Docket: CACV2030 Paul Riben Appellant (by his Executrix Marion Burak) - v. -, 2013 SKCA 114

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 114 Date: 2013-10-29 Between: Docket: CACV2030 Paul Riben Appellant (by his Executrix Marion Burak) - and - Judy Riben Respondent Coram: Richards C.J.S., Lane and Caldwell JJ.A. Counsel: John D. (Jack) Hillson for the appellant Jay Watson for the respondent Appeal: From: 2010 SKQB 431 Heard: October 7, 2013

Disposition: Appeal dismissed Written Reasons: October 29, 2013 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Caldwell Lane J.A. [1] This is an appeal from an order dividing family property. The facts are completely set out in the trial judgment and only a briefreview is necessary. [2] The parties were married in 1966 and separated in January 2004. They have three nondependent adult children.

They hadfarmed successfully for a number of years but the appellant’s severe alcoholism impacted on the farming operations and at the time ofthe separation the parties were deep in debt and had lost five parcels of land to creditors. As his condition worsened, the respondent wasrequired to take over, with her sons, responsibility for all of the farming operations. Upon separation, the appellant stopped allinvolvement in the farm.

The appellant died after the trial but before the decision was issued and the appeal was taken by his executrix. [3] The appellant had raised four grounds of appeal but abandoned the appeal of a finding of dissipation. The issues before usremain the following: (

a) The trial judge incorrectly dealt with the issue of tax arrears on the farmland resulting in the respondent receiving a double credit; (

b) The trial judge credited the appellant with receiving government subsidies for the year 2010 without any evidence upon which tobase the finding; and, (

c) The trial judge erred in giving the respondent credit for 100 percent of the farm debts when the parties were jointly responsiblefor the debts. [4] The first issue may be succinctly stated thusly. The farm municipal tax debts were calculated as part of the general calculationused to determine the income of the family unit. The appellant takes no exception to the methodology but says the result is that hereceived his share of the property subject to unpaid municipal taxes while, at the same time, the respondent received credit for havingpaid those taxes.

We are satisfied the appellant is correct and that this was simply an oversight on the part of the trial judge. Theappellant ought to have received his share of farmland property without any tax arrears. [5] The respondent proposed that if we come to this conclusion we could simply order the property received by the appellant shouldbe clear of any property tax putting the appellant in the same position as the respondent.

Counsel for the appellant did not object to thissuggestion and we will so order leaving the parties to make the appropriate adjustments. [6] Turning to the second issue, which is the credit for farm subsidies the appellant was deemed to have received in the year 2010,we are satisfied no reversible error has been demonstrated. The inference the subsidy would be forthcoming in 2010 was an inferencewhich was open on the evidence for the trial judge to make and deference must be accorded (see: Sabaliauskas v. Athabasca AirwaysLtd., 2010 SKCA 130, 362 Sask. R. 270).

The respondent had received subsidies in previous years, save 2009, and when the appellantdid not receive a subsidy it is very likely because he did not apply for one. The conclusion he was likely to receive a subsidy in 2010 issupportable on the evidence. [7] The allocation of matrimonial debts other than the municipal tax arrears is the third issue before us. The trial judge explained herapportionment at para. 113 as follows: [113] Pursuant to this judgment, Paul will receive a share of the farm income in the form of occupational rent.

Other than the $20,000 paid to Wendland Agricultural Services in May, 2005, Paul contributed nothingtowards the parties' overwhelming debt load. The burden of the debts fell solely to Judy. In the circumstances, fairness and equity requirethat the debts paid by Judy should be taken into account in the distribution of the family property. As Paul paid the same amount as Judyto Wendland Agricultural Services in May, 2005, that debt should not be included.

Accordingly, Judy should be given credit for$94,922.97, being the debts paid by her less the $20,000 paid to Wendland Agricultural Services. [8] Adjusting the matrimonial property division for debts is within the discretion of the trial judge (see: Russell v. Russell (1999), (SK CA), 179 D.L.R. (4th) 723 (Sask. C.A.)). [9] In the circumstances of this case, we cannot say the trial judge abused the exercise of her discretion in her apportionment of thesedebts. [10] Subject to the adjustment for municipal taxes, the appeal is therefore dismissed.

The respondent had substantial success and isentitled to her costs of the appeal on a party-party basis.

DATED at the City of Regina, in the Province of Saskatchewan, this 29th day of October, A.D. 2013. “Lane J.A.” Lane J.A. I concur “Richards C.J.S.” Richards C.J.S. I concur “Caldwell J.A.” Caldwell J.A.