Faurschou v. Faurschou, 2013 MBCA 85

Citation: Faurschou v. Faurschou, 2013 MBCA 85 Date: 20130912 Docket: AF 12-30-07775 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : ) J. A. King and DEBORAH ELIZABETH FAURSCHOU ) A. J. Wheeler ) for the Appellant (Petitioner) Respondent ) ) T. P.

Beley - and - ) for the Respondent ) DOUGLAS MANHARD FAURSCHOU ) ) Appeal heard and (Respondent) Appellant ) Decision pronounced: ) September 12, 2013 BURNETT J.A. (for the Court): [ 1 ] The husband appeals on three grounds: 1. that the trial judge erred in applying the test for dissipation when deciding whether certain gifts were excessive for the purposes of s. 6(8) of The Family Property Act , C.C.S.M., c.

F25 (the Act ); 2. that the trial judge erred in treating four transfers of common shares to his sons as one, without looking at the intent and motivation of each transfer and the condition and status of the recipients of each transfer at the time the transfers took place; and 3. in the alternative, if the trial judge was correct in her

interpretation of s. 6(8) of the Act , that she erred in failing to determine on a proper evidentiary foundation the nature and extent of the value of the shares at the time of each transfer. [ 2 ] We are satisfied that the standard of review requires the husband to establish that the trial judge erred in law because she misdirected herself as to the principles to be applied or misapprehended the evidence. [ 3 ] In our view, the central issue on this appeal is whether the husband’s gifts of 400 common shares to each of the parties’ sons (the gifts) were excessive within the meaning of s. 6(8) of the Act .

Such gifts, totalling 800 common shares, comprised 40 per cent of the husband’s interest in the family farm corporation. The family’s farm was the sole source of income, and the family’s largest asset. [ 4 ] In her reasons, the trial judge concluded that (at para. 23): However, where the husband’s shareholdings comprised a mixture of non-shareable (1,200 shares) and shareable (800 shares) holdings, I find it excessive that the husband would divest himself of all the shareable shares, by way of this series of gifts, leaving nothing in his hands to share with the wife on separation.

On that basis alone, we would not interfere with the trial judge’s decision. [ 5 ] In our view, the nature and extent of the gifts, together with the finding of the trial judge (which has been quoted) satisfy the definition of “excessive” in s. 6(8) of the Act .

[ 6 ] On these facts, it is not necessary for us to decide whether the gifts constituted “dissipation” as defined in s. 1(1) of the Act or whether the test for dissipation of assets and the test for excessive gifts are the same. For that reason, this decision should not be taken as an endorsement of the test used by the trial judge in her decision (at para. 25) as the test for determining an excessive gift. [ 7 ] The appeal is, therefore, dismissed with costs to the wife. J.A. J.A. J.A.