A.L. v M.L., 2019 SKCA 61

Court of Appeal for Saskatchewan Docket: CACV3100 Citation: A.L. v M.L. , 2019 SKCA 61 Date: 2019-06-28 Between: A.L. Appellant (Respondent) And M.L. Respondent (Petitioner) And E.L. and C.L. Respondents (Third Parties) Before: Jackson, Caldwell and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell On Appeal From: 2017 SKQB 166 , Regina Appeal Heard: March 15, 2019 Counsel: Timothy Stodalka for the Appellant Kathleen Peterson for the Respondent/Respondents Schwann J.A. I.

Introduction [ 1 ] A.L. appeals from a decision rendered by a Queen’s Bench judge following trial with respect to how he resolved issues of mobility, spousal support, and division of family property ( M.L. v A.L , 2017 SKQB 166 [ Trial Decision ]). For the reasons that follow, I would dismiss her appeal. II. GENERAL BACKGROUND [ 2 ] M.L. was raised on a family farm near Semans, Saskatchewan. He had devoted his entire life to the family farm and in due course became an integral part of its operation. [ 3 ] A.L. was raised by her grandparents in Saskatoon.

Following high school graduation, A.L. obtained a certificate in accounting and commenced work in Imperial, Saskatchewan and later in the Raymore area. Her work consisted of a combination of secretarial tasks, bookkeeping, tax preparation and payroll. In the early part of their marriage, A.L. had also worked as a nanny for M.L.’s sister. [ 4 ] M.L. and A.L. met in 2001 and were married in June 2003. A.L. continued to work outside the family home until several months before the birth of the parties’ oldest child in December 2004. Two more children followed several years thereafter.

At the time of trial, as noted by the trial judge, the children were 14, 12 and 10 years of age. [ 5 ] It was undisputed at trial that A.L. had played a lead role in the care and upbringing of the couples’ children throughout the parties’ marriage. She was primarily responsible for the children as well as upkeep of the family home. Farming demanded a great deal of M.L.’s time in the spring and fall of each year, but he took on increased parental responsibilities during the winter months.

According to M.L., the parties agreed that A.L. would not work outside of the home while the children were young but their overall plan was for her to return to the work force when the children were older. As things turned out, prior to separation A.L. did not work outside the family home although she managed to complete a local government administration course through distance learning, save for several months of unpaid “apprentice” training. [ 6 ] The parties encountered difficulties in their marriage in late 2011.

Although a petition was issued in the Court of Queen’s Bench in August 2012, M.L. did not actually leave the family home until A.L. obtained a court order in December 2012 granting her exclusive possession of it. M.L. took up residence in the basement of the home of his mother (C.L.). C.L.’s house is located near the family home. [ 7 ] Following the parties’ separation, A.L. assumed part-time work with a local playschool.

According to the evidence led at trial, apart from her playschool position (35 hours per year), A.L. took no steps to obtain employment in the Semans/Raymore area except for two unsuccessful applications for a post office position. Neither did A.L. take any steps or make any inquiry with local government administration offices in the Semans/Raymore area to ascertain what it would take to obtain her apprenticeship hours. [ 8 ] The interim court order also dealt with parenting and child support. As to the former, the order established A.L. as the primary

resident parent with M.L. granted specified parenting time with the children. In spite of the parenting

schedule stipulated in the court order, the parties came to an informal understanding concerning their respective parenting time. They agreed the children would spend the weekdays with A.L. and every weekend with M.L. Over the course of time, M.L.’s parenting time was expanded to include every Monday. By all accounts, the parties enjoyed a cooperative parenting arrangement from January 2013 until the time of trial four years later. [ 9 ] The parties were equally cooperative in relation to matters of child care.

Given the relative proximity between their homes and their mutual interest and involvement in the children’s activities, both A.L. and M.L. saw the children frequently during each other’s parenting time. The trial judge found no evidence of discord with how parenting had been handled, which prompted him to conclude that “the parents have been cooperative and flexible in scheduling each parent’s parenting time with the children” (at para 33). [ 10 ] C.L. had been actively involved in the family farm and, by all accounts, spent a great deal of time with her grandchildren.

At trial, she described herself as “half grandma” and “half mom”. According to the evidence of various witnesses, C.L. is extremely involved with the care and lives of her grandchildren. She was described as an affectionate, doting grandmother. She provides child care when required and has a deep connection with all three of the children. [ 11 ] The trial judge found each child has strengths and difficulties but none required special care.

He also found them to have a generally positive relationship with both parents. [ 12 ] Several years after separation, A.L. became involved with a man, D.G., who ranches near Mortlach, Saskatchewan. Mortlach is approximately 245 kilometres from the family home in Semans. A.L. travels to Mortlach almost every weekend when the children are in M.L.’s care. The children have met D.G. on several occasions. [ 13 ] With regard to custody, A.L.’s position at trial was relatively straightforward.

She sought an order naming her as the primary resident parent for all three children and for an order permitting her to move them to Mortlach so she could pursue her relationship with D.G., further her education and explore employment opportunities in that locale. M.L. opposed the proposed move. III. Issues [ 14 ] A.L. enumerated 19 separate grounds of appeal in the notice filed with this Court. Based on her factum and oral argument, A.L. narrowed her grounds of appeal considerably, which I would reframe as follows: (

a) Did the trial judge fail to appreciate the evidence concerning mobility and did this cause him to err in his analysis of this issue? (

b) Did the trial judge err in his allocation of family property? (

c) Did the trial judge err in law in relation to the amount and duration of spousal support by (

i) erroneously imputing income to A.L.? (ii) imposing a fixed term spousal support order of 6.5 years duration? IV. Custody and Mobility [ 15 ] Following an eight day trial, the trial judge concluded the custodial arrangements for the parties’ children had evolved into one of shared parenting and that the children were thriving in the care of two dedicated parents.

On the mobility issue, based on the evidence before him and having regard to the relevant factors, the trial judge concluded it was not in the children’s best interests to move with their mother to Mortlach, Saskatchewan, stating: “the children are thriving in the care of two dedicated parents” and that they were “closely connected to their parents, extended family, their school, their friends, their activities and their community”.

Conversely, the trial judge found “virtually no advantage to the children moving to Mortlach”, especially in comparison to the numerous advantages of remaining in the Semans/Raymore area (at para 171). [ 16 ] While A.L. does not take specific issue with the trial judge’s shared parenting ruling, she points to four errors which, she argues, led the trial judge astray in his mobility analysis. First, she says the trial judge overlooked evidence that depicted M.L. as incapable of caring for the children or providing a safe environment.

Second, she argues that, as the more competent parent, she should be designated as the primary care parent. Third, she submits the “best interests” analysis on the mobility question required the trial judge to explore the financial impact of A.L. being forced to remain in the Semans area and how that decision could affect the children’s overall best interests on a go-forward basis. She argues that, if she is forced to remain in the Semans area, where she has no family, no job prospects and no ability to further her education, she will never achieve economic self-sufficiency.

Taking these considerations together, A.L. argues her children are doomed to a life of poverty. Fourth, A.L. argues the trial judge erred in concluding that M.L. would be able to find employment in the Semans area after he quits farming in the face of no evidence that he had even begun to look for work. [ 17 ] Before turning to each of A.L.’s arguments, I find it helpful to begin with the standard of review. The scope of appellate review in custody cases is narrow and deferential.

In Van de Perre v Edwards , 2001 SCC 60 at para 14 , [2001] 2 SCR 1014 [ Van de Perre ], Bastarache J., speaking for the Court, extended the deferential approach applicable to child support orders to determinations of custody matters. At paragraph 13 he said: As I have stated, the Court of Appeal was incorrect to imply that Hickey , supra , and the narrow scope of appellate review it advocates are not applicable to custodial determinations where the best interests of the child come into play. Its reasoning cannot be accepted.

First, finality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge’s decision. Second, an appellate court may only intervene in the

decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.

See also: H.(C.R.) v G.(D.) , 2010 SKCA 127 at para 3 , 362 Sask R 261; Ackerman v Ackerman , 2014 SKCA 86 at para 14 , [2014] 10 WWR 429 [ Ackerman ]. A. M.L.’s capacity to parent the children [ 18 ] To frame this argument, A.L. begins with the proposition that she was the psychological parent prior to separation and that she enjoyed and continues to enjoy an extremely strong relationship with her children. Building on this submission, A.L. argues the trial judge erred in finding both parents equally capable of caring for the children when, in fact, she was the “superior” and more competent parent.

Conversely, she submits the evidence established that M.L. fell well short of this standard because: he had a messy house (allegedly symptomatic of other problems); he had difficulty getting out of bed before 9:30 a.m.; he used corporal discipline to A.L. and K.L., i.e., using his belt to strike them on their buttocks over their clothes; and he had aimed a butane lighter at A.L. Finally, A.L. points to some rather unsavory things M.L. is alleged to have done, which, she says, call into question his ability to parent.

In sum, she argues the trial judge overlooked or misapprehended all of this evidence, which in turn caused him to go astray in the “best interests of the child” analysis. [ 19 ] The trial judge heard eight days of testimony. In the end, he was able to comfortably conclude there were no concerns with either parent’s ability to provide basic care and a safe environment for the children and that both parents were fully capable of performing all of the tasks required for the children’s basic care.

The trial judge found there was a “high quality and close relationship with both parents” and that there was “no qualitative difference in the relationship each parent has with their children” (at para 141). [ 20 ] In making these findings, the trial judge did not ignore the evidence about M.L.’s messy home. He mentioned it in his recitation of the evidence. M.L. acknowledged he was not a great housekeeper and that neither he nor A.L. could be considered the “Martha Stewart” of housekeeping. M.L.’s evidence on this point was uncontested.

While the trial judge did not explore the housekeeping matter further in his analysis, he was clearly aware of the evidence A.L. says related to this issue. Given its uncontested nature, it presumably was given no effect. [ 21 ] Neither did the trial judge ignore the evidence about two driving incidents where M.L. is alleged to have spun his tires in a farm field. The trial judge said these incidents were not indicative of any danger to the children on an ongoing basis.

The trial judge acknowledged each parent had used physical discipline on the children and that M.L. had used his belt on one of them on one occasion. The trial judge chastised this sort of behavior but said it was “one isolated event that is not likely to be repeated” (at para 137).

He found the butane lighter incident was intended as a practical joke. [ 22 ] While A.L. raised the issue of M.L.’s difficulty getting out of bed in the morning, this issue was not explored in the evidence or on appeal. [ 23 ] Finally, as to the allegations of unsavory behavior on the part of M.L., the trial judge dealt with them in this way: “There was evidence presented which attempted to malign [M.L.’s] character, mainly on the basis of innuendo , but the court rejects that evidence as unfounded and unworthy of further description or comment” (emphasis added, at para 134).

In other words, the trial judge found no evidentiary foundation for the allegations that had been levelled against M.L. and completely rejected A.L.’s evidence on this point. Although the trial judge refused to allow A.L.’s counsel to cross-examine M.L. on some of the allegations, this alleged evidentiary error was not explored in A.L.’s factum or in oral argument on appeal.

Given the ruling made by the trial judge, the absence of any argument with regard to this ruling, and the lack of any credible evidentiary foundation for the allegations themselves, I would not give effect to A.L.’s argument. [ 24 ] In the end, I find the trial judge did not ignore or misinterpret the evidence that A.L. says was material to the mobility analysis, nor do I find that he made a material error in his appreciation of the facts. In effect, what A.L. asks this Court to do is re-weigh the evidence in the hope we would see things differently.

This argument, of course, bumps up against the standard of review that was summarized by Jackson J.A. in K.R. v J.K ., 2018 SKCA 35 : [51] As I have indicated, the standard of review requires that an appellate court intervene in child custody and access matters with respect to factual matters only if it finds “material error in the appreciation of the facts” ( Van de Perre at para 13 ). I have considered the above factual matters on that basis.

I am also mindful of the words of Wilkinson J. (ad hoc) for the Court in A.O. v T.E. , 2016 SKCA 148 , 88 RFL (7th) 34, which are apposite: [136] In my view, the appellants’ argument that the trial judge improperly weighed the relevant factors in determining the child’s best interests cannot be sustained. The weighing exercise is not performed to calibrated standards. Nor is it a recipe to be assessed according to its constituent ingredients, in disregard of the final product. It is a task that lies, particularly, within the trial judge’s purview and expertise. (Emphasis added by Jackson J.A.) B.

A.L. is the more competent parent [ 25 ] This brings me to A.L.’s second argument: as the more competent parent, she should be designated the primary care parent and be permitted to move the children to Mortlach. Here, I take A.L. to argue that the trial judge erred in principle by failing to find her to be the more competent parent, a finding she says was crucial to his overall custody and mobility analysis. A.L. was unable to refer the Court to any case law that stands for the proposition she advances on appeal. [ 26 ] I find no merit to A.L.’s argument.

A custody determination does not entail a qualitative assessment of which parent is better or

who is superior relative to the other. Rather, determinations of custody and parenting involve a more fundamental and nuanced assessmentof the best interests of the children. The “best interests” determination is assessed with regard to the enumerated factors set out inlegislation, notably the condition, means, needs and other circumstances of the child, and the evidentiary record. Speaking for this Court,Ryan-Froslie J.A. in Ackerman set out the analytical framework for custody and access determinations.

I find the following passageinstructive and worth repeating: [23] The governing legislation with respect to this appeal is the Divorce Act (hereinafter referred to as “the Act”). The portions of thatAct relevant to this appeal read as follows: 16.

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respectingthe custody of or the access to, or the custody of and access to, any or all children of the marriage. …

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage asdetermined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct isrelevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as muchcontact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration thewillingness of the person for whom custody is sought to facilitate such contact. [24] Based on these provisions, a Court, in determining custody and access, is to consider only the best interests of the child, havingregard to the child’s condition, means, needs and other circumstances.

The legislation makes it clear that a parent’s past conduct is not tobe considered, unless that conduct is relevant to their ability to act as a parent. In addition, Parliament included in s. 16(10) of the Act whathas become known as the principle of maximum contact, i.e. that a child should have as much contact with each parent as is consistentwith his or her best interests. For that purpose, the willingness of each parent to facilitate contact with the other parent is important. (See:Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27 at paras 21 and 24.) See also: Russell v Russell, 2018 SKCA 80, 16 RFL (8th) 26. [27] To conclude on this point, the capacity of a parent to act as legal custodian of the children is but one factor in a host ofconsiderations that go into the mix in determining the best interests of the child. As mentioned above, on the evidence before him, the trialjudge had no concern with M.L.’s capacity to provide basic care and a safe environment for the children and that he, like A.L., was fullycapable of performing all of the tasks required for the children’s care.

Based on the testimony of both parents and the numerous witnesses,the trial judge found “the children enjoy a high quality and close relationship with both parents. While each parent has strengths, there isno qualitative difference in the relationship each parent has with their children. [A.L.] was the primary parent prior to separation but bothparents now share the role of primary parent and have done so for several years” (at para 141). [28] While A.L. would have us reassess and re-weigh this evidence, the deferential standard of review precludes this Court fromdoing so.

However, even if we could, M.L. is, respectfully, wrong on the law. C. Failure to consider relevant evidence in the mobility analysis [29] With her third line of argument A.L. points to the following evidence, which she says the trial judge either ignored ormisapprehended in his mobility analysis: (

i) Mortlach’s proximity to Moose Jaw provides greater educational and employmentopportunities for her; (ii) forcing her to remain in the Semans area dooms her and her children to a life of poverty because of scarcity ofemployment and opportunity; (iii) if she is forced to work a low paying job in the Semans area, the cost of child care undermines anyfinancial gain she might obtain by working; (iv) her evolving relationship with D.G., who resides in the Mortlach area; and (

v) the factM.L. would have a similar amount of parenting time even if she were allowed to relocate to Mortlach with the children. The final point sheemphasizes is that, as the primary child care provider, the trial judge erred by failing to give effect to the “happy parent–happy child”principle. [30] A careful review of the trial judge’s reasons satisfies me that he identified the correct law and considered the factors a court isobliged to consider when mobility is put in issue by one of the parties.

The trial judge approached mobility from a child-centricperspective and, to that end, carefully and thoroughly reviewed the capacity of each parent to care for the children, the quality of thechildren’s relationships with each parent and “significant” other persons, the personality and emotional needs of each child, the children’sphysical, psychological and social needs, and the parties’ future plans for the children.

Under the latter category, the trial judgemeticulously explored the mobility question with focus on the criteria applicable to that analysis. [31] Contrary to A.L.’s argument, the trial judge did take notice of the potential for enhanced training and employment in the MooseJaw/Mortlach area. However, as he went on to note, the reasons for a move are only relevant if it enables the parent to better meet theneeds of the children.

While one of the reasons for A.L.’s proposed move was to obtain a better job and thereby better meet the needs ofher children, it was no more than an abstract proposition put forth by her devoid of any evidentiary foundation. [32] A.L.’s concern about the cost of child care did not match up with the evidence. Based on the evidence before him, the trialjudge concluded childcare was less expensive and more readily available in the Semans area compared to Mortlach. Thus, he reasoned,remaining in Semans would be preferable to her from a childcare perspective.

Finally, the evidence adduced at trial conflicted with A.L.’sposition that M.L.’s parenting time would not be quantitatively reduced if the children moved to Mortlach. Her position on appeal wasadvanced in the face of the trial judge’s finding that M.L. enjoyed shared parenting prior to trial, that the five hour drive to and fromMortlach would significantly cut into his parenting time and A.L.’s less than enthusiastic commitment not to let the distance betweenSemans and Mortlach unduly interfere with M.L.’s parenting time if she resided in Mortlach.

[ 33 ] In the end, having regard to the best interests of the children and on the evidence before him, the trial judge found it was not in their best interests to move with their mother to Mortlach. His conclusion is found at paragraph 171: Taking all of the above factors into account, the court concludes it is in the best interests of the children to remain in the Semans/Raymore area. The children are thriving in the care of two dedicated parents. They are closely connected to their parents, their extended family, their school, their friends, their activities and their community.

There is virtually no advantage to the children to moving to Mortlach. Conversely, there are numerous advantages to remaining in the Semans/Raymore area. Creating a significant disruption and negative change in the lives of these children who are flourishing, for no discernible benefit, is not in their best interests.

The court will order the children’s primary residence to remain in the Semans/Raymore area. [ 34 ] While the trial judge may have slightly overstated things by stating there was virtually no advantage to the Mortlach move, I am nonetheless satisfied that in reaching the conclusion he did he considered all of A.L.’s arguments and all of the evidence she adduced to support them.

Since A.L. was unable to point to any palpable and overriding error with respect to the underlying facts, there is no basis for appellate intervention on the grounds asserted by her. [ 35 ] The final part of A.L.’s mobility argument is her assertion the trial judge failed to give effect to the “happy parent–happy child” factor in his mobility analysis. This is incorrect. The trial judge took note of the principle at paragraph 161 of his decision, but found it to be one factor in a broader child-centric assessment.

On this point, he said: … The factor of a happier and more content parent has been discussed as a factor in the case law, as noted in Jochems v Jochems , 2014 SKQB 156 , at paras 10-11 [ sic ], 447 Sask R 83, but this factor must be balanced against all of the other factors and the focus must remain child-centred not parent-centred. [ 36 ] Olfert v Olfert , 2012 SKQB 301 , 402 Sask R 71 [ Olfert ], aff’d 2013 SKCA 89 , 417 Sask R 283, and Jochems v Jochems , 2014 SKQB 156 , 447 Sask R 83 [ Jochems ], are decisions where it was appropriate for the trial judge to take this factor into consideration.

However, the specific passages A.L. relies upon in her factum in support of her argument that “happy parent–happy child” is a factor that should be given enhanced consideration or prominence over the other factors, misstates the law.

Citing from N.D.L. v M.S.L. , 2010 NSSC 68 , 83 RFL (6th) 214 [ N.D.L. ], Sandomirsky J. in Jochems observed that, to the extent “happy parent–happy child” is a factor, it must be balanced against all of the other factors and “be reality tested because there may be many ways a parent can seek happiness and security that do not involve moving away and which may require some reasonable personal sacrifice, or consideration of other plans, for the best interest of the child” ( N.D.L. at para 11 ). Thus, for example, the “reality testing” in Jochems led to a different result in comparison to the result in Olfert .

This is because, as Sandomirsky J. aptly noted in Jochems , different facts applied to the same legal principle can result in a different conclusion. [ 37 ] Neither do I see any error with how the trial judge applied this factor to the evidence. The trial judge clearly understood the “happy parent–happy child” factor was not determinative but one of many factors in a child-centred, not parent-centred, analysis.

While it is true the trial judge primarily examined this factor from the perspective of A.L.’s relationship with D.G. and not from the additional consideration of how enhanced employment and educational prospects could potentially make her happier if she were allowed to move to Mortlach, in light of the paucity of evidence on which he could “reality test” A.L.’s hypothesis, the trial judge was right not to overemphasize it. I see no error here. D. M.L.’s future prospects [ 38 ] This brings me to the possibility of M.L. moving away from Semans.

A.L. argues the trial judge erred in failing to consider the likelihood that M.L. may be unemployed or underemployed by the end of 2018 or 2019. She argues the trial judge’s finding that M.L. would be able to stay in Semans and find suitable employment underpinned his custody ruling and that he made a reversible error by holding her to a higher standard of proof with regard to employment opportunities in Mortlach while ignoring M.L.’s unspecified employment status. [ 39 ] A.L. is correct in suggesting M.L.’s employment situation was unsettled at the time of trial.

M.L. testified that he and C.L. had resolved to sell the family farm and exit farming after the 2017 crop year. Although M.L. had not secured alternative employment by the time of trial, he was reasonably certain he would be able to find work in the Semans area as an equipment operator, at a farm dealership or that he would be able to learn a trade. M.L. testified that he wanted to remain in Semans because he had spent his life there. [ 40 ] I see no error here.

The simple reason A.L.’s employment potential in the Mortlach area was critically examined by the trial judge is because she wanted to uproot the children from Semans and move them away from their home, school, community and friends. Framed in this way, it was incumbent on the trial judge to assess her application in light of the factors applicable to a mobility analysis.

Furthermore, since A.L. made her lack of employment potential in the Semans/Raymore area an issue at trial, and thus a reason to allow her to move, it was all the more incumbent on the trial judge to test her position against the evidence adduced at trial. E. Conclusion on the custody and mobility issue [ 41 ] On the whole of it, A.L.’s arguments on appeal are primarily aimed at asking this Court to re-evaluate evidence, make different findings of fact and ultimately reach a different conclusion. Her arguments must be viewed through this lens.

Given the deferential standard of review, this Court is precluded from assessing the issue afresh absent an error in law or a palpable and overriding error in relation to the facts. V. Family Property A. Background and the trial judge’s decision

[ 42 ] M.L.’s parents, E.L. and C.L., had farmed together for many years in the Semans area of Saskatchewan. M.L. began working on his parents’ farm at a very young age. After completion of high school in 1990, M.L. took up full-time work with his parents, first as an employee for a wage and room and board. Three years later, M.L.’s work relationship changed when he started to work with his parents as part of a joint family farm operation.

By this point in time, E.L. and C.L. owned eight quarter sections of farmland along with a full range of farm equipment and machinery. [ 43 ] E.L. was, by all accounts, the driving force behind the family farm operation. The trial evidence showed E.L. to have been actively engaged in the farming operation his entire life and that, although he had suffered some health problems in his later years, he had remained involved in the family farm with M.L. The extent of E.L.’s involvement in his later years was an issue at trial.

E.L. died suddenly in 2015. [ 44 ] Three quarter sections of land were put in issue at trial by A.L. In 1994, M.L. and E.L. purchased two quarter sections of farmland, referred to by them as the “Hillis Half”. Title was registered in their joint names at the time of purchase. This land acquisition was fully financed with security for mortgage financing in the form of other land owned by E.L. E.L. had also paid a $1,000 deposit, but once the financing arrangements were put in place, the deposit was refunded. Title to this land remained jointly held by E.L. and M.L.

In 1998, M.L. and his father purchased an additional quarter

section of land called the “Oblander Quarter”. Like the Hillis Half, the Oblander Quarter was also registered in their joint names and had also been purchased with mortgage financing using E.L.’s assets as security for the loan. [ 45 ] The Hillis Half and the Oblander Quarter represented a portion of the overall family farming operation. Prior to his marriage to C.L., E.L. farmed a combination of leased and owned land. Following their marriage, E.L. and C.L. made concerted efforts to expand their farming operation. The couple purchased two quarters around 1970, and a further quarter sometime during the 1980s.

By the time M.L. joined his parents in their farming operation, E.L. and C.L. held title to eight quarter sections of land and leased several more. In the years following M.L.’s commitment to the family farm, expansion of the farm continued with the acquisition of additional leased quarters and, as mentioned, the purchase of the Hillis Half and the Oblander Quarter.

By the late 1990’s, M.L. and his parents were farming 24 quarter sections of either owned or leased land. [ 46 ] With regard to the farm equipment and machinery, the evidence revealed that all of it was solely owned by E.L. when M.L. joined the family farm operation, but that over time M.L. and his parents started to “share” the subsequent purchases. C.L. testified that after M.L. joined the family farm operation, E.L. and M.L. would jointly purchase new or replacement farm equipment. M.L. testified to similar effect and confirmed that the acquired machinery was used in the family farm operation.

At trial, M.L. meticulously went through the list of farm equipment by identifying which pieces had been acquired by E.L., by M.L. individually or had been purchased or leased by E.L. and M.L. jointly. Regardless of “ownership”, M.L. maintained throughout that all of the farm equipment and machinery was part of and used in their joint farming partnership.

While M.L. testified that payments for most of the farm equipment came out of the family farm joint account, he conceded some came out of their individual accounts. [ 47 ] Finally, M.L. testified that the money generated from the farming operation went into a “pot” and each of them took out the amount they needed, with M.L.’s share being subject to E.L.’s approval. [ 48 ] A.L. had argued at trial that over the years M.L. had taken over the farm operation, with E.L and C.L. essentially relegated to the position of “landlords”. The trial judge rejected this characterization.

He found E.L. and C.L. continued to be fully and actively engaged in the farming operation – in both management and labour roles – during the parties’ marriage and long after issuance of the petition in this matter. The trial judge made several findings of fact in support of his conclusion. He found E.L. was primarily in charge of the farm operation until his death in 2015 and “made all of the major decisions and most of the minor ones as well” (at para 207).

He also found E.L. was heavily involved in the daily hands-on work at the farm right up until the time of his passing and that E.L. and C.L. were not “landlords” and had not transferred the management of the day-to-day operation of the family farm to M.L. [ 49 ] On a more specific level, the trial judge rejected A.L.’s assertion that the Hillis Half, the Oblander Quarter and selected farm machinery were either legally or beneficially owned by M.L.

With regard to this land, the trial judge said no steps had been taken at the time of purchase or any time thereafter to support a finding that it was beneficially owned by M.L. The trial judge commented on the absence of any evidence the Hillis Half and the Oblander Quarter were ever treated by the parties as belonging solely to M.L. apart from A.L.’s assertion otherwise. He then specifically commented on the insufficient evidentiary foundation to sustain A.L.’s position in relation to this land. At paragraph 226, he concluded: ...

Other than [A.L.’s] bare assertion, there is no evidence the three quarter sections belonged solely to [M.L.] . There is insufficient evidence for the court to conclude the status of joint ownership set out in the purchase documents and titles to this land is incorrect. The weight of the evidence is to the contrary and supports a finding the Hillis Half and Oblander Quarter were jointly owned by [M.L.] and [E.L.]. As such, the court concludes the Hillis Half and the Oblander Quarter were jointly owned by [M.L.] and [E.L.] from a legal and beneficial perspective .

Only one-half of the net value, minus the allowable exemption, is family property subject to distribution. (Emphasis added) [ 50 ] A.L. took a similar position in relation to some of the farm equipment. After an extensive review of the evidence on this point, the trial judge concluded the farming operation remained a 50/50 partnership between M.L. and his parents, and that the farm equipment was jointly owned. His conclusion on this point can be found at paragraph 277: The court finds the farming operation remained a 50/50 partnership between [M.L.] and [E.L./C.L.] throughout the marriage.

All of the Equipment owned by the parties was jointly owned with [M.L.] having a 50% ownership and [E.L./C.L.] having a 50% ownership. The decision to buy a new piece of Equipment was made jointly with [E.L.] dominating the decision-making process. Equipment was bought jointly, financed jointly and used jointly.

While [M.L.] was allocated a higher percentage of the income, expenses and CCA as years went on, the farming operation remained an equal partnership between [M.L.] and his parents. [E.L] and [C.L.], with the advice of their accountants, voluntarily took less of the income and matching expenses in order to maximize their old age security and to permit [M.L.] to have additional income to pay for his family expenses but this did not alter the equal partnership. [M.L.] and [C.L.] were under no obligation to provide more than half of the income. [M.L.] was never more than a 50% partner in the farming operation.

B. A.L.’s arguments on appeal [51] Considerable evidence was led at trial concerning the farm property and the assets of the farm operation. However, for appealpurposes, A.L. narrowed her focus to the trial judge’s findings with respect to three quarter sections of land, some of the farm equipmentand an alleged “generational shift” of the family farm to M.L. These arguments impugn many of the factual findings that had been madeby the trial judge concerning M.L.’s interest in the family farming operation. In very broad terms, A.L. argues the trial judge overlookedor misapprehended evidence, or gave disproportionate weight to some of the evidence, concerning: (

a) the intentions of M.L., E.L. and C.L. at the time the Hillis Half and the Oblander Quarter were purchased; (

b) M.L.’s ownership of the Hillis Half and the Oblander Quarter and some of the farm equipment; and (

c) the “generational shift” of the family farm to M.L. [52] Before delving into A.L.’s arguments, I wish to make two quick points at the outset. The first is an organizational point. Forconvenience purposes and to avoid unnecessary repetition, I have reorganized A.L.’s property arguments by placing them in the context ofthe disputed assets: real property and the farm machinery. [53] Second, the applicable standard of review must be kept at the forefront of this analysis in light of the nature of the allegederrors.

The valuation of assets for division of family property purposes and determinations of what constitutes a fair and equitable divisionof family property is a decision that attracts a deferential standard of review (see: Jones v Jones, 2017 SKCA 46 at para 21, 95 RFL (7th)43 [Jones]). Findings of fact are assessed on the standard of palpable and overriding error (Jones at paras 22–23; see also: Ackerman vAckerman, 2014 SKCA 137 at paras 22–24, 451 Sask R 132; Aalbers v Aalbers, 2013 SKCA 64 at para 9, 417 Sask R 69; Riley v Riley,2011 SKCA 5 at para 5, 366 Sask R 110 [Riley]).

In Salomon v Matte-Thompson, 2019 SCC 14 [Salomon], Gascon J., speaking for themajority of the Supreme Court, explained the palpable and overriding error standard in these terms: [33] Where the deferential standard of palpable and overriding error applies, an appellate court can intervene only if there is an obviouserror in the trial decision that is determinative of the outcome of the case (Benhaim, at para. 38, quoting South Yukon Forest Corp. v. R.,2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46; see also H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 56and 69-70).

Morissette J.A. explained this metaphorically as follows in J.G. v. Nadeau, 2016 QCCA 167, at para. 77 :[TRANSLATION] “a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it isimpossible to confuse these last two notions” (quoted in Benhaim, at para. 39). The fact that an alternative factual finding could be reachedbased on a different ascription of weight does not mean that a palpable and overriding error has been made (Nelson (City) v. Mowatt, 2017SCC 8, [2017] 1 S.C.R. 138, at para. 38).

See also: Benhaim v St-Germain, 2016 SCC 48 at paras 36–40, [2016] 2 SCR 352; H.L. v Canada (Attorney General), 2005 SCC 25 atparas 52–80, [2005] 1 SCR 401; Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235; Archibald v Archibald, 2018 SKCA 86 at para38; Saskatchewan Crop Insurance Corporation v McVeigh, 2018 SKCA 76 at para 31, 428 DLR (4th) 122 [McVeigh]. C. The Hillis Half and the Oblander Quarter 1. The intentions of M.L., E.L. and C.L. at the time of purchase [54] At trial, A.L. argued E.L. had arranged to purchase the Hillis Half and the Oblander Quarter for the sole benefit of M.L.

Sherepeats this argument on appeal. Their family farm situation, she argues, typified the rural Saskatchewan tradition of parental assistancethrough the purchase of land by the parent on a child’s behalf. This arrangement sees the parent obtain mortgage financing secured byother land he or she owns, with the child assuming responsibility for the mortgage debt. Support for her theory, A.L. argues, is buttressedby the fact E.L. essentially paid nothing for the land and used his other land as collateral to leverage purchase financing.

The smalldeposits put towards the purchase price were refunded to E.L. once financing went through. [55] As I understand her argument, A.L. suggests the trial judge erred by not inferring that E.L. intended to purchase the land for hisson. Had E.L. intended to invest in the land for his own benefit, says A.L., he would not have accepted the $1,000 refund of his deposit. Inaddition to the manner of financing, A.L. maintains M.L. had told her that he, alone, owned the land and that his father merely put up thecollateral for its purchase. [56] The trial judge did not accept A.L.’s

interpretation of the parties’ intentions. Since the land had been purchased years beforeA.L. and M.L. even met, the trial judge reasoned that she was not in a position to testify about what occurred or what was said at the timeof purchase. Against A.L.’s bare assertions, the trial judge had the testimony of C.L. and M.L. M.L. was adamant that, although his fatherput up the deposit and leveraged the purchase with his collateral, he (M.L.) was not “given” the land. As he put it at trial, M.L. had to“work for [his] share”. Under cross-examination, M.L. denied telling A.L. the land was his alone.

C.L.’s recollection of the purchase wassimilar to that of her son. Her understanding was that these land purchases were in furtherance of an equal or joint farming partnershipbetween the parents and their son. [57] In addition to this testimonial evidence, the trial judge took note of two other significant facts.

At no point following thepurchase of this land was it transferred into M.L.’s sole name nor were there any documents reflecting the intention or arrangementasserted by A.L. [58] As is plain, there was an evidentiary foundation on which the trial judge rejected A.L.’s characterization of the intention at thetime of purchase. A.L. had no direct evidence to support her theory of M.L.’s beneficial ownership of the land other than what she allegedM.L. had told her, which he denied.

On the other side of the ledger, the trial judge had testimonial and documentary evidence that hepreferred over A.L.’s theory and assertions. On appeal, A.L. was unable to point to any factual error on the part of the trial judge otherthan to suggest her theory should have been accepted. With no indication of factual error, let alone a palpable and overriding error, thetrial judge’s finding must stand.

2. Beneficial ownership of the Hillis Half and the Oblander Quarter [ 59 ] Apart from the “intentions” of M.L. and his parents at the time of purchase, A.L. says the way in which income and expenses for the Hillis Half and the Oblander Quarter were actually handled was indicative of M.L. being the sole beneficial owner of this land. A.L. was the bookkeeper for the family farm operation between 2004 and 2012 and, as such, she claimed to be the most credible witness on the topic of income and expenses for this property. She argues the trial judge erred in failing to consider her testimony on this point.

Had he done so, she says the trial judge would have been left with a more accurate portrayal of the true state of affairs, which in turn would have led him to conclude that M.L. beneficially owned the Hillis Half and the Oblander Quarter. To advance her argument, A.L. points to three sources of documentary evidence. a. Different accounts for tracking farm income and expenses [ 60 ] A.L. testified the family farm operation adopted a joint account for its overall farm operation in 2009. Prior to that time, M.L. kept his income and expenses separate from his parents.

Pointing to M.L.’s 2003 tax return, she argues it demonstrates that he carried on his “own business” in relation to the Hillis Half and the Oblander Quarter separate and apart from the overall family farm operation with his parents. [ 61 ] Viewed in isolation and on a somewhat superficial level, the 2003 tax return lends some support for the proposition that M.L. received income from this real property proportional to the other land holdings of the overall family farm. For example, in 2003, M.L. had income of $42,742 from commodity sales whereas C.L. had income of $138,655.

These facts fit generally with the notion that M.L.’s income was proportional to his land holdings. Between 2003 and 2009 the family farm would have been comprised of 24 quarters. The only change noted in the record that happened after the late 1990s was the acquisition of the Hancock lands, but that occurred following the date of petition. Because rental agreements often changed over the years, the precise size of the family farm is somewhat uncertain. What is certain, though, is the relative holdings of land owned by the parties.

So, at the relevant time between 2003 and 2009, M.L. would have jointly owned three quarters (the Hillis Half and the Oblander Quarter) and his parents would have owned eight quarters. [ 62 ] But turning to the commodity sales, this evidence does not support a finding that the revenue was proportional to their respective land holdings. If A.L.’s assertion was correct, M.L.’s revenues relative to those of his parents for each of the following years would have been the same rough proportion, but they did not.

Furthermore, even if it is accepted that M.L. owned three quarter sections of land and his parents owned more land than he did, and if the revenue was divided proportionally according to their respective land holdings, his parents would have, at the very least, reported more revenue than M.L. and A.L. in each of the relevant years.

This is clearly not the case because, in both 2008 and 2009, M.L. and A.L. reported more than double the revenue of E.L and C.L. [ 63 ] As the table below illustrates, the proportion of M.L.’s farm income compared to E.L. and C.L.’s over the ensuing years is inconsistent with A.L.’s theory of proportional ownership: Year M.L. and A.L. E.L. and C.L.

Commodity Sales ($) Commodity Purchases ($) Commodity Sales ($) Commodity Purchases ($) 2003 42,742 - 138,655 24,636 2004 [1] - - 212,010 242 2005 92,699 - 144,767 8,302 2006 147,993 9,072 183,103 1,995 2007 145,633 10,972 160,058 379 2008 402,097 16,735 162,765 4,437 2009 316,150 39,205 121,564 20,800 [ 64 ] As asserted by A.L., if M.L. and his parents were earning farm income in proportion to their respective land holdings, and if they held the same land between 2003 and 2009, then their incomes should have remained roughly proportionate. The table discloses no such pattern.

Furthermore, contrary to A.L.’s contention, the tax returns for M.L. and his parents suggest some amount of resource sharing. For instance, in 2003, M.L. did not purchase seed of any kind, yet he was able to sell wheat seed, mustard seed and canola, all of which had been purchased by C.L. and E.L. that year. Similarly, while M.L. had not purchased mustard seed in 2003 or between 2005 and 2008, he sold mustard seed in 2007.

The logical inference for this is that M.L. used mustard seed that had been purchased by his parents in 2003 as part and parcel of their joint farming operation. [ 65 ] I mention these facts simply to make the point that M.L.’s tax returns are not definitive of any clear trend nor proof of A.L.’s assertion of beneficial ownership. In fact, a detailed examination of the tax information actually undermines A.L.’s argument with regard to the Hillis Half and the Oblander Quarter. [ 66 ] A.L.’s argument also runs up against the testimony given by C.L. and M.L. concerning farm income.

For instance, C.L. testified about how profits were divided between her, E.L. and M.L.: Q And from 1994 on, how was the money or the -- or the -- the profits on the farm, how -- how were they divided amongst -- A Well, we’d sell grain, maybe this time it would be in [E.L.’s] name, the next time it might be in [M.L.’s] name.

Yeah, we -- we just had gentlemen’s agreements and we -- we seen that our bills were paid. [ 67 ] On the same issue, M.L. testified as follows: Q … Okay, M.L., now, can you just tell me in terms of the financial arrangements that you had back in 2003, 2002, that timeframe, what time of arrangement did you and your father have at that time in terms of how your [ sic ] operate your farm, and how the -- the -- the proceeds would be divided -- divided up between the two of you?

A Well, it was basically a farm pot that we all would contribute to and take as we needed, all the bills paid from there, the farm. [ 68 ] Sharon Crittenden, the family’s accountant and financial advisor, testified that they split farm revenue and expenses on a 50/50 basis: Q How did the farming -- how were the farming expenses attributed between [M.L.] and [A.L.] and – and [E.L.] and [C.L.]? A When -- on the expenses, when they came out of the joint account, we generally split them half-and-half, although sometimes we were asked to put them towards one person or the other. Q Okay.

And what about the deduction for interest on land payments? How was that decided; who would receive that deduction? A I’m not sure where, if it was split half-and-half sometimes or -- I know sometimes -- there was one time where [E.L.] took it all, but -- because they had the joint statement, there wasn’t necessarily any specific person that it went to each time. … THE WITNESS: I -- I actually -- well, it was -- I guess, sometimes split. Sometimes -- I know that one time it went to all -- [E.L.] took it all, so I had -- it could’ve been split half-and-half some of the time. Maybe [M.L.] took it. I couldn’t say.

It changed from year to year. Q MR. HOPLEY: Well, what about farm income from -- from grain sales? How were those divided? A We would normally take grain tickets if they were -- whosever name they were in, we would post them to that person, or if they were joint tickets, we generally would’ve split them half-and-half. [ 69 ] In addition to the tax returns, there was other documentary evidence (bank statements, crop insurance invoices) that lent support to the trial judge’s finding that expenses for the Hillis Half and the Oblander Quarter were handled jointly by the parties.

M.L. variously explained that an invoice “would be myself, but -- the farm basically”, or that he would be “responsible to pay [the] bill”, but that it would be paid “out of the joint account”, meaning it would be taken “out of the farm”. [ 70 ] In my view, the tax records relied on A.L. to support her theory that M.L. was carrying on an independent farm business in relation to the Hillis Half and the Oblander Quarter fall well short of disclosing a palpable and overriding error and, frankly, her theory does not bear up to scrutiny. b.

Mortgage interest expenses [ 71 ] A.L. contends M.L. had assumed sole responsibility for payment of the mortgage interest on the Hillis Half and the Oblander Quarter and that this represents further evidence of M.L.’s beneficial ownership of this property. Two entries on M.L.’s tax returns are said to support her position. First, M.L.’s 2003 income tax return shows a Line 9805 deduction of $4,558 for interest paid in connection with “real estate, mortgage, other”.

Second, the only capital asset listed on M.L.’s tax return of sufficient value to account for such a large interest deduction in 2003 was land, and as such, she argues, the only logical inference to be drawn from this is that the Line 9805 deduction was made in connection with the mortgage registered against the Hillis Half and the Oblander Quarter. In contrast, and to demonstrate that M.L. alone paid mortgage interest on this property, A.L. points to the 2003 tax return for E.L. and C.L. which shows only $347 claimed as an interest deduction. [ 72 ] The trial judge found this evidence unpersuasive.

I see no error with his conclusion. While A.L. correctly points to Line 9805 of M.L.’s tax return as potentially disclosing an interest expense in relation to the land mortgages, this is an over-characterization of the nature of this deduction. The Canada Customs and Revenue Agency, T4003(

E) R3, “Farming Income 2003” bulletin explains the function of Line 9805 in the following way: Enter the interest you paid on money you borrowed to earn farming income, such as interest on a loan you used to buy a baler. … You can deduct interest that you paid on any real estate mortgage you incurred to earn farming income, but you cannot deduct the principal part of loan or mortgage payments. ... [ 73 ] In light of this explanation, it is possible M.L.’s 2003 Line 9805 deduction was in connection with mortgage interest on the Hillis Half and the Oblander Quarter, but this inference is far from certain given the breadth of permissible deductions. [ 74 ] The second and more fundamental problem with A.L.’s argument is that she points to the wrong comparator number in C.L.’s tax return.

In 2003, C.L. claimed Line 9607 interest income earned in the amount of $347, and made a Line 9805 deduction for interest expenses in the amount of $7,225. So, contrary to A.L.’s submission that only M.L. deducted mortgage interest on his 2003 tax return, the evidence discloses that C.L. actually claimed $2,667 more in interest expense than M.L. [ 75 ] As for the 2009 taxation year, M.L. claimed a Line 9805 interest deduction of $20,148. This amount far exceeds the $2,383 Line 9805 deduction taken by C.L. and E.L. that year.

As with the 2003 taxation year, A.L. invites this Court to conclude the trial judge erred in failing to conclude M.L. was solely responsible for the mortgage interest on the Hillis Half and the Oblander Quarter. A.L. suggests this is the only plausible explanation to be drawn from his tax returns and that by ignoring this evidence, the trial judge tainted his bottom-line conclusion. [ 76 ] The strength of A.L.’s arguments about M.L.’s interest deductions in 2003 and 2009 had to be assessed from the perspective of only two taxation years.

As such, they do not undermine the trial judge’s finding that farm expenses for the land were shared jointly between M.L. and his parents as part of their joint farming operation, nor do they support the conclusion that M.L. was the beneficial owner of the Hillis Half and the Oblander Quarter. I see no error with how the trial judge treated this evidence.

c. Property taxes [ 77 ] Finally, A.L. points to the fact she and M.L. paid less in property taxes than E.L. and C.L. between 2003 and 2009, which, she submits, is once again consistent with the notion that M.L. beneficially owned the Hillis Half and the Oblander Quarter. As the following chart illustrates, there is some evidential support for A.L.’s argument: Year M.L. and A.L. E.L and C.L. Deduction ($) Deduction ($) 2003 0 12,215 2004 - 10,816 2005 5,852 12,702 2006 3,968 9,753 2007 5,743 11,245 2008 7,007 11,182 2009 9,135 15,993 [ 78 ] That said, this is not definitive proof.

There could be any number of reasons for how the parties allocated property taxes; tax planning perhaps being one of them. (The family practice of tax planning is discussed below.) In any event, pointing to some evidence capable of supporting an alternate factual finding had the evidence been weighed differently is not the same thing as isolating a palpable and overriding error ( Salomon at para 33 ). This being so, A.L.’s observation about the allocation of property taxes did not seriously undermine the trial judge’s findings of fact.

It simply lent some support to her overall theory that M.L. was the beneficial owner of the Hillis Half and the Oblander Quarter, but it was by no means dispositive of the issue. 3. Generational shift [ 79 ] A.L. argues a “generational shift” took place that saw the family farm (land and equipment) effectively transitioned to M.L. over time. A.L. points to the evidence of Sharon Crittenden in support of her version of what transpired.

As the thrust of this argument is aimed at the farm equipment, I will address it more fully in the context of those specific assets. [ 80 ] To the extent this line of argument concerns real property, I find it inconsistent with A.L.’s arguments with regard to the Hillis Half and the Oblander Quarter. If, as A.L. argues, M.L. was the sole beneficial owner of the Hillis Half and the Oblander Quarter from the time of purchase, her argument that the entire farm was eventually transitioned to M.L. over time as part of a broad estate planning exercise represents two inconsistent narratives. 4.

The “advancement” argument [ 81 ] In the alternative, A.L. contends the law of resulting trust or the presumption of advancement should have led the trial judge to conclude that M.L. was the sole beneficial owner of the Hillis Half and the Oblander Quarter. She says the trial judge placed too much emphasis on the absence of a signed document or transfer of land and that, in the absence of documentary evidence, he should have employed the common law to fill the void. In support of this argument, A.L. relies on Pecore v Pecore , 2007 SCC 17 , [2007] 1 SCR 795 [ Pecore ].

Pecore concerned the legal effect of a gratuitous transfer of a bank account into joint names from an ageing parent to an adult child and the continued viability of the common law presumptions of resulting trust and advancement. According to Pecore , these common law presumptions continue to play a role in disputes over gratuitous transfers, especially where the transferor is deceased. [ 82 ] There are several obvious flaws with A.L.’s argument. [ 83 ] First and foremost, this is a new argument on appeal.

There is a general prohibition against entertaining new arguments on appeal unless further evidence is unnecessary or the opposing party is not prejudiced ( McVeigh at paras 131–132 ). For the reasons explained below, in order to advance this line of argument, a better evidentiary record was required and M.L. should have been given the opportunity to respond to it. [ 84 ] In any event, even if this argument can properly be considered on appeal, it cannot succeed because the findings of fact work against A.L.’s submission.

The presumption of advancement, which A.L. seeks to engage, is predicated on a gratuitous transfer of the land. There was no written agreement between M.L. and E.L. to that effect, the land was held in joint title at all times, and M.L. and his parents were found to be involved in a joint farming venture.

The weight of this evidence militates against any possibility that a “transfer” of the Hillis Half and the Oblander Quarter had occurred. [ 85 ] Second, respectfully, even if there was a transfer of title of the land from E.L. to M.L., the presumption that land is held in trust when it is transferred gratuitously does not exist in Saskatchewan. As this Court stated in Dunnison Estate v Dunnison , 2017 SKCA 40 at para 94 , [2017] 8 WWR 18: ... in light of Pecore , a voluntary transfer resulting trust can exist with respect to land in Saskatchewan.

However, the presumption that accompanies such trusts is incompatible with ss. 90(1) and 213(1) of The Land Titles Act, 1978. Those sections provide different evidentiary assumptions than the presumption of resulting trust, namely, that absent limitations set out in a transfer, the transfer is taken as conveying absolute title (a fee simple estate) to the transferee and that a certificate of title is conclusive evidence the person named is entitled to the interest in land described therein. D.

Farm equipment [ 86 ] At trial, A.L. argued the vast majority of the farm machinery for the family farm was actually owned by M.L. at the time of their separation and therefore she was entitled to 50 percent of its net value. The trial judge found the family farm operation remained a 50/50 partnership between M.L. and his parents throughout his marriage to A.L. such that all of the farm equipment was jointly owned by those parties, concluding it “was bought jointly, financed jointly and used jointly” (at para 277).

[ 87 ] A.L.’s central argument in support of her claim for an equal division of the majority of the farm equipment is that a generational shift had occurred, which effectively transitioned the family farm from a partnership venture to sole ownership by M.L. On a more specific level, I understand A.L. to argue the trial judge erred by ignoring or misapprehending M.L.’s income tax records and the testimony of Sharon Crittenden, or at the very least, failed to give this evidence sufficient weight.

Conversely, she argues the trial judge gave too much weight to the evidence of third parties who had testified that E.L. was involved in the farming operation until his death, and C.L.’s testimony about an equal-share farming partnership. I will deal with each of her arguments in turn, beginning with E.L.’s role in the farming operation. 1.

E.L.’s role in the farming operation [ 88 ] A.L. calls into question two key factual findings that had been made by the trial judge: that E.L. remained active in the farming operation until his death in 2015, and that no “generational shift” had occurred with regard to the family farm.

These findings meant that, from a legal perspective, only 50 percent of the farm equipment was subject to distribution under The Family Property Act , SS 1997, c F- 6.3 . [ 89 ] A.L.’s attack on the trial judge’s findings is rooted in her argument that there was “almost no evidence” E.L. actively directed the day-to-day farming operations in his later years.

I understand A.L.’s position on appeal to be that the trial judge erred because he either misapprehended the evidence on this point, failed to consider material evidence to the contrary or came to a conclusion that was unsupported by the evidentiary record. [ 90 ] I am satisfied the trial judge carefully considered all of the evidence that was led on this point. He began his analysis with the testimony of M.L. and C.L. (see discussion above) concerning E.L.’s involvement and how, together, they ran the family farm operation.

The trial judge then considered testimonial evidence from three independent witnesses who were familiar with E.L. and how he farmed. These witnesses uniformly testified that E.L. was actively involved in farming at all relevant times and was seen working the fields until at least 2013, which was two years after separation.

These witnesses had regularly observed M.L. and his father discuss business, noting that, in their opinion, E.L. was “in charge” of the farm. [ 91 ] In light of this testimonial evidence and the absence of any compelling evidence to the contrary apart from A.L.’s unsubstantiated assertion otherwise, the trial judge’s finding was clearly grounded in the evidence. A.L. has been unable to point to anything in the record that undermines the credibility of these witnesses or directly supports the position she took at trial.

In any event, just because E.L. got older and M.L. did more of the work does not, on its own, erode the existence of a joint farming operation. 2. Evidence concerning M.L.’s ownership of some of the farm machinery [ 92 ] A.L. argues the trial judge either ignored or gave insufficient weight to the portions of M.L.’s and C.L.’s income tax returns concerning the farm machinery. A.L. says these records show it was M.L. who claimed ownership of various pieces of farm machinery for tax purposes.

M.L. responds by reiterating the trial judge’s conclusion that the tax records were not an accurate reflection of their farming arrangement. [ 93 ] To begin with, I am satisfied the trial judge did not ignore this evidence. Indeed, he readily acknowledged: “There was a significant change in the proportion of the income, expenses and depreciable equipment reported on the income tax returns of the parties as time went on” (at para 263). The trial judge commented on how M.L. and A.L.’s joint 2012 tax return depicted the parties as “owners” of the equipment listed therein.

He pointed specifically to the undepreciated capital cost for M.L. and A.L. as of December 1, 2012, at $162,237.57 compared to $33,366.81 for E.L and C.L. Finally, the trial judge went so far as to state: “This represents a representation to Canada Revenue Agency that the bulk of the value of the Equipment was held by [M.L.]” (at para 264 ). [ 94 ] In spite of this evidence, the trial judge found the farming operation – including the farm equipment – remained embedded in a 50/50 partnership between M.L. and his parents.

His conclusion, found at paragraph 277, is repeated here: [277] The court finds the farming operation remained a 50/50 partnership between [M.L.] and [E.L./C.L.] throughout the marriage. All of the Equipment owned by the parties was jointly owned with [M.L.] having a 50% ownership and [E.L./C.L.] having a 50% ownership. The decision to buy a new piece of Equipment was made jointly with [E.L.] dominating the decision-making process. Equipment was bought jointly, financed jointly and used jointly.

While [M.L.] was allocated a higher percentage of the income, expenses and CCA as years went on, the farming operation remained an equal partnership between [M.L.] and his parents . [E.L.] and [C.L.], with the advice of their accountants, voluntarily took less of the income and matching expenses in order to maximize their old age security and to permit [M.L.] to have additional income to pay for his family expenses but this did not alter the equal partnership. [M.L.] and [C.L.] were under no obligation to provide more than half of the income. [E.L.] was never more than a 50% partner in the farming operation. (Emphasis added) [ 95 ] In addition to the tax returns, A.L. also points to the information about farm income.

Referring to M.L.’s 2011 tax return, A.L. argues his reported gross farming income of $532,206 compared to $102,418 for E.L. and C.L. was clear evidence things had changed with regard to the beneficial ownership of the farming operation including the equipment. The details of the 2011 tax year are set out below: 2011 M.L. and A.L. E.L. and C.L. Gross Farm Income 532,206 102,418 Total Farm Expenses 539,848 93, 289 Subtotal (7,642) 9,129 Optional Inventory Adjustment 20,000 - Net Farm Income 12,358 9,129

Share per Partner 6,179 4,564 [ 96 ] The nature of the “Optional inventory adjustment” is explained in Farming Income 2003, cited above, at page 23: If you want to include an inventory amount in income, read this section. By making the optional inventory adjustment (OIA), you can include in your income an amount up to the fair market value of your inventory minus the mandatory inventory adjustment ... [ 97 ] In the face of the aforesaid information, M.L. took the position that his 2011 tax return did not reflect the true ownership picture for the family farm.

M.L. and his parents had their tax returns prepared by an accountant. Following a yearly meeting with the accountant to discuss allocation of income and expenses, their accountant would typically suggest how income and expenses should be reported to the CRA. M.L. testified that his family generally tried to get the best tax treatment it could within the rules and, for that purpose, relied on accounting advice to do so. He explained their approach in this way: Q Okay. Now, when you -- tax time, would you meet with -- with the folks doing the tax returns? A Yes. Q Who all would go? A Usually mom and dad and myself.

Q Okay. And -- and you would -- your family would tell the tax people what to do? A Well, we would ask what -- what their opinion was, and then I guess we would -- we would find a game plan. Q Okay, and what was your understanding of what the tax preparer was trying to accomplish? A Well, I guess organizing the money to pay as little tax as possible. Q Within the rules? A Within the rules. Q Now, if in any given year during the marriage, if tax was owing by you, or you and [A.L.] or your parents, how was that paid? A It usually came out of the farm account.

Q Okay, and this is this joint farming account that -- A Yes. [ 98 ] C.L. testified to similar effect. When presented with M.L.’s tax returns after 2003 and asked if they show that all of the equipment was purchased and deducted from M.L.’s tax returns, she said: “It might show that on paper, but that’s not exactly the way it went”.

C.L further testified that she did not understand how the tax planning decisions were made. [ 99 ] In terms of the capital cost allowance and interest allocation for the farm equipment, M.L. testified as follows: Q Why did you decide to take more capital cost allowance after you and A.L. separated? A To me, it was just -- it’s just the way the taxes work out. I’m, kind of, following along with the way the accountants advise and -- I’m not great with managing numbers .

I won’t deny that. … Q How -- how did you apportion what interest payments would be made by you and what interest payments would be made by your parents? A That was something probably worked out more with the accountant than myself. Q Well, I assume you were giving directions to the accountant. A Well, to be honest, it was probably more my parents giving direction than me. (Emphasis added) [ 100 ] And with regard to the acquisition of farm machinery over the years, M.L. said: Q Okay. Now, who owned the equipment when you started farming with your dad? A He owned everything. Q Okay. Did that change over the years?

A Yeah, I -- I started to be, you know, buying some -- some of the equipment and sharing it. ...

Q And so you said you’d share it, so did you buy land -- or did you buy machinery yourself or did you buy it with -- with your parents? A No, it was always -- it was always as a family. [ 101 ] C.L.’s testimony was very similar to the evidence given by M.L. regarding the acquisition of farm machinery. She testified that she and E.L. owned all of the farm equipment when M.L. began farming with them. Over time, as farm equipment and machinery needed to be replaced, M.L. and E.L. bought the machinery together and “they worked together”.

When presented with M.L.’s tax returns under cross examination, C.L. maintained that what was said on paper did not reflect the parties’ arrangement. [ 102 ] Sharon Crittenden was called as a witness by M.L. Her testimony supported the evidence given by M.L. and C.L. about how their respective tax returns were prepared. She agreed the family goal was to get the most efficient tax treatment: Q Okay. Now, in the years that you were -- that you were responsible for preparing the tax returns, how did you receive instructions to prepare the tax return?

A For -- well, we’d look at the income expense statements at the end of the year, and then we would decide if we wanted -- based on, maybe, tax brackets, we’d decide -- because it -- sorry. Because they farmed together, sometimes we would -- the income might be moved back and forth a little bit, depending on which tax brackets that would be most efficient to have them in. … Q And you may have touched on this, but -- but what was the general aim for the [Ls] in preparing the tax returns? A We used a -- just make it efficient for tax purposes. [ 103 ] With regard to the farm equipment specifically, Ms.

Crittenden was generally unaware of how equipment had been allocated over the years between the Ls for capital cost allowance purposes: Q Okay. Now, do you know how it was decided among the [Ls] what machinery to put on whose capital costs allowance

schedule of assets? A Not really, no. In the years that I did the returns, there was very small amounts and I can’t say who decided where they go. If it was just based on whose name was on the -- they each bought a few different things, but there were -- weren’t a lot in my time that they bought. [ 104 ] There was also some documentary support for the trial judge’s finding that the individual who was noted in the tax returns as having purchased the equipment was not necessarily the individual who paid for it.

That said, while the trial judge may have overstated things in saying “payments for equipment generally came out of the parties’ joint accounts” (at para 206), the documentary evidence disclosed a mixed bag in that regard.

Moreover, in testimony, M.L. clearly differentiated between ownership of an asset and liability for its debt, suggesting the M.L. and his parents viewed themselves as ownership partners in the equipment even though they were not, legally speaking, partners in a specific debt. [ 105 ] To summarize on this point, viewed in isolation the evidence with regard to the tax returns was capable of supporting a conclusion that M.L. alone owned some of the farm equipment.

That said, given the absence of any agreement or any document describing the parties’ farming relationship, coupled with the seemingly ad hoc system the family employed for their farm operation, there was a basis for the trial judge to have found that the farm equipment was jointly owned by M.L. and his parents despite how the tax returns characterized ownership. While the income tax information was an important piece of the evidentiary puzzle, it was not dispositive of the issue. The trial judge was required to consider all of the evidence. I am satisfied he did just that.

He made no palpable and overriding error in this regard. [ 106 ] Finally, one other key piece of evidence factored into the equation. It came in the form of an affidavit that had been sworn by A.L. on November 23, 2013, in interim proceedings where A.L. all but admits the farm operation was a partnership. Paragraph 40 of that affidavit reads as follows (quoted at paragraph 278 of Trial Decision ): The financial situation of the farm has accurately been set out by the Petitioner’s father. They have been generous in a sense in that they have no obligation to provide more than 50% of the farm income.

They have also been generous in providing us with funds over and above the splitting of the farm income in the form of gifts. That being said they do have an obligation to compensate the Petitioner and myself for the work we do. If the farm is not profitable enough to compensate us and provide the owners with a sufficient return than [ sic ] admittedly the Petitioner and I may need to find alternate employment to support our family. [ 107 ] While A.L. tried to finesse what she had previously deposed to, the trial judge rejected her explanation.

In the end, he found that even A.L. believed the farm equipment was owned in a 50/50 farming partnership at the time of separation. 3. The testimony of Sharon Crittenden about a “generational shift” [ 108 ] A.L. contends the trial judge erred by failing to give sufficient weight to the testimony of Ms. Crittenden concerning an ongoing generational shift of ownership and control of the family farm. As set out above, Ms. Crittenden began her testimony with a discussion about how she shifted income between M.L. and his parents to maximize their respective tax advantages. Ms.

Crittenden agreed this was the family strategy and that the approach adopted was designed to make the most efficient use of the income tax brackets. [ 109 ] That said, Ms. Crittenden also testified that M.L. and A.L. had taken a “fairly substantial part of the income … allocation for a lot of years”. Ms. Crittenden agreed they had gone “ahead because, effectively, [E.L.] had slowed down”, and that “[M.L.] was stepping up to the plate”. Ms. Crittenden was probed on this evidence under cross-examination: Q And that’s what you understood?

A Yeah, that’s right. And I think their intention, as any farm situation is, is that the son will eventually take over. Q Right. Exactly. And -- and, you know, again, would this be consistent with your review? Like, for the sake of the example, in -- in 2005 when you started taking over the returns, [M.L.] had income allotted to him and -- and [A.L.] of 93,000. [E.L.] and [C.L.] had 45 – 145,248. A Yeah. And then it gradually went up. Q Right, you know -- A And he allocated a little bit more to him every year, mmhmm. … Q Right, exactly.

Farming -- A [The income] can fluctuate quite a bit all over the place, that’s correct. Q -- fluctuates significantly over the years, for sure. For sure. But -- so you understood that what was being done was, effectively, this was a generational change from -- … Q That was the game plan . A Yeah. Q And it started from the time that you started doing their tax returns, correct? A Mmhmm, yes. Q And so that’s why, for the sake of the example, on all of the capital cost allowance schedules, all of the equipment that was purchased after 2005 shows up on [M.L.] and [A.L.’s] returns, correct?

A When I looked at the major purchases, yeah, they -- they were on the returns. Q Right, other than some vehicles and stuff like that that [C.L.] purchased for herself and for – A Mmhmm. Q -- [E.L.], those are the only ones that showed up on -- A The major ones, there was – Q Right. A -- a few major ones that went to -- that [M.L.] picked up, that’s right. Q Yeah, exactly. A That’s right. Q And so that was a generational shift -- A Mmhmm. Q -- that was taking place A Yeah. (Emphasis added) [ 110 ] Taken together, I understand the thrust of Ms.

Crittenden’s testimony to be that M.L. was on course to eventually assume full ownership of the family farming operation, including the farm equipment. Contrary to A.L.’s position on appeal, the trial judge actually shared this view but concluded that discussions about the future of the farming operation between Ms. Crittenden and the parties were not in-depth or detailed. [ 111 ] I agree with how the trial judge dealt with this eviden

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