Docket: 1941 Robby Hayne Tanner (Petitioner) Appellant - v. -, 2012 SKCA 68

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 68 Date: 20120611 Between: Docket: 1941 Robby Hayne Tanner (Petitioner) Appellant - and - Vivienne Samantha Jones (Respondent) Respondent Coram: Gerwing, Ottenbreit and Herauf JJ.A. Counsel: Cara Haaf for the appellant Raymond Wiebe for the respondent

Appeal: From: 2010 SKQB 150 Heard: June 11, 2012 Disposition: Allowed in part (orally) Cross-Appeal: Dismissed (orally) Written Reasons: June 28, 2012 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Madam Justice Gerwing The Honourable Mr. Justice Herauf Ottenbreit J.A. [ 1 ] This case concerns an appeal by Robby Hayne Tanner (the “husband”) and a cross-appeal by Vivienne Samantha Jones (the “wife”) of the trial judgment dividing their family property. At the hearing of this matter we dismissed the cross-appeal of the wife and allowed the appeal of the husband in part.

These are the reasons for our decision. [ 2 ] The parties cohabited for 13 years, 11 of which they were spouses under The Family Property Act, S.S. 1997, c. F-6.3. When they first lived together, the wife was a veterinarian and the husband was finishing his engineering degree. During their relationship the husband completed a computer science degree. The wife generally managed the finances of the parties during the marriage and every month asked the husband to pay to her a certain sum for the upkeep of the house.

For the most part, the wife contributed more financially during the marriage than did the husband. [ 3 ] In 1998 the wife bought a house which became the family home. The down payment for the house came from her investments and RRSPs as well as money from an accident injury settlement. The wife paid for substantial renovations to the house with her money. [ 4 ] In 1990, before the parties cohabited, the husband’s maternal grandfather transferred certain farmlands into the name of the husband and his mother.

Shortly thereafter the husband and his mother signed a trust declaration which gave the grandfather a life interest in the property followed by a life interest for the mother. The trust declaration stated that the husband was to receive the farmland provided that he survived his mother. At the date of the trial the mother was living on the property and receiving the income from it. The husband never received any income from the farmland since the date that it had been transferred to him and his mother.

At the date of trial his mother was 61 years of age and in good health. [ 5 ] The trial judge divided the family home unequally on the basis that the husband was calculatedly insouciant about clearly defining to his wife the nature of his interest in the farmland i.e. that there was a trust and that he had only a contingent interest in the land. The trial judge found that he actively dissembled respecting the farmlands on the various occasions that the wife raised the issue with him and concluded that the husband’s behavior constituted an extraordinary circumstance.

He determined that it would be fair to allocate 25% of the equity in the home to the husband. The husband argues that the trial judge erred in that respect. [ 6 ] It is clear that the trial judge correctly appreciated that the threshold to prove extraordinary circumstances under s. 22(1) of The Family Property Act is a high one. However, he did not have the benefit of Phillips v. Phillips , 2010 SKCA 117 , 324 D.L.R. (4 th ) 534, a judgment of our Court issued after his decision.

In Phillips , Klebuc C.J.S. at paras. 23 and 28 states: 23 … “the Legislature created a distinct procedure with a narrower and more onerous threshold to be met by a spouse seeking an unequal distribution of the family home than the one applicable to an unequal distribution of other family property pursuant to s. 21(1) and (2).” 28 Based on the wording of s. 22(1) and the aforementioned decisions, I am satisfied that a spouse seeking an unequal distribution of the family home is required to meet a more onerous threshold than the fairness and equity threshold applicable to unequal distributions of other family property pursuant to ss. 21(1) and (2).

If it were otherwise, an extraordinary circumstance would be the equivalent of the factors listed under s. 21(3) and thus superfluous. Consequently, an unequal distribution of a family home is not to be made based merely on a s. 21 fairness analysis.

A finding of extraordinary circumstances requires compelling factors which go beyond mere fairness and which in sum would cross the narrow and more onerous threshold set by s. 22(1). See: Williams v. Williams , 2011 SKCA 84 , [2011] 11 W.W.R. 476 and the cases referred to therein. [ 7 ] In our view, the primary factor cited by the trial judge for unequal division i.e. dissembling and insouciance in not entirely disclosing the true nature of pre-marital property unrelated to the home, does not by itself amount to an extraordinary circumstance nor does it together with the other circumstances of this case.

That constellation of factors beyond mere fairness which would cross the threshold set by s. 22(1) is not present in this case. [ 8 ] Moreover, there is no evidence that the husband’s behavior has affected the economic well-being of the family.

Section 25 of The Family Property Act makes it clear that the husband’s behavior identified by the trial judge, even if it can be said to be immoral or improper conduct, is only relevant for the purpose of s. 22 if it amounts to dissipation or has adversely affected the financial status of the family property. This is not the case here. Accordingly there is no basis on which to divide equity in the family home unequally. The equity of the home shall be equally divided between the parties.

I need not deal with the husband’s alternative argument regarding family debt in view of the decision on the division of the family home. [ 9 ] The wife in her cross-appeal argues that the trial judge erred by finding that a trust for the farmland had been properly constituted. In our view, the trial judge made no error in this regard. He carefully considered the law and the evidence of the circumstances surrounding the creation of the trust to reach his conclusion.

He was entitled to consider the transfer of the land and the subsequent declaration of trust together to determine whether the essential elements for the creation of a trust were present. [ 10 ] The wife also argues that even if there is a trust, the trial judge erred by finding that it was not family property and by not valuing the trust. In our view, contingent interests in property can be family property. However, even if the trial judge’s determination is an error, it does not change the result for the purposes of dividing the property.

The trial judge did not have before him any evidence from actuaries or other such professionals upon which he could make an informed decision as to the value. However even in the absence of professional evidence, the facts found by the trial judge which might be relevant if the interest were valued, make it clear that the trust’s value was zero at the date of the trial.

The facts include that the interest was contingent, that the mother was healthy and relatively young and that the husband had received no income from the property. [ 11 ] Both parties agree that the RRSPs and pension should be reduced by a percentage to allow for taxes. The husband suggests 25% and the wife suggests 27.5%. In our view, the appropriate reduction is 25%. [ 12 ] The last issue that the wife raises is that the trial judge erred by not dividing the balance of the family property unequally. In this respect, the trial judge made no error.

While it is true that the trial judge did not go through all the factors which might justify an unequal division, these factors were vigorously argued before him. We are satisfied that he implicitly, if not explicitly, rejected those factors based on his treatment of this aspect of the property and committed no error in that regard. [ 13 ] The appeal of the husband is therefore allowed as set forth above. The cross-appeal of the wife is dismissed. The husband shall have his costs fixed at $2000.00.