STACEY LYNN KOLENOSKY PETITIONER - v. -, 2023 SKKB 275

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 275 Date: 2023 12 18 Docket: DIV-SC-00046-2022 Judicial Centre : Swift Current, Family Law Division BETWEEN: STACEY LYNN KOLENOSKY PETITIONER - and - TRAVIS CHARLES KOLENOSKY RESPONDENT Counsel: Stuart Busse, K.C. for the petitioner Lindsay Gates for the respondent FIAT BROWN J. DECEMBER 18, 2023 [ 1 ] The parties jointly own the family home in which Travis Kolenosky still resides. Stacey Kolenosky brings an application to obtain an order of partition regarding the family home pursuant to The Partition Act, 1868 (UK), 31 & 32 Vict, c 40 [ Partition Act ].

She desires for it to be sold and to receive one-half of the sale proceeds. It matters not whether Travis purchases it – he is free to do so. She simply wants to end the litigation, at least in relation to the family home, which is the major asset within the remaining family property. [ 2 ] Travis opposes such an order on the primary basis that there is a trial of all family property issues just months away and Stacey’s application, he maintains, is simply an effort at an end run on that process.

Since The Family Property Act, SS 1997, c F-6.3 [ FPA ] process has been unfolding for quite some time, he submits it is inappropriate to allow this application to take over one of the significant assets at this point. Rather, it should be left to the fulness of process facilitated through the trial with the benefit of viva voce evidence and cross examination as well as consideration of all aspects of the family property in issue. [ 3 ] For the reasons that follow, I conclude that while at this time in these circumstances a Partition Ac t division is available, it is not appropriate.

The primary reason is the looming trial which is set to determine this issue within the context of all the family property the parties possess. Issue 1. Is a Partition Act division of the family home available here? If so, is it appropriate to make such order? Discussion

The Partition Act [4] As noted in Matovich Estate v Matovich, 2015 SKCA 130 at para 27, 472 Sask R 71: [27] At common law, the owners of land as joint tenants or tenants in common had no right to the remedy of partition or sale. Thepower to order those remedies was conferred by a series of statutes in England, which were received into law in Saskatchewan first,pursuant to s. 11 of The Northwest Territories Act, RSC 1886, c 50 (since repealed, now the Northwest Territories Act, SC 2014, c 2) andthen by the provisions of The Saskatchewan Act, SC 1905, c 42. Three English statutes are relevant, namely: (

i) Statute of Partition, 1539, 31 Henry VIII, c 1 which provides that co-tenants of land could be compelled to make partition; (ii) Statute of Partition, 1540, 32 Henry VIII, c 32 which extended the 1539 Act to include co-tenants for life or for a term of years; and (iii) Partition Act, 1868, 31 and 32 Vict, c 40 which permits the court to order sale as opposed to partition. [5] The Statute of Partition, 1539 (UK), 31 Henry VIII, c 1 and Statute of Partition, 1540 (UK), 32 Henry VIII, c32 Acts gave courts the power to physically divide (partition) land between co-owners who are unable by agreement to make a divisionor agree to a sale.

Section 4 of the Partition Act reads: 4.

In a Suit for Partition, where, if this Act had not been passed, a Decree for Partition might have been made, then if the Party orParties interested, individually or collectively, to the Extent of One Moiety or upwards in the Property to which the Suit relates, requestthe Court to direct a Sale of the Property and a Distribution of the Proceeds instead of a Division of the Property between or among theParties interested, the Court shall, unless it sees good Reason to the contrary, direct a Sale of the Property accordingly, and give allnecessary or proper consequential Directions. [6] As can be seen, the Partition Act directs by its wording that the court is to order the sale and/or division of theproperty unless there is good reason to the contrary.

Coburn v Coburn (1984), (SK KB), 36 Sask R 41 (QB)concluded that joint tenants have a prima facie right to partition or sale and the court ought to compel such partition or sale unless justicerequires that such order not be made. Such order should not be made if an applicant is motivated by malice or a desire to be vexatious orthe outcome is economically oppressive (see Reitsma v Reitsma, (BC SC), [1975] 3 WWR 281 (BCSC)). [7] Not all Canadian provinces still rely on the historic and unaltered versions of the Partition Act.

Justice Layh in Stubbings v Stubbings, 2018 SKQB 8, 35 ETR (4th) 80 noted Saskatchewan’s situation within the national milieu. Many other provinceshave enacted their own legislative regime rather than continue to rely on ancient English statute law: [36] … Saskatchewan lags behind other provinces, which no longer follow received law and have enacted their own partition and salelegislation.

In a June, 2001 Report, Proposals for a New Partition and Sale Act, The Law Reform Commission of Saskatchewanrecommended that Saskatchewan should adopt a Partition Act. [8] Justice Layh goes on to summarize the rights involved in a Partition Act application in Saskatchewan: [38] Reduced, these sections suggest that if an owner holds a half interest or more and requests a sale of the property instead of apartition of the property, the court "shall" unless it sees good reason to the contrary, direct such a sale and give necessary or properconsequential directions.

One of the persons with an interest in the property may undertake to purchase. . . [39]

Section 4, prima facie, entitles William to obtain an order to sell the property. Certainly, partitioning a condominium is anunworkable request. An ordered sale is the only option. In Saskatchewan "good reasons" to deny a sale under s. 4 have been foundin Matovich v Matovich, 2013 SKQB 205, 421 Sask R 266 [Matovich] where a sale would have overridden the terms of an agreement forsale. In Wiebe v. 101105260 Saskatchewan Ltd., 2013 SKQB 440, 435 Sask R 79 a sale was denied because a prior agreement requireddecisions regarding disposition of the property to be approved by a two-thirds majority.

In two recent decisions of this Court— Porterfield v Pirot, 2017 SKQB 144, [2017] 10 WWR 369 and Veitch v Wollf, 2017 SKQB 252 — Justices Meschishnick and Elson,respectively, endorsed the

summary of the law as stated in Matovich at paras 24 and 25: 24 The law respecting partition is set out succinctly in Coburn v. Coburn (1984), (SK KB), 36 Sask.R. 41, (Q.B.),wherein Geatros J. states in para. 3: [3] ...

A joint tenant has a prima facie right to partition or sale and the court will compel such partition or sale unless justice requires thatsuch an order should not be made. ... [9] In Porterfield v Pirot, 2017 SKQB 144, [2017] 10 WWR 369, Meschishnick J. identified the grounds fordenying partition as follows: [19] Other reasons to deny a request for partition and sale under s. 4 are found in earlier case law. They are summarized in Matovich[2013 SKQB 205, 421 Sask R 266], in paras. 24 and 25: 24 The law respecting partition is set out succinctly in Coburn v. Coburn (1984), (SK KB), 36 Sask. R. 41, [1984]S.J.

No. 550 (QL) (Q.B.), wherein Geatros J. states in para. 3: [3] ... A joint tenant has a prima facie right to partition or sale and the court will compel such partition or sale unless justice requiresthat such an order should not be made. ... 25 Geatros J. also deals with this matter in Reed v. Reed (1985), (SK KB), 40 Sask.R. 289, 40 R.P.R. 90 (Q.B.),wherein he states at para. 18:

[18] The judgment of Craig, J., in Reitsma v. Reitsma, (BC SC), [1975] 3 W.W.R. 281 is most helpful indetermining whether the plaintiff is precluded from determining the joint tenancy by an action for partition. Craig, J., stated at p. 283: There are numerous authorities for the proposition that a joint tenant has a prima facie right to partition or sale at any time. The court hasa discretion to refuse partition, but this discretion is 'severely limited': see Bergen v. Bergen (1969), 68 W.W.R. 196 (B.C.), and the casestherein referred to. The plaintiff must come into court 'with clean hands': McGeer v.

Green (1960), (BC SC), 22 D.L.R.(2d) 775, at 779 (B.C.). In seeking partition, the plaintiff must not be motivated by malice, or by a desire to be vexatious or oppressive. Inpartition cases, the word 'oppressive' means 'oppressive economically': Korolew v. Korolew (1972), (BC SC), 7 R.F.L.162, at 165 (B.C.). He quotes at p. 284 what Seaton, J., said in Bergen v. Bergen, supra, at p. 199: "That the order would cause inconvenience and hardshipto the defendant would not be sufficient reason to refuse the relief sought". And, later Craig, J., said: ‘Hardship' is a relative term.

It seems to me that before hardship can be a basis for refusing a partition order (to which the plaintiff isotherwise entitled) the hardship must amount to economic oppression. [10] Stacey therefore argues that she has a right to the partition and sale, even in the context of family propertylitigation which is set for trial in a few months. She submits that she is not motivated by malice or a desire to be vexatious nor is theoutcome one that is economically oppressive. She advances the view that she is genuine in her desire to resolve the impasse.

This, shesays, entitles her to an order of sale. [11] However, the authorities cited by Stacey do not have the dual implications that this situation has: a Partition Actapplication within the context of an ongoing family property proceeding. This requires consideration of the criteria which ought to applygiven the same property is being addressed pursuant to both the Partition Act and the FPA. The Partition Act and Family Property [12] There are no Saskatchewan authorities that appear to address this particular legislative intersection.

The onlymention of family property in the context of Partition Act proceedings was directed more towards impact upon a trustee in bankruptcy. InAvramenko v Avramenko, 2015 SKQB 137, 474 Sask R 263 [Avramenko], Justice Ball commented on the differences which may resultwhen various statutes enabling division or division and sale of jointly owned land came into play: 35 I am not persuaded that the court's discretion to refuse this application is so limited.

In my view, the partition and sale of familyproperty is informed by different policy considerations than the liquidation of co-owned property to satisfy creditor demands.

On anapplication for partition and sale by a trustee in bankruptcy, the court should assess, on a case-by-case basis, whether the respondent co-owner has identified rights or protections at law that would preclude the order or whether the evidence discloses facts that would renderit unjust for such an order to be made. [13] Given the underlying facts in Avramenko, even though the property would have been family property, there wasno ongoing family property proceeding there.

The wife was simply trying to purchase her husband’s interest in the family home andadjoining land in circumstances where the husband had become bankrupt. The interplay between the FPA and the Partition Act did notarise. [14] However, other provinces do have a body of caselaw falling within the context of this situation. Other Provinces [15] While there are somewhat similar legislative situations elsewhere, no province has the same combination offamily property legislation and Partition Act provisions.

Thus, a similar question has been asked with respect to the appropriate processalbeit in a slightly different statutory milieu. [16] A set of principles has developed in Ontario when property that is a jointly-owned matrimonial home is soughtto be dealt with pursuant to a Partition Act application. These principles provide that a court can order the partition and sale of a jointly-owned matrimonial home before the family property trial as long as the order does not unfairly prejudice the parties' substantive rights inrelation to unresolved substantial issues.

Finlayson J. noted the following in Silva v Silva (1990), (ON CA), 75 DLR (4th) 415 (WL) (Ont CA): 23 The F.L.A. [Family Law Act, 1986, SO 1976, c 4 as amended] authorizes the court to do whatever is necessary with the collectivityof spousal assets to bring about an equal division of them. It should be the statute of first resort in matrimonial disputes, but it is notnecessarily the only one. . . . In my opinion, it is wrong to say, as it was said in Scanlan v. Scanlan [(1990), (ON SC), 73 OR (2d) 271], that theF.L.A. ousts the jurisdiction of the Partition Act when dealing with jointly-owned spousal property.

The two statutes are notincompatible, but where substantial rights in relation to jointly-owned property are likely to be jeopardized by an order for partition andsale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A. Putting it more broadly, anapplication under

section 2 [partition and sale] should not proceed where it can be shown that it would prejudice the rights of eitherspouse under the F.L.A.

(Emphasis added) 24 In the case on appeal, the contemplated partition and sale does not prejudice either spouse’s claim with respect to the home underthe F.L.A. The wife does not want the home at all and the husband wants the right only to bid on it once it is up for sale. He is entitled todo so under r. 55.06(5). While he wants an unequal division of family assets, any later determination of this claim is irrelevant to the saleof the home as such. His stated concern with respect to an immediate sale is that there will be no longer any security upon which torealize his F.L.A. award.

Such a sale also means that the husband will have to finance the purchase by raising one-half of the netpurchase price instead of some lesser sum. I can think of no reason why the husband should hold the house hostage until his claim hasbeen adjudicated.

The wife needs the money now and I do not think that his concern about collecting a subsequent award, in thecircumstances of the case, amounts to prejudice within the meaning of the case law (Silva, at 12-13). [17] As can be seen, Finlayson J.A. found that neither party would be prejudiced by ordering partition and sale of thematrimonial home before trial and therefore there was no justification for letting the husband “hold the house hostage until his claim hasbeen adjudicated”. [18] In Copeland v Copeland, 2017 ONSC 4475, 95 RFL (7th) 96, the Superior Court of Justice for Ontario also heldthat a petitioner has a prima facie right to seek partition and sale of the matrimonial home unless the sale would affect the opposingspouse’s substantive rights under Ontario’s family legislation.

The court affirmed the general rule from Davis v Davis, (ON CA), [1954] 1 DLR 827 (WL) (Ont CA): 9 …There continues to be a prima facie right of a joint tenant to partition or sale of lands. There is a corresponding obligation on ajoint tenant to permit partition or sale, and finally the Court should compel such partition or sale if no sufficient reason appears why suchan order should not be made. I do not attempt to enumerate or describe what reasons would be sufficient to justify refusal of an order forpartition or sale.

I am content to say that each case must be considered in the light of the particular facts and circumstances and the Courtmust then exercise the discretion vested in it in a judicial manner having due regard to those particular facts and circumstances as well asto the matters which I have said are, in my opinion, fundamental. (Emphasis added) [19] In Sanvictores v Sanvictores, 2022 ONSC 2673 [Sanvictores], the court summarized the approach: 13 The issuance of an order for the sale of a jointly held property under sections 2 and 3 of the Partition Act, R.S.O. 1990, c.

P.4, isgoverned by the following principles: 1. A court is required to compel the partition and sale of a jointly held property unless the opposing party has shown that there ismalicious, vexatious, or oppressive conduct on the part of the moving party in relation to the sale itself: Marchese v. Marchese, 2019ONCA 116, para. 5. 2. There is some overlap in the scope of the terms "malicious" or "malice", "vexatious", and "oppressive". "Malice" arises when a step istaken for an improper purpose including spite, ill-will, vengeance, or to gain a private collateral advantage.

A step may be viewed as"vexatious" when it is taken to harass or oppress others rather than to assert a legitimate right. The sale of a matrimonial home is"oppressive" when the co-tenant that opposes the sale will suffer serious hardship if the matrimonial home is sold: MacDonald v.MacDonald (1976), (ON SC), 14 O.R. (2d) 249 (Div. Ct.), at p. 254. 3. Additional considerations apply when a spouse seeks an order for the sale of a matrimonial home prior to the final determination ofthe spouses' claims under the Family Law Act, R.S.O. 1990. c. F.3, ("FLA").

In such case, an application under the Partition Act shouldnot proceed when the opposing spouse shows that the sale would prejudice the rights of a spouse under the FLA or a court order (seeSilva v. Silva (1990), (ON CA), 1 O.R. (3d) 436 (C.A.), at p. 445; Martin v. Martin (1992), (ONCA), 8 O.R. (3d) 41 (C.A.), at para. 26 or, at the very least, that the opposing spouse's arguable claims under the FLA would beprejudiced (see Binkley v. Binkley, [1988] O.J. No. 414 (C.A.), at para. 3; Gibson v. Duncan, 2013 ONSC 5377, at paras. 20–23). 4.

The court does not have jurisdiction to impose a right of first refusal or force parties into the buyout of a property: see Gertley v.Gertley, 2022 ONSC 1750, para. 13; Laurignano v. Laurignano, 2009 ONCA 241, 65 R.F.L.(6th) 15. [20] Of note is the recognition that additional considerations apply when a spouse seeks an order for partition or saleof a matrimonial home before a final determination of the substantive claims under family legislation. In such circumstances a court willorder partition and sale only where it would not affect the substantive rights of a spouse.

The onus falls on the opposing spouse to showthat partition or sale would prejudice their substantive rights. [21] In Sanvictores, the court rejected the husband’s argument that he would be harmed by the sale of thematrimonial home because it would essentially force him to either (1) purchase his wife’s interest in the home or (2) purchase anotherhome. The court held that the husband’s inability to purchase the wife’s interest did not comprise sufficient grounds to prevent partitionand sale.

Also, although it may constitute a factor weighing in favour of an application for partition and sale, the court held that theapplicant spouse does not have to prove financial distress to be granted partition and sale. [22] The Court of Appeal for Ontario held in Scalia v Scalia, 2015 ONCA 492, 126 OR (3d) 241, that bringing an

application for partition and sale is not evidence that an applicant “behaved maliciously, oppressively or with a vexatious intent” (para.48). [23] The Ontario Superior Court of Justice in R.L. v M.F., 2022 ONSC 1677, 71 RFL (8th) 398, provided a list offactors that may be considered when considering an application for partition and sale of a matrimonial home before completion of anassociated family property trial: 30. … g. Each case must be considered on its own facts. The court must consider all relevant factors in exercising its discretion. Davis v.

Davis (ON CA), [1954] O.R. 23 (C.A.); Steele v Doucett [2020 ONSC 6942]. h. In family law cases, an order under the Partition Act should generally not be made until any dispute related to the property has firstbeen determined. Maskewycz v. Maskewycz (1973) (ON CA), 2 O.R. (2d) 713 (ON CA). i. The Family Law Act does not displace the Partition Act. But in family cases a partition application should generally not be grantedwhere it can be shown that a legitimate family law claim would be unfairly prejudiced. Silva v. Silva; Parent v. Laroche, 2020 ONSC703; Latcham v.

Latcham (2002) (ON CA), 27 R.F.L. (5th) 358 (ON CA); Dulku v. Dulku 2016 CarswellOnt 16066(SCJ). j. In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale — bothpositive and negative — in relation to the interests of both joint tenants, and the family as a whole. Where the financial or othercircumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale.Zargar v Zarrabian 2016 ONSC 2900; Giglio v Giglio 2015 ONSC 8039; Keyes v. Keyes 2015 ONSC 1660 (SCJ). . . . l.

The court must consider the impact of a proposed sale on children or a vulnerable spouse — including the emotional impact, and thefundamental need to ensure that they have appropriate housing. Delongte v. Delongte 2019 ONSC 6954; Kaing v. Shaw 2017 ONSC3050. The availability and affordability of alternate housing must be considered. As part of the analysis, support obligations may need tobe co-ordinated — even on a temporary basis — to ensure that any party displaced by a sale will have the resources to arrange reasonablereplacement accommodation. m.

Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. Fernandes v Darrigo 2018ONSC 1039. The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairlyand expeditiously as possible. Kereluk v. Kereluk, (SCJ). n. Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a shortperiod might reduce the pressure for an immediate sale. Goldman v. Kudeyla, 2011 ONSC 2718. . . . r. A pending equalization claim may also be relevant.

The court cannot compel one joint tenant to sell to the other. Martin v. Martin (ON CA). Nor can it give either joint tenant a right of first refusal. Dibattista v. Menecola (ON CA). Buta recipient of an equalization payment may propose to set that entitlement off against their former spouse's share of the equity in thehome. If a sufficiently particularized proposal seems viable — and especially if it would benefit a child — sale should be delayed toallow proper consideration of that option. Chaudry v. Chaudry 2012 ONSC 2149. s. The court must consider and attempt to guard against potential prejudice.

Are there realistic issues or claims yet to be determined on afinal basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage? [24] In

summary, the court noted the following: 31. In a nutshell, while partition and sale is presumptively available at the behest of a joint owner, that principle is subject to greaterdiscretion when the court is dealing with a matrimonial home and when the request is made at an interim rather than trial stage of the

proceedings. In an interim motion, the court is called upon to engage in a holistic review of the merits of the sale, while considering the interests of each party and the children. Further the court must balance the prejudice to the claims of each party regarding the home against prejudice to the other and the advantages of sale. [ 25 ] The Ontario approach recognizes the continued right of a joint tenant seeking an order for partition and sale of the matrimonial home even within the context of a family property proceeding that is ongoing.

Ensuring prejudice does not ensue in the family property proceeding is the touchstone. [ 26 ] In Alberta, the Court of King’s Bench in Burns v Burns , 2023 ABKB 174 recognized factors that a court may consider when ordering partition or sale of a matrimonial home before a family property trial.

In assessing factors that militate against ordering partition and sale of the matrimonial home, a court may assess the following: (1) whether there are other significant financial matters to be resolved; (2) whether a party has sufficient assets to buy out the other’s interest in the home; (3) where there is no pressing need to sell the home. [ 27 ] Factors that support the partition or sale of the matrimonial home include consideration of the following: (1) where there is a pressing need to sell the home (e.g., foreclosure or waste). (2) where there is no realistic hope that one of the parties can refinance the home to buy out the other party. (3) where selling the matrimonial home would simplify the outstanding disputes between the parties. (4) where the matrimonial home would inevitably be sold and an earlier order to sell the home would not affect the substantive rights of the parties (e.g., Lutz v Vanderlinde , 2001 ABQB 579 , 20 RFL (5 th ) 113 ). [ 28 ] In

summary, the approach of the Alberta courts has been to order partition and sale only in unique circumstances. The preference is against ordering partition and sale of a matrimonial home before the substantive disputes between the parties are resolved within the family property proceeding. However, where it is appropriate to order partition and sale of the matrimonial home and the circumstances of the case warrant partition and sale, a court can and should order that relief. [ 29 ] Neither of these approaches is directly importable here given the differences in legislation amongst the jurisdictions.

However, instruction can be drawn from the fact that other provinces have dealt with the interplay of Partition Act applications in family property division contexts. The analysis provided elsewhere provides insight which is of assistance here. The Context Here [ 30 ] Travis points to Lorencz v Talukdar , 2020 SKCA 28 , 446 DLR (4 th ) 487[ Lorencz ]. Lorencz looked at provisions of the FPA and competing limitation period provisions within the context of an approach to finding coherence when statutes overlap.

There the court said: 55 At paragraph 45 of Platana [ 2006 SKCA 10 , 275 Sask R 242 ] , Jackson J.A. adopted the following statement of law from an earlier edition of Sullivan [ Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes , 6th ed (Markham, Ont: LexisNexis, 2014) at 337] that remains unchanged in the current version of the text (at 338): §11.4 Overview of strategies for achieving coherence . The presumption of coherence is virtually irrebuttable.

Since disputes must be resolved by the courts in a definitive fashion, in accordance with "the law", contradiction or inconsistency cannot be tolerated; some method of reconciliation must be found. The courts have a number of strategies to ensure this result. 56 The first of the strategies referred to in Sullivan is to "attempt to apply both" statutes ( Platana at para 45 ). When this cannot be done, as here, different methods for discerning the law must be found.

Sullivan provides a non-exhaustive list of the strategies courts employ for this purpose (at 338): §11.6 If the provisions cannot both apply without conflict, the courts resort to one of the conflict resolution techniques at their disposal. These include (1) legislative intent, whether express or implied; (2) strained

interpretation; (3) the paramountcy of some categories of legislation over other; (4) implied exception ( generalia specialibus non derogant ); and (5) implied repeal. 57 These general principles, as expressed in an earlier edition of Sullivan , were reviewed and applied by both Jackson J.A. (for the majority) and Cameron J.A. (in dissent) in Platana .

Both judgments are recognized to be exemplars of the application of the presumption of coherence (see Sullivan at 365 — 367). 58 In this case, the Chambers judge principally applied the fourth strategy described in Sullivan to resolve the conflict; that is, he found an implied exception employing the principle embedded in the maxim generalia specialibus non derogant . It is useful, therefore, to examine that idea further. Sullivan explains the operation of this strategy in these terms (at 363 — 364): §11.58 Implied exception (generalia specialibus non derogant) .

When two provisions are in conflict and one of them deals specifically with the matter in question while the other has a more general application, the conflict may be resolved by applying the specific provision to the exclusion of the more general one. The specific prevails over the general ; it does not matter which was enacted first. In the absence of conflict, a specific provision prevails over a general one only if applying the general provision would render the specific

one superfluous. (Emphasis added) (Footnotes omitted) 59 An assessment of the correctness of the Chambers judge's decision to find, through operation of an implied exception to s. 6 of the Fatal Accidents Act [RSS 1978, c F-11 ] , that s. 72 of the Medical Profession Act [SS 1980-81, c M-10] should be applied invites consideration of the basis upon which he found s. 72 to be the "more precisely relevant" of the two competing provisions (at para 63).

This, in turn, requires an examination of the purpose and scope of the two competing provisions. [ 31 ] Travis submits that the application of those principles is therefore required. He submits that the provisions of both statutes cannot both be applied without conflict. To divide the family home now pursuant to the Partition Act , he argues, removes the major asset from the division. It would undercut or subsume the thorough process envisioned and provided for by the FPA .

This is not to be facilitated. [ 32 ] Stacey says the general legislation takes a back seat to the specific legislation but argues here that the general legislation is the FPA and the specific is the Partition Act . [ 33 ] I find that this analysis is not required here. The two statutes are not in conflict. The resolution is not based on the specific over the general but based on the factors which are brought to bear on the interests of justice when a Partition Act application is brought just before a family property trial dealing with the same property.

The Partition Act would of course have application if no FPA proceeding, which also covers the family home, were in issue. But that is not the case. [ 34 ] Stacey also argues that the Partition Act applies notwithstanding the somewhat comprehensive code contained in the FPA . I will not set all of those provisions out here. There is nothing in the FPA which specifically makes the Partition Act unavailable.

However, when the criteria which direct the approach to the integration of the two processes are applied, they indicate a conclusion that it is not at this particular time. [ 35 ] The provisions of the FPA dealing with division of family property are extensive and direct. The substantial and far-reaching provisions of the FPA deal with exclusive possession, sale of assets pending trial, interim distributions and a myriad of other remedies in the context of a family property dispute as per s. 26 .

It is a comprehensive scheme directed at ensuring no gaps exist when identifying, valuing and dividing family property. [ 36 ] The FPA ’s treatment of family homes is also quite specific. The FPA addresses family homes at s. 22 : 22(1) Where a family home is the subject of an application for an order pursuant to subsection 21(1), the court, having regard to any tax liability, encumbrance or other debt or liability pertaining to the family home, shall distribute the family home or its value equally between the spouses, except where the court is satisfied that it would be: (

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

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

(2) Where clause (1)(

a) or (

b) applies, the court may: (

a) refuse to order any distribution; (

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

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

(3) Where there is more than one family home, the court may designate to which family home this

section applies, and any remaining family home is to be distributed in accordance with

section 21. [ 37 ] These extensive provisions are not displaced by a Partition Act application. Nor do they conflict such that compliance with one is breach of the other. They can live together harmoniously. Here Stacey has already tried to orchestrate an interim sale via the FPA previously and it has been denied. This weighs against the application presently. [ 38 ] It is to be noted the family home division provisions operate with a differing priority (i.e. a stronger presumption of equal sharing is set out). Nonetheless, it is still situated within the context of the entirety of the family property in issue.

Even so, there is nothing in the family property legislation in Saskatchewan which makes a Partition Act application unavailable or invalid within the context of an ongoing family property proceeding. The jurisdiction created by the Partition Act is not statutorily ousted by the FPA . At the same time it is too simplistic to conclude they each operate completely independently notwithstanding the obvious overlap.

The nature, extent and timing of the proceedings themselves and the applications before the court are part of that context which must therefore be considered. [ 39 ] A determination pursuant to the Partition Act where an existing FPA proceeding exists must therefore consider the various issues which might impact on the parties. The conclusion must be just and appropriate. The Partition Act right to sale does not trump considerations pursuant to the FPA . Such presumption is based on the approach to be taken when no FPA proceeding exists.

An order of sale should not result regardless of what might befall the other party in the FPA proceeding. The result is an enhanced discretion pursuant to The Partition Ac t when a FPA proceeding exists as well. [ 40 ] The test to determine whether the Partition Act applies apart from any interplay with the FPA is whether justice requires that an order should not be made. This has been described as meaning that the plaintiff must not be motivated by malice, or by a desire to be vexatious or oppressive. In partition cases, the word “oppressive” means “oppressive economically”. When the FPA

provisions have been engaged and are at play as well, there will be a need to consider both in crafting any type of order. Thus, the discretion will by necessity be broadened in such a scenario. [ 41 ] In the context of an interim application such as this, the approach is to consider the merits of a sale, the interests of each party pursuant to both statutes and any children who may be affected. The task is to balance any prejudice either party may suffer against the benefits to the various outcomes available. The advantages of sale must be weighed as against the disadvantages of sale.

This balancing must occur with reference to the timing of the request, the stage of the family property proceedings at which the request is made, and the potential impact an order of sale would have on the parties and the proceedings. Causing delay and inefficiency with respect to the family property proceeding would not normally justify ordering a sale. [ 42 ] Unfortunately, there is a somewhat tortuous background to this proceeding. Numerous applications have already been made including one to have the home sold pursuant to the FPA . This was dismissed by Justice Bardai.

The matter has been to pretrial where it was tentatively settled. The settlement was conditional on Travis being able to obtain the funds to pay Stacey for the family property equalization. He did not do so and as a result the matter was set down for trial which is to proceed in February 2024. [ 43 ] This has prompted Stacey to seek ways to avoid the trial, or at least avoid a full trial if that can be accomplished. This is a laudable goal if the path is open.

In these circumstances the path of dividing the family home pursuant to the Partition Act is open to her, however, given all of the circumstances at play I conclude that it ought to be deferred at the present time given the looming trial. [ 44 ] Here there is disagreement in relation to the value and extent of family property as well as the applicability and value of certain exemptions. There is not a vast estate with property extending well beyond the family home, at least on one valuation of the assets.

The property in issue has a more modest value. [ 45 ] Travis avers to being not only resident in the family home but needing it to continue to operate his business. It is connected to other parts of the property including workshops and land associated with his business. To order sale would dispossess him of not only his home but the headquarters of his business. It is the family home the two children are still resident in when they are with Travis.

There is not a lot of family property to distribute, this being the primary asset. [ 46 ] Additionally, there is disagreement in relation to the appraised value of the home. It is not something agreed to and therefore the value is not easily identified on this application. The result is that there are several grounds on which prejudice may befall Travis if a Partition Act order is made, even if it were possible to make it as simple as ordering Travis to pay Stacey for half the value. As it stands now the justice of the situation weigh against the order being sought.

Exercising my discretion, limited as it may be, means that the application will not succeed presently. There is an ongoing family property division proceeding set for trial. The family home is a key component to that. It is not appropriate, not justified, at this stage, to order the division. [ 47 ] I exercise my discretion not to prejudice Travis in the litigation by ordering the sale of the home now. A very significant factor to this conclusion is that the trial will occur in two months’ time. [ 48 ] It is noteworthy that while Travis had counsel at the time this was argued, he is now self-representing.

It may be that this is but a further attempt to delay the finalization of the family property division. The application by Stacey is therefore not dismissed but merely adjourned sine die returnable on 14 days’ notice to myself. If the trial does not proceed due to Travis requesting it be adjourned, the circumstances which are a primary reason not to order sale of the family home in accordance with the Partition Act, will quite possibly no longer be in existence: the looming trial. Therefore, should Travis adjourn the trial, it will provide a circumstance to bring this application back before me.

Conclusion [ 49 ] The application is adjourned sine die returnable on 14 days’ notice before myself should the trial not proceed as scheduled. Costs will follow the cause if the trial proceeds first or to be determined by myself if this matter returns before me. J. D.J. BROWN