Carruthers v Carruthers, 2021 SKCA 52

Court of Appeal for Saskatchewan Docket: CACV3365 Citation: Carruthers v Carruthers , 2021 SKCA 52 Date: 2021-04-06 Between: Janice Martha Carruthers Appellant (Petitioner) And Robert Brent Carruthers Respondent (Respondent) And Whiteshore Land & Cattle Ltd. Respondent (Respondent) Before: Ryan-Froslie, Schwann and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Ryan-Froslie In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Leurer On appeal from: 2019 SKQB 7 , Saskatoon Appeal heard: November 30, 2020 Counsel: Benjamin Rakochy for the Appellant Raymond Wiebe and Karyn Kowalski for the Respondent, Robert Brent Carruthers Ryan-Froslie J.A. I. INTRODUCTION [ 1 ] Janice Martha Carruthers appeals against a judgment rendered in the Court of Queen’s Bench pertaining to the division of family property accumulated by herself, and the respondent, Robert Brent Carruthers: Carruthers v Carruthers , 2019 SKQB 7 [ Judgment ].

The Carruthers’ most significant family asset is their interest in a farming corporation – Whiteshore Land & Cattle Ltd. [Whiteshore]. Whiteshore was named as a respondent in the proceedings but was not represented in this appeal. [ 2 ] At the time the application for division of family property was made, Janice and Brent held 55 percent of Whiteshore’s shares with the remaining 45 percent being owned by Brent’s parents. The trial judge found, based on either an oral agreement or the equitable principle of unjust enrichment, that Janice and Brent had an “interest” in the parents’ shares.

As a result, the whole of Whiteshore was found to be family property and it, along with Janice and Brent’s personal property, was valued and divided equally between the couple, subject only to a minor adjustment for dissipation by Brent. [ 3 ] Janice has raised multiple grounds of appeal alleging errors on the part of the trial judge in identifying what constitutes family property for division purposes, in valuing that property and in determining what equitable considerations should bear on the division (including tax liability pertaining to the shares of Whiteshore).

While Janice took issue with the spousal support awarded by the trial judge and the tax liability pertaining to Whiteshore’s shares, those grounds of appeal were abandoned by her. [ 4 ] For the reasons set out herein, I would dismiss Janice’s appeal. II. BACKGROUND [ 5 ] Janice and Brent separated on October 25, 2011, after 28 years of marriage. They have three adult children, all of whom were over the age of 18 and financially independent at the time of trial. [ 6 ] Shortly after their marriage, Janice and Brent, at the insistence of Brent’s parents, moved to the family farm.

The farm, which at the time consisted of a cattle operation, farmland and equipment, was owned by Whiteshore. It will assist in understanding the issues at trial to briefly summarize the somewhat complicated history of the Carruthers’ family farming operations. [ 7 ] Whiteshore was incorporated in 1980 by Brent’s father as an estate planning tool for the intergenerational transfer of the family farm.

At the time, the farm’s assets, including cattle, farmland and equipment, were rolled into the corporation, and Brent’s father became its sole shareholder and director. [ 8 ] The trial judge found that for 30 years, up until the application for division of family property was made, Janice and Brent had worked tirelessly on the farm for little renumeration. They had also both worked off the farm to make ends meet. [ 9 ] The farm struggled financially.

Early on Brent, despite having no interest in Whiteshore, obtained a loan for the farm’s operation, which in the trial judge’s words “limited his capacity to borrow for years to come, cementing his need to keep the business afloat and limiting his off–farm opportunities” ( Judgment at para 13).

[ 10 ] In 1989, Brent’s father suffered a heart attack. As a result, the demands of the farm fell even more heavily on Janice and Brent’s shoulders. To supplement the family’s income, both Janice and Brent worked off the farm. In addition, Janice and Brent entered into a custom feed arrangement with a neighbour, which was operated outside of the business affairs of Whiteshore. The custom feed enterprise was put into Janice’s sole name. She was able to purchase the calves that Whiteshore liquidated from time to time to pay its loans.

In addition, over time, Janice and Brent accumulated some equipment for the custom feed operation. [ 11 ] In 1990, when Whiteshore fell behind on its payments, the bank called its loans. To stay afloat, Whiteshore transferred its land to the bank under a seven-year leaseback arrangement. When the seven-year lease ended in 1997, much of Whiteshore’s debt had been cleared up. A third-party lender agreed to advance the money necessary to purchase the land back from the bank if Janice and Brent rolled their assets (cattle and equipment) into Whiteshore in exchange for common shares and shareholder loans.

As a result, 55 percent of the common shares of Whiteshore, that were previously owned by Brent’s father, were transferred to the couple. Janice received 25 percent of the shares, and Brent received 30 percent, giving them control of Whiteshore. At the same time, Brent’s mother became a shareholder of the corporation. She and Brent’s father held the balance of Whiteshore’s shares, being 45 percent. [ 12 ] In 2002, Brent obtained full-time employment off the farm.

Thereafter, his day-to-day contributions to the farming enterprise decreased, while at the same time, Janice’s contributions increased. [ 13 ] In approximately 2009, Brent’s parents moved to town. The trial judge found it was understood that Brent’s parents wished to transfer their shares to Janice and Brent for an amount that would allow them to retire comfortably. Negotiations to that effect had been ongoing since 2002 or 2003. Meanwhile, Janice and Brent’s relationship was failing. Brent had addiction issues.

In 2011, he left the family home and moved into the residence that was previously occupied by his parents. [ 14 ] The trial judge found that: [26] Despite the strain of their separation, both parties remained committed to making the farm succeed. Janice continued to work part- time at her job as well as attend to the bulk of the daily chores on the farm.

Brent worked full-time at his job and continued to be involved in the farm on his days off, commonly seven consecutive days every three weeks, as well as his holiday weeks. [ 15 ] Brent’s efforts waned after Janice became involved with another man who moved into the family home. Eventually, Janice and her new partner took over the labour component of the farming operation. [ 16 ] Despite Janice and Brent’s separation, negotiations to purchase Brent’s parents’ interest in Whiteshore continued without success. In February of 2014, Brent’s parents commenced legal action against Janice, Brent and Whiteshore.

They wanted $500,000 in exchange for their shares and payment out of their shareholder loans. They insisted that their names be removed from the personal guarantees relating to Whiteshore. It is uncontroverted that $500,000 was significantly less than the fair market value of their 45 percent interest in Whiteshore.

Their shares had been valued in 2014 at approximately $1.3 million. [ 17 ] The trial judge described what happened next: [33] Shortly thereafter, Brent’s cousin, who farms nearby, offered to purchase six quarter-sections of farmland owned by the corporation for a sum that would be sufficient to pay his parents $500,000 and extinguish all debts owed by the farm, thereby releasing their guarantees. Brent and his parents strongly supported the sale and arranged for a meeting at the lawyer’s office. [34] When Janice learned of the proposal, she became upset.

Although the farming operation owned 30 parcels of land in total (equivalent to approximately 25 quarter sections), she was of the view that the land at issue was key to the farming operation. Not only was it the best quality and highest assessed land, it produced necessary feed for the cattle as well as significant income from cash crops required to supplement the livestock operation. [35] On March 23, 2015, Janice commenced a petition in the Family Law Division and arranged for a certificate of pending litigation to be registered against the corporation’s land.

When the parents were notified that a lien had been placed on the land, they became extremely upset. They sought legal advice and became concerned the issue may be tied up in litigation for years. They wanted to move into a retirement complex at a cost of $2,000 per month and did not know how they would manage to support themselves if they did not get the money soon. [36] Janice began speaking to financial institutions to determine whether she could finance the purchase of the shares. Within weeks, she contacted the parents to make an offer.

The parents did not want to make a deal that did not include Brent, but felt they had few options. Brent told them to do what they needed to do. He appreciated the difficult position they were in and did not want to make it worse. [ 18 ] On June 1, 2015, Janice entered into a written agreement with Brent’s parents, whereby she agreed to purchase their interest in Whiteshore, including their shares and shareholder loans for $500,000. According to the agreement, $289,071 of the purchase price was attributed to the parents’ shareholder loans and $210,929 was allocated to the purchase of their shares.

The purchase was financed by way of a loan secured against land owned by Whiteshore and a personal guarantee signed by Janice. Brent was not involved in the agreement. [ 19 ] As a result of the purchase, Janice owned 70 percent of the shares in Whiteshore. On January 15, 2016, she scheduled a shareholders’ meeting and passed a resolution removing Brent from the Board of Directors. Janice then took steps to oust Brent from his parents’ home. She turned the power off and placed a lock on the power box. Brent went to visit his brother in August of 2016, at which point Janice removed the locks from his house.

When Brent tried to take a few things from the house, the road was blocked and the RCMP were called. Brent was told that if he went to the house again, he would be charged with trespassing. [ 20 ] Since January of 2016, Janice has had control of Whiteshore, its operations and income. She has continued to work part-time, depositing her employment income into an account in her sole name. Despite the separation, Brent continued to deposit his employment income into a joint account in his and Janice’s names. [ 21 ] As already indicated, Janice commenced family law proceedings on March 23, 2015.

Brent filed his answer and counter

petition on July 2, 2015. A trial of the issues was held in October of 2017 and judgment was rendered on January 9, 2019. III. THE JUDGMENT [ 22 ] The trial judge described the primary issues pertaining to division of the Carruthers’ family property as being; (

i) whether there was a family home; (ii) whether the parties had an interest in the shares of the farming corporation owned by Brent’s parents as of the date of the application, and if so, whether that interest constituted family property for division purposes; (iii) the value of the family property; and (iv) whether there were any equitable reasons pursuant to s. 21 of The Family Property Act , SS 1997, c F-6.3 [ FPA ], to diverge from the presumption of equal division. [ 23 ] The trial judge began her analysis by determining what constituted the family property for division purposes. [ 24 ] The trial judge recognized that the residence where Brent and Janice had lived for over 26 years was owned by Whiteshore.

Nevertheless, she concluded that it fell within the definition of a “family home” as set out in s. 2 of the FPA . Janice and Brent both held an interest in Whiteshore. The home had been built in 1985 for them to reside in. While the corporation had paid the costs of construction, Brent, Janice, and their families contributed labour. Over the years, the corporation paid the municipal taxes, power and heat associated with the residence.

Janice and Brent paid the corporation $400 per month, which sum was deducted from their shareholder loans. [ 25 ] Having found the residence was a family home within the meaning of the FPA , the issue became how Janice and Brent’s interest in the home should be valued and divided, including whether the home should be valued as part of the corporation or “carved out” of it. The trial judge concluded the answer to that question would depend on Janice and Brent’s ownership interest in Whiteshore.

If Janice and Brent owned 100 percent of the company, then the home would, in effect, be divided equally along with all of the other corporate assets. [ 26 ] Accordingly, the trial judge turned to consider what interest Janice and Brent had in Whiteshore as of the application date and, in particular, whether they had an interest in the shares owned by Brent’s parents as of that date. The trial judge found that they did. She noted that “all of the parties involved agreed that Brent and Janice had ‘earned’ a portion of the value of the parents’ shares” ( Judgment at para 71).

She concluded from this that Janice and Brent had a sustainable claim against the parents, either because they had “a contractual right based upon an oral agreement” or “a claim pursuant to the equitable law of unjust enrichment”. The trial judge held that since “[c]hoses in action have been recognized as property interests for the purposes of family property division” ( Judgment at para 72), Janice and Brent had a recognizable, but not yet quantified, claim against the parents’ interest in Whiteshore as of the application date.

The trial judge determined that the value of the interest became quantified when Janice purchased the shares belonging to Brent’s parents and paid out their shareholder loans. In substance, the trial judge found Janice and Brent’s ownership interest in Whiteshore included the parents’ interest in the corporation as of the application date, less the purchase price paid by Janice.

The trial judge accounted for the loan obtained by Janice to buyout the parents’ interest in Whiteshore by crediting her with that amount in the property division. [ 27 ] The parties had retained business valuators to value Whiteshore’s shares. Both experts used the same methodology and approached their tasks by valuing the shares as of July 31, 2015, which was the corporate year-end closest to the application date. The difference in values arrived at by the two valuators was $675,947.

The principal reason for this difference related to redundant assets and the values attributed to the livestock, equipment and machinery, farmland and residential buildings. The trial judge stated that while both experts were “knowledgeable, objective, and helpful” ( Judgment at para 83), ultimately, she preferred the evidence of the expert retained by Janice.

She did so because she found the calculations and rationale utilised by Janice’s valuator to be more persuasive due primarily to the fact that Brent’s assessor “was operating under a limited retainer – viewing the issues from a narrower perspective and with far less underlying information” ( Judgment at para 83). The assessment by Janice’s valuator “provided a more thorough scope of review, something Mr. Hoffart [Brent’s assessor] candidly acknowledged in the course of his testimony” ( Judgment at para 83).

The trial judge valued Whiteshore’s shares, as of the application date, at $2,802,913. [ 28 ] The trial judge next turned to consider the value to be ascribed to Janice and Brent’s other family property. Janice and Brent had filed an agreed statement of facts [Statement] that set out values for most of their personal property as of the application date. The balance in Janice’s savings account was listed in the Statement as being $14,737. The trial judge used that value for division purposes. [ 29 ] The Statement, however, did not include Janice and Brent’s shareholder loans.

Janice contended those loans should be valued as of the application date (March 23, 2015) and that Brent’s loans should be decreased to reflect the $85,000 paid to him by way of an interim distribution of family property. It was Brent’s position that the shareholder loans should be valued, along with the corporation, at July 31, 2015, being the corporate year-end closest to the application date. The value of both Janice and Brent’s shareholder loans had changed significantly between the application date and July 31, 2015.

The trial judge concluded that because no evidence or submissions had been made to explain the change, the shareholder loans should be valued as of the corporate year-end. [ 30 ] Having valued all of the family property, the trial judge went on to consider whether there were any equitable considerations pursuant to s. 21(3) of the FPA that would support a deviation from an equal division. Janice had sought an unequal division in her favour to account for the contingent tax liability pertaining to Whiteshore’s shares, and because of the alleged dissipation of certain assets by Brent.

Janice contended that Brent’s dissipation included unauthorized payments and withdrawals from the corporate account, monies spent on alcohol, the depreciation of farm equipment due to a lack of maintenance, and a depreciation of the parents’ home during Brent’s occupancy of it. [ 31 ] The trial judge concluded that Brent’s withdrawals from the corporate account were “born out of a miscommunication and sloppy accounting on Brent’s part” ( Judgment at para 139) but did not amount to dissipation.

She also found that the equipment had not depreciated as a result of Brent’s actions as “everything at the farm had become run down. Both parties were working off-farm to make ends meet and had little time or resources to keep the machinery ‘shipshape’” ( Judgment at para 140). [ 32 ] In a similar vein, the trial judge concluded that Brent’s alcohol use, in the two years prior to the application, did not amount to dissipation:

[146] By that time, the parties had been separated for a number of years. There is no evidence that [Brent] depleted savings accounts orcreated new debt. There was no depletion of family assets, and his earning capacity was not affected. While his use was excessive andconcerning on a number of fronts, I am unable to find that the spending from his earnings during that time period, without somethingmore, jeopardized the financial security of the family. [33] According to independent appraisals, Brent’s parents’ home had declined in value during Brent’s occupancy of it due to a lackof maintenance.

The trial judge found that amounted to dissipation pursuant to s. 21(3) of the FPA and warranted an unequal distributionof property to account for the decrease in value. That finding has not been appealed. [34] Brent also made a claim for unequal division. In the event his parents’ shares in Whiteshore were found not to be familyproperty, Brent submitted that he was entitled to an unequal division to account for Janice’s purchase of those shares at significantly lessthan their fair market value.

Given the trial judge’s conclusion that all of the corporate shares were “family property”, she determined thatissue was moot. The trial judge stated, however, that if she was incorrect in that determination, “[f]airness and justice [would] require thatthe equity obtained by Janice when she purchased the shares for far less than their fair market value … be accounted for in the propertydistribution” (Judgment at para 162). [35] The trial judge declined to make any order for costs given the “nature of the order made, and the mixed results” (Judgment atpara 195). IV.

ISSUES [36] Janice now appeals against certain portions of the trial judge’s decision relating to the division of the family property. Whileher notice of appeal sets out numerous grounds, the issues were refined both in Janice’s factum and oral argument and may be reframed asfollows: (

a) Did the trial judge err in determining there was a family home for division purposes? (

b) Did the trial judge err in determining Brent and Janice had an interest, as of the application date, in the Whiteshore shares owned byBrent’s parents? (

c) Did the trial judge err in her valuation of the shareholder loans or Janice’s savings account? (

d) Did the trial judge err in failing to find dissipation with respect to Brent’s alcohol use or his use of the corporate account? (

e) Did the trial judge err in her obiter comments with respect to an unequal division of family property pursuant to s. 21(3) of the FPAbased on unjust enrichment? (

f) Did the trial judge err by refusing to award Janice costs? V. STANDARD OF REVIEW [37] In Riley v Riley, 2011 SKCA 5 at para 5, 366 Sask R 110 [Riley], Jackson J.A., writing for the Court, discussed the applicablestandards of review with respect to judgments involving the division of family property: [5] When an appellate court reviews a decision of a trial court, three standards of review are usually engaged: (

i) the standard ofreview concerning questions of law, i.e., did the trial judge decide all questions of law correctly (see: Housen v. Nikolaisen, 2002 SCC33 (S.C.C.) at para. 8, [2002] 2 S.C.R. 235 (S.C.C.)); (ii) the standard of review as to factual findings, i.e., did the trial judge make anypalpable and overriding error with respect to a material finding of fact (see: Lensen v.

Lensen, (SCC), [1987] 2 S.C.R.672 (S.C.C.) at p. 683 and Housen at para. 10); and (iii) the standard of review with respect to discretionary matters, i.e., did the trialjudge consider all relevant matters (see: Friends of the Oldman River Society v. Canada (Minister of Transport), (SCC),[1992] 1 S.C.R. 3 (S.C.C.), at 76-77 and the cases referred to therein). When the decision under review divides family property, all threetypes of review are engaged to a greater or lesser extent (see: Russell v. Russell (1999), (SK CA), 179 D.L.R. (4th)723 (Sask. C.A.) at para. 18), but there is an overarching consideration.

Given the provisions of The Family Property Act, with itsemphasis on a "fair and equitable" distribution of property, considerable deference is owed to the trial judge's overall decision as toentitlement and valuation (see: The Family Property Act, ss. 21(2), 22(1) and 23(4); Russell at paras. 19 and 71; and Muranetz-Dubelt v.Dubelt, 2010 SKCA 5 (Sask. C.A.) at para. 12, (2010), 343 Sask. R. 215 (Sask. C.A.)).

While the standard of appellate review permits acourt of appeal to intervene in the face of an error of law, a palpable and overriding error of fact, or an abuse of discretion, the court mustbe aware that disturbing one of a trial judge's many decisions as to entitlement to family property, or its valuation, may disturb the overallequities that have been achieved in arriving at what constitutes a fair and equitable distribution.

The standard of appellate review in familylaw matters reflects this deference to the trial judge's overall distribution of family property. [38] In accordance with Riley, the standards of review to be applied by this Court are correctness with respect to questions of law,and palpable and overriding error with respect to findings of fact, or mixed fact and law.

Outside of errors of these types, the FPA givestrial judges significant discretion both in determining the value of assets for distribution purposes, and in deciding what constitutes a fairand equitable division of property: Muranetz-Dubelt v Dubelt, 2010 SKCA 5 at para 12, 343 Sask R 215; Ackerman v Ackerman, 2014SKCA 137 at para 22, 54 RFL (7th) 9 [Ackerman].

Deference is to be accorded to such decisions, and this Court should only interfere ifthe trial judge erred in principle, disregarded a material matter of fact, failed to act judicially or if the result is so clearly wrong as toamount to an injustice: Rimmer v Adshead, 2002 SKCA 12 at para 58, 24 RFL (5th) 159. VI. ANALYSIS

A. Did the trial judge err in determining there was a family home for division purposes? 1. Position of the parties [ 39 ] Janice contends that the trial judge erred in law by finding the parties’ residence, which was owned by Whiteshore, constituted a “family home” and was subject to division pursuant to s. 22 of the FPA . In support of her position, she cites Weixl v Weixl , 2006 SKQB 319 [ Weixl ].

In the alternative, Janice submits the residence should have been divided based on her and Brent’s 55 percent interest in Whiteshore as of the date of application. [ 40 ] It is Brent’s position that the trial judge did not err in finding the residence was a “family home”. 2.

Analysis [ 41 ] In considering the division of family property, it is important to keep in mind the purpose of the FPA as described in s. 20 , namely: …to recognize that child care, household management and financial provision are the joint and mutual responsibilities of spouses, and that inherent in the spousal relationship there is a joint contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities that entitles each spouse to an equal distribution of the family property, subject to the exceptions, exemptions and equitable considerations mentioned in this Act. [ 42 ] The cornerstone of the FPA is equity.

To achieve that end, the FPA recognizes that spouses can have an “interest” in property even where that property is not registered in their names. [ 43 ] When dealing with a residence alleged to be a family home, three questions arise: (

i) does the residence in issue fall within the definition of family home as set out in the FPA ; (ii) if so, what is the value of the interest in the home for division purposes; and (iii) how should the home, or its value, be divided? [ 44 ] Subsection 2(1) of the FPA defines what is meant by the term “family home”. The pertinent parts of that definition for the purpose of this appeal are as follows: “family home” means, subject to subsection (2), property: (

a) that is: … (ii) owned by a corporation in which one or both spouses have an interest where, by virtue of that interest, one or both spouses are entitled to occupy the property as a family home; and (

b) that is or has been occupied by one or both spouses as the family home or that is mutually intended by the spouses to be occupied by one or both of them as the family home; … Subsection (2) requires that the home falls within the definition of family property as set out in the Act . [ 45 ] Where a home is owned by a corporation, it is not necessary for spouses to contribute financially to the residence for it to fall within the definition of a family home under the FPA . Rather, the definition requires four things: (

i) that the residence is family property; (ii) that one or both of the spouses have an interest in the corporation that owns the residence; (iii) that by virtue of that interest, one or both of the spouses are entitled to occupy the residence; and (iv) that one or both of the spouses either intend to, or have occupied, the residence as the family home. [ 46 ] It is clear from this definition that the trial judge did not err in finding the Carruthers’ residence qualified as a family home. While the home was owned by Whiteshore, both Janice and Brent held shares in the corporation.

The uncontroverted evidence was that the home was built for them, and one or both of them had lived there since 1985 – a period of approximately 30 years at the time of the application. It was their family home. [ 47 ] Janice argued that Weixl stands for the proposition that a residence owned by a corporation does not qualify as a family home. In my view, Janice’s reliance on Weixl is misplaced. [ 48 ] In Weixl , the parties had been spouses for just over two years. Prior to that time, the husband’s mother had gifted to the husband a 30 percent interest in the family farm corporation.

The husband had worked on the farm throughout the parties’ relationship. The corporation built the home on land owned by it for the husband and wife to live in. The husband and wife paid no expenses with respect to the home. The trial judge found the residence was not a “family home” within the meaning of the FPA . That decision was not appealed. [ 49 ] The trial judge distinguished Weixl on the basis that the parties had only lived together for two years and had paid nothing for the home. Janice contends the length of the relationship is irrelevant to the question of whether a residence is a family home.

I agree. However, in my view, so far as Weixl stands for the proposition that a residence owned by a corporation, in which a spouse has an interest, does not qualify as a family home, it is in error. As already indicated, whether a residence is a family home does not depend on ownership but, rather, whether it falls within the definition of a “family home” as set out in the FPA .

[50] Further, it is important to recognize that finding a residence to be a family home, does not mean it will have any value fordivision purposes. This is so because value for division purposes will depend to a large extent on the nature of the interest held by thespouses in the home. There are numerous scenarios where an interest might exist. For example, spouses may have an interest as tenants,but no right of ownership. They may own shares in a corporation that holds legal title to the home. They may have a beneficial interest inthe home pursuant to an express, resulting, or constructive trust.

They may have an interest in accordance with the terms of a writtenagreement. They may own the home jointly with one or more third parties. Some interests may have no ascertainable fair market value.Where a corporation owns a family home, and neither spouse holds a direct interest in it, the home may not be valued separately from theshares of the corporation. This is so because the corporation owns the home and the spouses’ interest is based on their share holdings inthe corporation.

In every case, a contextual analysis is required, always keeping in mind that the overarching purpose of the FPA is toachieve equity. [51] It is also important to remember that how a family home or its value will be divided is a discretionary decision. While s. 22requires the family home, or its value, should generally be divided equally, no division will occur if the spouses’ interest in the home hasno value. [52] In this case, the trial judge did not value the family home separately from the corporation because Janice and Brent’s interest inthe home was as shareholders of Whiteshore.

In effect, by valuing and dividing the shares of Whiteshore, the trial judge divided Janiceand Brent’s interest in the family home. [53] Finally, Janice argues that their residence could be a “family home” for the purposes of an application for exclusive possessionpursuant to s. 5 of the FPA, but not a “family home” for division purposes. In my view, this argument has no merit. There is only onedefinition of “family home” in the FPA. If a residence falls within that definition, then it is a “family home” for all purposes of the Act.

Totreat it as a “family home” only for the purposes of a s. 5 application would be incongruent with the stated purposes of the FPA. [54] In

summary, the trial judge did not err in determining there was a family home. Nor did she err in valuing that home as part ofthe corporation. B. Did the trial judge err in determining Brent and Janice had an interest, asof the application date, in the Whiteshore shares owned by Brent’s parents? 1. Position of the parties [55] Janice makes several arguments in support of her contention that the trial judge erred in finding that the parties had an interestin the parents’ shares in Whiteshore as of the application date. First, she argues there was no evidence of an oral agreement with respect tothe shares.

Second, she submits that the trial judge misapprehended the evidence when she found that Brent and Janice had an interest inBrent’s parents’ Whiteshore shares as of the application date. Third, Janice contends there is no evidence to support the existence of unjustenrichment as that doctrine was described in Petkus v Becker, (SCC), [1980] 2 SCR 834; Kerr v Baranow, 2011 SCC 10,[2011] 1 SCR 269 [Kerr]; Gordon v Nielson, 2018 SKQB 207 at para 11; Kusch v Kusch, 2007 SKQB 380 at paras 20–28, 43 RFL (6th)306; and Dobson v Dobson, 2003 SKQB 203, 234 Sask R 78, aff’d 2005 SKCA 136, 20 RFL (6th) 259 [Dobson].

It is Janice’s positionthat she and Brent both benefited from working on the farm by having certain expenses paid by the corporation, and by having the use andenjoyment of their residence. Finally, Janice argues that the FPA is a “complete code” and thus the Court did not have jurisdiction toconsider the equitable principle of unjust enrichment in dividing the family property.

She relies on Sharp v McLean, 2004 SKQB 169, 5RFL (6th) 437 [Sharp], for that proposition. [56] Brent submits that his parents’ interest in Whiteshore was correctly considered in the division of the family property based oneither the existence of an oral agreement or unjust enrichment. He and Janice had worked for over 30 years on the farm, receiving onlynominal renumeration. They did so in the expectation that they would eventually own the farm, and that expectation was shared byBrent’s parents.

Brent contends that they had many discussions with his parents about purchasing their shares in Whiteshore, and that itwas clearly understood by all parties that fair market value would not be paid. In support of his position, Brent relies on this Court’sdecisions in Tether v Tether, 2008 SKCA 126, 56 RFL (6th) 250 [Tether], and Jans Estate v Jans, 2020 SKCA 61, 59 ETR (4th) 53 [Jans]. 2. Analysis a.

What constitutes family property [57] Family property is defined in s. 2(1) of the FPA: “family property” means any real or personal property, regardless of its source, kind or nature, that, at the time an application ismade pursuant to this Act, is owned, or in which an interest is held, by one or both spouses, or by one or both spouses and a thirdperson, and, without limiting the generality of the foregoing, includes the following: (

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

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

c) property disposed of by a spouse but over which the spouse has, either alone or in conjunction with another person, a power toconsume, invoke or dispose of the property; (

d) property mentioned in

section 28[1];

(Emphasis added) [58] The purpose and scheme of the FPA is “directed towards a fair and equitable division of family property between spouses”(Grosse v Grosse, 2015 SKCA 68 at para 22, 387 DLR (4th) 473 [Grosse]). To achieve that end, the definition of family property has beeninterpreted broadly by this Court so as to capture “any type of property interest a spouse may have” (Grosse at para 23; Jones v Jones,2017 SKCA 46 at para 62, 95 RFL (7th) 43 [Jones]; and Tether at para 80).

Grosse involved a spouse’s interest in a family trust; Joneswas concerned with a book of business owned by a spouse’s employer and Tether dealt with a spouse’s interest in a vehicle lease. In eachcase, the Court found that the spouses had an “interest” in the property for division purposes. [59] From Grosse, Jones, and Tether, it is clear that whether a spouse has an “interest” in property is not determined by ownershipalone, or even by the ability to exercise control over the property. This is so because an interest in property can be beneficial, orcontingent.

It can also include a chose in action: Tataryn v Tataryn (1984), (SK CA), 30 Sask R 282 (CA) [Tataryn];and Clarke v Clarke, (SCC), [1990] 2 SCR 795 at para 62, or an inchoate right: Stein v Stein, 2008 SCC 35 at para 11,[2008] 2 SCR 263.

As such, whether a spouse has an interest in property is a question of fact, to be determined based on the relevantcircumstances of each case. [60] Janice’s position that the parents had complete control over their shares in Whiteshore and thus those shares could notconstitute family property is not persuasive for two reasons. [61] First, Whiteshore was a closely-held corporation whose shareholders and directors consisted of only Janice, Brent and Brent’sparents. Brent and Janice held the majority interest in Whiteshore.

As such, the parents had no ability, on their own, to liquidate thecorporation or any of its assets, and the market for their shares was extremely limited. The trial judge did not find the parents could not selltheir shares. Rather, because of the corporate structure, she found the parents were not free “to dispose of their property (shares) as theysaw fit” (Judgment at para 70).

That finding was supported by the evidence and, in particular, by the fact that Janice had blocked the saleof corporate land to a nephew which would have funded a buyout of the parents’ shares. [62] Second, as already pointed out, who controls property is not necessarily determinative of who holds an “interest” in theproperty. [63] The issue for the trial judge was whether Janice and Brent had an “interest” in the parents’ shares of Whiteshore as of theapplication date. She found they did, either by virtue of an oral agreement or based on the equitable principle of unjust enrichment.

Thetrial judge did not, however, provide any analysis of how the facts supported the existence of an oral agreement or a finding of unjustenrichment. Her factual findings, however, enable me to assess the merits of those claims. b. Oral agreement [64] Janice contends there was no oral agreement between the parties and Brent’s parents to acquire their interest in Whiteshore.

Shesubmits the trial judge erred in finding the existence of such an agreement as the terms were too uncertain. [65] For there to be an enforceable oral agreement that Janice and Brent would purchase the parents’ interest in Whiteshore, therehad to be consensus ad item or a meeting of the minds. [66] Parties will have reached a meeting of the minds: [9] …where it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract andthe essential terms of that contract can be determined with a reasonable degree of certainty… (Ron Ghitter Property Consultants LTD. v Beaver Lumber Co., 2003 ABCA 221, 17 Alta LR (4th) 243) See also Tether at para 62; Matic v Waldner, 2016 MBCA 60 at para 57, [2017] 1 WWR 504; and Jans at paras 42–45. [67] An intention to contract at some future date does not result in a meeting of the minds.

Brent’s father testified that he had set upWhiteshore for the purpose of facilitating the intergenerational transfer of the family farm. He also testified that it was his “intention” thatBrent and Janice should take over the farm. Brent and Janice testified to working long hours on the farm on the “understanding” it wouldone day be theirs.

The trial judge’s finding of fact on this point was clear: [71] In other words, all of the parties involved agreed that Brent and Janice had “earned” a portion of the value of the parents’ shares.While that value had not been quantified at the date of application, there was no debate about the fact that Brent and Janice held someinterest in the value of the parents’ shares.

Agreeing that someone has “earned” a portion of an asset does not equate to an agreement to sell that asset to them. [68] Further, price, a material term of the alleged oral agreement to purchase the parents’ interest in Whiteshore, had not beenagreed upon, nor had the parties determined a mechanism to establish a price. This is evident from the negotiations with respect to pricethat had been ongoing over the course of a number of years, and the fact that the parents had commenced legal action against Janice, Brentand Whiteshore to resolve the disposition of their shares.

The trial judge’s findings of fact confirmed this: [53] For the last 10 years that they were together, Brent engaged in periodic discussions with his parents to purchase their remaining45% interest in the corporation, but they were unable to agree on a price or payment plan. [69] In my view, an objective reasonable bystander, based on the facts as found by the trial judge, could not conclude that the partieshad intended to contract and, even if they had, such a bystander could not have concluded that they had agreed on a price, which was anessential term of the contract. [70] While the trial judge appears to have relied on this Court’s decision in Jans in concluding there may have been an oral

agreement, that reliance was misplaced as the facts in Jans are significantly different than those before the trial judge. [71] In Jans, the plaintiff attested that there was an oral agreement with his parents and his younger brother to acquire the familyranch. The plaintiff’s mother confirmed that agreement.

While the plaintiff’s father denied it, the father had in fact acknowledged theexistence of the agreement in a prior court proceeding pertaining to the division of family property between him and the plaintiff’s mother.Further, in Jans, while no fixed price had been set, the consideration had been agreed upon and was ascertainable. [72] The trial judge erred in concluding that Brent and Janice had an interest in the parents’ Whiteshore shares based on an oralagreement.

That error, however, did not affect the correctness of her decision as, in my opinion, Brent and Janice had an interest in thoseshares based on the equitable principle of unjust enrichment. c. Unjust enrichment [73] If Brent and Janice had a valid claim for unjust enrichment against Brent’s parents, that claim would, at law, be characterised asa chose in action or an inchoate right sufficient to constitute family property within the meaning of the FPA.

In Tataryn, Cameron J.A., ofthis Court, found the pension benefit at issue constituted a chose in action and thus fell within the definition of matrimonial property in TheMatrimonial Property Act, SS 1979, c M-6.1 (repealed). That Act was the predecessor of the FPA and contained the same definition forfamily property. [74] The essential elements of a claim for unjust enrichment were reaffirmed by the Supreme Court of Canada in Kerr. Thoseelements are described at paragraph 32 of Kerr as: (

a) an enrichment of, or a benefit to, the defendant; (

b) a corresponding deprivation tothe plaintiff; and (

c) the absence of a juristic reason for the enrichment. [75] In Kerr, Cromwell J., writing for the Court, went on to explain each of these elements:

(1) Enrichment and Corresponding Deprivation … [38] For the first requirement — enrichment — the plaintiff must show that he or she gave something to the defendant which thedefendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched thedefendant and which can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible.

It may be positive ornegative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had toundertake (Peel, at pp. 788 and 790; Garland, at paras. 31 and 37). [39] Turning to the second element — a corresponding deprivation — the plaintiff's loss is material only if the defendant has gained abenefit or been enriched (Peel, at pp. 789-90).

That is why the second requirement obligates the plaintiff to establish not simply that thedefendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered (Pettkus, at p.852; Rathwell, at p. 455).

(2) Absence of Juristic Reason [40] The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without ajuristic reason.

To put it simply, this means that there is no reason in law or justice for the defendant's retention of the benefit conferred bythe plaintiff, making its retention "unjust" in the circumstances of the case: see Pettkus, at p. 848; Rathwell, at p. 456; Sorochan, at p.44; Peter, at p. 987; Peel, at pp. 784 and 788; Garland, at para. 30. [41] Juristic reasons to deny recovery may be the intention to make a gift (referred to as a "donative intent"), a contract, or a dispositionof law (Peter, at pp.990-91; Garland, at para. 44; Rathwell, at p. 455).

The latter category generally includes circumstances where theenrichment of the defendant at the plaintiff's expense is required by law, such as where a valid statute denies recovery (P.D. Maddaugh,and J. D. McCamus, The Law of Restitution (1990), at p. 46; Reference re Excise Tax Act (Canada), (SCC), [1992] 2S.C.R. 445 (S.C.C.); Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737 (Ont. C.A.)). However, just as the Court has resisted apurely categorical approach to unjust enrichment claims, it has also refused to limit juristic reasons to a closed list.

This third stage of theunjust enrichment analysis provides for due consideration of the autonomy of the parties, including factors such as "the legitimateexpectation of the parties, the right of parties to order their affairs by contract (Peel, at p. 803). [76] The trial judge did not engage in an analysis of the application of the principles of unjust enrichment to the facts of this case.Having said that, in my view, her findings of fact support the existence of such a claim. [77] First, the trial judge found that the farm, and thus the parents and Whiteshore, had been enriched or benefited from Janice andBrent’s contributions to the farm’s operation and its finances.

Without their sacrifice, the farm would have folded years before Janice andBrent’s separation. [78] Second, the trial judge found Janice and Brent had suffered a corresponding deprivation: [13] By all accounts, the farm struggled financially for many years. Cattle prices were low, land values were sliding and interest rateswere high. Brent was tasked with the job of securing financing. Taking advantage of a government program, Brent signed as a guarantorand obtained a 0% interest loan for the farm even though he had no ownership rights in the company at that time.

This obligation limitedhis capacity to borrow for years to come, cementing his need to keep the business afloat and limiting his off-farm opportunities. [79] Further at paragraph 68, she stated: At times, they [Janice and Brent] opted not to take a wage, taking drawings from the shareholder loan balances. They were never able todraw dividends. They did not pursue other opportunities to save for or invest in their future. They worked their whole married lives,investing their time and energy into what they both regarded as a long-term venture.

[80] Janice contends that because the corporation provided her and Brent with a home, and paid certain expenses for them includingfuel, heat and power, they had not suffered any deprivation. That assertion is not supported by the evidence. Janice and Brent paid $400per month to Whiteshore for expenses pertaining to the family home.

In addition, any expenses paid by the corporation on their behalf,such as fuel, heating and power, paled in comparison to their contributions to the farm both financially and in terms of their labour. [81] The evidence supports the conclusion that Janice and Brent did not gift their time, labour, or money to the parents or toWhiteshore.

They were operating on the assumption that the farm would one day be theirs: [70] Further, as Brent and Janice already held the majority interest in the farming corporation at the date of application, it could not besaid that the parents were free to dispose of their property (shares) as they saw fit. The fact that they had few options to realize the sharevalue is evident in the oppression-based claim brought against Brent and Janice in February 2014 and their failed efforts to force aliquidation and sale in 2015. [82] Finally, there was no juristic reason for the enrichment.

As already explained, there was no agreement for Janice and Brent topurchase the parents’ interest in Whiteshore. There was, however, an understanding that Janice and Brent’s sacrifices would earn them aportion of the value of the parents’ shares. While Janice contends that the trial judge erred in making that finding, in my view, it was wellfounded on the evidence as a whole.

Brent’s father freely acknowledged Brent and Janice’s contribution to the farm and agreed that in allof their negotiations respecting the transfer of the shares, the focus was on a figure that would sustain him and his wife in their retirement,not the fair market value of the shares. [83] Brent and Janice’s right to claim unjust enrichment gave them an interest in the value of the parents’ Whiteshore shares as ofthe date of application. In my view, that right was crystalized and quantified when Janice purchased the shares shortly after the applicationfor division of family property had been commenced.

Janice and Brent’s interest in Whiteshore included the parents’ interest in thecorporation, less the $500,000 paid by Janice to acquire that interest. [84] Further, in my view, Janice’s agreement with Brent’s parents constituted an acknowledgment of the parents’ unjust enrichmentand fulfilled their obligations arising from it. It converted and quantified Janice and Brent’s chose in action or inchoate right for thepurposes of division of the family property.

In other words, Janice and Brent’s right of action at the time of the application for division offamily property became a concrete asset with a fixed value in Janice’s hands by the time of trial. [85] Janice relied on Dobson to support her contention that, as a matter of law, a claim for unjust enrichment did not exist. Dobson,however, is distinguishable on its facts. The wife in Dobson claimed an interest, for family property division purposes, in land and otherassets owned by her mother-in-law. However, the elements necessary to establish unjust enrichment in that case did not exist.

The parents-in-law had given significantly more to the parties than they had received. The wife’s claim rested solely on her mother-in-law’s intentionto bequeath the land and other assets to her son (the husband) on her death. The Court concluded that did not create an “interest” in theproperty within the meaning of the FPA. [86] Janice submits that the FPA is a complete code and, as a result, claims for unjust enrichment cannot be made.

In my view, for anumber of reasons, this assertion is not correct. [87] First, s. 52 of the FPA provides that “[t]he rights conferred pursuant to this Act are in addition to and not in substitution forrights under equity or any other law” (emphasis added). As such, the doctrine of unjust enrichment can be claimed in the context of afamily property dispute. [88] Second, as already pointed out in these reasons, the purpose of the FPA is the equitable division of family property betweenspouses. Given the definition of family property set out in s. 2, any interest that a spouse has in property is subject to division.

A claim forunjust enrichment against a third party is either a chose in action or an inchoate right that constitutes an interest in property, and thus fallswithin the definition. [89] While Janice relied on Sharp to support her position that the FPA is a complete code, in my view, Sharp does not stand for thatproposition. [90] In Sharp, the Court found that the claim pursuant to the FPA was statute barred by the limitation period set out in the Act. TheCourt went on to consider whether there was, nevertheless, a claim based on resulting or constructive trust.

It held that the requisiteintention to establish a resulting trust was not present, and that the elements of a constructive trust based on unjust enrichment had not beenestablished. The Court did not hold that the FPA is a complete code that excludes claims for unjust enrichment. [91] In

summary, the trial judge did not err in concluding that Brent and Janice had an interest in the parents’ shares in Whiteshoreas of the time of the application, nor did she err in the value she ascribed to those shares. d. Estoppel [92] Finally, Janice argues that, even if a claim for unjust enrichment arises in this case, because Brent “acquiesced” to her purchaseof his parents’ shares, he is estopped from claiming an interest in those shares based on unjust enrichment. This is a new argument thatwas not raised before, or considered by, the trial judge.

Importantly, neither party addressed this issue at trial. [93] In R v Perka, (SCC), [1984] 2 SCR 232, the Supreme Court of Canada considered when an entirely new issueshould be heard on appeal. Justice Dickson, writing for the Court, set out the applicable test at page 240: In both civil and criminal matters it is open to a respondent to advance any argument to sustain the judgment below, and he is not limited toappellants’ point of law. A party cannot, however, raise an entirely new argument which has not been raised below and in relation to whichit might have been necessary to adduce evidence at trial.

See Brown v Dean, 1910 AC 373; Dormuth v Untereiner et el, (SCC), [1964] SCR 122, The SS “Tordenskjold” v The SS “Euphemia” (1908), (SCC), 41 SCR 154; Dairy Foods Inc. v

Co-opérative Agricole de Granby, (SCC), [1976] 2 SCR 651. [94] This principle has been relied on repeatedly by this Court.

See for example Hawkeye Tanks & Equipment Inc. v Farr-MorFertilizer Services Ltd., 2002 SKCA 44 at para 7, 219 Sask R 148 [Hawkeye]; Bison Properties Ltd. v Regina (City), 2007 SKCA 135;Taylor Volkswagon Inc. v Slater, 2010 SKCA 137 at paras 18–21, 362 Sask R 72; Ernst v Saskatchewan Government, 2019 SKCA 12 atpara 8, 34 MVR (7th) 180; and United Steelworkers v Comfort Cabs Ltd., 2017 SKCA 45 at para 40, 414 DLR (4th) 688. [95] The rationale for the principle is that parties should know the case they are to meet and have a reasonable opportunity topresent evidence and make submissions with respect to the relevant issues at trial.

New issues raised on appeal often lack the necessaryevidentiary underpinnings to engage proper appellate review. [96] In my view, allowing Janice to raise the issue of estoppel in this Court would unfairly prejudice Brent. If Brent had been awareof such a claim at the time of the trial, he could have presented evidence directed at refuting that claim. As it stands, this Court has neitherthe evidence nor the considered reasons of the trial judge to determine that issue. e.

Conclusion [97] The trial judge did not err in finding that, as of the application date, Brent and Janice had an interest in the parents’ shares inWhiteshore based on a claim for unjust enrichment. C. Did the trial judge err in her valuation of the shareholder loans or Janice’ssavings account? [98] Janice asserts that the trial judge erred in her valuation of their shareholder loans and her savings account. I will deal with eachof these assets in turn. 1. The shareholder loans [99] Janice contends that the trial judge erred by failing to value her and Brent’s shareholder loans as of the date of application.

It isher position that the trial judge erred in law by valuing the loans as of July 31, 2015, as the FPA requires family property be valued eitheras of the application date (March 23, 2015), or the date of adjudication (October of 2017). In addition, Janice submits the trial judge erredin calculating the value of Brent’s shareholder loan in that the $85,000 in interim distributions received by him should have been deductedfrom those loans. It is her position that the interim distributions were to be paid by Whiteshore on a tax-free basis.

She posits that the trialjudge’s approach to the interim distributions resulted in a double accounting in Brent’s favour. [100] Section 2(1) of the FPA defines “value” to mean: (

a) the fair market value at the time an application is made pursuant to this Act, or at the time of adjudication, whichever the court thinksfit or; (

b) if a fair market value cannot be determined, any value at the time an application is made pursuant to this Act or at the time ofadjudication, that the Court considers reasonable. [101] Here, the parties both presented expert evidence as to the fair market value of Whiteshore. Those experts valued Whiteshore as ofits corporate year-end, being July 31, 2015 – the year-end closest to the date of application. Both experts agreed that using the year-enddate would provide the most accurate number for valuing Whiteshore.

Their valuations involved the deduction of Janice and Brent’sshareholder loans, which were debts owing by the corporation. [102] Brent’s shareholder loan as of July 31, 2015, was $117,450 and Janice’s shareholder loan was $328,326. Those were the amountsadopted by the trial judge. In my view, the trial judge did not err in using those figures. [103] First, although the trial judge used the values for the shareholder loans as of the corporate year-end, she did so for the purpose ofascertaining their value as of the date of application which was just four months prior.

As stated by this Court in Ackerman, judges haveconsiderable discretion in determining whether to use the application date or the date of adjudication to value family property. Having saidthat, as indicated in Ackerman, property should generally be valued consistently, either at the application date or the date of adjudication.If property is valued at different dates, the court should provide an explanation for doing so. [104] Second, I fail to see any error in the trial judge’s findings of fact with respect to the valuation of the shareholder loans.

Of course,a challenge in this regard is to be assessed against the palpable and overriding error standard. The trial judge’s findings comport with thefigures used by both parties to value Whiteshore.

Consistency requires not only that both the assets and debts of a corporation shouldgenerally be valued as of the same date, but where shareholder loans were ascribed a certain value in the corporation, they should be giventhe same value in the shareholder’s hands. [105] Third, the trial judge found that the best evidence before her with respect to the value of the shareholder loans was that providedby the business valuators. [106] Fourth, there were two orders for the interim distribution of family property made in favour of Brent – one on March 23, 2016, inthe amount of $35,000 and one on June 17, 2016, for $50,000.

Neither of those orders provided that Whiteshore would make thosepayments to Brent on a tax-free basis. Further, the interim distributions occurred well after both the application date and Whiteshore’s July31, 2015, year-end. There is no rational reason for those interim distributions to be deducted from Brent’s shareholder loan. The trialjudge properly accounted for those interim distributions by deducting $85,000 from Brent’s share of the family property. There is noevidence the interim distributions were “double counted”.

They were not included in the valuation of any family property, but wereproperly deducted from Brent’s equalization payment.

[ 107 ] In my view, for the reasons stated, Janice’s position with respect to the valuation of the shareholder loans is without merit. 2. Janice’s savings account [ 108 ] Janice contends that the trial judge erred in valuing her savings account at $14,737 because $12,400 of that amount came from the sale of cattle owned by Whiteshore. That amount was deposited into her savings account on December 24, 2014, because Whiteshore’s bank accounts were frozen, and she had to continue to conduct business on behalf of the corporation.

As such, Janice submits the funds did not constitute her personal property but, rather, belonged to Whiteshore. She further submits there was evidence she had paid certain corporate expenses to account for those funds. [ 109 ] As indicated earlier in these reasons, the parties had filed a Statement with the trial judge that indicated Janice had $14,737 in her savings account as of the date of application. This amount was also verified by her bank statement.

There is no indication, however, in either the Statement or the trial transcript, that the Statement constituted an agreement that the value assigned to that account would be used for division purposes. While the trial judge thought Janice was resiling from her position in seeking to have a different value attributed to her savings account, that was not the case.

The trial transcript discloses that Janice’s legal counsel raised the value of her savings account as an issue and presented evidence with respect to why that account should be valued at between $2,000 to $4,000 as opposed to $14,737. [ 110 ] According to Janice’s evidence, between December of 2014, and March 13, 2015, Brent had cut off her access to Whiteshore’s bank accounts.

On March 13, 2015, Janice and Brent agreed to joint signing authority with respect to the corporate accounts. [ 111 ] Janice testified that between December of 2014, and March 13, 2015, she deposited corporate funds to her personal savings account and then transferred money to her chequing account to pay corporate bills. Janice testified that she paid $7,229.33 in expenses on behalf of Whiteshore between April 25, 2015, and August 18, 2015.

She also indicated that some of the expenses paid may not have related solely to Whiteshore. [ 112 ] Despite the evidence presented by Janice, I cannot find the trial judge made a palpable and overriding error in valuing her savings account at $14,737. First, the amount in her savings account as of the application was not in dispute. Second, if the money belonged to the corporation as attested to by Janice, then that money should have been accounted for in the corporation. There is no evidence that was done.

In fact, the corporate ledgers for that period do not include the expenses allegedly paid by Janice on behalf of Whiteshore, and there is no evidence that the money from the cattle sales was ever accounted for as corporate income. Third, some of the expenses claimed by Janice were paid after July 31, 2015, being the date used to value the corporation. As a result, those expenses would not have been considered in valuing Whiteshore. Fourth, at least one of the payments Janice made relates to the acquisition of a bull.

There is no evidence that the bull was included in the livestock inventory of the corporation for division purposes. Fifth, the expenses Janice alleges she paid on behalf of Whiteshore do not equal the amount deposited to her account from the cattle sales. They fall short by at least $5,000. Finally, Whiteshore’s accountant testified that expenses paid by a shareholder on behalf of the corporation were accounted for in the shareholder loans. Janice provided the information to the accountant for the July 31, 2015, year-end.

In the circumstances, the trial judge did not err in valuing Janice’s savings account in accordance with the Statement. D.

Did the trial judge err in failing to find dissipation with respect to Brent’s alcohol use or his use of the corporate account? [ 113 ] Janice contends the trial judge erred by failing to make an unequal division of the family property in her favour based on Brent’s dissipation of the corporate account and his use of alcohol. [ 114 ] As mentioned, s. 21 of the FPA provides that family property is to be divided equally between spouses subject to any exceptions, exemptions and equitable considerations set out in the Act .

Equitable considerations that may result in an unequal division of the family property are set out in s. 21(3) and include the dissipation of family property ( s. 21(3) (k)). [ 115 ] Dissipation is defined in s. 2 of the FPA to mean jeopardizing “the financial security of a household by the squandering of property”. [ 116 ] It is uncontroverted that Brent withdrew $23,000 from the corporate account after the separation.

He testified that amount was reimbursement for expenses he had incurred on behalf of Whiteshore including $18,500 which was paid to the Estate of Mary Colbert in satisfaction of an outstanding debt. The trial judge accepted Brent’s evidence with respect to those withdrawals. She was entitled to do so. Her view of the payment to the Estate was bolstered by the fact that “[i]n cross-examination, Janice did not dispute the arrangement between the corporation and the estate and even acknowledged that money may have been owed to the estate.

Her complaint appeared to be that she had asked for a detailed accounting and had never received it” ( Judgment at para 138). [ 117 ] The trial judge’s findings were supported by the evidence, and do not disclose a palpable or overriding error. Given the trial judge’s findings, dissipation with respect to the corporate account had not been established. [ 118 ] Turning to the alcohol issue, Janice testified that Brent had spent approximately $16,000 on alcohol in the two years prior to the commencement of the application for division of the family property.

Brent admitted he was consuming a significant amount of alcohol during that period. He asserted the money used to purchase the alcohol came from his employment income which was deposited to an account in his and Janice’s joint names. [ 119 ] The trial judge concluded that Brent’s spending did not amount to dissipation because it did not jeopardize the financial security of the family.

She found the spending occurred after the parties had separated; that Brent was using money earned from his employment to pay for the alcohol; that no family assets were being depleted; no debt was accumulated; and that Brent’s earning capacity was not affected. While the trial judge found that Brent’s spending was “excessive and concerning”, she concluded it did not affect the family property.

[ 120 ] In my view, in light of the trial judge’s factual findings, she did not err in arriving at her conclusion. Brent’s wages did not constitute family property. They were income accumulated after the parties’ relationship had ended. The fact that Brent chose to deposit his income to a joint account accessible to Janice does not change the nature of those funds. Janice contributed nothing to the joint account during the applicable period. In short, Brent was purchasing the alcohol with his own income. He did not jeopardize the financial security of the household by doing so. E.

Did the trial judge err in her obiter comments with respect to an unequal division of the family property pursuant to s. 21(3) of the FPA based on unjust enrichment? [ 121 ] Before the trial judge Brent argued, in the alternative, that if his parents’ interest in Whiteshore did not constitute family property, he was entitled to an unequal division of the property pursuant to s. 21(3) of the FPA on the basis that Janice had been unjustly enriched by his contributions to the farm.

At its core, this argument is rooted in equity and based on the premise that Janice was only able to acquire the parents’ interest in Whiteshore at a significantly discounted value, because of her and Brent’s joint efforts. [ 122 ] Janice contends that Brent did not claim an unequal division based on unjust enrichment in his counter petition and thus, the trial judge had no juristic basis to comment on such a claim. She further asserts that she was not unjustly enriched by purchasing the parents’ shares for less than their fair market value.

She contends Brent’s parents wanted to bring an end to the litigation they had commenced, and arbitrarily set a figure they wanted to secure their retirement.

Even if a benefit and corresponding deprivation was established, Janice argues that there was a juristic reason for her unjust enrichment, namely the purchase agreement. [ 123 ] Section 21(3) of the FPA sets out a list of equitable considerations that may lead a Court to order an unequal division of the family property. [ 124 ] While Brent did not use the words “unjust enrichment” in his answer and counter petition, he did request an unequal division of family property based on the “sale of shares owned by my parents to the Petitioner at less than fair market value”.

Further, this issue was fully canvassed before the trial judge. Both parties called evidence in support of their positions, and both presented arguments on unjust enrichment. Janice was fully aware of Brent’s claim, and had the opportunity to respond to it. In the circumstances, the trial judge did not err in addressing the issue. [ 125 ] Appeals are from results, not reasons.

Given my conclusion that the trial judge did not err in finding Janice and Brent had an interest in the parents’ shares in Whiteshore as of the application date based on unjust enrichment, it is not necessary to address whether the trial judge erred in her obiter comments with respect to the application of s. 21(3) of the FPA . F. Did the trial judge err by refusing to award Janice costs? [ 126 ] Janice contends that the trial judge erred in refusing to order costs in her favour. In this regard she raises two issues: (

i) that she should have received the costs of her certified business valuator, as that valuator’s evidence was preferred by the trial judge; and (ii) that the trial judge failed to give her an opportunity to address the issue of costs, in the context of Brent’s conduct, which had led to an adjournment of the trial. [ 127 ] Some background is required to fully understand Janice’s position with respect to costs. [ 128 ] The trial of this matter was originally set for June of 2017.

Less than 30 days prior to that date, Brent served Janice with a statement of expertise with respect to Marc Hoffart, a certified business valuator retained by him to critique the opinion of Dennis Pritchard, who had been hired by Janice to value the shares of Whiteshore. Mr. Pritchard had provided a report valuing Whiteshore’s shares on a liquidation basis. His valuation included the tax impact of redeeming the preferred shares and winding up the corporation. [ 129 ] At the time Brent’s statement of expertise was served, Mr. Hoffart had not yet completed his report.

That report was completed on June 9, 2017 and was provided to Janice on that date. Janice sought and was granted an adjournment of the trial to obtain a critique of that report from her own expert. The trial was rescheduled for October 23, 2017. During the course of the adjournment, Janice retained Angela Harris to value Whiteshore as a going concern. A statement of expertise and Ms. Harris’s report was provided to Brent on August 15, 2017. By that point, Janice had abandoned her reliance on the Pritchard report. [ 130 ] At trial, Brent called Mr.

Hoffart as a witness and sought to have him qualified as an expert for the purpose of valuing Whiteshore’s shares, including assessing any tax liability associated with those shares. Janice objected to having Mr. Hoffart provide an opinion with respect to tax implications, as that was not listed in the statement of his expertise. Brent contended that because Mr. Hoffart’s statement of expertise was directed at critiquing Mr. Pritchard’s valuation, which included an assessment of tax implications on the winding up of the corporation, Janice had received effective notice that Mr.

Hoffart would be addressing that topic. The trial judge concluded, that while no expert witness notice was served or filed with respect to Mr. Hoffart’s testimony as to the tax implications on the distribution of shares, adequate notice could be inferred. She allowed Mr. Hoffart to testify with respect to the tax implications.

To counter any prejudice to Janice, the trial judge gave Janice’s legal counsel “leave to request an adjournment on the conclusion of the direct evidence should he feel that one is necessary to adequately prepare his cross-examination or consider what, if any, rebuttal evidence may be appropriate”. Leave was also granted “to argue that the issue should be addressed further when the Court considers an award of costs”. [ 131 ] Janice’s legal counsel did not seek an adjournment before cross-examining Mr. Hoffart, nor did he call rebuttal evidence.

It is Janice’s position that the trial judge should have “sanctioned” Brent with a cost award as a result of his conduct. She also submits that the trial judge gave her leave to argue costs, but then denied her an opportunity to do so. [ 132 ] I find no merit in Janice’s position. An award of costs involves the consideration of many factors including, but not limited to, a party’s conduct during the course of the trial process, and their success at trial. There is no evidence Janice suffered any prejudice as a result of the trial being adjourned from June of 2017 to October of 2017 – a period of four months.

On the contrary, the adjournment gave

Janice an opportunity to retain a different business valuator and led her to abandon her position based on Mr. Pritchard’s report, namely,that Whiteshore should be valued on a liquidation basis. Brent was put to the expense of responding to Mr. Pritchard’s valuation eventhough it was not relied on by Janice at trial. While success at trial was mixed, a review of the judgment and issues at play discloses thatBrent was generally more successful than Janice. Finally, Janice had an opportunity to argue that costs should be assessed against Brent asa result of his conduct.

That opportunity existed when she gave her oral submissions at the conclusion of the trial, and when she submittedher written argument to the judge following the trial. Janice did not raise costs in her oral submissions. She did so, however, in her writtenargument. The trial judge was well aware of Janice’s position; she simply did not agree with it. [133] I am also of the view that Janice’s position with respect to costs for her expert is without merit. While the trial judge generallyaccepted the evidence of Janice’s business valuator, she preferred the evidence of Mr. Hoffart with respect to redundant assets.

Further,Janice and Brent’s experts were in significant agreement on many matters, which no doubt assisted the trial judge in her valuation. Finally,Brent called additional expert evidence with respect to the value of Whiteshore’s land. That evidence was relied on, at least to someextent, by both Brent and Janice’s business valuators. Brent did not receive costs for that expert. [134] Decisions pertaining to costs are discretionary in nature, and as such they attract a deferential standard of review in this Court.

Asstated by this Court in Wongstedt v Wongstedt, 2017 SKCA 100, 3 RFL (8th) 43: [41] …It is rare for an appellate court to interfere with a costs award due to the inherently discretionary nature of those awards: Bensonv Benson (1994), (SK CA), 120 Sask R 17 (Sask CA) at paras 89–90 [Benson]. In simple terms, the appellate courtlooks to see whether the trial judge misapplied some governing principle or rule or disregarded some critical fact or other consideration orwhether the costs award is itself “so obviously unjust to invite intervention”.

Given this deferential standard of review, it is the appellantwho bears the burden of establishing the judge erred in one of these ways…” See also K.R. v J.K., 2018 SKCA 35 at paras 99–102. [135] In my view, Janice has not met the significant burden of establishing the trial judge erred in exercising her discretion with respectto costs. Janice has not shown that the trial judge erred in principle or failed to take into consideration relevant factors. This ground ofappeal must also fail. VII. CONCLUSION [136] The appeal is dismissed.

Janice shall pay to Brent the costs of this appeal assessed in the usual way. “Ryan-Froslie J.A.” Ryan-Froslie J.A.I concur. “Schwann J.A.” Schwann J.A.I concur. “Leurer J.A.” Leurer J.A.