Clemens v McGruther, 2019 SKCA 46

Court of Appeal for Saskatchewan Docket: CACV2963 Citation: Clemens v McGruther , 2019 SKCA 46 Date: 2019-05-31 Between: Sherry Clemens Appellant/Respondent on Cross-appeal (Petitioner) And Arnold McGruther Respondent/Appellant on Cross-appeal (Respondent) Before: Ottenbreit, Schwann and Tholl JJ.A. Disposition: Appeal allowed, new trial ordered; Cross-appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Tholl On Appeal From: FLD 5 of 2015, Moose Jaw Appeal Heard: April 15, 2019 Counsel: David A.

Couture for the Appellant Robert C. Fielding for the Respondent Schwann J.A. I. Introduction [ 1 ] This appeal and cross-appeal follow a five-day family property trial. While the trial judge who heard the matter was able to make findings of fact concerning the valuation of two discrete items of property (the acreage and pension exemption), due to illness, he found himself unable to deal with the remainder of the family property.

He addressed this issue at paragraph 29 of his unreported written decision ( Clemens v McGruther (6 August 2016) Moose Jaw, FLD 5/2015 (Sask QB) [written reasons]), which references handwritten notes attached “detailing assets, valuations and potential division” to guide the parties in the hope they could “agree on the rest”. [ 2 ] Sherry Clemens appeals from the trial judge’s failure to adjudicate the bulk of the family property issues and from the value he assigned to the acreage.

Arnold McGruther cross-appeals from a decision subsequently rendered by another Court of Queen’s Bench judge who was asked to settle the terms of the formal judgment. Mr. McGruther argues the handwritten notes attached to the written reasons constitute the trial judge’s findings of fact with respect to values assigned to the property listed in those notes. While Mr.

McGruther agrees the matter should return to the Court of Queen’s Bench for purposes of property division, he maintains the family property has already been identified and valued and, as such, there is no need to revisit those issues. [ 3 ] No appeal was taken with regard to the spousal support portion of the decision. [ 4 ] For the reasons that follow, I am of the view this matter must be returned to the Court of Queen’s Bench for a new trial on the property issues. Given this result, I will not comment on the facts beyond what is necessary to address Ms. Clemens’ appeal and Mr. McGruther’s cross-appeal.

II. background [ 5 ] In January 2012, Ms. Clemens petitioned the Court of Queen’s Bench for an equal division of family property, exclusive possession of the family home and spousal support. Mr. McGruther, the respondent in those proceedings, largely opposed the relief sought by Ms. Clemens. Unable to resolve their differences, the parties proceeded to trial four years later. [ 6 ] The trial judge made the following key findings: (

a) the acreage was valued at $390,000; (b) $5,250 of Mr. McGruther’s pension was exempt from property division; and (

c) Ms. Clemens had not established an ongoing entitlement to spousal support. [ 7 ] The trial judge then dealt with the balance of the family property, stating: [29] I have received substantial evidence relating to the identification and valuation of the remaining family assets. Unfortunately, time does not permit me to set out in detail the manner in which they should be divided. As I have stated, I firmly believe that once the court establishes the value of the acreage, the parties will agree on the rest. However, as a guide to assisting them to do so, I am attaching as

Schedule I, II and III to this decision my handwritten notes detailing assets, valuations and potential division. [ 8 ] Sadly, the trial judge passed away the day following release of his written reasons.

[ 9 ] As set out in paragraph 29,the trial judge’s handwritten notes, identified as Schedules I, II and III [Schedules], were attached to his written reasons.

Schedule I is entitled “Asset Division Agree[d] Upon”. It contains a list of property and the values for such property the parties had purportedly agreed to. The property list is followed by two columns: one for “Sherry” and the other for “Arnold”.

Schedule II contains 28 items of “Disputed Assets” and, like

Schedule I, opposite each item of property is a column for “Sherry” and a column for “Arnold”. For the most part, a number is inserted in each of the two “Sherry” and “Arnold” columns, presumably to represent the value asserted by the parties for that item of property. In some cases, a third number is shown and in others the number is followed by a question mark.

Schedule III does not bear any heading. It appears to be a suggestion as to how the parties might divide the family property. [ 10 ] The parties took different views as to what findings of fact had been made by the trial judge in light of paragraph 29 and the Schedules. Their difference of opinion culminated in an application under Rule 10-4 of The Queen’s Bench Rules to settle the terms of the formal judgment. The narrow issue before the Chambers judge was whether the formal judgment should reflect the values Mr. McGruther says were assigned to the numerous items of property listed in each Schedule. Mr.

McGruther argued that when the Schedules are considered in light of paragraph 29, it is clear the trial judge had assigned a value to each item of property. Ms.

Clemens, on the other hand, argued no such factual finding had been made. [ 11 ] Following a careful review of the trial judge’s written reasons, the Schedules and the law, the Chambers judge found himself unable to “conclude that paragraph 29 reflects an actual disposition or factual finding on [the trial judge’s] part regarding [the] value of property, as opposed to a mere suggestion to the parties, made for the purpose of spurring further discussion regarding resolution” ( Clemens v McGruther (18 September 2018) Moose Jaw, FLD 5/2015 (Sask QB) at 4).

With regard to the Schedules, the Chambers judge said they amounted to nothing more than “working” values for discussion purposes and that if he was to go further, as Mr. McGruther had urged him to do, he would have to “guess” or “speculate” as to whether the figures in the Schedules were meant to be findings of fact or simply working notes. [ 12 ] As mentioned above, Ms. Clemens appeals on two bases. She argues the trial judge erred: (

i) in failing to divide the family property in accordance with The Family Property Act , SS 1997, c F-6.3 ; and (ii) with respect to the value he assigned to the acreage. [ 13 ] Mr. McGruther cross-appeals from the Chambers judge’s decision. He seeks an order from this Court to: (

i) include Schedules I, II and III as part of the judgment; (ii) confirm the valuation for more than 30 items of property, for which he says there is no dispute; (iii) declare a value for numerous other items of “disputed” property; and (iv) determine the value of Mr. McGruther’s pension and registered assets and direct a rollover to Ms. Clemens in a prescribed amount. III. ANALYSIS A. Did the trial judge err in failing to divide the family property? [ 14 ] Both Ms. Clemens and Mr. McGruther agree the trial judge erred in law by failing to divide the family property.

While they dispute the scope of a new trial, both agree one is warranted. [ 15 ] The parties’ position has obvious merit. On application by a spouse for the distribution of family property, s. 21(1) of The Family Property Act directs a court to order that it or its value be distributed equally between the spouses subject to applicable exceptions, exemptions and equitable considerations. Similarly, with regard to the family home, s. 22(1) directs a court to distribute the home or its value equally subject to the provisions set out in that section.

The trial judge’s written reasons satisfy me that he did not divide the family property, the family home or its value because, as he said, time did not permit him to do so. This failure, albeit due to very unfortunate circumstances, amounts to an error of law. The trial judge’s decision must therefore be set aside and a new trial ordered. B. Did the trial judge err in his valuation of the acreage? 1. The trial judge’s decision [ 16 ] The trial judge was presented with two conflicting appraisals for the parties’ acreage. Mr.

McGruther tendered an appraisal that had been prepared by David Christopherson in 2013 [Christopherson Appraisal] and Ms. Clemens relied on an appraisal done by Rosanne Wood in 2016 [Wood Appraisal]. [ 17 ] The Christopherson Appraisal used the direct comparison approach to valuation. Mr. Christopherson broke down his conclusions on value into three discrete components: Mobile house $83,000 Barn and Riding Arena $135,000 Land $230,000 Total $448,000 Rounded $450,000 [ 18 ] The trial judge selected the date of adjudication as the appropriate date for purposes of valuing the acreage.

Since the Christopherson Appraisal was prepared in 2013, Mr. Christopherson was asked to revisit the acreage prior to the 2016 trial. He testified that the acreage was in substantially similar condition but acknowledged his 2013 appraisal failed to account for the cost of necessary repairs to the riding arena. (Interestingly, Mr. McGruther conceded the cost of the repairs would be no more than $15,000 but then agreed Mr. Christopherson’s overall appraisal should be $415,000 for trial purposes instead of $450,000.) [ 19 ] Mr.

Christopherson testified that, generally speaking, the market value for acreages in the intervening three-year period (2013 to 2016) had remained relatively constant. Presumably this was the basis on which the trial judge found himself able to conclude that

“variance” in property values between 2013 and 2016 “would not have exceeded $20,000” (at para 12). Unfortunately, the trial judge attributed the evidence concerning the $20,000 variance to the testimony of both Mr. Christopherson and Ms. Wood. On appeal both parties acknowledge that only Mr. Christopherson had provided this evidence. [ 20 ] Ms. Wood valued the acreage and improvements in 2016 – the same year as the trial. She attributed $147,000 to the land component and $144,000 as a “global value” for the mobile home, barn and riding arena, for a total overall value of $291,000 for the acreage.

In formulating her opinion, Ms. Wood relied on land sales, an adjustment for the value of the structures and acreage size. [ 21 ] Using the $415,000 figure Mr. McGruther had proposed for trial purposes, the trial judge found the overall difference between the two expert opinions ($415,000 and $291,000) was $124,000. [ 22 ] The trial judge then undertook a comparative analysis of both appraisals. Among other things, he commented on the fact Ms. Wood had arbitrarily assigned a global value of $87,000 to all structures without any explanation for doing so.

Commenting on the divergent opinions in relation to the barn and riding arena, the trial judge found the value proffered by Ms. Wood was too low. [ 23 ] While the trial judge found both appraisers credible, he concluded the Christopherson Appraisal was “more reliable” because: (

i) Mr. Christopherson used comparators to determine the value of the mobile home and his sampling persuaded the trial judge the mobile home alone was worth $83,000; (ii) Mr. Christopherson’s valuation for the barn and riding area ($135,000) more closely reflected the value one would find using the cost approach, less depreciation; and (iii) Mr. Christopherson’s valuation of the barn and riding arena structures took into account its multiple uses and remaining life span.

The trial judge undertook no analysis nor did he comment on the conflicting opinions for the value of the land. [ 24 ] Based on the evidence he accepted and his analysis of the appraisal reports, the trial judge determined the values to be as follows: Mobile home $83,000 Barn and Riding Arena $135,000 Subtotal Improvements $218,000 Land $172,000 Total $390,000 2. Application to the facts [ 25 ] As I understand her position on appeal, Ms.

Clemens submits the Christopherson Appraisal was unreliable for purposes of assessing the acreage value in 2016, that the only reliable data can be found in the Wood Appraisal and, finally, since the adjudication date was selected for valuation purposes, the Wood Appraisal should have been preferred over the more dated Christopherson Appraisal. In making these submissions, Ms. Clemens does not suggest the trial judge erred in preferring the Christopherson Appraisal over the Wood Appraisal.

Instead, she advances two lines of argument designed to undermine the value ultimately selected by the trial judge in relation to the land portion of the acreage. First, she says the trial judge erred in attributing the evidence about a variance in land value of no more than $20,000 to both Mr. Christopherson and Ms. Wood.

Second, she argues the $172,000 value assigned to the land portion of the acreage was disconnected from the evidence before the trial judge and therefore was nothing more than an arbitrary number. [ 26 ] Turning to the first argument, the parties agree the trial judge erred in proceeding on the basis that both Mr. Christopherson and Ms. Wood had testified any variance in land value between 2013 and 2016 would not have exceeded $20,000. In fact, only Mr. Christopherson had offered this testimony. As such, the trial judge’s statement was an obvious misapprehension of the evidence.

The question for appellate review purposes, though, is whether this amounts to a palpable and overriding error. An “appellate court will not interfere with the trial judge’s findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result” ( McNabb v Cyr , 2017 SKCA 27 at para 34 , citing H.L. v Canada (Attorney General) , 2005 SCC 25 at para 55 , [2005] 1 SCR 401). [ 27 ] Ms. Clemens argues the error fundamentally undermines the trial judge’s reliance on the Christopherson Appraisal. Mr.

McGruther characterizes the error as relevant only insofar as it may have affected the trial judge’s final valuation of the land and the improvements that comprise the acreage overall. [ 28 ] I agree with Mr. McGruther’s submission. The trial judge adjusted the Christopherson Appraisal downward, presumably to account for a decline in the market value of the land. Further, although he did not expressly say so, given that he accepted Mr.

Christopherson’s valuation for the mobile home, barn and riding arena, it may be inferred that any downward adjustment for the buildings was applied against the land portion of his appraisal as well. Recall, the trial judge set the land value at $172,000, which is $58,000 less than the $230,000 value Mr. Christopherson had attributed to the land in 2013. This marked drop in value is a clear indication the trial judge was not stuck on the $20,000 variance in making his final valuation of the acreage. Moreover, it stands as implicit acceptance of Ms.

Wood’s position that the land was worth less than the $230,000 value that Mr. Christopherson had initially assigned to it. In the end, the trial judge’s erroneous attribution of evidence to both experts is not a basis for appellate intervention. [ 29 ] The second argument Ms. Clemens makes relates to how the trial judge arrived at $172,000 for the land. This value needs to be assessed in light of the evidence. [ 30 ] The trial judge told the parties he would use the date of adjudication (i.e., 2016) to value the real property. No issue is taken by Ms. Clemens with respect to this decision.

With the date of valuation determined, the trial judge then turned to the appraisal evidence. Even though the only evidence of 2016 land values was presented in the Wood Appraisal, the trial judge appears to have used the Christopherson Appraisal as the starting point for his analysis and then adjusted the land value downward. One can presume the trial judge took this approach because he found Mr. Christopherson’s opinion more compelling in relation to the values attributed to the

buildings and, second, because he was satisfied with Mr. Christopherson’s testimony about the drop in land values. All of that said, thetrial judge concluded the price of land would be “relatively constant” (at para 12). Unfortunately, this was not quite whatMr. Christopherson had said. Under cross-examination the following exchange took place: Q Okay. Now, when you did this report, you did this report as indicated on page 13, with particular assumptions about economicconditions; is that right? A Yes.

Q Is the economic overview that you’ve described in 2013 the same economic overview that exists now in the Province of Saskatchewan? A No. Q Does that affect your approach to valuation? A Marginally. Q When you do -- THE COURT: Would it affect the subject property? A Would it affect the subject property? It might. THE COURT: How? A Right now, the economy has softened a little bit. In 2013, it was pretty strong. So it’s quite conceivable that values would have softenedbetween 2013 and now. Q MR.

PHILLIPS: When you have a change in economic conditions, does it affect the shelf life of an appraisal, how long an appraisal willbe effective? A I think that would be fair to say, yes. [31] When specifically asked by the trial judge if he had an opinion about current value, Mr. Christopherson indicated he could notexpress an opinion about 2016 values without completing an updated appraisal, although he did expect to see a difference. The trial judgethen put the following possibility to him: THE COURT: Before you leave that comment, Mr.

Christopherson, knowing the market as you do and the appraisals you’ve done, wouldyou expect the differential to be that the property values have declined from 2013, held steady, or increased? A For that land, I would expect on an a priori basis -- THE COURT: Yes. A -- I would expect it to have been steady to maybe a marginal decline. That’s what I would go into the analysis expecting to find, and letthe data drive the results. THE COURT: Would a $20,000 difference be within what I would call a marginal decline? A Yeah. On a property that size, that’s a small decline. [32] In the end, the trial judge accepted Mr.

Christopherson’s opinion of value for the mobile home ($83,000) and the barn andarena ($135,000) (even though he appeared to indicate some discount was in order for the cost of repairs), but determined the value forthe land portion of the acreage was “at least $172,000”. His conclusions on these points is found at paragraphs 26 and 27: [26] On balance, the court finds Mr. Christopherson’s appraisal to be the more reliable one. First, his comparisons of mobile homessimilar to the one located on the acreage here provided a sufficient sampling to support his conclusion that the mobile home is worth$83,000.

Second, his specific valuation of the barn and riding arena at $135,000 (less the cost of repairs) more closely accords to thevalue one would derive using the cost approach less depreciation. Third, Mr. Christopherson was the only appraiser who took intoaccount the multiple uses of such structures (barn/arena) offer and their remaining life span. [27] Based on the evidence and my analysis of the appraisal reports, I find the land has a value of at least $172,000, that the mobilehome has a value of $83,000 and that the barn and arena should be valued at $135,000.

Accordingly, I find the market value of theacreage at the date of trial to be $390,000. (Emphasis added) [33] Bearing in mind Mr. Christopherson had appraised the acreage as a whole at $450,000, with the land component at $230,000,and that he anticipated a “marginal decline” in the land value to be around $20,000, it is unclear how the trial judge ended up with a landvalue of $172,000.

The $58,000 difference was unfortunately not explained in his written reasons and stands in stark contrast to the clearand cogent reasons he provided for the valuation of the mobile home, barn and arena. [34] The privileged position of the trier of fact and the applicable standard of review extends to the trial judge’s decision to acceptor reject all or part of the testimony of an expert witness (Labrecque v Labrecque, 2014 SKCA 59 at para 29, 43 RFL (7th) 71).

It is notthe function of an appellate court to reconsider the expert evidence and come to a different conclusion (Kolibab v Tenneco Canada Inc., (SK CA), [2000] 1 WWR 590 (Sask CA)). That said, appellate intervention may be warranted where “it could be

shown that the evidence reasonably could not result in justifying the conclusion made by the trial judge” (Joseph Brant Memorial Hospitalv Koziol, (SCC), [1978] 1 SCR 491 at 504). [35] Stepping back and looking at the trial judge’s reasons as a whole, particularly his analysis of the two expert opinions, it is clearthat he accepted the Christopherson Appraisal overall, subject to an adjustment to reflect the downward decline in land value between thetime of the Christopherson Appraisal in 2013 and the time of trial in 2016. However, accepting Mr.

Christopherson’s evidence that therewould only be a “marginal decline”, which the trial judge said “would not have exceeded at $20,000”, does not account for how the trialjudge arrived at $172,000 as an appropriate value for the land. Since Mr. Christopherson’s opinion was prepared in 2013 and Ms. Wood’sin 2016, each with drastically different valuations for the land portion of the acreage, it was all the more necessary for the trial judge tohave explained how he arrived at the value he did. Unfortunately, he failed to provide any explanation that could be seen as a justificationfor his conclusion on value.

In the end result, the trial judge’s lack of justification for the value assigned to the land, in light of theevidence that had been presented at trial, is an error that warrants appellate intervention. C. Did the trial judge make findings of fact with respect to the valuation of thefamily property? [36] The principal issue here is whether, aside from the acreage, the trial judge made findings of fact concerning the value of eachitem of family property. Ms. Clemens says no factual findings were made apart from the acreage.

Accordingly, she argues, identification,valuation and division of family property should be on the table in the new trial. [37] Mr. McGruther, on the other hand, contends the trial judge has already identified and valued the family property, leaving onlyits division for adjudication purposes in accordance with The Family Property Act. He argues that when paragraph 29 of the writtenreasons is read in conjunction with the Schedules, it is clear the trial judge assigned a value to each item of property leaving only themechanics of property division to the parties. Mr.

McGruther goes on to argue that, to the extent there is any uncertainty with regard tospecific items of property, or what precise value the trial judge came up with for those items, valuation can be resolved through anexamination of the evidence. [38] Mr. McGruther’s argument largely turns on his

interpretation of paragraph 29, which is repeated here for ease of reference: [29] I have received substantial evidence relating to the identification and valuation of the remaining family assets. Unfortunately, timedoes not permit me to set out in detail the manner in which they should be divided. As I have stated, I firmly believe that once the courtestablishes the value of the acreage, the parties will agree on the rest. However, as a guide to assisting them to do so, I am attaching asSchedule I, II and III to this decision my handwritten notes detailing assets, valuations and potential division. (Emphasis added) [39] Mr. McGruther argues the passages emphasized above confirm his

interpretation. For instance, he says the phrase “the mannerin which they should be divided” (emphasis added) should be interpreted to mean that, having identified and valued the family property,time did not permit the trial judge to determine the manner in which the property should be divided. And, in relation to the phrase,“detailing assets, valuations and potential division” (emphasis added) insertion of the word “potential” before the word “division”demonstrates the trial judge was able to assign a value. If his intention was otherwise, Mr.

McGruther argues, he would have positionedthe word “potential” at the start of the phrase to clarify that the Schedules were potential assets and the numbers were potentialvaluations. Finally, Mr. McGruther contends that use of the word “guide” is in reference to how the property is to be divided, not valued. [40] The

interpretation put forth by Mr. McGruther is the same argument he advanced before the Chambers judge on the applicationto settle the terms of the formal judgment. In undertaking this task, the Chambers judge understood that he was being asked to determinewhether paragraph 29 was: (

i) intended to represent the trial judge’s findings of fact with regard to property values, or (ii) if the trial judgewas merely urging the parties to pursue a negotiated resolution in relation to the remaining assets by using the handwritten notes forguidance. Following a careful examination of the written reasons as a whole, and taking note of the absence of wording pointing tospecific evidence, at pages 3 and 4, the Chambers judge commented on the ambiguity of paragraph 29: ... It is possible that [the trial judge] was prepared to make certain findings.

However, it is equally possible that he had not made a final determination, and was simply working his way through the matter, knowingthat his failing health would not leave him enough time to complete his decision on all issues. It is quite possible that, in light of this,Justice Sandomirsky wanted to make a clear ruling rul[ing] on the issues he had decided, and do what he could in order to assist the partiesin resolving the remainder, even if he could not rule definitively on them. ... [41] While Mr. McGruther’s manner of parsing paragraph 29 lends some support to his

interpretation of it, as the Chambers judgecorrectly points out, there is an alternate, equally plausible

interpretation that springs from this paragraph. As the Chambers judgeobserved, the trial judge could be equally understood to have said that time did not permit him to resolve all of the remaining issues,nonetheless he was confident (and hopeful) the parties could resolve their outstanding issues with guidance from his handwritten notes.This

interpretation flows from the third sentence of paragraph 29 where the trial judge expressed a belief that once the value of the acreagewas established, “the parties will agree on the rest” (emphasis added). Applying parallel thinking, the trial judge arguably thought theparties could get past their impasse with regard to valuation of the remaining assets once a value for the acreage was assigned. [42] Mr. McGruther’s explanation for paragraph 29 is based on how he interprets the words and phrases. Respectfully, hisinterpretation must also be considered in light of what the trial judge did not say.

Had the trial judge intended the figures set out in theSchedules to represent property valuations, he could have easily said so. Another option would have been for the trial judge to stipulatethat the Schedules were incorporated into and formed part of the judgment. Again, no such statement was made. Instead, the trial judge,somewhat tellingly, said that he attached his “handwritten notes” to serve “as a guide” to assist the parties in resolving all of the remainingissues.

[43] Placing Mr. McGruther’s argument in an appellate context, it was incumbent on him to demonstrate an error on the part of theChambers judge, and not simply ask this Court to bring to its own

interpretation to bear on paragraph 29. As discussed above, although theChambers judge found paragraph 29 ambiguously worded, he was not persuaded that it reflected “an actual disposition or factual finding”on the part of the trial judge with regard to the value of the property set out in Schedules I and II. As Mr. McGruther failed to identify anyerror on the part of the Chambers judge, I must assume his argument on appeal really amounts to an invitation for this Court toindependently interpret paragraph 29 in the hope it will see things differently. This we cannot do. [44] The second argument advanced by Mr.

McGruther is that the Chambers judge erred in law by failing to examine the writtenreasons as a whole in light of the Schedules and the evidentiary record. Here, Mr. McGruther suggests findings of fact can be extractedfrom the Schedules by reference to and examination of the evidence. Matching the evidence to the handwritten notes, he argues, wouldreveal or confirm the trial judge’s findings with respect to property valuation. In short, Mr.

McGruther argues the Chambers judge shouldhave taken a deep dive into the evidence to satisfy himself that the information contained in the Schedules was logically supported by theevidence and therefore constituted findings of fact made by the trial judge. Mr. McGruther cites no law in support of this proposition. [45] Relying on this Court’s decision in Johnson, Re (1957), (SK CA), 8 DLR (2d) 221 (Sask CA) [Johnson], theChambers judge rejected this argument.

At page 3 of his decision, he noted that, while it was appropriate to refer to the reasons forjudgment in crafting the formal order, “unless the reasons point definitively to certain evidence, a reviewing court cannot look behind thereasons for judgment and craft its own

interpretation”. Justice Kalmakoff interpreted this dicta to preclude him from examining theevidence to ascertain the result of the decision. [46] I am not persuaded Johnson was particularly on point in the context of settling the terms of the formal judgment. Johnson isabout how far an appellate court could go to determine what a trial judge had decided. However, even if Johnson was misinterpreted, Inonetheless find myself unable to adopt the broad proposition advanced by Mr. McGruther. The Chambers judge was simply asked tosettle the terms of the formal judgment.

Rule 10-4 regulates the procedure for issuance of judgments and orders, including the resolutionof drafting issues. Its purpose is to ensure the language of the order reflects the court’s decision (Procyshyn v Gabruch, 2014 SKQB 349,459 Sask R 285). In short, the formal order or judgment must do no more than reflect the court’s determination as expressed in the writtenreasons. [47] Logically, by pursuing an application under Rule 10-4, which requires a Chambers judge to review the written reasons in orderto settle the terms of the formal judgment, Mr.

McGruther must be taken to have accepted the reasons as expressed by the trial judge andthe process for settling the formal judgment. If Mr. McGruther felt the need to have parts of the evidence revisited, he could havepetitioned the Court of Queen’s Bench for a rehearing on all or part of the evidence. He chose not to do so and cannot now complain thatthe Chambers judge erred in failing to convert the Rule 10-4 process into some form of rehearing.

Where ambiguity exists in the reasonsfor judgment regarding a matter under appeal, “it is incumbent upon the parties, before the judgment or order is taken out, to raise theambiguity with the court for clarification or, if need be, to seek a re-hearing of the matter, all to the end of ensuring clarity in the judgmentas issued and, hence, of avoiding later disagreement over the meaning of the issued judgment” (emphasis added, The Honourable Stuart J.Cameron, Civil Appeals in Saskatchewan: The Court of Appeal Rules Annotated (Regina: Law Society of Saskatchewan Library, 2015) at225). [48] Respectfully, the issue before the Chambers judge in settling the terms of the formal judgment was not whether the Schedulescould be interpreted as an expression of the trial judge’s decision about the value assigned to each item of family property in light of theevidence, but whether paragraph 29 could be interpreted to mean the trial judge had reached a decision on the valuation of the parties’property.

An explanation as to how the Schedules could be interpreted by resort to the evidence does not overcome the basic issuepresented by paragraph 29, i.e., whether the trial judge intended the information set out in the Schedules to be findings of fact with respectto the property values. [49] Although Johnson may not have been the governing authority, the Chambers judge correctly concluded he was unable toexamine the evidence to confirm that the Schedules represented findings of fact with regard to property valuation. As mentioned,paragraph 29 does not expressly incorporate the Schedules into the judgment.

The trial judge did not identify the evidence he relied on toprepare the Schedules or how he resolved the conflicting positions taken by the parties where the values were disputed. Even if the lawallowed for the approach suggested by Mr. McGruther to be taken, as Ms. Clemens points out, there is still meaningful uncertainty in theevidence such that no clear evidentiary or analytical basis exists to help this Court understand what the trial judge meant when he wrotewhat he did. [50] To conclude on this point, Mr.

McGruther has cited no case authority for the proposition that a judge, tasked with settling theterms of the formal judgment arising from a decision pronounced by another judge, must revisit and re-examine the evidence in order todo so. Much like his first argument, Mr. McGruther simply disagrees with the result and seeks to have this Court come to a differentconclusion through an independent examination of the evidence. [51] Finally, even if it was open to the Chambers judge to examine the specific wording of the Schedules for purposes of sheddinglight on paragraph 29, a careful examination of each

Schedule leads to further questions, not answers. For instance, the Schedules do notshow which valuation date was selected by the trial judge, i.e., the date of application or adjudication. Furthermore, it is not evident fromthe handwritten notes that clear, unequivocal values had been assigned for each item of property since multiple values were inserted formany of the

Schedule II “disputed” items. Moreover, as Ms. Clemens correctly observes, the Schedules contain an array of checkmarks,arrows, question marks, scratched out numbers, multiple values for some assets and various other symbols along with some handwritingthat is indecipherable. None of this provides meaningful assurance as to what, if anything, was decided. [52] For all of these reasons, there is simply no merit to Mr. McGruther’s cross-appeal. IV. Conclusion

[ 53 ] Ms. Clemens’ appeal is allowed. A new trial is ordered in relation to the identification and valuation of family property, including the acreage, and for the division of that property in accordance with The Family Property Act . I express no opinion as to the appropriate date for valuation purposes. That decision will be left to the trial judge who hears the matter. [ 54 ] For the reasons expressed above, Mr. McGruther’s cross-appeal is dismissed. [ 55 ] Since Ms. Clemens met with success on her appeal, she is entitled to costs.

However, given the financial hardship borne by both parties due to a circumstance not of their making, costs are limited to $1,500. “Schwann J.A.” Schwann J.A. I concur. “Schwann J.A.” for Ottenbreit J.A. I concur. “Tholl J.A.” Tholl J.A.