] Mr. Long’s unpaid debts relating to the repair and maintenance of the joint property total $20,866.56.

There will be an adjustment to the final equalization figures to take this into account. [ 63 ] In Mr. Long’s written argument, there is reference to a number of improvements that had to be made to NW 22-42, the quarter

section used for pasture. No claim was made for reimbursement of these expenses but I refer here to my conclusion that the proceeds of the cattle sales each year would the revenue associated with these capital expenditures so that has been dealt with and no further adjustment for those payments will be made here. Conclusion [ 64 ] For the moment, I am excluding RRSP’s from the list of joint assets because the tax consequences of division were not addressed at trial and are unknown.

The rest of the divisible matrimonial property, including what was dissipated, is as follows: Real Property $5,398,000 Oil lease account $ 105,195 Cattle proceeds $ 297,241 Equipment proceeds $ 200,104 Servus shares $ 13,241 SUBTOTAL $6,013,782 Less $10,000 (exempt deposit) $6,003,782 [ 65 ] Divided equally, this would be $3,001,891. [ 66 ] For Mr. Long, that number is increased by the $10,000 exempt deposit which is still part of the current value of the land.

However, it is also reduced by the following debts/dissipation: Withdrawal from oil lease account : $ 3,800 Debt for repairs/maintenance $ 20,867 Cattle proceeds dissipated $ 297,241 Equipment proceeds dissipated $ 134,310 SUBTOTAL $ 456,218 [ 67 ] The result is that Mr. Long’s share of the divisible property is $3,011,891 less $456,218 or $2,555,673. [ 68 ] Ms. Long’s share is $3,001,891 plus the $20,867 that Mr. Long owes to her for one-half the repair and maintenance costs, or $3,022,758. [ 69 ] If Ms.

Long keeps NE 12-42 ($1,197,000), NW 12-42 ($1,247,000) AND ½ NE 22-42 ($598,000), she has land worth $3,042,000; $19,242 more than what she is entitled to. [ 70 ] If Mr. Long keeps NW 22-42 ($1,156,000) and NW 24-42 ($1,200,000), he would have land worth $2,356,000, 199,673 less

than what he is entitled to from the matrimonial assets. The remaining assets (shares, oil lease revenue and equipment proceeds) total $180,431. If all of those are transferred to Mr. Long, he would only be owed an additional $19,242 to achieve the proper distribution. [ 71 ] I realize that the parties did not envision Mr. Long retaining ownership of NW 24-42 but doing so is the only realistic way to avoid having to sell at least one parcel of land. Accordingly, I am making the following direction: Title to NE 12-42 and NW 12-42 and ½ NE 22-42 will be transferred to Ms. Long.

Title to NW 22-42 and NW 24-42 will be transferred to Mr. Long. Mr. Long shall receive the sum of $180,431 from the oil lease account, the equipment proceeds account and the Servus shares, after which those accounts should be closed. If there is any surplus, after this payment, it should be shared equally. Ms. Long will pay Mr. Long the sum of $19,242 (pending an agreement to treat those as costs payable from Mr. Long to Ms. Long – addressed below). Ms. Long’s RRSP’s will be divided at source.

Any ancillary order necessary to achieve that should be prepared by her counsel. [ 72 ] I am going to stay execution of this judgment for 90 days from the date of its release to allow the parties to reach any agreement to the contrary. If they do not, then they shall proceed as directed above, with all those steps to be concluded within another 90 days. When this Judgment Roll is entered, counsel for Ms. Long is directed to provide these dates to Mr. Long. [ 73 ] While I am not prepared to make a costs award at this stage, there is little question that Ms.

Long is going to be entitled to some award of costs, given that the only useable information came from her. I am also aware of the many pre-trial appearances and directions concerning disclosure by Mr. Long. [ 74 ] I will suggest that the parties consider the $19,242 shortfall in the context of a possible costs award. However, if they cannot agree on costs, they should notify my office and I will arrange to receive brief written submissions thereon. Heard on the 14 th – 16 th day of November, 2022 Written Submissions received on 1 st and 16 th day of December, 2022.

Dated at the City of Red Deer, Alberta this 16 th day of August, 2023. M.H. Hollins J.C.K.B.A. Appearances: David Garfield Long Self Representative Bruce A. Buckley for the Defendant/Plaintiff by Counterclaim _______________________________________________________

Corrigendum of the Reasons for Judgment of The Honourable Justice M.H. Hollins _______________________________________________________ The following changes were made to this Reasons for Judgment: Heard on the 22 nd – 24 th 14 th – 16 th day of November, 2022 Written Submissions received on 1st and 16th day of December, 2022. Dated at the City of Red Deer, Alberta this 16th day of August, 2023. Distribution of property 7

(1) The Court may, in accordance with this section, make a distribution between the spouses of all the property owned by both spouses and by each of them.

(2) If the property is (

a) property acquired by a spouse by gift from a third party, (

b) property acquired by a spouse by inheritance, [ 75 ] (

c) property acquired by a spouse before the marriage, [ 76 ] (

d) an award or settlement for damages in tort in favour of a spouse, unless the award or settlement is compensation for a loss to both spouses, or [ 77 ] (

e) the proceeds of an insurance policy that is not insurance in respect of property, unless the proceeds are compensation for a loss to both spouses, [ 78 ] the market value of that property at the time of marriage or on the date on which the property was acquired by the spouse, whichever is later, is exempted from a distribution under this section. [ 79 ]

(3) The Court shall, after taking the matters in

section 8 into consideration, distribute the following in a manner that it considers just and equitable: [ 80 ] (

a) the difference between the exempted value of property described in subsection (2), referred to in this subsection as the “original property”, and the market value at the time of the trial of the original property or property acquired [ 81 ] (

i) as a result of an exchange for the original property, or [ 82 ] (ii) from the proceeds, whether direct or indirect, of a disposition of the original property; [ 83 ] (

b) property acquired by a spouse with income received during the marriage from the original property or property acquired in a manner described in clause (a)(

i) or (ii); [ 84 ] (

c) property acquired by a spouse after a decree nisi of divorce, a declaration of nullity of marriage, a judgment of judicial separation or a declaration of irreconcilability under the Family Law Act is made in respect of the spouses; [ 85 ] (

d) property acquired by a spouse by gift from the other spouse. [ 86 ]

(4) If the property being distributed is property acquired by a spouse during the marriage and is not property referred to in subsections (2) and (3), the Court shall distribute that property equally between the spouses unless it appears to the Court that it would not be just and equitable to do so, taking into consideration the matters in

section 8 . [ 87 ] RSA 2000 cM-8 s7;2003 cF-4.5 s121 [ 88 ] Matters to be considered [ 89 ] 8 The matters to be taken into consideration in making a distribution under

section 7 are the following: [ 90 ] (

a) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent;

[ 91 ] (

b) the contribution, whether financial or in some other form, made by a spouse directly or indirectly to the acquisition, conservation, improvement, operation or management of a business, farm, enterprise or undertaking owned or operated by one or both spouses or by one or both spouses and any other person; [ 92 ] (

c) the contribution, whether financial or in some other form, made directly or indirectly by or on behalf of a spouse to the acquisition, conservation or improvement of the property; [ 93 ] (

d) the income, earning capacity, liabilities, obligations, property and other financial resources [ 94 ] (

i) that each spouse had at the time of marriage, and [ 95 ] (ii) that each spouse has at the time of the trial; [ 96 ] (

e) the duration of the marriage; [ 97 ] (

f) whether the property was acquired when the spouses were living separate and apart; [ 98 ] (

g) the terms of an oral or written agreement between the spouses; [ 99 ] (

h) that a spouse has made [ 100 ] (

i) a substantial gift of property to a third party, or [ 101 ] (ii) a transfer of property to a third party other than a bona fide purchaser for value; [ 102 ] (

i) a previous distribution of property between the spouses by gift, agreement or matrimonial property order; [ 103 ] (

j) a prior order made by a court; [ 104 ] (

k) a tax liability that may be incurred by a spouse as a result of the transfer or sale of property; [ 105 ] (

l) that a spouse has dissipated property to the detriment of the other spouse; [ 106 ] (

m) any fact or circumstance that is relevant.