LEE MARTIN PETITIONER - v. -, 2023 SKKB 145

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 145 Date: 20 23 06 30 Docket: DIV-MJ-00072-2017 Judicial Centre: Moose Jaw, Family Law Division BETWEEN: LEE MARTIN PETITIONER - and - KERI MARTIN RESPONDENT Counsel: Leanne Johnson for the petitioner David Flett for the respondent JUDGMENT BROWN J. June 30, 202 3 Introduction [ 1 ] The parties are at odds over family property and support. Two agreed statements of fact were filed which simplified matters considerably.

I will refer to the parties by first name for ease of reference and clarity in this decision. [ 2 ] Lee was born on June 14, 1975 and Keri was born on January 6, 1976. The parties were married in October 1996 and, while Keri indicated she was leaving in February, they separated in April 2014. There were three children of the relationship two of whom were adults at the time of trial and the youngest of which, Reid, turned 18 in mid-August 2022. [ 3 ] The parties began life in Regina, Saskatchewan but in 2003 they moved to an acreage in the Luseland/Kerrobert, Saskatchewan area.

In 2005 the parties built a home in Luseland itself. These decisions were mutually agreed upon by the parties. [ 4 ] After moving from Regina in 2003 Lee went from being a mechanic to being a facility operator and business manager with Tervita Waste Processing. Just prior to separation in 2014 Lee switched jobs once more. He became a field operator for Northern Blizzard Resources Ltd., now Strathcona Resource Ltd. He went from a four day on four day off

schedule to a seven days on seven days off schedule. Lee also owned and operated Fast Track Performance for a time, repairing motorized recreational vehicles. [ 5 ] Shortly after separation in 2014, the parties sat down at the kitchen table and discussed how they would each see property being divided. They made some notes to this effect on a piece of paper, also estimating their property values in the process. No lawyers were involved either to provide advice or witness signatures. No appraisals of property values were obtained. [ 6 ] It was agreed that Lee would remain in the family home.

Each party received one-half of the household goods, furnishing and general garage tools. Lee assumed all family debt including the mortgage against the family home and the loan against the 2011 Ford Flex in the amount of $24,762. Keri maintained ownership and possession of all assets registered to her or in her name including her 2011 Ford Flex, her bank accounts and all assets belonging to her companies; Keri Martin Consultant Services and 2K Designs; and Lee maintained ownership and possession of all assets registered to him or in his name including his skidoos, his bank accounts and his investments.

An equalization payment of $152,250 was proposed by Lee to even the asset sharing scenario out. [ 7 ] In furtherance of the agreement struck, on May 9, 2014 Lee refinanced the family home for a further $135,919 and provided Keri the entire amount. Subsequently, in March of 2016 when the family home sold, a further $15,466 was provided to Keri by Lee, bringing the total to $151,385.

[ 8 ] In May of 2014 Keri purchased a home for $78,000 at 200 Chipman Street in Luseland. She renovated it, spending approximately $30,000 to do so. Much of the labour was done by Keri with some being contracted and a little help from Lee as well. [ 9 ] Keri eventually met Mike Nydokus [Mike] and moved with him to Veteran, Alberta in July of 2017. She then attempted to sell the home at 200 Chipman Street. She received one offer on it but did not take the offer as she felt it was too low.

She ceased making mortgage payments on the 200 Chipman Street home and in 2018 foreclosure proceedings resulted in the home being taken by the bank. There was at one point $31,653 in equity in the home, it being agreed this was the equity at the time of the petition brought by Lee on October 23, 2017. [ 10 ] On August 18, 2019, Keri was noted in default of defence of the petition Lee issued. On November 26, 2019 Keri served an application to open up the noting for default so as to serve her answer and counterpetition and to obtain an order for spousal support.

The noting for default was set aside on February 25, 2020 and an order was made that Lee was to pay $1,800 in spousal support and $300 per month in child support to Keri. [ 11 ] After separation the parties shared parenting of the two youngest children on a week on week off basis. Their oldest was independent at this time. In August of 2016 Spencer, the middle child, became independent and did not pursue post-secondary education. In July 2017 Reid, their youngest, began living primarily with Lee rather than in a shared parenting situation.

This continued to be the situation through to Reid’s 18 th birthday on August 19, 2022. [ 12 ] As for support, in February of 2016 Lee began paying Kerry $1,300 per month in child support for Spencer and Reid. In August of 2016 when Spencer turned 18 and was no longer a child of marriage Lee began paying Keri $860 a month in child support. In August of 2017 Reid began living permanently with Lee and Lee discontinued support payments to Keri.

Prior to the order of February of 2020 Keri did not pay child support to Lee for the support of either Spencer or Reid. [ 13 ] Since February of 2020 pursuant to the order of Madam Justice Wilson, Lee has been paying $1,800 per month to Keri in spousal support less $300 per month representing Keri’s child support obligation under the same order. Keri has not contributed to s. 7 expenses for Reid since he has lived primarily with Lee. [ 14 ] Reid was in grade 12 at the time of trial and graduated in June of 2022.

He had at that time been accepted by Saskatchewan Polytechnic in Moose Jaw, Saskatchewan to take the business course beginning in September of 2022. [ 15 ] Mike worked full time as an oilfield battery operator since 1983 and had a medium sized cattle ranch in Veteran. Keri and Mike agreed that in July of 2017 Keri would take on full time caregiver role for Mike’s daughter and grandchild, allowing Mike to continue working and maintaining the cattle herd.

Mike’s daughter had a cancerous tumour and was undergoing treatment for this. [ 16 ] Thus, in July of 2017 Keri assumed responsibility for maintenance and repairs on Mike’s farmyard and house and helped during calving, branding and weaning times for the cattle. This allowed Mike to continue to work for his employer and maintain the family cattle herd. [ 17 ] In July of 2017, Mike took on responsibility for Keri’s bills and expenses, other than her mortgage on the Chipman Street house. Keri was unable to pursue other employment at this time due to this decision.

Keri also assumed full responsibility for maintenance and repairs on Mike’s farmyard and house and helped during calving, branding and weaning times for the cattle. [ 18 ] The parties’ respective incomes has been: Lee : 2012: $118,043 2013: $143,323 2014: $121,794 (includes $4,507 of RRSP income) 2015: $134,813 2016: $126,272 2017: $140,873 2018: $153,706 2019: $170,250 (includes $3,900 of RRSP income) 2020: $187,281.38 (includes $21,600 of RRSP income) 2021: $211,498 Keri : 2012: $1,867 2013: $3,533

2014: $10,000 2015: $5,727 2016: $5,137 2017: $0 2018: $0 2019: $23,001 2020: $47,451 2021: $51,694 [ 19 ] The parties agreed on much of the family property values as of the date of petition.

This agreement is set out in the chart below, with the points of disagreement also noted: Property Chart: Date of Petition PROPERTY DIVISION OF LEE ADAM EUGENE MARTIN and KERI RAELEEN MARTIN Date of Marriage: October 12, 1996 Date of Separation: April 2014 Date of Petition: October 23, 2017 ASSETS & LIABILITIES VALUE AT DATE OF PEITION ASSETS PETITIONER RESPONDENT Lee Martin Keri Martin Real Property 200 Chipman Street, Luseland, SK $100,000.00 Lee’s Interest in 213 4th Ave, Unity SK (total value $218,000) Not Agreed TOTAL $100,000.00 Household Goods / Vehicles Household Goods – Divided Equally $ - $ - 2011 Ford F-150 $ 15,000.00 2003 RMK 800 Edge 151” $2,000.00 2016 Ski-Doo Summit 154” $7,000.00 2007 Ford Mustang $10,000.00 2009 Chev Truck (paid $15,000 in 2015) $11,000.00 Tools Not Agreed Not Agreed TOTAL $30,000.00 $15,000.00 Bank Accounts / Life Insurance / RESP’s Securities Luseland CU Chequing Account No [REDACTED] $921.20 Luseland CU Savings Account No [REDACTED] $7,238.03 Luseland CR Savings Account No 200203048691 $1,360.46 Luseland CU Chequing Account No [REDACTED] Joint with Melinda – Total Value $2,900.08 $1,450.04 Luseland CU Savings Account No [REDACTED] Joint with Melinda – Total Value $250 $125.00 Fast Track Performance Luseland CU Chequing Account No [REDACTED] $1,064.30 Luseland CU Chequing Account No [REDACTED] $291.84 Keri Martin Consultant Services Luseland CU Chequing Account No [REDACTED] $12.71 Keri Martin Consultant Services Luseland CU Savings Account [REDACTED] $64.59 2K Design Solutions Inc.

Luseand CU Chequing Account [REDACTED] $(2,967.35) TOTAL $12,159.03 $359.14 Investments / RRSP’s Luseland CU RRSP Account No [REDACTED] $39,579.79 Credential Securities RRSP Account No [REDACTED] (transferred from Great West Life) $53,315.80 TOTAL $92,895.59

TOTAL LESS TAX CONSEQUENCES $65,026.91 LIABILITIES Ski-Doo Loan – Luseland CU Account No [REDACTED] $(7,526.65) Mortgage Luseland CU Account No [REDACTED] $(68,347.41) Mortgage Luseland CU Account No [REDACTED] Joint with Melinda (Total Amount $165,491.88) Testimony [ 20 ] Lee worked as a mechanic early on in his career. He then found employment in the oilpatch as a well-checker. Ultimately, he became a foreman with Strathcona Resource Ltd., which was his job at the time of trial.

Lee also testified that Keri was an architectural technician by training and worked to do that for a number of years after 2003. [ 21 ] Lee testified that when the parties sat down together in mid-2014 and spoke about dividing the family property, the handwritten list that came to be was prepared by himself. It listed the expenses on a monthly basis as well as Lee’s estimation of the value of various properties.

He testified that the two proceeded on the basis that this would be the division of family property with Lee taking the family home over and paying Keri out for what was thought to be her share at the time. [ 22 ] Lee testified that on May 9, 2014, following up on the agreement they had made, he refinanced the family home mortgage for $135,918.93 and paid Keri the full $135,918.93. He subsequently agreed to the sale of it in 2015 (December) with payment made for final purchase in January of 2016 in the amount of $370,000. The Luseland Credit Union was paid off in the amount $226,906, netting him $143,094.

Keri was paid a further $15,466.06 in furtherance of the 2014 agreement in 2016. [ 23 ] Neither party had legal advice prior to the discussion about family property. Neither sought legal advice until much later in the scenario. Thus, this is not an interspousal agreement as defined by s. 38 of The Family Property Act , SS 1997, c F-6.3 [ FPA ].

An issue which will need to be addressed herein is what effect must be given to the informal agreement as mandated by the Supreme Court in Anderson v Anderson , 2023 SCC 13 , 481 DLR (4th) 1 [ Anderson ]. [ 24 ] It was pointed out to Lee during cross-examination that his information regarding his income was somewhat inconsistent. While an affidavit said one amount, another affidavit stated a different amount, and his Financial Statement provided yet another, third, figure.

In fact it varied dramatically; the affidavit leading to his divorce judgment showed $90,000 in 2019 income, his Financial Statement for 2019 set out $140,000 and in truth he earned $170,000 in 2019. [ 25 ] Thus, Lee’s evidence regarding his income was suspect in that regard, it being made obvious that he was attempting to minimize the amount. He would well have understood it would be used for support calculations at the time. [ 26 ] The parties tried reconciling in October 2015.

Keri testified that part of the arrangement on which this might work longer term was that they would move closer to Moose Jaw where her family was from. She said that while Lee had agreed to this initially, he changed his mind and, when it became clear this was never going to happen, Keri determined the relationship was over for good. [ 27 ] As noted, the family home went with Lee and he continued to live in it after separation. [ 28 ] As noted, from this sale Keri was paid $15,466.06 in May 2016.

Lee says this was to top her payment up from Lee for family property, taking it to $151,384, which was close to the amount of $152,500 agreed to verbally in 2014. [ 29 ] In April of 2016 Lee moved with Reid to Unity, Saskatchewan, some 60 kilometres to the northeast of Luseland. The move also made the distance an additional 27 kilometres further from Veteran, where Keri ultimately relocated to. This move therefore added distance to the traveling Keri would need to undertake to access Reid regardless of which location she was in. [ 30 ] Keri called the RCMP when Lee moved with Reid.

She also consulted a lawyer regarding this unilateral move. She testified that she was under the impression that Reid would become a witness in the proceeding if she continued down the legal path to prevent the move. She testified that was why she did not pursue the issue further in court. [ 31 ] Keri testified that at that point she found it no longer reasonable for her to stay in Luseland. She believed there were no job prospects for her in the area, whether that be in Unity, Luseland or the surrounding area.

I find she was correct in this conclusion. [ 32 ] As a result, Keri listed her home in Luseland for sale. She testified that she only received one offer. She believed it to be too low to accept so it was turned down. No other offers came on the home and eventually she stopped making payments to the credit union in that regard. The house was foreclosed upon. Keri ended up owing $30,000 on the deficiency judgment of which $18,000 was still outstanding as of the date of trial.

The parties agreed that this home had $31,653 in equity in it at the time of petition in 2017. [ 33 ] Keri began dating Mike in 2016 and moved in with him on his ranch in July of 2017. It coincided with Mike

finding out his daughter, Cassidy, had a cancerous tumour that required surgery and chemotherapy. He desired his daughter to moveback home with her then young son so she could be cared for there. Keri and Mike struck an arrangement whereby Keri agreed to carefor Cassidy and Cassidy’s son at Mike’s house while the surgery and chemotherapy was ongoing in exchange for Mike paying for all ofKeri’s expenses other than her mortgage. [34] Thus, Keri moved in with Mike and for the ensuing six months she cared for Cassidy and Cassidy’s son whileMike covered most of her expenses.

As noted, this did not apparently include her mortgage on her home in Luseland as those paymentswere not made by anyone. As Keri was fully occupied caring for Cassidy and Cassidy’s son, she did not look for work in the Veteranarea. [35] Mike’s son also posed certain challenges for himself and Keri as a new member of his household. Mike’s sonunfortunately suffered from certain mental disorders which were cresting when he was 16, being at the same time when Keri was newlycohabiting with Mike.

She testified that she had to spend many hours a day dealing with Mike’s son and the issues created therein. [36] There were attempts to have Mike’s son assisted at a facility in Red Deer, Alberta but that did not succeed. Theyattempted to relocate him to an Ontario facility for help but after nine months he unfortunately failed to thrive there as well. There wastravel to and from that facility during this time period which Mike and Keri undertook to bring Mike’s son to the facility, visit Mike’s sonthere and ultimately resettle Mike’s son back in Alberta again.

By April of 2019 they had found an appropriate facility in Kamloops,British Columbia to care for and help Mike’s son. He has remained there since then. [37] Keri was eventually approached by an insurance broker in the town of Concert, Alberta regarding working there.She pursued the opportunity and is now a licensed insurance broker. As of the date of trial she had two more exams to gain additionalstatus and thereby increase her income further.

It will provide her with a national designation and increased pay will accompany that newplacement. [38] Keri worked four days a week, Tuesday through Friday as of the date of trial. She testified that the brokeragefirm wants her to work five days a week but she found that too stressful. There are no pension benefits with Keri’s present job in Concert. Issues

(1) Should there be a further division of family property? Specifically, what effect does the informal family property division theparties undertook in 2014 have on the property division which might occur upon issuance of the petition in 2017 in the circumstances ofthis matter and in light of Anderson?

(2) Should there be retroactive child and/or spousal support made payable? If so, at what point in time and in what amounts?

(3) Should there be ongoing spousal support amounts made payable? If so in what amounts?

DISCUSSION Family Property Guiding Principles [39] The principles underlying and directing the court regarding the division of family property are contained in FPAbeginning with s. 20: 20 The purpose of this Act, and in particular of this Part, is to recognize that child care, household management and financialprovision are the joint and mutual responsibilities of spouses, and that inherent in the spousal relationship there is joint contribution,whether financial or otherwise, by the spouses to the assumption of these responsibilities that entitles each spouse to an equal distributionof the family property, subject to the exceptions, exemptions and equitable considerations mentioned in this Act. [40] Subsection 21(1) of the FPA provides: 21(1) On application by a spouse for the distribution of family property, the court shall, subject to any exceptions, exemptions andequitable considerations mentioned in this Act, order that the family property or its value be distributed equally between the spouses. [41] These guiding principles in family property division have been identified by our Court of Appeal on more thanone occasion.

There is a necessity to recognizing the fundamental underlying purpose of the legislation which is to divide property of themarriage equally: see Michalishen v Michalishen, 2002 SKCA 128 at para 19, 227 Sask R 107. Marital assets are at law to be sharedequally unless there are legitimate reasons to depart from that important underpinning. [42] Cameron J.A. in Benson v Benson (1994), (SK CA), 120 Sask R 17 (QL) (CA) [Benson],after referring to s. 21(1) of The Matrimonial Property Act, SS 1979, c M-6.1 (since rep) and the

definitions of matrimonial property andvalue, wrote: [19] In the light of these and other provisions of the Act [The Matrimonial Property Act], the practice is to resolve these cases alongthe lines suggested by Carter, J., in Rathie v. Rathie (1980), (SK KB), 2 Sask.R. 361, 17 R.F.L. (2d) 265 (Q.B.),determining, first, the property and its value subject to distribution.

This ordinarily entails compiling an inventory of the property ownedby the spouses as of the time of application and establishing the net value of that property as of that time or the time of adjudication.Exceptions aside, this is the property and its value which is subject to distribution.

It is the practice to go on from there to next determinewhether any of that property or its value is exempt from distribution; then to determine whether any of it ought not to be distributedequally having regard for the equitable considerations mentioned in the statute; and finally to decide how the distribution should beeffected.

Valuation Date [43] The “value” of any asset that falls to be distributed according to the FPA is determined under s. 2(1) as follows: 2(1) In this Act: . . . “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 thinksfit; 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 ofadjudication, that the court considers reasonable. [44] The Court of Appeal, in Benson at paras 33-34, sets out the approach to be used in selecting the appropriatevaluation date: 33 Now, of course, the Act [The Matrimonial Property Act] contemplates the distribution of that property or its value. And the courtis empowered to value that property as of the time of application or adjudication, “whichever the court thinks fit”.

The power in the courtto make that choice - choices, really, for the court is not required to value every item of matrimonial property as of the same time - is castin decidedly broad terms. It is not, however, unbounded. It has been taken to constitute a discretionary power, but one which must beexercised rationally, in keeping with the purposes of the Act and the justice of the case: Tataryn v. Tataryn (1984), (SK CA), 30 Sask.R. 282; 38 R.F.L. (2d) 272 (C.A.); Mitchell v.

Mitchell (1992), (SK CA), 100 Sask.R. 149; 18W.A.C. 149; 41 R.F.L. (3d) 220 (C.A.). 34 Since it is the property owned by the spouses at the time of application which constitutes the base for the distributioncontemplated by s. 21(1), the courts have tended to choose that date for valuation purposes, unless there be something in thecircumstances suggesting otherwise. From time to time various considerations have informed the choice, including the rise or fall ofvalue in the interval between application and adjudication. That has been taken to be an appropriate consideration.

But value can rise orfall according to divers [sic] causes, some beyond the control of the spouses, others within their control. This, too, has been taken to be anappropriate consideration. Thus a decline in land values attributable to market forces, beyond the control of the spouses, has been takenas justification for choosing to value as of the time of adjudication rather than application: Medernach v. Medernach (1987), (SK CA), 56 Sask.R. 240 (C.A.).

And a rise in the value of business assets, attributable solely to the effort of one of the spouses inthe interval, has been taken to justify a decision to value as of time of application rather than adjudication, as in Gresham v. Gresham(1988), (SK CA), 72 Sask.R. 9; 17 R.F.L. (3d) 209 (C.A.).

These were taken to be rational choices, made in keepingwith the purposes of the Act and the justice of the case. [45] The Court of Appeal later observed in Russell v Russell (1999), (SK CA), 179 DLR (4th)723, (Sask CA) at para 28 [Russell] that courts should strive for consistency in the choice of valuation dates for the various types ofassets: 28 Selection of the valuation date is not a decision made in isolation from other decisions made in the course of dividingmatrimonial property. The choice of the valuation date is a rational one based on the evidence.

As the case law indicates, the valuationdate is influenced by such factors as the sufficiency of the evidence of value pertaining to one date or the other, the cause of an increaseor decrease in value, the fairness of one date over the other and the effect of inconsistent dates on the overall fairness of the distribution.All of this is dependent upon a thorough understanding of the evidence.

Thus, although judgments begin with a decision as to theappropriate valuation date, the court hears all evidence pertaining to value before selecting the valuation date. [46] In Williams v Williams, 2011 SKCA 84 at para 29, 343 DLR (4th) 720, the discretion a trial judge was identifiedat para. 29: [29] This Court has recognized that the definition of value confers a considerable discretion on the trial judge, but this discretionarypower must be exercised in accordance with the fundamental principles of the Act [The Family Property Act]. In Benson v. Benson(1994), (SK CA), 120 Sask.

R. 17 (C.A.), Cameron J.A., speaking for the Court, made it clear that a choice ofvaluation date, which defeats the primary objects of the Act, is beyond the bounds of the discretionary power conferred on the trial judge(at para. 35).

The primary objects of the Act are the equal distribution of family property and the recognition of differing forms ofcontribution to the family unit, subject to the authority of the Court to order an unequal distribution of the property under certaincircumstances. [47] The principles applicable to the exercise of such discretion was further set out in Ackerman v Ackerman, 2014SKCA 137 at para 37, [2015] 6 WWR 626: 37 Value is defined in s. 2 of The Family Property Act to mean: (

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 thinksfit; 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 ofadjudication, that the court considers reasonable. This definition gives trial judges considerable discretion in determining whether to use the application date or the adjudication date tovalue family property. The ambit of that discretion has been considered by this Court and a review of that jurisprudence reveals the

following principles: (

i) The application date is the date traditionally used by courts for valuation purposes (see: Benson v Benson (1994), (SK CA), 120 Sask R 17 at para 34 (CA) [Benson]). (ii) Generally, property should be valued consistently at either the application date or the date of adjudication.

If property is valued atdifferent dates, the court should provide an explanation for doing so (see: Tataryn v Tataryn (1984), (SK CA), 6 DLR(4th) 77 (Sask CA) at 80 and Russell at para. 25). (iii) In determining the appropriate valuation date, a judge must act rationally based on the evidence before him or her; keeping in mindthe purpose of the Act and the justice of the case (see: Benson at para 33, Russell at para 28, and Williams v Williams, 2011 SKCA 84 atpara 29, 343 DLR (4th) 720). (iv) The choice of a valuation date will be informed in part by the sufficiency of the evidence of value pertaining to each date (see:Russell at para. 28); (

v) If property has increased or decreased in value between the application date and the date of adjudication, the reason for that increaseor decrease is an important factor to be considered in choosing the appropriate valuation date. If the increase or decrease is due solely tomarket forces the property should generally be valued as of the date of adjudication (see: Benson at para 34, Russell at para 45, Mehlingv Mehling (1989), (SK CA), 75 Sask R 195 (CA)).

On the other hand, when the rise or fall in value is attributablesolely to the actions of one spouse, it is appropriate to value the property as of the date of application (see: Gresham v Gresham (1988), (SK CA), 72 Sask R 9 (CA) and Benson at para 34). I would add that any contribution by a third party to the increaseor decrease in value of family property, would militate in favour of valuing that property as of the application date. (vi) The type of distribution contemplated by the Court, eg. sale or transfer to one or both spouses, may also be relevant to the choice ofthe valuation date.

Other considerations may also apply. [48] In D.B.B. v D.M.B., 2017 SKCA 59 [D.B.B.], Justice Herauf put it this way: 206 ...generally, the application date is to be used by the trial judge. This would make practical sense, as this is the time when familyproperty is crystalized under the FPA. However, these comments [from Ackerman] also illustrate the discretion the FPA confers on thecourt. The trial judge may use the date of adjudication if he or she provides an explanation for doing so.

The cases show a judge’sdecision in this regard should be accorded deference if he or she acted rationally based on the evidence while keeping in mind thepurpose of the FPA. 207 ...the appropriate valuation date can be ascertained by the surrounding circumstances, such as changes in the property’s value andthe causes of those changes.

These propositions were recently affirmed by this Court in Thomas v Thomas, 2016 SKCA 53, [2016] 9WWR 1[Thomas], which confirmed the principle in Ackerman... [49] In addition, where ascertaining the fair market value is problematic, the considerations set out in Thomas vThomas, 2016 SKCA 53, [2016] 9 WWR 1 should be kept in mind: [33] Based on the jurisprudence from this Court, a judge dividing the value of matrimonial property has the power to make choiceswith regard to value and is not restricted to the de facto value at either the application date or the adjudication date if the evidence is suchthat a fair market value cannot be established using either of those dates.

This much was made clear by Jackson J.A. in Russell v Russell(1999), (SK CA), [2000] 1 WWR 619 (Sask CA): [28] Selection of the valuation date is not a decision made in isolation from other decisions made in the course of dividingmatrimonial property. The choice of the valuation date is a rational one based on the evidence.

As the case law indicates, the valuationdate is influenced by such factors as the sufficiency of the evidence of value pertaining to one date or the other, the cause of an increaseor decrease in value, the fairness of one date over the other and the effect of inconsistent dates on the overall fairness of the distribution.All of this is dependent upon a thorough understanding of the evidence. Thus, although judgments begin with a decision as to theappropriate valuation date, the court hears all evidence pertaining to value before selecting the valuation date.

See also Benson v Benson (1994), (SK CA), 120 Sask R 17 at paras 33-34, and Ackerman at para 37. [50] Reference to the decision of the Supreme Court of Canada in Stein v Stein, 2008 SCC 35, [2008] 2 SCR 263,where Bastarache J., speaking for the majority made comments as follows, is also of note: [11] In my view, the fact that it is not feasible to precisely value an asset or debt at the time of separation does not alter the principlethat the complete financial situation of both spouses needs to be considered in order to ensure a just result.

In the context of assets, courtshave concluded that spouses have a right to claim an interest even where the asset itself is “inchoate, contingent, immature, or notvested” (Rutherford v. Rutherford (1981), (BC CA), 23 R.F.L. (2d) 337 (B.C.C.A.), at p. 342... [51] Thus, it may not always be possible nor advisable to choose one valuation date for all assets.

With someexceptions, generally speaking, assets will be valued as of the date of application rather than either earlier than that or at the date of trial.However, given the purported agreement between the parties, this litigation raises the issue of a valuation and potential distribution priorto the date of petition.

Here there was settlement activity between the initial actions of the parties in discussing a division, subsequentlyfollowed by steps being taken in that regard, prior to petition date. [52] The parties diverge on what impact at law the informal arrangement they entered into shortly after separationhas. Keri submits there is little effect or weight to be accorded to the agreement whereas Lee submits it is binding on them. The answer

to this initial question then leads into the characterization and treatment of either all, or a subset of, the family property which is in dispute, both regarding valuation and division. Effect of Informal Agreement [ 53 ] Lee argues that the indicia recognized and required to be applied by Anderson are met here and that this may in fact end the inquiry into family property.

Keri is of the opposite view and says there is no binding agreement, thus the statutory FPA exercise must be undertaken to value and divide property as of either petition date or the date of trial, and the values at the date of the discussion at the kitchen table do not matter. Agreements and Property Division [ 54 ] An informal agreement executed without legal advice or a valuation of the assets was generally not of great significance prior to the Supreme Court decision in Anderson . The weight assigned to such an agreement was purely discretionary via s. 40 of the FPA .

However, that regime has now been supplanted in favour of a priority system wherein informal domestic agreements regarding family property are to be encouraged and supported by the court. Absent a compelling reason to discount such an agreement, they are to be controlling in a family property division analysis. Anderson recognizes self-sufficiency, autonomy and finality as being important objectives within the family property context. [ 55 ] The first step identified by Anderson is to determine whether the agreement in question is an interspousal contract pursuant to s. 38 of the FPA .

Is this an Interspousal Contract pursuant to s. 38 ? [ 56 ]

Section 38 provides: 38(1) The terms of an interspousal contract mentioned in subsection (4) are, subject to

section 24, binding between spouses, whether or not there is valuable consideration for the contract, where the spouses have entered into an interspousal contract: (

a) that deals with the possession, status, ownership, disposition or distribution of family property, including future family property; (

b) that is in writing and signed by each spouse in the presence of a witness; and (

c) in which each spouse has acknowledged, in writing, apart from the other spouse, that he or she: (

i) is aware of the nature and the effect of the contract; (ii) is aware of the possible future claims to property he or she may have pursuant to this Act; and (iii) intends to give up those claims to the extent necessary to give effect to the contract.

(2) A spouse shall make the acknowledgment mentioned in subsection (1) before a lawyer other than the lawyer: (

a) acting in the matter for the other spouse; or (

b) before whom the acknowledgment is made by the other spouse.

(3) Any provision of an interspousal contract that is void or voidable is severable from the other provisions of the contract.

(4) An interspousal contract may: (

a) provide for the possession, ownership, management or distribution of family property between the spouses at any time, including, but not limited to, the time of: (

i) separation of the spouses; (ii) dissolution of the marriage; or (iii) a declaration of nullity of marriage; (

b) apply to family property owned by both spouses and by each of them at or after the time the contract is made; and (

c) be entered into by two persons in contemplation of their commencing to cohabit in a spousal relationship, but is unenforceable until after they commence cohabitation.

(5) Without limiting the generality of subsection (4), an interspousal contract entered into on or after June 4, 1986 may provide that, notwithstanding the Canada Pension Plan, there may be no division between the parties of unadjusted pensionable earnings pursuant to that Act.

(6) Where an interspousal contract has been entered into pursuant to this section, the spouses may enter into another contract amending, varying or cancelling the earlier contract, and the subsequent contract, if made in accordance with this section, takes precedence over the earlier contract. [ 57 ] As s. 38 requires the agreement to be in writing and for an independent lawyer to witness the signatures of each party, this agreement, having neither of those, is not an interspousal contract. As a result, it falls to be considered pursuant to s. 40 which

states: 40 The court may, in any proceeding pursuant to this Act, take into consideration any agreement, verbal or otherwise, between spouses that is not an interspousal contract and may give that agreement whatever weight it considers reasonable. [ 58 ] Next, the analysis laid out in Anderson directs the court to consider whether the agreement is valid according to ordinary contract law principles.

Contract Principles Has an Oral Agreement Been Proven? [ 59 ] As the agreement here is an oral one with some writing being evidence of a possible agreement and forming part of the surrounding circumstances only, a question which arises is that of proof; has Lee proven the existence of an oral agreement here. [ 60 ] Justice Robertson noted in Wenkoff v Wenkoff Estate , 2019 SKQB 325 states: [96] The first element requires proof of an oral agreement that was completed. Proof of a mere promise will be insufficient. An agreement in principle or agreement to agree will be insufficient.

The agreement must be final and complete so as to be specifically enforceable. As with any contract, the essential terms must be proved by evidence. . . [97] The second element invokes equity, since it would be unfair to deprive the claimant of the benefit of an agreement the terms of which they have partly performed and on which they have relied to their detriment. (See also Jans v Jans Estate , 2016 SKQB 275 paras 183 – 185 , 21 ETR (4th) 35.) [ 61 ] In that regard, both parties acknowledge that they did sit down and discuss the property and come up with the agreement that Lee testified to.

There is no substantial disagreement regarding the terms of the agreement or what was said. There has been part performance in that the parties both acted in accordance with the agreement including Lee paying Keri $151,384 in two instalments, both prior to any petition being issued. Each party took the assets they had agreed would be kept and did not seek to have the assets the other was to keep. [ 62 ] Therefore, I find the terms of an oral agreement argued by Lee to exist have been proven with sufficient clarity. [ 63 ] Next the issue turns to the formal principles of the agreement itself.

Was there consensus ad idem ? [ 64 ] For there to be an enforceable oral agreement there must be consensus ad idem or a meeting of the minds.

In Carruthers v Carruthers , 2021 SKCA 52 , 56 RFL (8th) 110 [ Carruthers ] our Court of Appeal provided this statement in that regard: 66 Parties will have reached a meeting of the minds: [9] ...where it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determined with a reasonable degree of certainty... ( Ron Ghitter Property Consultants LTD. v Beaver Lumber Co ., 2003 ABCA 221 , 17 Alta LR (4th) 243) See also Tether [ Tether v Tether , 2008 SKCA 126 , 56 RFL (6th) 250] , at para 62; Matic v Waldner , 2016 MBCA 60 at para 57 , [2017] 1 WWR 504; and Jans [ Jans Estate v Jans , 2020 SKCA 61 , 59 ETR (4th) 53] at paras 42-45. [ 65 ] The Supreme Court in Anderson put it this way: [58] In this case, the relevant issue of validity is whether there has been a “meeting of the minds”, or consensus ad idem , on all essential terms of the agreement (see Jedfro Investments (U.S.A.) Ltd. v.

Jacyk , 2007 SCC 55 , [2007] 3 S.C.R. 679, at para. 16 ; J. D. McCamus, The Law of Contracts (3rd ed. 2020), at pp. 31 and 97; see also Tether v. Tether , 2008 SKCA 126 , 314 Sask. R. 121, at para. 62 ). [ 66 ] I conclude that the reasonable observer would conclude that there was a meeting of the minds of Lee and Keri. The requisite family property was identified, which was not difficult as it was not extensive; it involved the family home, the pertinent vehicles, household goods, tools and various bank accounts including two RRSPs.

While there were businesses involved and two corporations had been set up in that regard, they were not difficult to fully hold in mind or thereafter to value as they were really the sum of their bank accounts which were readily identifiable values. There was no goodwill in the business or companies as they were not particularly active at the time. I find the necessary consensus ad idem was present. Was there consensus on all essential terms? [ 67 ] The next question was whether there was consensus on all the essential terms of the agreement.

If a material term is not resolved or is left vague and imprecise, and no mechanisms are agreed upon so as to determine the outstanding matter, the parties are effectively seeking that the court make the agreement. As outlined in Anderson the agreement need not deal finally or completely with all family property. It may involve some of the property as opposed to being dependent on dealing with all of the family property. As noted at para. 63 of Anderson : [61] Nor is it necessary that the agreement resolve all issues of property division between the parties.

There is a difference between a partial agreement and an incomplete agreement, and the Act [ The Family Property Act ] does not require that an agreement deal with all

issues of family property before it can be given weight. Spouses may agree to exempt certain property from equal distribution, for example, while leaving the rest to be divided under the FPA (see, e.g., s. 24(3) ). [ 68 ] Ascertaining when the absence of agreement on key family assets might make the purported agreement “incomplete” as opposed to a “partial agreement” will need to wait for another time.

While it is likely that since family property negotiations often involve considerable give and take in relation to the entirety of the assets at issue the argument will no doubt arise that a partial agreement in one party’s mind was quite rightly no agreement at all, but those arguments were not advanced in this matter. [ 69 ] As noted, the key assets and terms were agreed to herein. Keri does seek to include in the divisible assets not addressed by the purported oral agreement of 2014 some of the tools Lee owned.

In addition, she seeks to include the equity in the home subsequently purchased by Lee at 213 4 th Avenue, Unity [Unity Home]. [ 70 ] However, tools are one of the items which was identified in the 2014 agreement. The Unity Home on the other hand was not in existence at the time of the 2014 agreement as it was purchased subsequently, albeit prior to Lee’s petition being issued in 2017. In that regard, application of Anderson in this situation does not result in a partial agreement becoming an incomplete agreement based on an after acquired asset.

Rather the direction from Anderson is that giving effect to the agreement and dealing with assets not included via the FPA is the route forward. [ 71 ] I conclude that all the essential terms were identified and concluded, thus that basis does not provide for a determination that there is no agreement here. After acquired family property that was not contemplated or included in the agreement will need to be dealt with aside from the 2014 agreement.

Although this might be characterized as a “partial agreement”, given the property acquired after the 2014 agreement and the petition date was not identifiable as of the date of the 2014 agreement it will be considered separately. Is the Agreement Conditional? [ 72 ] Finally, did the parties make their agreement conditional upon, and subject to, execution of a formal document. In this regard neither party acted like the agreement was incomplete and that, since no formal document was created and executed, it was an incomplete arrangement. Lee mortgaged the family home and paid Keri $135,919.

Subsequently, in early 2016 when the family home sold, a further $15,466 was provided to Keri in furtherance of the $152,500 equalization payment agreed to. [ 73 ] While Keri investigated the serving and filing of a petition including obtaining legal advice to that effect prior to Lee’s petition in 2017, it did not materialize, quite possibly due to no fault of her own. Nonetheless, even accepting that it was her then counsel whom she discharged for not following through on her instructions, other counsel was not retained to serve and file a petition.

It languished on Keri’s side until Lee brought his forward in 2017. Integrity of the Bargaining Process [ 74 ] If a valid agreement is found to exist, the court’s attention is to then shift to what consideration that agreement merits in the equalization analysis.

The direction from the Supreme Court here is that unless the court is satisfied that the agreement arose from an unfair bargaining process, an agreement must be given “serious consideration”, which effectively means found to be a binding contract between the parties. [ 75 ] Anderson directs that the court must examine the integrity of the bargaining process for undue pressure, exploitation of a power imbalance or other vulnerability.

The issue is whether Lee and Keri concluded the agreement freely, understanding its meaning and consequences without being influenced improperly therein in the entering of the agreement. [ 76 ] The lack of legal advice or absence of the valuation of the assets are not automatic impediments at this stage.

As noted by the Supreme Court in Anderson at para 49 : 49 . . . independent legal advice and financial disclosure help ensure a fair bargaining process, they are not a statutory requirement under s. 40 of the FPA , and their absence alone is not determinative of the inquiry. [ 77 ] The question therefore becomes whether any features of the negotiation are such that they render the agreement void, unenforceable or direct that it be set aside. [ 78 ] I find nothing in the evidence of the parties which raises issues of an unfair or overwhelming power imbalance, unconscionability or other form of problematic vulnerability here.

That is not to say the parties were completely equal in all respects. There will generally be some form of power imbalance in such negotiations. This may even change as time goes by after a separation as emotions and beliefs wax and wane. [ 79 ] For example, here there arose a desire by Keri to reconcile after the separation. There were even attempts at doing so, unfortunately to no avail.

However, the circumstances of that as contained in the evidence here does not persuade me that Keri was willing to subvert her own interests and give away property or a right to receive a payment that she felt she was entitled to so as to garner favour in that respect. The analysis of the 2014 deal itself confirms that she did not in fact give away a share of the arrangement she could otherwise have secured for herself. I find that she was not unfairly or inequitably treated by virtue of the agreement. [ 80 ] I find no undue pressure was applied by either party.

There was a rational discussion about the way forward including dealing with the property and debts of the parties. Granted, this was a long-term marriage and factors which might influence the determinations of an agreement in a short-term relationship are at play here, the property was not extensive nor complicated. I find no undue pressure existed in the bargaining process here nor was anyone vulnerable and taken advantage of. [ 81 ] Nor was the informal arrangement an improvident bargain as one of the two required features of the doctrine of unconscionability.

As set out by the Supreme Court recently in Uber Technologies Inc. v Heller , 2020 SCC 16 , [2020] 2 SCR 118 there

needs to be both a significant power imbalance such that one party is not exercising their own free choices coupled with an improvident bargain. Neither of those are established in this instance. The division accomplished in 2014 was neither unfair nor one sided. [ 82 ] Lee advances the position that the agreement is binding but also argues that the date of valuation of the assets agreed to be divided ought to be the date of separation given the agreement. In argument Lee seeks to rely on the Court of Appeal’s decision in Anderson v Anderson , 2021 SKCA 117 , 463 DLR (4th) 217.

Counsel were approached about their desire to lead further evidence or make further argument given Anderson was delivered by the Supreme Court after trial but before this decision. They both declined. [ 83 ] Using separation date as the date of valuation in the case of an agreement such as this was not embraced by the Supreme Court in Anderson . Nor was date of petition. Instead, the analysis taken by the Supreme Court appears to have concluded that the appropriate division of property that is the subject of an agreement is a matter of fairness and may not require a specific valuation as of the agreement.

In Anderson the parties separated in May of 2015 and agreed to a form of division in July of 2015. The petition was issued in December 2015 but no family property issues were raised. The counterpetition which raised the issue of property for the first time was served in 2017. If anything, it is the values at the date of the agreement that should govern the fairness of that agreement. [ 84 ] It may be observed that a question arises as to whether the agreement is fair and equitable if the parties did not know the value of their assets at the time of the agreement. That does not end the inquiry, though.

The court can perform an analysis to determine such matters including what the value of the assets was at that time. In this regard, Lee has put forward a spreadsheet indicating values at separation. In this instance, the separation was mere weeks before the agreement dividing the property arose, even though it was three years prior to petition. [ 85 ] I conclude that the indications of value in the information advanced by Lee other than regarding his tools is quite helpful and, I find, accurate.

It is important to understand the fairness of the agreement which can only be accomplished with an understanding of the value of the assets being kept by each party, at least within reason. [ 86 ] In line with Anderson at the Supreme Court, the agreement is to be given great weight, i.e. be binding on the parties. Thus, accepting as I do the values of the assets at separation, being just weeks prior to the agreement, it appears Keri was the beneficiary of a slightly unequal division in her favour.

As she received $151,385, her vehicle (2011 Ford Flex worth $19,000), her accounts (personal and corporate) worth $10,085.84 and Lee kept the debts as well as his vehicles and RRSPs, the spreadsheet shows the equalization payment would have been only $133,781.93. Keri received instead $151,385. [ 87 ] Therefore, working in an enhanced value of tools Keri says were overlooked in the agreement, if they hold a total value of $38,000, her one-half share comes to $19,000.

This is the difference between what she was paid and what she was entitled to if a 50/50 split occurred on the date of the agreement. [ 88 ] The agreement was fair, reasonable and the values adequately captured in the division. In accordance with Anderson it is to be given great weight in this family property division and is therefore the governing approach to the division of the assets identified in it.

Assets not Caught by the Agreement [ 89 ] The parties submitted that if the agreement were not to govern, then the petition date valuations are appropriately relied upon with some equitable exceptions to be applied to that. These include the equity in the Unity Home subsequently owned by Lee; the home Keri purchased in Luseland, Lee’s tools and the VW Passat. [ 90 ] I have already addressed the tools within the context of the agreement and so they will not be dealt with further under this heading.

They were part of that agreement and the additional value they had was provided to Keri through her payments from Lee. This leaves the remaining items to be addressed. Unity Home [ 91 ] It is agreed that Lee’s Unity Home’s value for division purposes is $218,000 and that the outstanding mortgage thereon at the relevant time was $165,491, leaving a possible divisible amount of $52,509, being the total equity in the property.

The difference in perspective is the result of Lee claiming he owns, and has always owned, this property jointly with his new partner Melinda. [ 92 ] Keri submits, however, there is insufficient evidence of this property being jointly owned by Lee and his new partner Melinda at the date of petition to attribute only 50% of the interest for family property division purposes to Lee.

She says Melinda did not testify and therefore an adverse inference can be drawn against Lee for failing to have her testify as to her role and the timing thereof regarding the ownership of this home. [ 93 ] Lee submits that all records show the property in joint names, that he testified to purchasing it jointly with Melinda and that the mortgage is also in both their names.

He says the result at law is that there is no realistic conclusion to be drawn to the contrary other than it being jointly purchased in 2017 and jointly owned with Melinda throughout. [ 94 ] I find the evidence establishes sufficiently that the property was, at the relevant time, owned jointly with Melinda. I accept Lee’s evidence of this and do not draw an adverse interest in the failure to call Lee’s spouse to testify as to her contribution, if any. [ 95 ] One-half of the $52,509 equity will therefore be considered for the purposes of the additional analysis, being $26,755 .

This does not mean that the $26,755 will automatically be divided 50/50. There was an agreement in 2014, the carrying on as if that governed, and then the acquisition of this property. It is a post-agreement, post separation, pre-petition property and cannot automatically be divided equally. The value it holds for consideration at this stage is $26,755.

Home in Luseland [96] The exception Keri advances here is based on the fact it was foreclosed upon prior to trial and she maintains shewould have paid the mortgage and avoided that had Lee been paying her an appropriate amount of spousal support at the relevant time. [97] Normally real property is to be valued as a starting point at date of petition. If there are market forces alonechanging the value then it ought to be valued as close to the trial date as possible, but only if such asset changed value based on marketconditions.

This would not be correct if there are improvements made to same. [98] As pointed out in Benson, the tendency of the courts has been to value the property at the date of applicationsince it is the property owned by the spouses at that time that is subject to distribution. There may be circumstances, however, that willwarrant deviating from that norm. As noted earlier, Cameron J.A. commented at para. 34 on the considerations that can come into playwhen choosing an appropriate valuation date.

This is particularly so with real property where the value has changed due to marketconditions and not the addition of value by one of the parties, as is the case here. [99] In relation to Keri’s argument here I am reluctant to directly comingle the issues related to spousal support withthis real property in the context of family property valuation and division.

What she advances may be an equitable consideration,however, once the support issue is determined it will be clearer what impact that might have. [100] Thus, the question at this point is whether the value at petition date, being $31,653 in equity, and thensubsequently at trial being a negative amount, is due to market conditions or something Keri did. If the property declined to beingworthless as a result of uncontrollable market factors, clearly Keri should not be held responsible for that.

If, however, Keri had a role toplay in the reduction of the equity in this home to nothing, it is not fair to Lee to attribute the loss of all value after petition to his side ofthe leger. [101] I find that the reasons the home lost all its value was a combination of factors including Keri’s choices. She choseto move in with Mike and take on the role of caring for his family rather than seek employment. I conclude that had she sought activeemployment or made her deal with Mike to include the mortgage payments, the mortgage would not have been foreclosed upon nor adeficiency judgment obtained.

She also could have made arrangements with the lender to forestall full payment in favour of some formof arrangement. She also bears some responsibility for not selling the home even though the offer was low. That would have providedher an additional $95,000 with which to retire the mortgage. [102] I find the circumstances surrounding the Luseland home to point towards the equity in the house being includedon Keri’s side of the ledger as of petition date. 2012 VW Passat [103] This vehicle was initially said to have been purchased from Keri’s father by Mike, not Keri.

She says it wasbriefly registered in her name for convenience of transfer from Saskatchewan registration to Alberta registration. She says Mike drove itas did she some. [104] Lee says the vehicle was registered to Keri at one point, that she admitted to driving it and selling it via Facebookwhere she called the car her “baby”. [105] The relevant indicia confirm that Keri had not only a significant interest in the vehicle but treated it as her own inseveral respects. I find it was hers at the date of petition and the value of it at the date of petition will go on her side of the ledger.

I findthe value to be $20,000. [106] Keri also had a 2011 Ford F-150 truck worth $15,000 to take into account. Lee’s Vehicles [107] Lee had a 2003 RMK 800 Edge 151” worth $2,000, a 2016 Ski-Doo Summit 154” worth $7,000, a 2007 FordMustang worth $10,000 and a 2009 Chevrolet Truck worth $11,000 which will go on his side of the ledger. Pensions and Investments [108] The 2014 agreement disposed of some of these. The Solium Capital Account was dealt with through the 2014agreement as was the Credential Securities RRSP.

The Luseland CU RRSP account number [REDACTED] in the amount of $39,579was not part of the family property at the time of the agreement so will need to be included in Lee’s total. Tax consideration will begiven at 25% withholding tax which is reasonable. Debts and Liabilities [109] In considering whether an equal distribution of family property would be “unfair and inequitable”, clause21(3)(

o) of the FPA requires the court to consider “any debts or liabilities of a spouse, including debts paid during the course of thespousal relationship”. [110] As recently noted by our Court of Appeal in Swystun v Janzen, 2016 SKCA 117, 405 DLR (4th) 559: [15] As stated in Russell v Russell (1999), (SK CA), 180 Sask R 196 (C.A.) [Russell], a “strict construction” ofboth The Family Property Act and of Benson v Benson (1994), (SK CA), 120 Sask R 17 (CA) [Benson], would requirethe trial judge to calculate the value of the family property and then make a determination as to whether an “equitable adjustment” isrequired because of the debts.

Justice Jackson then went on to say: “As a general rule, however, once debts are accepted as debts

incurred by the parties prior to the date of application, Saskatchewan courts deduct debts from the total value of matrimonial propertywithout maintaining that they are doing so as a result of an application of equitable principles” (at para 111). [16] Whether or not to order an unequal distribution of family property having regard to the debts of the parties is within thediscretion of the trial judge (Russell at para 111, Riben v Riben, 2013 SKCA 114, 423 Sask R 305).

The trial judge, at para 188, statedthat the debts were “occasioned by the [respondent] during the course of the relationship for their mutual benefit” and “accordingly”accepted those debts should be taken into account in the property division. This is not surprising since the appellant provided noevidence that it would be improper to consider the debt incurred between separation and petition, or to rebut the evidence provided bythe respondent that the debts were incurred for the parties’ mutual benefit.

Accordingly, I would not give effect to this ground of appeal. [111] The debts accumulated at the time of the agreement are fairly apportioned and used to come to the amountswhich were paid. I find this to be an equitable and fair result and reinforces the appropriateness of the agreement.

Property Later Acquired [112] The situation now facing this Court is dealing with an agreement that is to be given great weight and additionalproperty which was not part of the agreement and which was acquired after separation, after the agreement, but prior to the petition. [113] In Carruthers, leave to appeal to Supreme Court refused, , an instance of transactions related tofamily property occurring after the date of application and its relationship to the fair market value was addressed.

At the date ofapplication, the parties held 55% of the shares in a farming corporation, while the husband's parents owned the remaining 45%. At trial itwas determined that the parties had an interest in the parents' shares, either by way of an oral contract or unjust enrichment, and so all ofthe shares were held to be family property as at the date of application.

After the petition but prior to the trial, the wife purchased theshares formerly held by the parents. [114] Ottenbriet J.A. describes the approach taken there in Rankin v Rankin 2022 SKCA 32, [2022] 6 WWR 19[Rankin]: [60] The Court began by noting that the issue for the trial judge was whether the parties had an interest in the parents' shares at thedate of application, underlining again that it is the date of application that is crucial for the identification of family property.

This Courtdetermined that the trial judge erred in finding that the parties had an interest in the parents' shares at the date of application based on anoral contract, but sustained the trial judge's conclusion that the parties had a chose in action respecting the shares based on unjustenrichment that was crystallized when the wife purchased the shares.

This Court thereby implicitly affirmed that the subsequenttransaction of acquiring the actual shares could be used to value the chose in action in existence at the date of application. [Emphasis in original] General Fairness and Equity [115] Rankin goes on to state at para. 89: [89] The touchstone of any analysis is that an eventual division of family property must achieve a fair and equitable distribution of thesame or its value. The issues the parties placed before the Chambers judge engage those principles.

The determination of those issuesmust be capable of being integrated into an eventual division of the parties' family property based on those principles.

Indeed, the partieshave, by this application, requested the assistance of the court in that regard. [90] This allows the court to consider the nature of the parties' dealings with the family property after the application date or theacquisition of property after the application date as a factor bearing on both the equal or unequal division of that family property and thedetermination and division of its value. [116] Anderson did deal with the situation that is now before this Court. There the approach was one of what overall isfair and equitable.

The property which was subject to the agreement was dealt with as of the agreement. Other assets were dealt with onthe basis of the facts relating to them in the intervening time. The house is the clearest example; it was divided as of adjudication date asMr. Anderson continued to pay the mortgage. [117] I conclude that the family property acquired after the agreement but prior to the petition date must be valued andconsidered against the backdrop of the priorities of the FPA. These include the equal division of such assets unless that is neither fair norequitable.

It should also include the actions of the parties and the way the property was considered and treated by them. [118] Debts at the time of petition should also be considered for the ultimate weighing of the equities in thecircumstances of the particular matter. CONCLUSION RE: FAMILY PROPERTY [119] With respect to family property, I find the following facts and conclusions respecting values of various items offamily property and various debts should be taken into account in this matter. The property acquired after the agreement is still familyproperty by virtue of the FPA.

This is not a situation of after petition acquired property but after agreement but before petition. I do notfind that a partial agreement which deals with property then in existence displaces the statute which defines family property as propertyin existence as of the date of petition. It must be considered and fairly and equitably divided as well. [120] As of the date of petition, the following was the situation with respect to the parties’ property. I have removed theproperty subject to the 2014 agreement as that has already been dealt with.

Property Chart: Date of Petition PROPERTY DIVISION OF LEE ADAM EUGENE MARTIN and KERI RAELEEN MARTIN Date of Marriage: October 12, 1996 Date of Separation: April 2014 Date of Petition: October 23, 2017 ASSETS & LIABILITIES VALUE AT DATE OF PEITION ASSETS PETITIONER RESPONDENT Lee Martin Keri Martin Real Property Family Home Divided Equally via 2014 Agreement Divided Equally via 2014 Agreement 200 Chipman Street, Luseland, SK $31,653 (equity) Lee’s Interest in 213 4th Ave, Unity SK (total value $218,000 – equity $52,559, shared with Melinda) $26,755 (Lee’s Equity) TOTAL $26,755 $31,653 Household Goods / Vehicles Household Goods Divided Equally via 2014 Agreement Divided Equally via 2014 Agreement 2011 Ford F-150 $ 15,000.00 2003 RMK 800 Edge 151” $2,000.00 2012 VW Passat $20,000 2016 Ski-Doo Summit 154” $7,000.00 2007 Ford Mustang $10,000.00 2009 Chev Truck (paid $15,000 in 2015) $11,000.00 Tools Dealt with in 2014 Agreement Dealt with in 2014 Agreement TOTAL $30 ,000 $35 ,000 Bank Accounts Dealt with in 2014 Agreement Dealt with in 2014 Agreement Fast Track Performance Luseland CU Chequing Account No [REDACTED] $1,064.30 TOTAL $1,064.30 Investments / RRSP’s Luseland CU RRSP Account No [REDACTED] $39,579.79 Credential Securities RRSP Account No [REDACTED] (transferred from Great West Life) Dealt with in 2014 Agreement Dealt with in 2014 Agreement TOTAL $39,579.79 TOTAL LESS TAX CONSEQUENCES $29,684.85 LIABILITIES Ski-Doo Loan – Luseland CU Account No [REDACTED] $(7,526.65) Debts from 2014 Agreement Divided Equally via 2014 Agreement Divided Equally via 2014 Agreement Total Family Property at Petition $79,976 $66,653 All Family Property Value $146,629 $146,629 Keri to Receive (equalization Payment) $6,661.50 Family Property Amounts and Distribution

[121] In the weighing and balancing of all factors, the division that took place regarding those assets in 2014 isequitable, fair and reasonable. It accounts for the tools Keri had an issue regarding. [122] It appears the after-acquired property (from the date of the agreement to the date of petition), is close toequivalent. It seems equitable, fair and reasonable for Lee to provide an equalization payment to Keri in the amount of $6,661.50. TheFPA has this as its core function. It is fitting. Support Spousal Support 1. Legislation Governing Spousal Support [123] Spousal support is established by s. 15.2 of the Divorce Act, RSC 1985, c 3 (2d Supp): 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure orpay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for thesupport of the other spouse.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim orderrequiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as thecourt thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or untila specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition,means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse.

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration anymisconduct of a spouse in relation to the marriage.

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above anyobligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [124] The factors in the Divorce Act are not, individually, to be determinative of the issue of spousal support. As set outin Moge v Moge, (SCC), [1992] 3 SCR 813 [Moge] and Bracklow v Bracklow, (SCC), [1999] 1 SCR420 [Bracklow] and numerous Saskatchewan cases following these decisions, all appropriate factors should be considered in arriving at aconclusion. The circumstances of a particular case are to be considered and weighed when evaluating these factors. 2.

Forms of Entitlement [125] In Bracklow, the Supreme Court of Canada recognized three “conceptual grounds” for entitlement to spousalsupport: 1) compensatory, meaning compensation for foregoing opportunities, making economic sacrifices or conferring economicadvantages on the other spouse; 2) contractual, which examines whether any express or implied agreements between the spouses existed;and 3) non-compensatory, which is based on need and a spouse’s ability to support themselves. (

a) Contractual Ground [126] No argument or evidence was put forward regarding the contractual basis for support so it will not be considered.This leaves the compensatory ground and the non-compensatory grounds to consider. (

b) Compensatory Support [127] Regarding spousal support to compensate Keri, the following facts are significant; the parties had a relativelylong-term marriage, from 1996 to 2014. They had three children together. Keri was out of the workforce for almost five years in thatregard. She did not work on a full-time basis after the children arrived. [128] Keri did make economic sacrifices during the relationship. She was very successful in her SIAST program,architectural design. Each of her employers for her training were impressed with her.

I find that the move to Luseland/Kerrobert was byagreement, but primarily out of interest expressed by Lee. Keri would not have moved if it was her decision to make. Lee’s family lived

in the vicinity, not Keri’s. Her family was from Moose Jaw. His welfare was the paramount consideration in that move. It turned out to be of significant advantage to him economically as well. I accept that Keri would have preferred to settle in the Moose Jaw area where her family and job opportunities were. [ 129 ] I do not find that there were opportunities for Keri in the Luseland/Kerrobert area in her chosen field. While she did have some part time work, setting up her own business to do so, that would never be a significant money maker in that area.

I find the projects which might have been available for Keri in that area were not sufficient to keep her busy full time for long. [ 130 ] Keri did miss career opportunities which were given up during this marriage. She worked at Stantec, a large engineering firm, and had bright prospects there. The family’s priority, however, was to move to the Luseland/Kerrobert area I find primarily for Lee’s benefit. The priority became having Keri parent their children when they were younger as opposed to her moving to working full time there.

There was no real opportunity for someone with Keri’s credentials in that vicinity. This meant she did not pursue the employment she desired on a full time basis during that period of time. [ 131 ] Keri started working on her own after the children were becoming slightly less constant to care for, establishing her own business. It was part time by necessity.

This did not earn a lot in income nor provide a long-term source of income. [ 132 ] Lee’s earning power was both maintained and eventually increased due to Keri taking on the primary responsibility and role of parent and not the role of full-time employee or full time business operator. She wished to pursue her own career and was well on her way when the couple was in Regina. She gave that path up to move with Lee, primarily due to his desires, and then cared for the children to the detriment of her career, something that clearly benefited Lee.

This brings her within the ambit of compensatory spousal support entitlement. [ 133 ] Keri’s sacrifice for Lee’s benefit enabled him to significantly increase his income while hers did not keep pace. There is entitlement on a compensatory basis here. [ 134 ] Spousal support is also properly considered via the non-compensatory factors in ss. 15.2(4) taking into account the objectives in ss. 15.2(6). (

c) Non-Compensatory Spousal Support [ 135 ] As noted earlier, none of the objectives in ss. 15.2(6) are to be given more or less importance than the other. This was noted in Moge , by L’Heureux-Dubé J. at 850: The most significant change in the new Act when compared to the 1970 Divorce Act may be the shift away from the “means and needs” test as the exclusive criterion for support to a more encompassing set of factors and objectives which requires courts to accommodate a much wider spectrum of considerations. This change, of course, does not signify that “means and needs” are to be ignored.

Section 15(5) of the Act specifically states that “the court shall take into consideration the condition, means, needs and other circumstances of each spouse”. [ 136 ] The Saskatchewan Court of Appeal provided direction on the matter of spousal support as identified in Moge in Russell , where Jackson J.A. stated at para. 126: [126] Much has been written analysing Moge . For the purposes of this case, Moge underscores the need not to over-emphasize any one factor or focus on any one model of support.

To determine whether spousal support is to be ordered, a court must consider all factors including the standard of living of the spouses before and after divorce, their means to satisfy living expenses and their ability to become self-sufficient after the breakup of the marriage... the economic disadvantages and hardships caused by marriage cannot be as easily quantified. [ 137 ] The intended effect of the objectives in the Divorce Act provisions is to promote an equitable sharing of the economic consequences of the marriage. When it breaks down, the effects on the parties must be evaluated.

Economic disadvantage is not merely a lost opportunity or a career disadvantage. It includes the loss of resources and benefits which were available to the parties while they were in the marriage or were they still in the marriage. [ 138 ] In Bracklow , McLachlin J. (as she then was) states at para. 41: 41

Section 15.2(6) of the Divorce Act , which sets out the objectives of support orders, also speaks to these non-compensatory factors. The first two objectives— to recognize the economic consequences of the marriage or its breakdown and to apportion between the spouses financial consequences of child care over and above child support payments — are primarily related to compensation.

But the third and fourth objectives are difficult to confine to that goal. “[E]conomic hardship ... arising from the breakdown of the marriage” is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6)(a): see Payne on Divorce [ Payne on Divorce , 4th ed. Scarborough Ont.: Carswell 1996], at pp. 251-53, but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it.

Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense. Such an

interpretation supports the independent inclusion of s. 15.2(6)(

c) as a separate consideration from s. 15.2(6)(a). Thus, Rogerson sees s. 15.2(6) (c), “the principle of compensation for the economic disadvantages of the marriage breakdown as distinct from the disadvantages of the marriage”, as an explicit recognition of “non- compensatory” support (“Spousal Support After Moge ” , supra , at pp. 371-72 (emphasis in original)). [Emphasis in original] [ 139 ] As recognized by Justice Megaw in Chepil v Chepil , 2014 SKQB 341 at para 44 , 458 Sask R 289: “[t]he emphasis is not to be simply on a ‘dividing up income’ test but rather on the complete circumstances of the parties”.

[ 140 ] The parties’ “means and needs” is to be kept in balance with the other factors. “Means and needs” has been the subject of much comment and analysis. Justice Sandomirsky indicated in Leepart v Leepart , 2009 SKQB 47 at para 16 , 321 Sask R 257: [16] ... each former spouse is a unique individual and each marriage is in some ways also unique. Each divorce is therefore in some ways unique and life after divorce for the former spouses has its own unique nature. That is the human condition.

Thus, when examining the conditions, means, needs and other circumstances of former spouses, no two cases are identical… [ 141 ] Justice Foley, in Frank v Linn , 2013 SKQB 28 at paras 188-189 , [2013] 7 WWR 542, set out a helpful analysis: [188] What constitutes “needs” and “means” has been judicially considered by a number of courts.

I accept that “needs” encompasses something more than expenses associated with “subsistence”. “Needs” must be assessed in light of the lifestyle and standard of living which existed during the spousal relationship and by each of the parties following the breakdown of the relationship. (See: Chutter v Chutter [2008 BCCA 507 , 60 RFL (6th) 263 ], supra , at paras 54 to 58) .... [189] With respect to “means”, I adopt the definition enunciated by Julien D. Payne, Payne on Divorce , 4th ed (Toronto: Carswell, 1996) at pages 252 and 253.

He defines “means” as “all pecuniary resources, capital assets, income from capital assets or from employment earning capacity and an

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