Docket: CACV2485 Dawn Lauralie Schimelfenig Appellant - v. -, 2014 SKCA 77

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 77 Date: 2014-07-15 Between: Docket: CACV2485 Dawn Lauralie Schimelfenig Appellant - and - Kevin Scott Schimelfenig Respondent - and - Sighart Schimelfenig and Ada Edith Schimelfenig Respondents (Third Party) Coram: Richards C.J.S., Whitmore and Ryan-Froslie JJ.A. Counsel: Jaylyn Lawrence for the appellant Donnon Revering for the respondent Jeffrey Kerr for the respondents (third party) Appeal:

From: 2013 SKQB 359 Heard: May 28, 2014 Disposition: Appeal allowed in part Written Reasons: July 15, 2014 By: The Honourable Mr. Justice Whitmore In Concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Ryan-Froslie Whitmore J.A. I. Introduction [ 1 ] This is an appeal from the decision of the trial judge in a family law dispute. The parties had resolved all family property issues, except the appropriate division of the family home and one-half

section of farmland, both situated on the W½-9-28-24-W3 (W½- 9). The trial judge determined that the home and land were beneficially owned by Mr. Schimelfenig’s parents and that the respondent, Mr. Schimelfenig, was only on the title for estate planning purposes. Thus, the home and farmland were not family property and, therefore, not subject to division. [ 2 ] The trial judge found the appellant, Ms. Schimelfenig, was not entitled to compensatory support, but ordered non- compensatory support for a limited time. [ 3 ] From these two findings Ms. Schimelfenig appeals. II.

Background [ 4 ] The parties commenced living together in 1992. They were married in 1994 and, in 2004, moved from Regina to Mr. Schimelfenig’s parent’s house on the W½-9. The parties resided there until they separated in April 2010, when Ms. Schimelfenig left the family home and moved to a residence in nearby Waseca, Saskatchewan. Mr. Schimelfenig continues to reside in the home situated on the W½-9. [ 5 ] The parties have three children, two of whom were independent adults at the time of trial. The youngest, Tristen, was 16 and living with Ms. Schimelfenig. [ 6 ] Ms.

Schimelfenig obtained a diploma in Early Childhood Development prior to the relationship. During the marriage, she stayed at home with the children until 2005 when she commenced working part-time as a janitor. After the parties separated, Ms. Schimelfenig obtained full-time employment in Lloydminster and, at trial, was earning $39,000 per year. She is currently training as a Gas Process Operator and will have completed her certificate this spring. She is confident she will become employed in the oilfield upon completion of her training. [ 7 ] Mr.

Schimelfenig has been employed in the oilfield and, at the time of trial, his income was $90,000 per year. [ 8 ] When the parties moved to the family home in 2004, Mr. Schimelfenig’s parents, who resided there until that point, moved to Lloydminster. Ms. Schimelfenig and Mr. Schimelfenig did not pay rent, but were responsible for the utilities and paid for some renovations. [ 9 ] Mr. Schimelfenig assisted his father in farming the W½-9, mainly in the spring and fall, spending approximately 200–300 hours per year in doing so. He paid some expenses and received some income related to the farm. [ 10 ] In 2004, Mr.

Schimelfenig’s father transferred title to the W½-9 to himself, his wife and Mr. Schimelfenig as joint tenants. Ms. Schimelfenig has never been registered on that title. III. The Decision Below [ 11 ] The trial judge held Mr. Schimelfenig’s father had transferred the W½-9 to himself, his wife and his son (Mr. Schimelfenig) for estate planning purposes and that Mr. Schimelfenig had no beneficial interest in it. Therefore, the home and farmland were not subject to division pursuant to The Family Property Act , S.S 1997, c.

F-6.3 ( The Act ). [ 12 ] With respect to the issue of spousal support, the trial judge concluded that Ms. Schimelfenig was not economically disadvantaged by the marriage or its breakdown. Therefore, she was not entitled to compensatory support. He did, however, order non- compensatory support of $800 per month on a needs and ability to pay basis for thirteen months. IV. Issues A. Did the trial judge err in determining that the home and farmland on W½ are not family property? B. Did the trial judge err in finding Ms. Schimelfenig is not entitled to compensatory spousal support?

V. Standard of Review [13] The standard of review on matters of division of family property was set out by Justice Jackson in Riley v. Riley, 2011 SKCA 5,366 Sask. R. 110 as follows: 5 When an appellate court reviews a decision of a trial court, three standards of review are usually engaged: (

i) the standard ofreview concerning questions of law, i.e., did the trial judge decide all questions of law correctly (see: Housen v. Nikolaisen, 2002 SCC 33at para. 8, [2002] 2 S.C.R. 235); (ii) the standard of review as to factual findings, i.e., did the trial judge make any palpable andoverriding error with respect to a material finding of fact (see: Lensen v. Lensen, (SCC), [1987] 2 S.C.R. 672 at p. 683 and Housen at para. 10); and (iii) the standard of review with respect to discretionary matters, i.e., did the trial judge considerall relevant matters (see: Friends of the Oldman River Society v.

Canada (Minister of Transport), (SCC), [1992] 1S.C.R. 3 at 76–77 and the cases referred to therein. [14] In Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, the Supreme Court said the following with respect to thestandard of review on matters of spousal support: 10 When family law legislation gives judges the power to decide on support obligations based on certain objectives, values,factors, and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise ofconsiderable discretion by trial judges.

They must balance the objectives and factors set out in the Divorce Act or in provincial supportstatutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives ofthe parties and to their children.

Because of its fact-based and discretionary nature, trial judges must be given considerable deference byappellate courts when such decisions are reviewed. 11 Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose anerror in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. These principles were stated byMorden J.A. of the Ontario Court of Appeal in Harrington v. Harrington, (1981), (ON CA), 33 O.R. (2d) 150, atp. 154, and approved by the majority of this Court in Pelech v.

Pelech, (SCC), [1987] 1 S.C.R. 801, per Wilson J.; inMoge v. Moge, (SCC), [1992] 3 S.C.R. 813, per L’Heureux-Dubé J.; and in Willick v. Willick, (SCC),[1994] 3 S.C.R. 670, at p. 691, per Sopinka J., and at pp. 743–44, per L’Heureux-Dubé J. 12 There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. Thisstandard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who hasheard the parties directly.

It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appealcourt will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation andrecognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is amaterial error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply becauseit would have made a different decision or balanced the factors differently. VI. Analysis A.

Did the trial judge err in determining that the home and farmland on W½-9 are not family property? [15] Ms. Schimelfenig submits the trial judge erred in finding Mr. Schimelfenig had no legal or beneficial interest in the home andfarmland and that the trial judge should have included both the home and farmland on the W½-9 as family property. Mr.

Schimelfenigsubmits the trial judge made no error and that his parents’ had no intention to transfer a beneficial interest in the property to him. [16] I conclude that although the trial judge did not perform the proper analysis, he came to the correct bottom line conclusion. [17] In circumstances where one of the parties holds land jointly with a third party, there has not been a consistent approach in theCourt of Queen’s Bench to the analysis of the distribution of family property under The Act.

McIntyre J. said the following in Stokes v.Stokes: [14] Where a party holds title in joint tenancy with a third party the analytical approach taken by the Court in various decisions hasdiffered somewhat although the result has been consistent. One situation in which it arises is where a parent puts property into jointnames with a child in circumstances where the parent retains full control and benefit of the property. It has been placed in joint names sothat upon the death of a parent the property will pass to the child without the necessity of probate.

In these circumstances some decisionsof the Court suggest that the interest of the child does not constitute matrimonial property. Swystun v. Davidson, (1997), (SK KB), 29 R.F.L. (4th) 298 (Sask. Q.B.); Marciniuk v. Marciniuk, (1992), (SK KB), 98 Sask. R. 211 (Q.B.);Moen v. Schultz, 2000 SKQB 38, (2000), 190 Sask. R. 223 (Q.B.). Others have suggested it constitutes matrimonial property but has novalue. Eftoda v. Eftoda (No. 2.), (1987), (SK KB), 58 Sask. R. 259 (Q.B.) affd, (1988), (SK CA),70 Sask. R. 221 (C.A.); or has found that an equal sharing would be unfair and inequitable. Patterson v.

Patterson, [1997] S.J. No. 521(Q.B.). As noted, the end result of these various decisions is the same. [15] When a party holds title in joint tenancy, they hold an interest in the property so as to constitute matrimonial property within thedefinition contained in s. 2(1) of the Act. It is presumed shareable and the next question is valuing that interest. As observed in Wilgosh v.Wilgosh, (1998), (SK KB), 166 Sask. R. 96 (Q.B.) at para. 49, the nature and value of such an interest for thepurposes of the Act will depend on the facts of each case.

In the estate planning cases, the value of that interest is likely to be nil. The

child has no beneficial interest nor received any tangible benefit as a result of the transfer. On the other hand, in Wilgosh, the husbandand wife owned their home as joint tenants prior to a transfer of title and had substantial equity in the property. They occupied the houseas the family home at all times and paid all expenses associated with the house. When they got into financial difficulty title wastransferred to the husband's father and subsequently into the names of the father and son as joint tenants.

The full value of the home wasfound to constitute divisible matrimonial property. [16] In this instance when the N½ 14-20-4-W2 was transferred into the names of Craig and his mother as joint tenants Craig receiveda tangible benefit. He farmed the cultivated land and received the benefit thereof. It was not an estate planning transaction. When Joycemoved into Yorkton the house became Craig and Kathy's home. They invested $50,000.00 in renovations. Kathy claimed that 100percent of the value of the home quarter is divisible on the basis that it was Joyce Stokes' intention to give them the house.

WhetherJoyce Stokes had, at one point, thought about transferring her interest, or had an intention to do so at some future time, she had not doneso as of the date of application and was not bound to do so in the future. I find the circumstances with respect to the NW quarterindistinguishable from that of the NE quarter in which case the parties are agreed that one-half the fair market value of the property isdivisible matrimonial property. One-half the fair market value of the NW quarter is divisible matrimonial property. [18] This Court in Benson v. Benson (1994), (SK CA), 120 Sask.

R. 17, 3 R.F.L. (4th) 291 (CA) set out the properapproach for assessing a division of family property. Although that case dealt with The Matrimonial Property Act, S.S. 1979, c M-6.1(Repealed), the predecessor to The Family Property Act, the only change of note in the

section under consideration is a change interminology. What was referred to as “matrimonial property” under the former act is now termed “family property.” [19] Cameron J.A. said the following at paras. 18 and 19: 18 Section 21(1) of the Act requires that the “matrimonial property or its value”, both as defined in s. 2, be distributed and distributedequally, subject only to the exceptions, exemptions, and equitable considerations mentioned elsewhere in the statute. “Matrimonialproperty” is defined by s. 2(

h) to mean all manner of property that, “at the time an application is made under this Act”, is owned by oneor other of the spouses or in which either has an interest. “Value” on the other hand is defined by s. 2(1) to mean the fair market value “atthe time an application is made under this Act, or at the time of adjudication, whichever the court thinks fit”. 19 In the light of these and other provisions of the Act, the practice is to resolve these cases along the lines suggested by Carter, J., inRathie v.

Rathie (1980), (SK KB), 17 R.F.L. (2d) 265 (Q.B.), determining, first, the property and its value subject todistribution. This ordinarily entails compiling an inventory of the property owned by the spouses as of the time of application andestablishing the net value of that property as of that time or the time of adjudication. Exceptions aside, this is the property and its valuewhich is subject to distribution.

It is the practice to go on from there to next determine whether any of that property or its value is exemptfrom distribution; then to determine whether any of it ought not to be distributed equally having regard for the equitable considerationsmentioned in the statute; and finally to decide how the distribution should be effected. [20] In this case, the trial judge determined the W½-9 was not family property and concluded it was therefore not necessary to valueit. [21] Based on the approach in Benson, supra, the first question is whether the W½-9, including the family home and farmland, is“family property” within the meaning of The Act. [22] “Family property” is defined in The Act as follows: “family property” means any real or personal property, regardless of its source, kind or nature, that, at the time an application is madepursuant to this Act, is owned, or in which an interest is held, by one or both spouses, or by one or both spouses and a third person, and,without limiting the generality of the foregoing, includes the following: (

a) a security, share or other interest in a corporation or an interest in a trust, partnership, association, organization, society or otherjoint venture; (

b) property over which a spouse has, either alone or in conjunction with another person, a power of appointment exercisable in favourof the spouse; (

c) property disposed of by a spouse but over which the spouse has, either alone or in conjunction with another person, a power toconsume, invoke or dispose of the property …. [23] I conclude the W½-9 is family property as it is property that is either owned by one or other of the spouses, or one or other of thespouses has an interest in it. Mr. Schimelfenig clearly has a legal interest in the property by virtue of being registered as an owner on thetitle. [24] The next step is to value the property. In order to do this, Mr. Schimelfenig’s interest in the property must be considered. WhileMr.

Schimelfenig’s name is on the title, he has no beneficial interest in the property. Rather, he holds the property as a trustee. [25] When property is transferred from a parent to a child without consideration, the child’s interest largely depends upon the intentionof the transferor at the time of the transfer (see Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795 at paras. 5, 41, and 55). Thetransferor, in this case Mr. Schimelfenig’s father, testified as to his intention. In addition, the transferor’s lawyer testified and confirmedthe transfer was made for estate planning purposes. A gift to Mr.

Schimelfenig was not intended. This testimony was further

corroborated by Mr. Schimelfenig’s father’s will, prepared at the same time as the transfer. In his will, the W½-9 was left to his wife if she survived him and to Mr. Schimelfenig only if his wife predeceased him. [ 26 ] In Pecore , the Supreme court said the following at paras. 24 and 25: 24 The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof.

Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts , at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts. 25 The presumption of resulting trust therefore alters the general practice that a plaintiff (who would be the party challenging the transfer in these cases) bears the legal burden in a civil case.

Rather, the onus is on the transferee to rebut the presumption of a resulting trust. [ 27 ] Here, there is no need to rely on the presumption of resulting trust because there is compelling evidence to ascertain the intention of the transferor. [ 28 ] There was clearly evidence upon which the trial judge could determine the house and farmland were not meant as a gift to Mr. Schimelfenig and that Mr. Schimelfenig derived no beneficial interest in them. The value of Mr. Schimelfenig’s interest in the property was therefore zero.

While the trial judge’s approach to this issue was not correct, his end result is the same as if he had analysed it properly. B. Did the trial judge err in finding that Ms. Schimelfenig is not entitled to compensatory spousal support? [ 29 ] Ms. Schimelfenig submits the trial judge focused too narrowly on her self-sufficiency and failed to recognize the sacrifices she made during the marriage. She argues that she could have had a much higher income if she had entered the oilfield industry years ago, instead of caring for the children.

She requests an award of $1000 per month for four to 13 years, depending on whether she is awarded a further property division payment. [ 30 ] Mr. Schimelfenig submits the trial judge correctly concluded that once Ms. Schimelfenig finishes her training as a gas process operator, she will have an income level that will not leave her economically disadvantaged. [ 31 ] The trial judge performed little analysis of the compensatory basis for spousal support. He simply stated that he was not satisfied that an award on that basis was appropriate in the circumstances. In doing so, he referred to Ms.

Schimelfenig’s employment history, her current income, and her future employment opportunities. The question, however, is not whether Ms. Schimelfenig’s future prospects are good but whether her economic prospects were adversely affected by the marriage or its breakdown. [ 32 ]

Section 15 of the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp.) provides authority for a court to make an award of spousal support.

Section 15.2(4) sets out the considerations to be taken into account in making such an award.

Section 15.2(6) sets out the objectives of such an award. These sections are as follows: 15.2(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. … Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. … Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above anyobligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [33] The Supreme Court in Moge v. Moge, (SCC), [1992] 3 S.C.R. 813, 81 Man. R. (2d) 161 at para. 52 stated thefollowing: 52 All four of the objectives defined in the Act must be taken into account when spousal support is claimed or an order for spousalsupport is sought to be varied. No single objective is paramount.

The fact that one of the objectives, such as economic self-sufficiency,has been attained does not necessarily dispose of the matter. [34] In discussing compensatory support, the Supreme Court stated the following at paras. 68–70 of Moge: 68 Legislative support for the principles of compensation may be found in ss. 15(7)(a-c) [now s. 15.2(6)] and 17(7)(a-

c) which areextremely broad in scope and which direct the court, in making or varying a support order, to recognize any economic advantages ordisadvantages arising from the marriage or its breakdown, to apportion between the spouses any financial consequences arising from thecare of children over and above those consequences which have already been made the subject of child support and to relieve economichardships arising from the marriage. As a matter of statutory

interpretation, it is precisely the manner in which compensatory spousalsupport is able to respond to the diversity of objectives the Act contains that makes it superior to the strict self-sufficiency model. 69 Although the promotion of self-sufficiency remains relevant under this view of spousal support, it does not deserve unwarrantedpre-eminence. After divorce, spouses would still have an obligation to contribute to their own support in a manner commensurate withtheir abilities. (Rogerson, “Judicial

Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)”, supra,at p. 171). In cases where relatively few advantages have been conferred or disadvantages incurred, transitional support allowing for fulland unimpaired reintegration back into the labour force might be all that is required to afford sufficient compensation. However, in manycases a former spouse will continue to suffer the economic disadvantages of the marriage and its dissolution while the other spouse reapsits economic advantages.

In such cases, compensatory spousal support would require long-term support or an alternative settlementwhich provides an equivalent degree of assistance in light of all of the objectives of the Act. (“Judicial

Interpretation of the Spousal andChild Support Provisions of the Divorce Act, 1985 (Part I)”, supra, at pp. 171–72.) 70 Women have tended to suffer economic disadvantages and hardships from marriage or its breakdown because of the traditionaldivision of labour within that institution.

Historically, or at least in recent history, the contributions made by women to the maritalpartnership were non-monetary and came in the form of work at home, such as taking care of the household, raising children, and so on.Today, though more and more women are working outside the home, such employment continues to play a secondary role and sacrificescontinue to be made for the sake of domestic considerations.

These sacrifices often impair the ability of the partner who makes them(usually the wife) to maximize her earning potential because she may tend to forego educational and career advancement opportunities.These same sacrifices may also enhance the earning potential of the other spouse (usually the husband) who, because his wife is tendingto such matters, is free to pursue economic goals. This eventually may result in inequities. As stated by G. C. A. Cook, in “EconomicIssues in Marriage Breakdown” in R. s. Abella and C.

L’Heureux-Dubé, eds., Family Law: Dimensions of Justice (1983), 19, at p. 22: Men as well as women make non-monetary contributions to the family unit but in general, the non-monetary contributions of womenhave formed a greater share of their total economic contributions. There was no reason for concern over this discrepancy when marriagebreakdown was rare and there was no requirement to place monetary values on the economic shares of a complicated relationship.

Whendissolution of marriages became more common however, the tendency to treat the monetary contributions to the family as the major oneswhen distributing assets gave rise to familiar inequities …. Hence, while the union survives, such division of labour, at least from an economic perspective, may be unobjectionable if such anarrangement reflects the wishes of the parties. However, once the marriage dissolves, the kinds of non-monetary contributions made bythe wife may result in significant market disabilities.

The sacrifices she has made at home catch up with her and the balance shifts infavour of the husband who has remained in the work force and focused his attention outside the home. In effect, she is left with adiminished earning capacity and may have conferred upon her husband an embellished one. [35] The trial judge in considering the compensatory basis for spousal support focused only on the recent and future earning powerof Ms. Schimelfenig. In so doing, he clearly erred in principle. He failed to consider the economic disadvantages attributable to herassuming a traditional role in the marital home.

While spousal support awards are discretionary and considerable deference should begiven to the conclusions of a trial judge, an error in principle in making such an award requires this Court to intervene: According to the Supreme Court in Moge, the objectives of spousal support, set out in s. 15.2(6) of the Divorce Act, can be viewed anattempt to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown. At the end of the day

however, courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act. ( Moge , para. 77 ) [ 36 ] The Supreme Court continued this analysis at para. 79: 79 The financial consequences of the end of a marriage extend beyond the simple loss of future earning power or losses directly related to the care of children. They will often encompass loss of seniority, missed promotions and lack of access to fringe benefits such as pension plans, life, disability, dental and health insurance (see H.

Joshi and H. Davies, “Pensions, Divorce and Wives’ Double Burden” (1992), 6 Int’l J. L. & Fam. 289). As persons outside of the work force cannot take advantage of job-retraining and the upgrading of skills provided by employers, one serious economic consequence of remaining out of the work force is that the value of education and job training often decreases with each year in comparison to those who remain active in the work force and may even become redundant after several years of non-use.

All of these factors contribute to the inability of a person not in the labour force to develop economic security for retirement in his or her later years. [ 37 ] Ryan-Froslie J. (as she then was) said the following in James v. Belosowsky , 2012 SKQB 316 , 301 Sask. R. 37: 161 The parties were married for 18 years prior to their separation in 2008. During that 18-year period, Danny worked full time for approximately 20 months, took maternity leave for a period totalling three years, worked part time for approximately six years and was a “stay-at-home mom” for just over seven years.

Danny sacrificed her career to stay at home and care for the parties’ children. It is uncontroverted that Randy agreed with that decision. Danny’s absence from the work force put her at an economic disadvantage when the marriage broke down. She was unemployed and had been out of the work force for an extended period of time. The increases in income she could have expected if she had been employed full time throughout the marriage were gone as was any claim to seniority, insurance, pension or other benefits.

While I am satisfied that Danny’s inability to put away money for her retirement during the marriage is offset by the division of the family property, she has still suffered an economic disadvantage insofar as her ability to earn an income is concerned. She has established an entitlement to spousal support on a compensatory basis. [ 38 ] The trial judge should have considered Ms. Schimelfenig’s absence from the workforce for many years and the sacrifices she made to stay at home and raise the children. This resulted in an economic disadvantage to Ms.

Schimelfenig arising from the marriage and its breakdown similar to that set out in James v. Belosowsky . [ 39 ] The trial judge found Mr. Schimelfenig’s income was $90,000 and Ms. Schimelfenig’s income was to be $64,500 by October 2014, based on Ms. Schimelfenig’s own evidence. [ 40 ] The trial judge considered the range of support suggested by the Spousal Support Guidelines ([Ottawa]: Department of Justice July 2008) and concluded that $800 per month was an appropriate award in the circumstances. I find the trial judge made no error in principle in determining the amount of spousal support.

However, given the fact that Ms. Schimelfenig was entitled to both compensatory and non-compensatory support, he erred in determining the duration of that support. His order should be varied to provide support in the amount of $800 per month for five years. That will adequately compensate Ms. Schimelfenig for the disadvantages she suffered during the marriage and as a result of its breakdown. VII. Conclusion [ 41 ] The appeal with respect to the division of property is dismissed. [ 42 ] The appeal regarding spousal support is allowed such that Mr. Schimelfenig is ordered to pay to Ms.

Schimelfenig the sum of $800 per month for a period of five years, commencing October 1, 2013. [ 43 ] As the result of the appeal is mixed there shall be no costs as between Ms. Schimelfenig and Mr. Schimelfenig. The respondent third parties shall have their costs as against Ms. Schimelfenig. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of July , 2014 . “Whitmore J.A.” Whitmore J.A. I concur “Richards C.J.S.” Richards C.J.S. I concur “Whitmore J.A.” for Ryan-Froslie J.A.