Docket: 1688 Audley Williams Appellant - v. -, 2011 SKCA 84

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 84 Date: 20110630 Between: Docket: 1688 Audley Williams Appellant - and - Bonita Williams Respondent Coram: Jackson, Richards and Ottenbreit JJ.A. Counsel: Iffat Ritter for the Appellant Deidre Aldcorn for the Respondent Appeal:

From: 2008 SKQB 390 Heard: February 14, 2011 Disposition: Appeal Allowed Written Reasons: June 30, 2011 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Richards The Honourable Mr. Justice Ottenbreit Jackson J.A. I. Introduction [ 1 ] This is an appeal from a trial decision under The Family Property Act , S.S. 1997, c. F-6.3 (the “ Act ”). The principal issue on appeal is the proper distribution of an increase in value of the family home.

The increase in value arose between the date of the application for distribution of the family property under the Act , and the date of the adjudication of the issues between the parties, some four years later. The increase in value arose solely from market forces. [ 2 ] The trial judge granted all of the increase to Ms. Williams, with whom the children of the marriage reside. He granted her the increase in value by vesting title to the home in her name and then valuing the home as of the date of the application—thereby excluding any increase in value from the process of distribution under the Act .

He found an alternative pathway to the same result by granting an unequal distribution of the family home pursuant to clause 22(1) (

b) of the Act , and giving her all of the increase. He did not order an unequal distribution of any other family asset or of the family home—other than the increase in value of the family home. Mr. Williams appealed. [ 3 ] The applicable standard of review reflects the extent of the discretion conferred upon a trial judge, regarding the selection of the valuation date, and the distribution of family property under the Act (see: Muranetz-Dubelt v. Dubelt , 2010 SKCA 5 at para. 12 , 343 Sask. R. 215 and Riley v. Riley , 2011 SKCA 5 at para. 5 , 366 Sask. R. 110).

For the reasons that follow, however, I find that the trial judge erred in principle by selecting the date of application as the date of valuation and by further justifying his decision to grant all of the increase in value to Ms. Williams on the basis of an unequal distribution of the family home. I would allow the appeal. II. Overview [ 4 ] In written reasons, the trial judge recounted the history of the parties (see: 2008 SKQB 390 , 322 Sask. R. 226). Mr. Williams was born October 10, 1946; and Ms. Williams was born September 7, 1960. They were married in November, 1988 and separated in June, 2004.

There are three children of the marriage: Jeremy (born August 21, 1989), Lenny (born August 21, 1992) and Terry (born May 24, 1994). [ 5 ] In the early years of their marriage, Mr. Williams was the principal breadwinner and Ms. Williams worked in the home caring for the children. In 1994, the parties decided to begin their lives again in Jamaica, but things did not work out as they had hoped. They returned to Canada in 1996. [ 6 ] After returning to Canada, Mr. Williams had difficulty regaining remunerative employment. He started a small appliance repair business, but earned little from it.

In 2003 he worked briefly in Alberta, but was injured. As a result of his injury, he was unable to work and began receiving Workers’ Compensation benefits. The Workers’ Compensation Board determined, however, that by September, 2003 he was fit to work and terminated his benefits. He unsuccessfully appealed that decision. [ 7 ] The parties were able to buy a home in 1998 in Saskatoon at a purchase price of $163,000, comprised of a mortgage in the amount of $121,000 and cash from Ms. Williams derived from an inheritance and a loan from her mother and sister. [ 8 ] In 1999 the parties separated for the first time.

They reconciled in 2000 only to separate finally in June of 2004. Ms. Williams applied for a divorce and various forms of corollary relief, including the distribution of property, in August, 2004.

[ 9 ] Mr. Williams has not been gainfully employed since 2003. In 2004 he spent four months in Jamaica in an unsuccessful attempt to liquidate property owned by the parties in that country. He also spent some time in Germany and Austria in that year looking for work without success. Ms. Williams has had full time employment as a teacher since 1998. [ 10 ] On December 21, 2004, a Chambers judge ordered on an interim basis that: (

i) the parties shall have joint interim custody of the children; (ii) the primary residence of the three children shall be with Ms. Williams; and (iii) Ms. Williams shall have exclusive possession of the family home and vehicle. While Ms. Williams applied for an order for child support, that aspect of the application was adjourned. [ 11 ] On September 9, 2005, a Chambers judge ordered on an interim basis that Mr. Williams pay $242 per month by way of child support, based on the annual minimum wage of $14,664, which was imputed to him. He never made a payment under this order. [ 12 ] Mr.

Williams was living on social assistance and residing with friends and family by the time of the 2008 trial. III. Trial Judge’s Decision [ 13 ] The principal issues at trial were the distribution of the family home and child support. The value of the family home was $190,000 at the date of application (August, 2004). Four years later at the date of trial (September, 2008) the value of the home was $415,000—an increase of $225,000. The increase in value is attributable solely to Saskatoon’s housing boom. Child support was also an issue at trial, because Mr.

Williams had not paid any, and was in arrears in the amount of $9,196. [ 14 ] There was no real issue regarding custody. Given the age of the two older boys, no order of custody was made in relation to them. The trial judge observed that the two older children continued to be children of the marriage and, at the time of trial, resided with their mother. With respect to the youngest child, the trial judge made an order for joint custody. There was no issue as to access to the youngest child as the children had always spent as much time with Mr. Williams as circumstances would permit. Mr.

Williams was granted reasonable access, as agreed between the parties.

The trial judge ordered that the youngest child would have his primary residence with the mother. [ 15 ] As of the date of application, i.e ., August 24, 2004, the parties’ assets and debts comprised the following: ASSETS VALUE Household contents and furnishings $ 3,925.00 Plymouth van $ 4,714.00 Registered investments (after adjustment for exemptions) $ 94,695.96 Jamaican acreage (joint names) $ 34,000.00 (Cdn) 206 Verbeke Crescent (family home) $ 190,000.00 DEBTS: Scotiabank Visa -$ 6,699.00 Mortgage on family home -$ 104,524.00 TOTAL: $ 216,111.96 ========== As I have indicated, at the time of adjudication, i.e. , September, 2008, the family home had increased from $190,000 to $415,000. [ 16 ] As a stepping stone to his analysis regarding the distribution of the family home, the trial judge considered the issue of child support first.

After recounting the work history of Mr. Williams, and his ineffectual efforts to obtain employment, the trial judge concluded that Mr. Williams was at best “unmotivated” and unlikely to change given his age: [31] The evidence is such that the Court cannot conclude that the respondent is physically unable to engage in gainful employment. However, the reality the Court must address is the likelihood of the respondent obtaining gainful employment .

[32] In that context, it must be noted that he has not done so since late 2003. In fact, even though he had been working between 1998and 2003, he was incapable of generating income beyond a break-even proposition. The difficulty is that the respondent is now 62 yearsof age with a stale-dated skill set and a deeply held belief that regardless of what others might say, he is unfit to work. To describe him asunmotivated is an understatement. [33] From the 2005 interim support order, the arrears are $9,196. The respondent has never made a single payment.

In addition, thereis an outstanding award of costs for $1,000. [Emphasis added.] [17] The trial judge determined that the “intractable” question of child support should be addressed in the context of the distribution offamily property: [34] The respondent has, for the last number of years, had his primary residence at the sufferance of friends or family and is currentlyon social assistance. The respondent does not present as someone who looks to change his current circumstances.

I conclude that anyorder respecting future child support will be rendered futile because of the complete inability of the petitioner to enforce it. [35] I determine that the equities are served, and more to the point, the best interests of the children met, by addressing the intractableproblem of child support in the context of the division of family property. [Emphasis added.] The trial judge ordered that “the respondent's obligation to pay child support ceases as of September, 2008” and he expunged “any andall arrears of child support accumulated under the previous child support order” (at para. 60). [18] With respect to the family home, the trial judge reviewed this Court’s decisions regarding the selection of a valuation date: Tataryn v.

Tataryn, (1984), (SK CA), 6 D.L.R. (4th) 77; Russell v. Russell (1999), (SK CA), 179 D.L.R. (4th) 723; Michalishen v. Michalishen, 2002 SKCA 128, 227 Sask. R. 107. From that review, he concluded that “the appellatelevel decisions vest in a trial judge considerable discretionary power in selecting a date of valuation as long as the choice is explained oris otherwise obvious” (at para. 41). [19] When market forces cause an increase in the value of real property, the trial judge acknowledged the general rule in this jurisdictionis to value the real property as of the date of trial.

He cited the following authorities for that proposition: Ouellet v. Ouellet, 2007 SKQB298, 305 Sask. R. 35; Dobson v. Dobson, 2005 SKCA 136, 275 Sask. R. 135; Ioanidis v. Ioanidis, 2007 SKQB 233, 297 Sask. R. 41; andZawada v. Zawada, 2007 SKQB 35. [20] Relying on Ioanidis and Zawada, however, the trial judge noted that “it may be inappropriate to value the family home as of thedate of trial if, since the date of application, one party provided extensive renovations or one party paid the mortgage and property taxes”(at para. 43). He concluded his reasoning with the following: [44] ...

In this case, I am satisfied that it would be inequitable for Mr. Williams to share in the increase in value in the family home.

Hehas contributed nothing to the family finances since 1998 and but for the petitioner there would be no family home. [45] Additionally, the petitioner argues that there is more than merely the respondent's decade of non-contribution to militate againstemploying the usual rule and valuing the land at the date of adjudication. [46] The parties' three children are all still in high school, although the oldest boy should be finished shortly but may move on totechnical school at Saskatchewan Institute of Applied Science and Technology.

All three live with the petitioner at the family home andshe is responsible for all costs other than what the boys may earn during the summer. [47] The petitioner is 48 years old and is a full-time teacher making approximately $70,000 per annum. The mortgage on the house iscurrently $80,000 and she has a $10,000 line of credit and $10,000 owing on her Visa (it is usually less during the school year). She alsohas one more year of car payments which require $290 per month. [48] The petitioner was well aware that the respondent was looking to unlock his share of the equity recently accumulated in thefamily home.

She took steps to review the matter in detail with her banker and testifies that she could borrow another $50,000 to be usedas an equalization payment.

If any more than that amount is exacted from her, it will be necessary for her to sell the house and relocatethe boys, two of whom still have a number of years in high school. [Emphasis added.] [21] After again acknowledging that the general protocol is to value the family property as of the date of adjudication in cases such asthis, the trial judge valued the home as of the date of application: [50] I readily acknowledge that the general protocol to use the adjudication date as the date for establishing value in real estate istypically reasonable and fair.

Having said that, the particular facts as outlined above and the competing equities between the parties andthe interests of the children culminate to persuade me that the larger good is served by valuing the family home as at the date the petitionissued. [Emphasis added.]

[ 22 ] The trial judge further justified his decision to grant Ms. Williams all of the increase in value of the family home on the basis that, even if he had decided to value the property as of the date of adjudication, he would have granted an unequal distribution based on clause 22(1) (

b) of the Act to accomplish the same result: 22(1) Where a family home is the subject of an application for an order pursuant to subsection 21(1), the court, having regard to any tax liability, encumbrance or other debt or liability pertaining to the family home, shall distribute the family home or its value equally between the spouses, except where the court is satisfied that it would be: (

a) unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (

b) unfair and inequitable to the spouse who has custody of the children. The trial judge reasoned on this point: [51] It is pertinent to observe that even if I had accepted the respondent's argument that valuation of the family home should be at the time of adjudication, I would have, in the end, reached the same conclusion respecting division. I would have done so by granting the petitioner's application for an unequal distribution of family property. [ 23 ] The trial judge acknowledged the threshold that must be met to justify an unequal distribution of the family home under

section 22 of the Act is higher than the threshold to justify an unequal distribution of family assets under

section 21 of the Act . He then reviewed a series of decisions from the Court of Queen’s Bench where a judge has ordered an unequal distribution of the family home on the basis of clause 22(1) (

b) of the Act : Lomax v. Lomax , 2000 SKQB 457 , 198 Sask. R. 240; Goodwin v. Goodwin , 2005 SKQB 438 , 272 Sask. R. 1; N.G.M. v. T.B.M. , 2005 SKQB 547 , 274 Sask. R. 121; Mahajan v. Mahajan , 2008 SKQB 66 , 312 Sask. R. 66; and Knuttila v. Appel , 2006 SKQB 278 , 282 Sask.

R. 94. [ 24 ] The trial judge concluded that the same circumstances that motivated him to distribute the property as of the date of the application supported an unequal distribution: [57] In each of the decisions where unequal division of general family property or family home equity was determined appropriate, there were an array of considerations that pointed to the inequity of equal division. In my view, the same considerations exist here and have been recited above . In sum, it does not matter which analytical path is chosen.

Whether the focus of the Court is valuation date or unequal division, the result for the parties will be the same. [Emphasis added.] [ 25 ] Mr. Williams appealed this decision on the basis that the trial judge erred by: (

i) valuing the family home as of the date of the application; and (ii) finding that an unequal distribution of the increase in value of the family home was warranted in this case. [ 26 ] In response, Ms. Williams argued that the trial judge did not err in his approach or analysis. Ms. Williams also applied to adduce fresh evidence in this Court. The fresh evidence takes the form of an affidavit attaching a new appraisal of the value of the family home.

The appraisal offers the opinion that the value of the family home is now $350,000, rather than $415,000. [ 27 ] At the opening of the hearing of the appeal, counsel for Mr. Williams indicated that his client accepted this new valuation. In light of the parties’ agreement and without passing on whether such evidence is appropriately admissible or upon its legal effect, the Court accepts $350,000 as the new value of the family home. IV. Analysis 1. Valuation Date [ 28 ] Whenever family property is distributed under the Act , it is necessary to fix the date for the determination of the value of the property.

The Act permits a trial judge to select as a valuation date either the time of application for distribution or the time of adjudication. The judge’s authority in that regard stems from the definition of "value" in the Act : 2. (1) ... "value" means: (

a) the fair market value at the time an application is made pursuant to this Act , or at the time of adjudication, whichever the court thinks fit ; or (

b) if a fair market value cannot be determined, any value at the time an application is made pursuant to this Act , or at the time of adjudication, that the court considers reasonable. [ 29 ] This Court has recognized that the definition of value confers a considerable discretion on the trial judge, but this discretionary

power must be exercised in accordance with the fundamental principles of the Act. In Benson v. Benson (1994), (SKCA), 120 Sask. R. 17 (C.A.), Cameron J.A., speaking for the Court, made it clear that a choice of valuation date, which defeats theprimary objects of the Act, is beyond the bounds of the discretionary power conferred on the trial judge (at para. 35).

The primaryobjects of the Act are the equal distribution of family property and the recognition of differing forms of contribution to the family unit,subject to the authority of the Court to order an unequal distribution of the property under certain circumstances. [30] Distilled to their essence, the trial judge relied upon the following factors to support his decision to value the family home as of thedate of application: 1. the lack of financial contribution to the welfare of the family unit in the decade leading up to trial; 2. the fact that Ms.

Williams has had primary care of the children in the family home; 3. the failure to pay child support, and the likelihood that Mr. Williams will not pay support in the future; 4. the testimony of Ms. Williams that she could not afford more than a $50,000 equalization payment without having to sell the house. [31] In my respectful view, the trial judge made a fundamental error in selecting the date of application as the date of valuation on theabove basis. The above factors are either not appropriate or are not relevant to the selection of an appropriate valuation date. The trialjudge’s focus on Mr.

Williams’s “lack of financial contribution” is particularly problematic. The starting presumption in any claim fordistribution of property is joint contribution, and the fundamental principle is that property acquired during the marriage—including anyincrease in value—should be shared equally. Additionally, neither the parties’ conduct nor the parties’ means or needs affects the earnedright of each party to share in the family property.

Conduct or contribution is relevant only so far as it may "incidentally touch upon theexistence and extent of an exemption, exception, or equitable consideration mentioned in the Act" (see: Tataryn, supra at p. 89). [32] Consideration of a spouse’s or a parent’s “contribution” to the family unit takes the Court down the path of attempting to quantify“who did what” in the course of the marriage, an exercise prohibited by

section 20 of the Act. According to

section 20, the purpose of theAct is “to recognize that child care, household management and financial provision are the joint and mutual responsibilities of spouses,and that inherent in the spousal relationship there is joint contribution, whether financial or otherwise.” With those words, theLegislature signaled its intention to overcome stereotypes about the value of contribution to the family unit and minimize argumentsabout the quality and value of spousal contributions.

Quite simply, the Act does not permit a trial judge to consider a spouse’s lack offinancial contribution to the family unit when dividing family property. The exercise of selecting the valuation date cannot be the guiseunder which a trial judge takes into account a prohibited consideration. [33] With respect to the balance of the factors mentioned by the trial judge, there has been no case emanating from this Court or theCourt of Queen’s Bench where the choice of a valuation date has been supported based on factors such as these.

The four cases reliedupon by the trial judge are not authority for the proposition that the date of application may be chosen over the date of adjudication insuch circumstances. For example, based on the new value agreed to by the parties, the value of the home increased by $160,000between the date of application and the date of adjudication—an exponentially greater increase than occurred in either Ioanidis, supra orZawada, supra.

Moreover, even in those decisions, the court selected the application date as the valuation date because the efforts of theperson in possession of the home had increased the equity in the home, and the increase in equity from that source was consideredsufficient to offset the increase in value. [34] The general practice, where there has been an increase in property value due to market forces, is accurately reflected in suchdecisions as Sandbeck v.

MacLaren, 2008 SKQB 386 at para. 51, [2008] 12 W.W.R. 272 where Sandomirsky J. valued the familyproperty as of the date of adjudication before proceeding to consider whether there was any basis to depart from the direction in the Actthat the value of the property be distributed equally. In this case, as in that one, the appropriate date of valuation is the date ofadjudication. That brings us to a consideration of whether the trial judge erred in ordering an unequal distribution of the family homeunder

section 22 of the Act so as to grant Ms. Williams the full amount of the increase in value. 2. Unequal Distribution of the Family Home [35] In considering this issue, it must be stressed that the trial judge did not order an unequal distribution of the value of the familyhome; he ordered an unequal distribution of the increase in the value of the family home. Further, he unequally distributed the increaseso as to have the same effect as if the family home were valued as of the application date. The trial judge did not consider it necessary orappropriate to distribute the balance of the family property unequally.

He targeted the increase in the family home only. In myrespectful view, this is an attempt to do indirectly that which cannot be done directly. On that basis alone, the decision cannot besustained. [36] That said, in light of the submissions made in this Court, it is necessary to consider whether an unequal distribution can be justified

on some other basis under the Act. [37]

Section 21 of the Act confers an authority on a court to unequally distribute property, other than the family home, on the basis of aseries of exceptions, exemptions and equitable considerations.

Section 22 governs the distribution of the family home. Pursuant tosubsection 22(1), a court “shall” distribute the family home “equally” unless the Court is satisfied that it would be “unfair andinequitable” having regard only to any “extraordinary circumstance” or it would be “unfair and inequitable to the spouse who hascustody of the children.” There being no extraordinary circumstance present, the issue is whether the trial judge erred in concluding thatit would be “unfair and inequitable” to Ms.

Williams to distribute the home unequally having regard for the fact that she provides theprimary residence for the children. (Sections 21 and 22 are reproduced in their entirety in Appendix “A”.) [38] This Court recently described the interaction of sections 21 and 22 of the Act in Phillips v. Phillips, 2010 SKCA 117, 324 D.L.R.(4th) 534. After an extensive review of the authorities, the Court held that “an unequal distribution of a family home is not to be madebased merely on a s. 21 fairness analysis” (at para. 28).

Speaking for the Court, Klebuc C.J. stated (at para. 23) “the Legislature createda distinct procedure with a narrower and more onerous threshold to be met by a spouse seeking an unequal distribution of the familyhome than the one applicable to an unequal distribution of other family property pursuant to s. 21(1) and (2).” [39] In Ruskin v. Dewar, 2005 SKCA 89, 256 D.L.R. (4th) 70, the Court faced a claim for an unequal distribution of real property,including property claimed as the family home, based on a gift from the petitioner's mother and a loan from both of his parents.

Theparties had been involved in a common-law relationship for eight years. In his discussion of

section 21, Cameron J.A. wrote as follows: [19]

Section 21, beginning with subsection 21(1), directs that family property or its value be distributed equally. This is predicated onthe presumption, found in

section 20, that spouses contribute equally in one form or another to the responsibilities of their partnershipand are therefore entitled on its breakdown to share equally in the tangible fruits of the partnership, namely the family property or itsvalue. This is so irrespective of which of the spouses actually owns this or that asset. But the entitlement to an equal share is subject tocertain exceptions, equitable considerations, and exemptions. In describing

section 22, Cameron J.A. commented as follows: [36]

Section 22 concerns the distribution of a "family home" and household goods. It directs that a family home or its value bedistributed equally (subject to any tax liability, encumbrance, debt, and so on), unless it would be unfair or inequitable to do so havingregard only to any extraordinary circumstance or, where children are involved, to whom their custody is entrusted. The significance ofthis is that the equitable considerations mentioned in

section 21, and the exemptions provided for by

section 23, do not as such apply tothe family home. The custody of children aside, it takes an extraordinary circumstance to warrant unequal distribution of the familyhome. [Italics in original; underlining mine.] [40] Thus, we start with these propositions:

Section 21 directs that the family property be distributed equally subject to certain exceptions, equitable considerations andexemptions;

Section 22 requires that a spouse seeking an unequal distribution of the family home carries a greater burden than under

section 21—the equitable considerations mentioned in

section 21 and the exemptions provided by

section 23 do not apply, as such; 3. Clause 22(1)(

a) permits an unequal distribution of the family home, if the judge is satisfied that an “extraordinary circumstance” ispresent, which has been described as “a narrow ground;” 4. Clause 22(1)(

b) permits an unequal distribution of the family home, if the judge is satisfied that it would be unfair and inequitableto the spouse who has custody of the children to distribute the home equally. The Court’s task on this appeal is to consider the extent of the limits bounding a judge’s discretion to grant an unequal distribution of thefamily home under clause 22(1)(b). [41] On no occasion has this Court granted an unequal distribution of the family home based solely on the fact that one parent has“custody” of the children.

In all of the decisions from this Court, the family home was distributed equally notwithstanding the fact thatthe principal residence of the children was with one parent. This has been so, even in those decisions where the “custodial” parent hasbeen granted the family home. Unpaid child support has been secured out of the non-custodial parent’s share of the property. Issues oftemporary hardship have been addressed by delaying the sale of the home for a reasonable time. A canvass of the authorities bears outthese principles. [42] In Wolff v. Wolff (1985), (SK CA), 37 Sask.

R. 19 (C.A.), the value of the home quarter at the time of theapplication was $86,550, and the value of the balance of the assets was $162,585. The trial judge ordered an unequal distribution of allof the assets, including the family home, having regard for these factors: (

i) the “brevity” of the parties’ time together, i.e., five years;

(ii) the limited contribution of the wife—financial or otherwise; (iii) the husband had custody of the seven-year old child; and (iv) thewife was unable to assist in the care and financial maintenance of the child. The trial judge specifically relied upon clause 22(1)(

b) ofthe Act to order an unequal distribution of the family home. The Court of Appeal set aside the decision, doubting that “the factors reliedupon by the learned chambers judge are so compelling as to justify granting other than an equal distribution of the value of thematrimonial home” (para. 13). [43] In Morrison v. Morrison (1985), (SK CA), 38 Sask. R. 92 (C.A.), the appellant was an alcoholic who hadcontributed little to the family unit, particularly in later years, whereas the respondent had been the stabilizing force in the marriage.

Inaddition to raising the family, she had contributed financially towards the acquisition of the matrimonial home. She was presently livingin the family home and their 19-year-old son was living with her while attending university. The trial judge had ordered an unequaldistribution of the family home relying on clause 22(1)(b). This Court found that he had erred in doing so. To accommodate the needsof the child attending university, the Court ordered that the respondent was entitled to exclusive possession for approximately two yearsfrom the date of the Court’s decision.

At the end of such time, she could purchase the appellant's interest in the home or it would be soldand the proceeds distributed equally between the parties. [44] In Rossal v. Rossal (1987), (SK CA), 61 Sask. R. 169 (C.A.), the trial judge gave the respondent three-fifths ofthe value of the matrimonial home in the context of a relatively small estate. She had custody of the children of the marriage, but had leftthe family home.

This Court held that there was nothing in those facts that would permit an unequal distribution of its value, given thespecial emphasis of the Act on the equal sharing of the value of the home. [45] In Olson v. Olson, [1987] S.J. No. 712 (Q.B.) (QL), affirmed (1988), (SK CA), 67 Sask. R. 257 (C.A.), the netvalue for distribution was $658,655. The father was granted sole ownership of the family home and custody of the two children of themarriage (aged 9 and 12), but the judge did not order an unequal distribution of the property.

After receiving $100,000 of herdistribution, the mother was directed to make a maintenance payment of $200 a month. The father appealed to this Court, arguing thathe was entitled to an unequal distribution of the family home by virtue of having custody of the children. Dismissing the appeal,Cameron J.A. wrote: [23] ... We can understand why the trial judge, having entrusted the custody of the children to Mr. Olson, chose to vest title to thehouse in him, giving him exclusive possession of it.

However, we fail to see anything in the circumstances of the case to warrant anunequal distribution of its value.... [Emphasis added.] [46] Common to all of the above decisions is the inability or unwillingness of the non-custodial spouse to pay adequate support for thechildren of the marriage.

Nonetheless, the Court did not award or sustain an unequal distribution of the family home. [47] Turning back to the within appeal, I will repeat the factors that the trial judge relied upon in the instant case to support an unequaldistribution: 1. the lack of financial contribution to the welfare of the family unit in the decade leading up to trial; 2. the fact that Ms. Williams has had primary care of the children in the family home; 3. the failure to pay child support, and the likelihood that Mr. Williams will not pay support in the future; 4. the testimony of Ms.

Williams that she could not afford more than a $50,000 equalization payment without having to sell the house. As I have indicated above, it was inappropriate for the trial judge to view lack of financial contribution on the part of Mr. Williams as arelevant factor.

Apart from his failure to pay child support, his lack of financial contribution to the family cannot be considered underthe Act. [48] The heart of this appeal is plumbing what is meant by “unfair and inequitable to the spouse who has custody of the children.” Inmy view, the Legislature did not intend that the family home be distributed unequally on the sole basis that the children reside with oneparent in the family home. If this single factor alone were sufficient, there would rarely be a case when the family home was notunequally distributed.

Further, issues of custody would be litigated even more vigorously if distribution of a significant equity in thefamily home hung in the balance. [49] A failure to pay child support may contribute to unfairness and inequity associated with having custody of children, but an unequaldistribution should not become the sole means of enforcing such orders. Proportionality must also be a factor.

Specifically, a parent’sfailure to pay child support does not disentitle him or her to share in the increase in value of the family home where the increase arisesfrom market forces and is far in excess of the outstanding child support. It is also always possible to quantify the amount outstandingand set-off the amounts owed. On this point, I note Lerner v. Lerner, 2008 SKQB 308, 321 Sask. R. 78 where Herauf J., as he then was,

held that having custody of the children and a failure to pay child support do not justify an unequal distribution of the family home. In that case, the trial judge considered the mother’s failure to pay child support as an equitable consideration under

section 21. [ 50 ] The fact that an award against the custodial parent would require that the family home be sold, thereby uprooting the children of the marriage, may be a relevant consideration for courts tasked with determining the fairness of such an award. It cannot, however, be viewed as a determinative consideration, and courts must be careful with it. Granting an unequal distribution based on the desire to continue to raise the children in the family home is similar to an application for exclusive possession of the family home until the children are financially independent.

Courts in recent years have viewed such applications with some skepticism as being a possible means of avoiding the requirement under the Act to distribute family property equally. (See: Biletski v. Biletski , 2008 SKQB 67 ; and James G. McLeod and Alfred A. Mamo, Matrimonial Property Law in Canada , looseleaf, vol. 3 (Toronto: Carswell, 1993) (at pp. S-46 to S-48.) [ 51 ] The trial judge appears to have taken a decidedly negative view of this father’s failure to financially support his family. In that regard, this case is similar to Muranetz-Dubelt v. Dubelt , 2008 SKQB 97 , 313 Sask.

R. 183 where the petitioner wanted an unequal distribution based on the respondent’s lifestyle. [1] The trial judge in that case resisted an unequal distribution, saying that the petitioner’s view of the respondent was essentially retrospective: [47] It is fair to remark that as between the two parties, the petitioner was always more diligent, always employed and clearly the financial mainstay of the matrimonial unit. The petitioner now maintains that as the respondent was an anemic earner with a meandering career path, it is unfair to burden her with the millstone of equal division.

The petitioner's analysis is essentially retrospective. It is clear she now regrets implicitly or explicitly acquiescing in the respondent's less than vigorous approach to business and employment . I would respectfully observe that their mutual experience was part of the give and take, and no doubt wear and tear, of their marriage. Rare is the marriage where contributions from husband and wife are equal in terms of income or monetary assets.

Notwithstanding that well-known reality, the legislation mandates that the matrimonial property acquired during the marriage should, subject to specified exemptions, be divided equally, except in exceptional circumstances. In my view, there are no such exceptional circumstances here. [Emphasis added.] Those remarks are apt in this case as well. [ 52 ] Applying the law to this case, it must first of all be noted that these are not young children. At the time of the trial they were 19, 16 and 14, respectively. Further, the trial judge did not award Ms. Williams sole custody of the children.

Indeed, there was no order as to custody made in relation to the older two boys. The parties were granted joint custody of the youngest boy with reasonable access, as agreed. Mr. Williams has been and continues to be present in the lives of his children albeit without making any meaningful financial contribution. [ 53 ] Giving full effect to the trial judge’s decidedly negative view of Mr. Williams, it still must be noted that Mr. Williams was 62 years old at the time of the trial, considerably older than Ms. Williams. He has a grade 9 education and no formal training. His skill set is no longer relevant.

Even aside from his age and health concerns, there is little reason to believe he is capable of earning any significant amount of income. During his last regular employment from 1997 to 2003 he was able to generate almost no income. He did not pay child support, but even when income was imputed to him for the purposes of child support, the Court was unable to impute any more than a minimum wage level of $14,664. Given his age, education, training, work experience and skill set, there is little basis on which to conclude he would be capable of earning much beyond that level regardless of health.

He has now been on social assistance for a number of years. Ms. Williams, on the other hand, has remunerative employment and has also had the benefit of the family home since the date of separation. Mr. Williams has had to find accommodation elsewhere. [ 54 ] Mr. Williams, however, should not be permitted to walk away with one-half of the family property without fulfilling an outstanding child support obligation. Saying that, however, is far from holding that he is presumptively disentitled to any part of the increase in value of the family home, in the amount of $160,000, because of his failure to pay $9,196.

The issue of child support must be addressed separately. [ 55 ] For all of these reasons, I have concluded that the trial judge erred in principle and exceeded the bounds of his discretion by granting an unequal distribution of the increase in value of the family home. 3. Child Support [ 56 ] Since the trial judge awarded Ms. Williams the whole of the increase in value of the family home, the trial judge did not have to address what an appropriate child support order would look like in light of the father’s present circumstances, i.e ., on social assistance but entitled to an equalization payment.

The trial judge extinguished any obligation that Mr. Williams had in relation to child support and expunged the arrears.

[61] To address the possibility of the Court allowing the appeal, counsel for Mr. Williams submitted that the equalization payment owed to his client should be reduced by the amount of $20,728 on account of arrears of support, and to provide for support for the children from the date of the trial decision until each child reached the age of 18, on the basis of an imputed income of $24,000 a year from the date of trial—even though his client had been receiving social assistance during this period. When it was believed that the value of the home was $415,000, Mr.

Williams also agreed that an additional amount of $20,000 should be deducted from his equalization payment and be held in trust to assist with post-secondary schooling. According to the information presently before the Court, neither of the two older children continues to attend school. In the event that any of the children pursue post-secondary schooling, a further application will have to be made to the Court of Queen’s Bench based on the circumstances existing at that time. V. Conclusion [ 57 ] The appeal is allowed. The family home is valued at $350,000, as agreed by the parties. Mr.

Williams’s one-half share shall be reduced by the amount of $20,728 on account of arrears of support, and to provide support for the children until age 18. If there is any difficulty in settling the judgment roll, the parties are free to write to the Registrar of the Court of Appeal. Mr. Williams shall have his costs in this Court on Column 2 reduced by $1,000 to pay for the outstanding costs order against him from earlier proceedings. DATED at the City of Regina, in the Province of Saskatchewan, this 30th day of June, A.D. 2011. ___ “Jackson J.A.” _____________________ Jackson J.A.

I concur ___ “Richards J.A.” ____________________ Richards J.A. I concur ___ “Ottenbreit J.A.” ___________________ Ottenbreit J.A. Appendix A Distribution of family property 21(1) On application by a spouse for the distribution of family property, the court shall, subject to any exceptions, exemptions and equitable considerations mentioned in this Act , order that the family property or its value be distributed equally between the spouses.

(2) Subject to

section 22, where, having regard to the matters mentioned in subsection (3), the court is satisfied that it would be unfair and inequitable to make an equal distribution of family property or its value, the court may: (

a) refuse to order any distribution; (

b) order that all the family property or its value be vested in one spouse; or (

c) make any other order that it considers fair and equitable.

(3) For the purposes of subsection (2), the court shall have regard to the following:

(

a) any written agreement between the spouses or between one or both spouses and a third party; (

b) the length of time that the spouses have cohabited; (

c) the duration of the period during which the spouses have lived separate and apart; (

d) the date when the family property was acquired; (

e) the contribution, whether financial or in some other form, made directly or indirectly by a third party on behalf of a spouse to the acquisition, disposition, operation, management or use of the family property; (

f) any direct or indirect contribution made by one spouse to the career or career potential of the other spouse; (

g) the extent to which the financial means and earning capacity of each spouse have been affected by the responsibilities and other circumstances of the spousal relationship; (

h) the fact that a spouse has made: (

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

i) a previous distribution of family property between the spouses by gift or agreement or pursuant to an order of any court of competent jurisdiction made before or after the coming into force of this Act or The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (No. 2) ; (

j) a tax liability that may be incurred by a spouse as a result of the transfer or sale of family property or any order made by the court; (

k) the fact that a spouse has dissipated family property; (

l) subject to subsection 30(3), any benefit received or receivable by the surviving spouse as a result of the death of his or her spouse; (

m) any maintenance payments payable for the support of a child; (

n) interests of third parties in the family property; (

o) any debts or liabilities of a spouse, including debts paid during the course of the spousal relationship; (

p) the value of family property situated outside Saskatchewan; (

q) any other relevant fact or circumstance. Distribution of family home 22(1) Where a family home is the subject of an application for an order pursuant to subsection 21(1), the court, having regard to any tax liability, encumbrance or other debt or liability pertaining to the family home, shall distribute the family home or its value equally between the spouses, except where the court is satisfied that it would be: (

a) unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (

b) unfair and inequitable to the spouse who has custody of the children.

(2) Where clause (1)(

a) or (

b) applies, the court may: (

a) refuse to order any distribution; (

b) order that the entire family home or its value be vested in one spouse; or (

c) order any distribution that the court considers fair and equitable.