L.E.S. PETITIONER - v. -, 2023 SKKB 46

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 46 Date: 2023 02 23 Docket: DIV-RG-00039-2022 Judicial Centre : Regina, Family Law Division BETWEEN: L.E.S. PETITIONER - and - L.L.S. RESPONDENT Counsel: Peggy M. Benko for the petitioner James J. Vogel, K.C. for the respondent JUDGMENT BROWN J. FEBRUARY 23, 2023 [ 1 ] L.E.S. issued and served a petition in February 2022 seeking division of family property and divorce. He now seeks, on application, an order of this Court severing property issues from the divorce claim and a judgment divorcing himself from his wife of over 50 years, L.L.S.

Normally this would not be a contentious issue, however, the unresolved family property within the context of L.E.S.’s failing health is the sticking point. [ 2 ] While the parties have resolved significant aspects of their family property – the extensive land holdings and the corporation – the pension plans have designated beneficiaries that are dependent on spousal status. Only upon divorce might that change. [ 3 ] L.L.S. says she suspects L.E.S. is acting irrationally and perhaps mainly out of illness.

While all acknowledge L.E.S. is dying of cancer, the issues she raises include that she says he is not competent to make the decision he wants made in the form of a judgment for divorce now, before he dies. Background [ 4 ] L.E.S. avers to separating from L.L.S. after 49 years of marriage, in July 2020. This was some six years into his battle with cancer. After initially seeming to have succeeded (from 2014 to 2018), the cancer returned and has been somewhat aggressively attacking L.E.S. since 2018. L.E.S. underwent a number of surgeries and treatments including chemotherapy.

In February 2022 the chemotherapy L.E.S. was undergoing “created confusion and neuropathy” in his hands and feet and the chemotherapy “attacked my brain creating burning to both frontal lobes”. After this L.E.S. was no longer given chemotherapy treatments. [ 5 ] It is not disputed that L.E.S.’s condition is terminal, although the amount of time he has left is uncertain. I am

persuaded it is not long. [ 6 ] L.E.S. avers to being “with another woman” presently. He asks for the divorce as he seeks “to get on with my life for whatever time I have left”. He also avers to wanting to “plan the succession of my estate while I still can” given his “uncertain future” and “life-threatening” concerns with his health (Affidavit of L.E.S. of January 17, 2023 at paras. 16, 17, 18). [ 7 ] In November 2022, L.E.S. and L.L.S., with the assistance of their adult son L.S., were able to agree to the distribution of the extensive farmland the couple held by way of transfer to L.S.

The family home was transferred solely to L.L.S. [ 8 ] L.E.S. has a Public Employees Pension Plan [ PEPP ] pension, a Supplementary Retirement Plan for the Legislative Assembly with PEBA and a Saskatchewan Pension Plan interest. [ 9 ] L.L.S. avers to J.J. staying with L.E.S. at the end of 2019 and early 2020. She says that by mid-February J.J. and L.E.S. were renovating the S.’s family home at the farm and that J.J. moved in with him in mid-March 2020.

She avers to still having belongings in the family home at this time and not actually having moved out. [ 10 ] L.L.S. avers to various activities with L.E.S. in 2020 including going on a family holiday in January, visiting friends in Prince Albert, Saskatchewan, sleeping together in July 2020, and visiting friends in Wadena, Saskatchewan in August 2020. She says “all throughout this time I did not know we were separated and L.E.S. did not say so” (Affidavit of L.L.S. of January 27, 2023 at para. 8).

She avers to celebrating their 49th wedding anniversary on September 4, 2020. [ 11 ] L.L.S. avers to L.E.S. saying they could not go anywhere together any longer in November 2020 and that he admitted to a relationship with someone else. L.L.S. then contacted legal counsel. Nonetheless, they travelled together to Ottawa, Ontario in December 2020. [ 12 ] L.L.S. avers to J.J. and/or L.E.S. packing her things up in January 2021 when she was isolated in Ottawa due to Covid restrictions. L.E.S. refused to let her come to the farm to sleep.

L.E.S. did attend some doctor and medical appointments with L.L.S. after this including when he had neuro consultations after his brain MRI in February 2022.

L.L.S. swears to a number of medications L.E.S. is taking including pain killers. [ 13 ] In terms of L.L.S.’s views on diminishing capacity regarding L.E.S., she says that he has made unusual decisions in the past year including inviting C.T. as his personal guest to the opening of the fall session of the legislative assembly in 2022, wanting to nominate their son for a Queen Elizabeth Jubilee medal until she pointed out that would be inappropriate, becoming angrier and not having a relationship with close family members including his own grandchildren anymore, not being able to determine the processes to employ to have home maintenance investigated and undertaken, not understanding his medical treatment situation or who is responsible for what aspects of his care.

Issue Should the divorce be severed at this time from the family property relief claimed? Relevant Legislation [ 14 ] The provisions of The Public Employees Pension Plan Act , SS 1996, c P-36.2 [ PEPP ] which bear on this matter are as follows: Designation of beneficiaries 21(1) Subject to subsections (4) and (5), a member may designate one or more beneficiaries who are entitled to the amount standing to the credit of the member in the event of the member's death.

(2) The designation of a member's beneficiary: (

a) must be in writing in a form acceptable to the board; and (

b) may be revoked by the member at any time before the member applies for a pension benefit.

(3) Where a member designates more than one person as a beneficiary, the member must designate the persons either jointly or in common and, in the latter case, specify the share to which each beneficiary is entitled.

(4) If a member has a spouse, the member's beneficiary is deemed be the spouse unless the spouse provides a written waiver of the spouse's entitlement to a benefit, or of a portion of the spouse's entitlement to a benefit, in a form acceptable to the board.

(5) If a member has no spouse and has not made a designation, the member's beneficiary is deemed to be the member's estate.

(6) Subject to subsection (7), on the death of a member: (

a) if only one beneficiary is designated, the beneficiary is entitled to receive a lump sum payment of the amount standing to the credit of the member; (

b) if two or more beneficiaries are designated jointly, the beneficiaries are entitled to receive jointly a lump sum payment of the amount standing to the credit of the member; (

c) if two or more beneficiaries are designated in common, each beneficiary is entitled to receive in a lump sum payment his or her

respective share, as specified in the designation, of the amount standing to the credit of the member.

(7) On the death of a member, a beneficiary who is the spouse of the member may elect to receive: (

a) payment of the amount standing to the credit of the member or the beneficiary's share of that amount in a lump sum in accordance with subsection (6); or (

b) a prescribed pension benefit provided by the amount mentioned in clause (a).

(8) If, on the death of a member, a beneficiary who is the spouse of the member does not elect to receive a payment or a prescribed pension benefit pursuant to subsection (7), the beneficiary may, with respect to the amount to which he or she is entitled out of the amount standing to the credit of the member, exercise any right under the plan that the beneficiary could exercise if he or she were a member. (Emphasis added) Division on marriage breakdown 24(1) On the breakdown of the spousal relationship of a member, the board may, in accordance with this section, divide: (

a) the amount standing to the credit of the member; or (

b) a pension benefit provided by an amount standing to the credit of the member.

(2) Subject to subsections (3) and (4), a pension benefit payable to, or the amount standing to the credit of, a member is to be divided: (

a) where a court has made an order for the division of family property pursuant to The Family Property Act , in accordance with that order; or (

b) where the member and the member's spouse have entered into an agreement to divide their property that is an interspousal contract within the meaning of The Family Property Act , in accordance with that agreement.

(3) A division pursuant to subsection (2) of the amount standing to the credit of a member shall not reduce the amount standing to the credit of the member to less than 50% of the amount standing to the credit of the member prior to the division.

(4) A division pursuant to subsection (2) of a pension benefit provided by an amount standing to the credit of a member shall not reduce the amount of the pension benefit payable to the member after the division to less than 50% of the amount of the pension benefit payable to the member prior to the division.

(5) The amount to which the spouse or former spouse of a member is entitled on a division pursuant to subsection (2) of an amount standing to the credit of a member may be transferred to a pension plan or fund or a retirement savings plan or fund that does not permit contributions to be withdrawn: (

a) before the spouse or former spouse attains the age of 50 years; or (

b) for any purpose other than to provide a pension benefit to the spouse or former spouse. (6) Subsection (1) and

section 23 apply to any amount that is transferred pursuant to subsection (5).

(6.1) If the spouse or former spouse of a member does not elect to make a transfer pursuant to subsection (5), the spouse or former spouse may, with respect to the amount to which he or she is entitled on a division pursuant to subsection (2) of the amount standing to the credit of the member, exercise any right under the plan that the spouse or former spouse could exercise if he or she were a member.

(7) Neither the board nor the fund is liable to any person by reason of having complied with an order or agreement mentioned in this section. (Emphasis added) [ 15 ] As can be seen, the following principles are at play as a result of the PEPP legislation: 1) If the parties are married, L.E.S. is obliged by law to designate L.L.S. as his beneficiary. 2) If L.E.S. is not married, he may designate whomever he desires to be his beneficiary. 3) Agreements or orders may divide the pension with a spouse but it is not to be reduced by such agreement or order below 50% of the amount which existed prior to that agreement or order of division. [ 16 ] L.L.S.’s concerns relate to the possibility that she will not be a beneficiary if L.E.S. is not her spouse any longer and that he will dispose of the pension plans to someone else prior to the family property action being settled or concluded.

She says she is also pursuing spousal support and that if the pension assets are gone, it may be a pointless exercise. [ 17 ] The Family Property Act , SS 1997, c F-6.3 provisions of note include: 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. … 26(1) In order to effect a distribution pursuant to this Part, the court may hear an application respecting family property notwithstanding that the spouse who made the application has no legal or equitable interest in the family property.

(2) In order to effect a distribution pursuant to this Part, the court may make any order that it considers fit in the circumstances whether or not it affects title to family property.

(3) Without limiting the generality of subsection (2), the court may do any of the following: (

a) order a spouse to pay money in a lump sum or over a specified period, with or without interest, or vest an interest in any family property in the other spouse; (

b) order a spouse to pay to the other spouse a sum equivalent to the value of the other spouse's interest in any family property as determined by the court; (

c) order that the family property or any part of the property be sold and that the proceeds be distributed between the spouses as the court directs; (

d) prescribe the terms and conditions of a sale ordered pursuant to this section;

(

e) order the partition or division of family property; (

f) if family property is owned by spouses as joint tenants, sever the joint tenancy; (

g) order the vesting of family property in one spouse or in both spouses in common; (

h) order that a spouse create a trust pursuant to which family property would be held in trust for a spouse pursuant to any terms and conditions that the court thinks fit; (

i) order the possession of family property by one spouse subject to any terms and conditions that the court thinks fit; (

j) declare that a spouse has no rights pursuant to The Homesteads Act, 1989 with respect to all or any family property of the other spouse or that is transferred to the other spouse; (

k) declare that a spouse has an interest in family property notwithstanding that the spouse in whose favour the order is made had no prior legal or equitable interest in the family property; (

l) direct the Registrar of Titles to, or authorize any person to submit an application to: (

i) register, discharge, amend or assign an interest, including an interest postponing an interest with respect to priority; or (ii) transfer title or make changes to a title. (

m) order a spouse, or any other person, to vacate any family property, and provide for the enforcement of the order; (

n) order a spouse to give security, on any terms and conditions that the court thinks fit, for the performance of any obligation imposed by an order made pursuant to this section, including a charge on property, and provide for the enforcement of that charge by sale or otherwise as necessary; (

o) require a spouse, as a condition of an order, to surrender all present claims to family property in the name of the other spouse; (

p) vary, amend or discharge an order previously made pursuant to this Part or pursuant to The Matrimonial Property Act or The Married Persons' Property Act, any previous Married Persons' Property Act, The Married Women's Property Act, being

chapter 304 of The Revised Statutes of Saskatchewan, 1953, or any previous Married Women's Property Act, where: (

i) subject to subsection (4), the spouses are still spouses within the meaning of this Act; (i.1) if the spouses are spouses within the meaning of clause (

c) of the definition of "spouse" in subsection 2(1) , the time period mentioned in

section 3.1 has not expired; and (ii) there has been a substantial change in the circumstances warranting the variation, amendment or discharge; (

q) order a distribution of family property in accordance with a settlement of, or an agreement respecting, an application for a family property order made or continued by a surviving spouse or continued by a personal representative; (

r) make an order with respect to any matter or give any direction that, in the opinion of the court, is necessary.

(4) Whether or not the spouses to whom the order applied are still spouses, an application for an order pursuant to clause (3)(

p) may be made, with leave of the court, by a person or the personal representative of a person: (

a) who is named in an order pursuant to clause (3)(h), (

i) or (n); (

b) who is named in any order similar to an order mentioned in clause (

a) and the circumstances require the court to review the order with a view to granting a discharge of the order or part of the order; or (

c) against whose estate or interest an order mentioned in clause (

a) or (

b) is made. … 29(1) The court has the powers conferred by subsection (2) where the court is satisfied that a spouse: (

a) is about to commit

an act amounting to dissipation, and that action may defeat a claim of the other spouse pursuant to this Act; (

b) is about to abscond with any family property, and that action may defeat a claim of the other spouse pursuant to this Act; (

c) intends to transfer family property to a person for less than adequate consideration, and that action may defeat a claim of the other spouse pursuant to this Act; or (

d) intends to make a substantial gift of family property, and that action may defeat a claim of the other spouse pursuant to this Act.

(2) For the purposes of subsection (1), the court may do any of the following: (

a) make an order restraining the making of the transfer or gift or the absconding with the property; (

b) make a receiving order or any other order that it thinks fit for the purpose of restraining the dissipation or further dissipation of the

property or for the possession or delivering up, safekeeping and preservation of the property.

(3) An application for an order pursuant to subsection (2) may be made as an application in proceedings commenced pursuant to this Act,by notice of motion or in any other manner that may be prescribed in the rules of court.

(4) An application for an order pursuant to subsection (2) may be made without notice and, if an application is made without notice, thecourt may: (

a) dispense with service of the notice of the application; or (

b) direct that the notice of the application be served at any time and in any manner that the court thinks fit.

(5) Every person who knowingly and wilfully refuses or neglects to comply with an order made pursuant to subsection (2) is, in additionto any other liability that person may incur, guilty of an offence and liable on

summary conviction to a fine of not more than $1,000. (Emphasis added) [18] In Behr v Howe, 2022 SKQB 97, Justice Tochor ordered that the pension asset be held by the administrator,PEBA, until the issue of whether a spousal relationship existed was determined. This meant that the mandatory provisions would see thebenefit devolve to that spouse if that relationship indeed existed. If the determination after trial was that there was no spousalrelationship, then a different disposition of the pension asset would occur.

The asset was ordered to “continue to be held by therespondent Public Employees Benefits Agency pending the trial of this matter or until further order of the court” (para. 79). [19] Here the perspective is admittedly somewhat different; L.E.S. wants to dispose of the asset differently than to hiscurrent spouse. To do so he desires to no longer have a spouse. He acknowledges, however, that his understanding of the situation is that50% of his pension is all he can dispose of, even if his divorce request is granted.

He desires an order divorcing him and L.L.S. so he candispose of 50% of the pension assets. [20] L.L.S. objects for various reasons, including his mental state, prejudice to her and her family property andspousal support claims. Each will need to be considered. L.E.S.’s Mental State [21] It is important to keep in mind what the standard is with respect to L.E.S.’s capacity before embarking on ananalysis of the facts at play in that regard. It is clear that the test to be applied to various actions undertaken by an individual is not thesame regardless of the type of action in question.

It is very dependent on the nature of the actions being examined. In Babiuk v Babiuk,2014 SKQB 320, 458 Sask R 160 [Babiuk] it was stated thus: [43] While someone may be incompetent to manage both their personal affairs and their financial affairs at the same time, the factthat someone may not be competent to manage their financial affairs is not, by itself, conclusive with respect to their ability to makepersonal decisions.

A Certificate of Incompetence issued pursuant to s. 38.3 of The Mentally Disordered Persons Act [RSS 1978, c M-14(since rep by SS 2014, c 24] only addresses the question of whether a person is competent to manage their estate. It is not intended toaddress the question of personal decision making. There is a clear distinction made between personal guardianship and propertyguardianship in The Adult Guardianship and Co-decision-making Act [SS 2000, c A-5.3].

Incapacity in relation to the various aspects ofan individual will depend on different factors which are examined according to the ability in question. [44] In Professor Robertson's text Mental Disability and the Law in Canada, 2d ed (Toronto: Carswell, 1994) at p. 254, he recognizesa hierarchy of capacities including with respect to the capacity to marry: Capacity to marry may exist despite incapacity in other legal matters.

This necessarily follows from the fact that the requirements of legalcapacity vary significantly as between different areas of the law, and must be applied specifically to the particular act or transactionwhich is in issue. Thus, for example, a person may lack testamentary capacity yet have capacity to marry.

Similarly, a person may becapable of marrying despite having been declared mentally incompetent and having had a property guardian or guardian of the personappointed. [45] Calvert (Litigation Guardian of) v Calvert (1997), (ON SC), 32 OR (3d) 281 (Ont Gen Div) [Calvert] at 294,aff'd (1998), (ON CA), 37 OR (3d) 221 (Ont CA), leave to appeal ref'd [1998] SCCA No 161, put the distinction thisway: Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does or does notwant to live. Divorce, while still simple, requires a bit more understanding.

It requires the desire to remain separate and to be no longermarried to one's spouse. It is the undoing of the contract of marriage. The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend: Park,supra [[1953] 2 All ER 1411, [1954] P 112, 97 Sol Jo 830 (CA)], at 1427. If marriage is simple, divorce must be equally simple. TheAmerican Courts have recognized that the mental capacity required for divorce is the same as required for entering into marriage: re:Kutchins (1985), 136 Appellate Court of Illinois (3d) 45.

There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisionsregarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the abilityto understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has been said that the highestlevel of capacity is that required to make a will: Park, supra, at p. 1426. (I note that Mr. Birnbaum felt that, in August 1994, he wouldhave taken instructions for a will but for Dr.

Hogan's concern about her ability to instruct counsel.) While Mrs. Calvert may have lackedthe ability to instruct counsel, that did not mean that she could not make the basic personal decision to separate and divorce.

[46] Wolfman-Stotland v Stotland, 2011 BCCA 175, 303 BCAC 201 [Wolfman-Stotland] more recently accepted this characterization: [27] As the authorities make clear, the capacity to form the intention to live separate and apart has been accepted as equivalent tothe capacity to enter into a marriage. As the Court stated in Calvert, the intention to separate requires the lowest level of understanding.The requisite capacity is not high, and is lower in the hierarchy than the capacity to manage one's affairs.

See also Banton v Banton (1998), (ON SC), 164 DLR (4th) 176 (Ont Gen Div), paras 110-114 and Johnson vHuchkewich, 2010 ONSC 6002 (Ont SCJ), paras 34-37. [47] The model which recognizes various standards of capacity is supported by the jurisprudence, including Calvert; Wolfman-Stotland; AB v CD, 2009 BCCA 200, 66 RFL (6th) 237 (BC CA), and Canadian Disability Rights Council v Canada, (FC), [1988] 3 FC 622 (Fed TD). This is the operative one in this situation as well.

In deciding issues of capacity, insofar as the law isable to, the appropriate approach is to respect the personal autonomy of the individual in making decisions about his or her life. [22] This has been adopted by the Court of Appeal in Hess v Thomas Estate, 2019 SKCA 26, 433 DLR (4th) 60[Hess]: [63] . . . the legal test for capacity turns on the nature of the task for which capacity is required: see Babiuk v Babiuk, 2014 SKQB 320 at paras 43-47, 458 Sask R 160 [Babiuk], and Wolfman-Stotland v Stotland, 2011 BCCA 175 at paras 26-27, 333 DLR (4th) 106[Stotland].

Both Babiuk and Stotland refer to a “hierarchy of levels of capacity” and adopt the following statement from Calvert(Litigation Guardian of) v Calvert (1997), (ON SC), 32 OR (3d) 281 (Ont Gen Div) (WL), aff’d (1998), (ON CA), 37 OR (3d) 221 (Ont CA), leave to appeal refused, [1998] 1 SCR vi (note): [56] There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to liveand decisions regarding financial matters. Financial matters require a higher level of understanding.

The capacity to instruct counselinvolves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has beensaid that the highest level of capacity is that required to make a will: Park, supra [[1953] 2 All ER 1411] at 1426. [64] The test for capacity to instruct counsel is helpful in this context. In Mills v Radons, 2018 SKQB 237, a matrimonial claim, ThollJ. (as he then was) dealt with whether the applicant had the capacity to instruct counsel, bring the application and conduct the litigation: [7] ...

The capacity to instruct counsel and conduct litigation requires a higher level of competency as compared to the decisions toseparate or seek a divorce.

The person must be able to understand financial and legal issues with the assistance of counsel and understandthe consequences of their decisions regarding the litigation. [23] L.L.S.’s argument regarding L.E.S.’s lack of competence includes that L.E.S. has not been acting as he normallywould and offers some examples to support her position: his invitation of C.T. as his guest to the throne speech in the fall of 2022; hisleaving a marriage of 49 years for someone he barely knows; his estrangement from family; various lapses and incongruencies he hasdemonstrated over the past two years. [24] In response L.E.S. denies these issues are signs of mental deterioration and submits a letter from his oncologistopining that he is not compromised mentally. [25] I note that the position advanced by L.L.S. is somewhat problematic even for her.

The Interspousal Agreement[ISA] executed on November 7, 2022 which disposes of the majority of the family property, by agreement of L.L.S., would likely also bethereby put very much in question. If L.E.S.’s capacity has been below the requisite threshold since the time of his separation fromL.L.S., or even since mid-October 2022 (prior to his negotiation and execution of the ISA), all of the affected matters, which areextensive, are put very much in question. But L.L.S. does not advance that perspective. I believe L.L.S. is truly of the view that L.E.S.was competent to negotiate the ISA in November 2022.

I am also of that view. [26] My conclusion is that there is insufficient evidence that L.E.S. is not competent to seek the divorce he now asksfor. My conclusion is there is insufficient evidence to now require a medical examination of L.E.S. on the point before moving forward.Indeed, for the incompetence perspective to carry the day it would need to reach back to the date of the petition. Quite clearly L.E.S. sought to divorce L.L.S. in a formal manner over a year ago. This is not asituation where mere days ago he suddenly was overcome with a desire to end a long-term marriage.

It began in 2020 with the separation.His present request is not the unexpected culmination of his intentions which were formed and communicated some time ago. In themeantime, he fully negotiated and agreed to a disposition of all the farmland and his corporation, both of which are worth a great deal. [27] With respect to the type of decision being considered here, it is not at the high end of the spectrum such as thedisposition of his entire estate through a will. Nor is it at the lowest end of the spectrum such as the decision regarding with whom hewants to reside.

It is in the middle, as it is to divorce and with that divorce for certain financial changes to what remains of his estate.Therefore, the level of competence required to make such a decision is firmly in the middle of the two extremes. [28] L.E.S. is presumed to be competent until cogent evidence is presented which establishes that not to be the case.As set out in Babiuk and Hess, parties have the capacity to seek a divorce even if they are not entirely their former selves and even if theymay not be competent in all areas for all decisions.

It is a relatively low bar L.E.S. must meet here, albeit up from the lowest measureone might observe on the paradigm. [29] I find that there is insufficient evidence of mental incapacity which would be severe enough to remove L.E.S.’scapacity to make this decision regarding his divorce, either initially in February 2022 or now. I find there is insufficient evidence to holdup the divorce in order to perform a full medical exam on the point. I make this determination fully understanding that it has financialimplications and is not simply a severance of the contract of marriage.

However, given the vast majority of the family’s assets have

recently been disposed of through an ISA, it is not at the high end of the spectrum regarding his capacity. Being midstream, as it is, I conclude he has not been shown to lack the requisite capacity or to require further testing. Reconciliation [ 30 ] L.L.S. says this Court should dismiss L.E.S.’s application as she still desires to reconcile. L.E.S. says he has no such intentions. [ 31 ] In Winstanley v Winstanley , 2009 MBQB 41 , 237 Man R (2d) 182, one party applied for an order severing the divorce from other matters in issue, including family property division.

The opposing party argued that the proceedings should be adjourned pending further efforts to reconcile as he desired to do so. Justice Carr held that while severance is not automatic when reconciliation is obviously not possible, there is no sufficient reason to withhold a divorce judgment: [13] I conclude that the husband has raised this argument now as part of his attempt to starve the wife into reconciling.

His conduct from the date of the pleadings to the agreement to advance funds to the wife clearly indicates that his argument that the monies in the account do not belong to the parties is contrived. . . . [ 32 ] Justice Turcotte in Burgsteden v Jewitt , 2020 SKQB 284 [ Burgsteden ] put it this way: [80]

Section 10 [of the Divorce Act ] does not include any words qualifying the word “possible” as it relates to the prospect of reconciliation. Nevertheless, I prefer the reasoning of Carr J. in Winstanley . There, Carr J. held s. 10 of the Divorce Act should be interpreted as requiring that there is no realistic possibility of reconciliation. As he pointed out at para. 3: “Almost anything is possible! As there exists no realistic possibility that these parties will reconcile, the application to adjourn is dismissed.” The same can be said about this case.

While it is true that the Court cannot comment on the permanence of marital breakdown with any degree of certainty, there is no realistic possibility of reconciliation in the foreseeable future where attempts at counselling have failed and Mr. Van Burgsteden has made it clear in his affidavit evidence he has no interest in reconciling. Further, since the parties’ separation he has involved himself in a spousal relationship with another woman whom he now seeks to marry. These are not circumstances in which reconciliation is possible. [ 33 ] Similarly here, it is noteworthy that it requires two people to reconcile.

One may have the strongest intentions and desires to do so, but that does not make it reasonable to conclude it may still be possible.

This issue was partially addressed in the November 2022 ISA at page 6 in the following terms: 3.1 L.E.S. and L.L.S. shall continue to live physically separate and apart from each other and neither of them will take proceedings against the other for restitution of conjugal rights, nor shall they molest or annoy one another or in any other way interfere with the other or make any demands upon the other arising from their relationship and neither of them shall bring any proceeding in a court of law for alienation or affection. [ 34 ] While

Article 3.2 considers the possibility of a reconciliation, in which event all terms of the ISA continue, I find that L.E.S. has no such intentions and therefore it is not a realistic possibility here. L.L.S.’s intentions and the facts she has elicited to do not equate to a realistic possibility of reconciliation in this situation. I find it is not realistically possible at this time. The Divorce Act [ 35 ] The request for a divorce is governed by s. 8 of the Divorce Act , RSC 1985, c 3 (2d Supp): 8 (

l) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage. [ 36 ]

Section 10 of the Divorce Act recognizes the possibility of reconciliation and provides: 10(1) In a divorce proceeding, it is the duty of the court, before considering the evidence, to satisfy itself that there is no possibility of the reconciliation of the spouses, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

(2) Where at any stage in a divorce proceeding it appears to the court from the nature of the case, the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, the court shall (

a) adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and (

b) with the consent of the spouses or in the discretion of the court, nominate (

i) a person with experience or training in marriage counselling or guidance, or (ii) in special circumstances, some other suitable person, to assist the spouses to achieve a reconciliation. [ 37 ] Rule 15-102 of The Queen’s Bench Rules grants the court discretion to sever a divorce judgment from other matters in a family law proceeding: 15-102 …

(2) If a claim for divorce is made together with one or more other claims, the Court may: (

a) grant a divorce and direct that a divorce judgment alone be entered; and

(

b) either: (

i) adjourn the hearing of the other claims; or (ii) give judgment on the other claims.

(3) Unless the Court orders otherwise, in an uncontested divorce proceeding, the local registrar shall immediately forward to each of theparties, by ordinary mail, a copy of the judgment for divorce and for any other relief granted by the Court. [38] The question becomes whether the requisite criteria has been met here for the court to grant the divorce andsever the remaining family property issues. [39] In Brousseau v Brousseau, 2017 ABCA 75, fairness was identified as the primary consideration in suchapplications: [2] The decision whether to sever divorce proceedings from corollary relief engages s 11(1)(

b) of the Divorce Act, RSC 1985, c 3(2nd Supp). The test for severance is ultimately whether it is fair in the circumstances, and such a discretionary decision made by achambers judge will not be overturned unless it is clearly wrong or based on an error in principle: Miles v. Miles, 2004 ABCA 361 atparas 4-5, [2004] A.J. No. 1271.

In the present case, we see no reason to interfere with the order made by the chambers judge to severissues of corollary relief and proceed by way of desk divorce. [40] In Behnami v Mirakhori, 2013 SKQB 177, 420 Sask R 197, Justice Wilkinson noted that, within the context ofwhether one party’s family property claim would be prejudiced by severing the issues and granting a divorce, the test was as follows: [15] The Court of Appeal [in Rimmer v Adshead, 2002 SKCA 12, 217 Sask R 94] commented that such power is discretionary andtherefore falls to be exercised as the judge, acting judicially, thinks fit, having regard for considerations such as the impact of delay ingranting the relief, and whether any party will suffer prejudice or irreparable harm. [41] Burgsteden addressed a similar request, albeit in different circumstances to this.

It recognized that the DivorceAct and The Queen’s Bench Rules provide for the severance of divorce proceedings from other claims raised by the parties. As long asthe requirements of s. 8 of the Divorce Act have been met and nothing prohibits a divorce such as the s. 11 Divorce Act requirements,there is jurisdiction to grant a divorce, even over the objection of one of the spouses. [42] Additionally, if a judgment for divorce is granted, the Divorce Act still allows for corollary relief proceedings tobe continued by former spouses.

This opens the door to severing the judgment for divorce from other relief which has not yet beenfinalized or resolved. [43] Justice Turcotte in Burgsteden noted the criteria functions in the following way: [69] Ms. Jewitt argues that Rimmer [2002 SKCA 12, 217 Sask R 94] and Yung [2006 SKQB 388, 284 Sask R 10] stand for theproposition that a “condition” of severance is that the parties must consent to the divorce, or not oppose the same. I do not agree.

Neithercase expressly precludes severance where one of the parties opposes the divorce. [70] Even though the passage from Rimmer, quoted above, suggests severance is a common occurrence in the context of uncontesteddivorces, the Court does not expressly preclude the ability to sever when the divorce is contested. The Court went on to outline that thejurisdiction to sever divorce proceedings from corollary issues is inherently discretionary.

As long as a judge does not abuse his or herdiscretion, err in principle, disregard a material matter of fact or fail to act judicially, the decision to exercise discretion to sever isappropriate, provided that the result is not so plainly wrong “as to amount to an injustice and invite intervention on that basis” (Rimmer atpara 58). [44] In Al-Saati v Fahmi, 2015 ONSC 1114, 59 RFL (7th) 219, Justice Gray determined that the test for disadvantagepursuant to the rules at play was a “legal disadvantage” that the responding party may suffer if severance was granted.

It was held to berequired to mean more than simply allowing the divorce to be withheld as a form of leverage for other issues that can be pursuedseparately. [45] In Colletta v Colletta (1992), (ON CA), 42 RFL (3d) 227 (Ont CA) the issue was whetherthere was merit to opposition to severance since granting of the divorce changed Mrs. Colletta’s legal status, thereby disentitling her tospousal benefits arising from her husband's employment. The benefits included pension, life insurance, medical and dental benefits.

Herobjection to the granting of the divorce was temporary; until adequate arrangements could be made to replace these benefits, which shewould lose by virtue of the divorce. The court only had to decide if there was merit to that position in order for the appeal to proceed. Itwas determined there was sufficient merit for the appeal to proceed. [46] A weighing of the potential prejudice granting the divorce presently might visit upon L.L.S. is important.

Itcannot ignore the reasons for which L.E.S. desires a divorce as both are considerations in the applying of equity to the situation so as toeffect a fair and appropriate outcome. Prejudice [47] As set out by Justice Turcotte in Burgsteden, there is a discretion in the court to accelerate a divorce and sever itfrom the yet outstanding issues.

In Saskatchewan the legal tradition is established as being in the middle of the spectrum; not with a biasto granting such a request easily nor to having an aversion to doing so and only allowing it in the very clearest of cases: [87] Numerous cases across Canada have commented on the reasons for which severance may be granted. As mentioned above, thedecision is inherently discretionary. Different courts have adopted different approaches to severance and have required different

thresholds to be met when determining whether severance is appropriate. For example, as cited by counsel for Mr. Van Burgsteden,courts in Ontario have held that requests for severance of divorce from corollary matters are “almost routinely granted” and that the party opposing severance must show that severance would cause a legal disadvantage. (Al-Saati v Fahmi, 2015 ONSC 1114, 59 RFL (7th) 219(Ont SCJ) [Al-Saati]). [88] However, in Manitoba, a slightly more stringent approach to severance has been adopted.

In Winstanley, the Manitoba Court ofQueen’s Bench noted that severance is not a matter of right and even in situations where the applicant is able to establish criteria tosupport an application for severance, the Court retains discretion to deny a motion for severance. Additionally, in Desjardins v.Desjardins (1993), (MB KB), 89 Man R (2d) 140 (Man QB), the Court noted that in family law proceedings,severance should not be granted easily as it is preferable to have all matters resolved together.

According to the Manitoba Court ofQueen’s Bench in Spiring v Spiring, 2004 MBQB 258, [2005] 6 WWR 737 [Spiring], the reluctance to sever the divorce proceedingsfrom other matters relates to what is referred to as judicial tidiness, “whereby a court usually prefers spouses to complete their domesticissues before granting a change in marital status” (at para. 18). [89] Saskatchewan courts appear to have adopted a middle ground between these two approaches. While they have not held thatseverance should be granted sparingly, they have also not opined that severance should be granted liberally.

In the decisions in Yung[2006 SKQB 388, 284 Sask R 10], Behnami, and Theriault [2014 SKQB 423, 461 Sask R 221] discussed above, this Court reiterated thatthe decision of whether to grant severance of the divorce from corollary matters is discretionary and should be judiciously determined ona case-by-case basis taking into consideration the impact of delay in granting the relief and whether any party will suffer prejudice orirreparable harm (Behnami at para 15). Although there is no closed list of considerations, the evidence should identify a genuine andsubstantive reason for the granting of the relief.

I would add, the mere possibility of a reconciliation advanced by one of the parties as aground to adjourn the application is not sufficient. There must be a realistic possibility of reconciliation on the evidence before the Courtsuch that the Court is required to adjourn the application in accordance with s. 10 of the Divorce Act. [48] L.L.S. argues that she will be prejudiced by L.E.S.’s actions in that she will lose her entitlement to a substantialpension L.E.S. has accumulated.

L.E.S. responds that she will still receive 50% of it and, aside from that, has a substantial pension assetof her own, having been a nurse for almost 50 years and contributing to that pension the whole time. She presently receives $70,000 perannum from it. [49] L.E.S. attempts to explain that regardless of the divorce, L.L.S. will receive 50% of his pension. He submitsvarious hearsay documents and statements to come to that conclusion. Unfortunately, L.E.S. did not submit direct evidence or citelegislation and authority for the conclusion.

Thus, this matter has been delayed by requiring the court to ascertain that on its own. Icannot rely on the hearsay and unqualified opinion filed in that regard. Access to the source information is required. The legislation itselfmust therefore be examined. [50] As noted earlier, that legislation does impact directly on the designation of beneficiaries. It appears to providethat there is a cap on agreements or orders which actually divide the pension to 50%. However, it is not clear that upon divorce withoutan agreement or order of division, 50% is still held for a former spouse. It seems quite possible, as an

interpretation, that some form ofagreement or order of division engages the provisions capping the distribution to a spouse to 50% and thus the order or agreement isimportant. I do not conclusively determine that issue here as the matter was not argued. I do find, however, that in order to protect whatmay be L.L.S.’s entitlement to one-half of L.E.S.’s pension assets as her share of family property, an order is of importance. I amprepared to make an order to address any potential prejudice the divorce might effect upon her.

Reasons to Sever [51] Justice Turcotte in Burgsteden observed as follows in relation to reasons being sufficient to sever: [99] In Jones-Hannem v Hannem, 2012 BCSC 1649, the British Columbia Supreme Court noted that while splitting issues in aproceeding risks “litigating in slices”, the Court will permit issues to be severed if doing so best serves the interests of justice. The Courtnoted that one party wanting a divorce in order to remarry or take some other step in life was a “commonly accepted” reason to grant adivorce and adjourn corollary matters.

The idea that “the end of the marriage relationship may remove an emotional roadblock toprogress and thus spur the parties to resolve the remaining issues” was explained as another reason to grant a divorce prior todetermining other matters. A similar sentiment was expressed by Sandomirsky J. in the passage quoted above from Yung. Mandatory Family Dispute Resolution [52] L.E.S. seeks an order exempting him from the requirement to participate in mandatory family dispute resolution.The basis is that he has been willing to proceed, and tried to proceed earlier, but met with resistance from L.L.S.

L.L.S. denies this andsays she wants to proceed first and try to resolve matters. [53] As noted in Lisitza v Herle, 2022 SKQB 71: [46] Mediation is to be encouraged in all situations where it is legitimately being suggested as the next step. . . [47] I find that s. 44.01(6)(

e) does provide a basis for a form of partial exemption from mandatory family dispute resolution in thecircumstances here, which I find to be extraordinary in nature. Rather than halt the proceedings and require the parties to attend familydispute resolution, this is a situation where an order must be made prior to mediation proceeding.

The partial exemption applicable hereis that Lyndon is ordered to continue making his child support payments based on his 2020 income while the matter proceeds forthwithto mediation in accordance with both the ISA and the QBAct [The Queen’s Bench Act, 1998, SS 1998, c Q-1.01] provisions. Lyndon is topay all arrears forthwith based on what ought to have been paid as a result of his and Chandra's incomes from their 2020 tax returns. Itrust counsel can ascertain that figure and incorporate it into the order to issue in this matter.

If they are unable to agree, the matter canbe referred to me for imposition of the amount. [54] This situation is similarly one where, given L.E.S.’s condition and the shortness of time, the parties ought to

attempt mediation, via telephone or video conference. However, the order made herein ought not be held pending the conclusion to that mediation. The order will issue and mediation is to be undertaken, if possible, simultaneously. Conclusion [ 55 ] The applicable legislation combined with the discretion granted to the court in matters such as this means it is not an “all or nothing” proposition advanced by L.E.S. The lion’s share of family property has already been disposed of through agreement of both parties in the ISA.

The pensions are a smaller subset of the much larger picture here. [ 56 ] L.L.S.’s concerns regarding her possible support claim must be viewed in light of the fact she has voluntarily, along with L.E.S., vested the majority of family property in someone other than herself – the couple’s children. To do so and then seek to hold up the last portion of family property division – the pensions – based on what on its face appears to be an unlikely claim to spousal support is not compelling. I find no prejudice will befall L.L.S. given the order I will make herein.

It is to also be kept in mind that she has a significant pension asset that L.E.S. has a claim to as family property as well. [ 57 ] I am not persuaded L.E.S. is not competent to seek the divorce as he has done. While some of his actions are odd, that is not a sufficient basis on which to now prevent the natural conclusion to his actions which were initiated some time ago. I am not persuaded that at this juncture constraining the request for a divorce in order to garner additional medical evidence of L.E.S.’s capacity is warranted on the evidence presented.

The amount of time left is very limited and makes this an urgent and somewhat unique situation. [ 58 ] With respect to reconciliation, that is not realistically possible at this time. L.E.S. has made that abundantly clear. [ 59 ] I conclude that with an order that holds back 50% of the pensions by the administrators thereof in the event of a possible family property division which sees some of those assets going to L.L.S., there is no prejudice either regarding that claim. I find the spousal support claim is unlikely but even so, there are sufficient assets remaining for the possibility on that front.

I am confident that the entirety of the family assets as a whole, the land, family home and corporation, were more than sufficient to deal with all such claims. The voluntary disposal of most of those assets by L.L.S. cannot become the compelling reason to restrain L.E.S. in disposing of a smaller portion of his half of certain assets. The family home went to L.L.S. as well, something that ought not be overlooked.

She has a substantial pension and is already receiving $70,000 annually from it. [ 60 ] The interests of justice indicate that L.E.S. ought to be provided the divorce he seeks even if that means he disposes of his half of his pensions to someone other than L.L.S. Retaining half of them in the hands of the administrators will ensure L.L.S.’s claims are not prejudiced.

Order [ 61 ] Pursuant to s. 21 and s. 29 of The Family Property Act and The Public Employees Pension Plan Act , the inherent authority of the court, and in consideration of the authorities set out herein, I order that the judgment of divorce shall issue, that the family property issues are severed from the divorce on condition that 50% of all of L.E.S.’s pension assets be retained by the agency and/or administrator holding them presently.

The 50% held back by the administrators shall not be distributed to anyone, nor any beneficiary designated other than L.L.S., notwithstanding any direction, request, notice of change of beneficiary or demand, whether contractual, inter vivos or testamentary, that L.E.S. may make, until further order of the court. [ 62 ] The intention herein is that upon the divorce judgment becoming final L.E.S. will be able to dispose of the 50% not held back by this order as he may so desire, and that the remaining 50% be held back, separate and apart from such disposition that L.E.S. may choose to effect pending final determination of the family property and spousal support issues. [ 63 ] The 50% L.E.S. retains as an asset will undoubtedly be attributed to him as an asset for conclusion of the family property division now in process.

It will likely be allocated to him as his portion of family property, once an equalization has been considered, and that is apparently his desire. [ 64 ] This order is appropriate due to the circumstances L.E.S. is in, particularly given the advanced stage of cancer he is battling, and the protection provided to L.L.S.’s interests through the holdback. J. D.J. BROWN