S.B. Appellant (Petitioner) v. T.B., 2022 SKCA 65

Court of Appeal for Saskatchewan Docket: CACV3646 and CACV3705 Citation: S.B. v T.B. , 2022 SKCA 65 Date: 2022-06-01 Between: S.B. Appellant (Petitioner) And T.B. Respondent (Respondent) Before: Whitmore, Schwann and Barrington-Foote JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Mr. Justice Whitmore In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Barrington-Foote On appeal from: DIV 306 of 2016, Regina Appeal heard: May 31, 2021 Counsel: Mervin Phillips and Leane Phillips for the Appellant Lindsay Hart and Jenna Sambrook for the Respondent Whitmore J.A. I. INTRODUCTION [ 1 ] S.B. appeals the decision of a judge of the Court of Queen’s Bench dealing with the division of family property and spousal support: S.B. v T.B. (30 April 2020) Regina, DIV 306 of 2016 [ Trial Decision ]. He raises a number of issues relating to the valuation of family property and entitlement of the respondent, T.B., to spousal support.

S.B. also appeals the subsequent decision of another judge of the Court of Queen’s Bench dated August 24, 2020, dealing with the matter of double costs that were assessed against him in relation to the Trial Decision [ Costs Decision ]. In my view, while the majority of the issues raised by S.B. do not disclose any errors, I would allow the appeal with respect to the trust and partnership issue, and the spousal support issue, to the extent explained herein. II. BACKGROUND [ 2 ] The parties married in 1994.

At that time, S.B. was working in construction and helping his father at the family farm and T.B. was employed as a clerk at a grocery store. Shortly after the marriage, S.B.’s parents, L.B. and G.B., moved off the farm so that S.B. and T.B. could reside in the family home and take over the farming operations. [ 3 ] T.B. and S.B. moved into the house that is situated on the northwest quarter of 33-8-31 [home quarter]. They raised their family there and farmed the other three quarters of

section 33, all of which were owned by S.B.’s father, L.B. L.B. continued to farm the home quarter until 1999, when he suffered a heart attack, at which time S.B. and T.B. farmed the home quarter as well. [ 4 ] The parties ran a grain and cattle operation. S.B. was the main operator of the grain farm and was supported by T.B. She prepared and took meals to the field, baled hay, transported grain during harvest and went for parts, et cetera, when necessary. Both parties also participated in the cattle enterprise.

During calving, T.B. typically worked the night shift and S.B. worked the day shift. [ 5 ] T.B. kept the books for the farm and paid the bills. She was also the primary caregiver for their three children and was responsible for the household chores. [ 6 ] From 2008 to 2013, T.B. worked off the farm as a critical care aide. She then left her job and returned to the farm to commence a purebred Black Angus cattle business to support the existing farm operation. She worked closely with L.B. on this aspect of the operation and L.B. helped T.B. with gardening and yard care. [ 7 ] In April 2006, L.B. set up the B.

Family Trust [trust] and later that month set up a partnership between himself and the trust. T.B. was one of the beneficiaries of the trust and received income from it, as did S.B. and his sister. [ 8 ] The parties separated in early 2016 and T.B. moved out of the family home. When T.B. left the farm in 2016, she was unemployed but secured part-time employment at a clothing store in September 2016, which became full-time in September 2017. She looked for a position as a critical care aide and obtained employment in that field in October of 2018.

S.B. continued to farm after the separation and retained the income from the farm. [ 9 ] L.B. died suddenly in April 2016, ten days after the parties separated. L.B.’s will, dated November 17, 2011, named S.B. and his sister as executors. S.B. inherited the entirety of

section 33, and S.B. and his sister inherited the residue in equal shares. [ 10 ] On June 3, 2016, S.B. filed a petition in the Court of Queen’s Bench in which he sought divorce, custody, child support, an equal division of the family home (buildings) and an unequal division of the family property. S.B. subsequently amended his petition

when he became the owner of certain lands and other assets pursuant to the terms of his father’s will. In his amended petition, S.B. asked for an unequal division of that property based on that inheritance. In T.B.’s answer and counter-petition, she sought spousal support and an equal division of the family home and other property. III.

THE TRIAL DECISION [ 11 ] The issues at trial were the appropriate division of the family home and property, the valuation dates in relation to the family property, and spousal and child support. [ 12 ] The first significant issue that the trial judge turned to was child and spousal support.

She proceeded to determine the parties’ respective incomes for support purposes, finding S.B.’s income to be $134,000 per annum and T.B.’s income to be $33,500 per annum. [ 13 ] She then said: [33] As a result of my conclusion that [S.B.’s] income is the sum of $134,000.00 per year and [T.B.’s] income is the sum of $33,500.00 per year, [S.B.] must pay the sum of $1,144.00 to [T.B.] and [T.B.] must pay the sum of $263.00 to [S.B.] for the set-off amount of $880.00 (rounded). [S.B.] shall pay s. 9 child support in the set-off amount of $880.00 per month commencing May 1, 2020 and continuing on the 1st day of each and every month thereafter. … [35] [S.B.] asks for retroactive support regarding some of [the middle child’s] post-secondary expenses.

In total, [the middle child] only completed three semesters of her program before deciding it was not something she wished to pursue. [S.B.] did make payments on account of [the middle child’s] post-secondary program for tuition and rent.

He also assisted [the middle child] with the purchase of a vehicle. [S.B.] says [T.B.] should contribute to those post-secondary expenses. [S.B.] is asking that [T.B.] contribute $6,000.00 towards the schooling expenses and $10,000.00 towards the vehicle. [36] [T.B.] was not consulted before [S.B.] purchased the vehicle worth $17,953.00. [The youngest child] received a vehicle of $9,500.00 which was known by [T.B.]. [T.B.] takes the position that it would be unfair for her to contribute the sum being asked by [S.B.] as it was extravagant for him to buy the car in issue.

Further, there were some funds available for [the middle child] to use for post- secondary education. In all of the circumstances, I am ordering [T.B.] to pay the sum of $7,000.00 as retroactive support for [the middle child]. [ 14 ] Turning then to spousal support, the trial judge considered s. 15.2 of the Divorce Act , RSC 1985, c 3 (2d Supp) [ Divorce Act ] and found that T.B. was entitled to support on both a compensatory and non-compensatory basis. On this point, she said as follows: [41] I find that [T.B.] is entitled to continuing spousal support both on a compensatory and non-compensatory basis.

The role she played during the parties’ 22-year marriage must be considered. She was out of the work force for a considerable period of time raising children, managing the house, driving meals to [S.B.] in the field and doing other jobs in and around the farm. She can no longer share with [S.B.] the income of the farm and must rely on her own income. [42] There is a non-compensatory aspect to this matter as well as compensatory. [S.B.’s] income is the sum of $134,000.00 per year while [T.B.] continues to struggle at $33,500.00 per year. This is a significant disparity in the incomes of the parties.

When the parties were together, they would have had combined income to pay expenses and spend on activities. Based on the disparity of income, [T.B.]’s standard of living has dropped and is nowhere near the standard of living that [S.B.] has in light of his continuing farm income. Quantum and duration [43] It is well established in Saskatchewan that the [ Spousal Support Advisory Guidelines [ SSAG ]] are a tool that judges can use when determining the quantum and duration of spousal support. Both parties made representations based on the SSAG . However, they used different incomes.

I have concluded that [S.B.’s] income is the sum of $134,000.00 and [T.B.]’s income is the sum of $33,500.00. Utilizing those incomes and accounting for the s. 9 child support payable for [the youngest child], the SSAG sets out the following range: - low range $1,712.00 - mid range $2,166.00 - high range $2,619.00 [ 15 ] The trial judge then ordered spousal support on the lower range of this calculation, or $1,712 per month, commencing May 1, 2020. [ 16 ] The trial judge then dealt with the family home and property issues.

Her first step was to determine which valuation date to use: “the date of application, the date of adjudication or a mixture thereof when valuing assets” (at para 46). [ 17 ] The trial judge noted that the date of adjudication is primarily used for land as the increases or decreases in real property typically arise from market fluctuations. Relying on this Court’s decision in Ackerman v Ackerman , 2014 SKCA 137 at para 37 , [2015] 6 WWR 626 [ Ackerman ], she determined that the family home should be valued at the date of adjudication, as the increase in value in this case was primarily a result of market forces.

She further determined that an appraisal of the farmland, including the family home, dated June 1, 2019, prepared by an appraiser commissioned by T.B. represented the date closest to the date of adjudication. [ 18 ] The trial judge accepted T.B.’s submission as to the value of the family home. She also determined the remainder of the real property should be valued as of the date of adjudication. Regarding the land that S.B. inherited from his father, she again accepted the value closest to the date of adjudication as submitted by T.B.

[19] As to the livestock, the trial judge relied on expert testimony but made some downward adjustments. She set the value of thelivestock at $700,000. [20] The trial judge next considered possible exemptions and granted S.B. an exemption of $15,685 for one quarter

section of landthat he had brought into the marriage and $9,000 for each of two other quarter sections of land which were in the process of beingpurchased at the time of the parties’ marriage. She declined to grant an exemption claimed by S.B. for certain equipment, as he hadtendered no evidence as to the value of that equipment at the time of marriage. [21] The trial judge considered the land S.B. had inherited and the fact the parties had worked the land for 22 years of theirmarriage before L.B.’s death.

She determined that it would be equitable that 75 per cent of the value of the inherited land be divisiblefamily property and that 25 per cent of the value would be granted to S.B. without a claim by T.B. The trial judge determined that thefamily home and the home quarter should be divided equally. [22] In summation, the trial judge found that S.B. had assets of $2,748,917 that were subject to division and T.B. had assets of$290,722 which resulted in an equalization payment to T.B. by S.B. in the amount of $1,229,097.

She declined to discount any notionalcosts of sale. [23] The trial judge summarized her conclusions as follows in the Trial Decision: [97] In

summary:

(1) Based on an income for [S.B.] at the sum of $134,000.00 and [T.B.’s] income of $33,500.00, pursuant to s. 9 of the [Federal ChildSupport Guidelines [Guidelines]], [S.B.] shall pay $880.00 per month for the support of [the youngest child], commencing May 1, 2020,and continuing on the 1st day of each and every month thereafter.

(2) Pursuant to s. 7 of the Guidelines, [S.B.] shall pay 80 percent and [T.B.] shall pay 30 [sic] percent. (3) [T.B.] shall pay to [S.B.] $7,000.00 as retroactive child support for [the middle child]. (4) [S.B.] shall pay $1,712.00 as spousal support commencing May 1, 2020 and continuing on the 1st day of each and every monththereafter until further order or agreement.

(5) With respect to property, [S.B.] shall pay to [T.B.] the sum of $1,229,097.00, plus 50 percent of the RRSP valued at $30,433.00. [24] Following the issuance of the Trial Decision, the trial judge retired. T.B. applied to have the judgment corrected as she allegedthat the trial judge had erred in not including the mineral rights that were associated with the farmland that S.B. had inherited as divisibleproperty.

Another Queen’s Bench judge took carriage of the matter [Second QB judge] and allowed T.B.’s application to correct thejudgment: T.B. v S.B. (28 May 2020) Regina, DIV 306 of 2016 [Subsequent Judgment]. [25] After hearing from the parties on costs, the Second QB judge issued the Costs Decision, allowing T.B.’s application for doublecosts. [26] From these three decisions, S.B. appeals. IV.

JURISDICTION AND STANDARD OF REVIEW [27] The source of S.B.’s right of appeal is s. 7 of The Court of Appeal Act, 2000, SS 2000, c C-42.1, s. 21 of the Divorce Act, s. 101of The Queen’s Bench Act, 1998, SS 1998, c Q-1.01, and s. 55 of The Family Property Act, SS 1997, c F-6.3 [FPA]. [28] This appeal relates to discretionary decisions as to spousal support and family property. The standard of review applicable todiscretionary decisions is deferential.

An appeal court may intervene if the judge made a palpable and overriding error in their assessmentof the facts, including as a result of misapprehending or failing to consider material evidence. It may also intervene if they failed tocorrectly identify the legal criteria which governed the exercise of their discretion or misapplied those criteria, thereby committing an errorof law.

Such errors may include a failure to give any or sufficient weight to a relevant consideration: Kot v Kot, 2021 SKCA 4 at para 20,63 ETR (4th) 161 [Kot]; S.A.R. v A.K.L., 2021 SKCA 124 at para 14; and L.P. v Z.M., 2021 SKCA 134 at para 31. [29] In Alansari v Kreke, 2020 SKCA 122 at paras 3–5, this Court confirmed the discretionary standard of review to applicable tomatters of custody, spousal support and family property, citing Hickey v Hickey, (SCC), [1999] 2 SCR 518 at paras 11–12, Van de Perre v Edwards, 2001 SCC 60, [2001] 2 SCR 1014, and Ackerman at paras 22–24.

See also, Rathwell v McLaughlin, 2022SKCA 21 at para 32. V. ISSUES [30] S.B. raises the following issues: (

a) Did the trial judge err in determining the date of valuation of the real property? (

b) Did the trial judge err in determining the issue of the inheritance in relation to the claim for an unequal division of the familyhome and/or property? (

c) Did the trial judge err in her valuation of the trust and mineral rights?

(

d) Did the trial judge err in her valuation of the livestock? (

e) Did the trial judge err in not finding there to be any tax consequences or other costs of disposition which ought to have beenincluded in determining the value of the family property for division purposes? (

f) Did the trial judge err in determining the ongoing spousal and child support obligations of S.B. to T.B.? (

g) Did the Second QB judge err in the award of costs? VI. ANALYSIS A. Did the trial judge err in determining the date of valuation of the realproperty? [31] S.B. submits that, although the trial judge referred to this Court’s decision in Ackerman, she did not consider all of thecircumstances at play and only referred to the fact that the date of adjudication is primarily used for the valuation of real property becauseit reflects the increases or decreases attributable to market forces.

He says the trial judge should have considered the increase in value ofthe farmland and whether that increase was due to his hard work and effort to keep the farm operation going. [32] In my view, the trial judge made no error here with respect to her appreciation of the applicable law. In determining the correctdate of valuation for the parties’ real property, the trial judge said: [46] … I am guided by the principles as set out by our Court of Appeal in Ackerman v Ackerman, 2014 SKCA 137 at para 37, 451 SaskR 132. The court states as follows: [37] Value is defined in s. 2 of The Family Property Act 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. This definition gives trial judges considerable discretion in determining whether to use the application date or the adjudication date tovalue family property. The ambit of that discretion has been considered by this Court and a review of that jurisprudence reveals thefollowing principles: (

i) The application date is the date traditionally used by courts for valuation purposes (see: Benson v Benson (1994), (SK CA), 120 Sask R 17 (CA) at para 34 [Benson]). (ii) Generally, property should be valued consistently at either the application date or the date of adjudication.

If property is valued atdifferent dates, the court should provide an explanation for doing so (see: Tataryn v Tataryn (1984), (SK CA), 6 DLR(4th) 77 (Sask CA) at 80 and Russell at para. 25). (iii) In determining the appropriate valuation date, a judge must act rationally based on the evidence before him or her; keeping in mindthe purpose of the Act and the justice of the case (see: Benson at para. 33, [Russell v Russell (1999), (SK CA), 179DLR (4th) 723 (Sask CA)] at para. 28, and Williams v Williams, 2011 SKCA 84 at para 29, 343 DLR (4th) 720). (iv) The choice of a valuation date will be informed in part by the sufficiency of the evidence of value pertaining to each date (see: Russellat para. 28); (

v) If property has increased or decreased in value between the application date and the date of adjudication, the reason for that increase ordecrease is an important factor to be considered in choosing the appropriate valuation date. If the increase or decrease is due solely tomarket forces the property should generally be valued as of the date of adjudication (see: Benson at para. 34, Russell at para. 45, Mehling vMehling (1989), (SK CA), 75 Sask R 195 (CA)).

On the other hand, when the rise or fall in value is attributable solelyto the actions of one spouse, it is appropriate to value the property as of the date of application (see: Gresham v Gresham (1988), (SK CA), 72 Sask R 9 (CA) and Benson at para. 34). I would add that any contribution by a third party to the increase ordecrease in value of family property, would militate in favour of valuing that property as of the application date. (vi) The type of distribution contemplated by the Court, eg. sale or transfer to one or both spouses, may also be relevant to the choice ofthe valuation date.

Other considerations may also apply. It is often the case that the value of farmland has increased or decreased between the two dates. The date of adjudication is primarily usedfor land as the increases or decreases arise from market fluctuation. [33] These principles have been applied by this Court numerous times. As noted above, it is well settled that a trial judge should beaccorded deference in their determinations of such matters.

In her decision, the trial judge informed herself of the principles and found thatthe date of adjudication was the more appropriate date because the value of the property had increased due to market forces. Absent anerror of the nature described in Ackerman or Kot, the trial judge’s decision to value the parties’ real property, including the family home,at the date of adjudication should be given deference.

[34] The appraisers called by both S.B. and T.B. testified at trial that the value of farmland in Saskatchewan has increased fromanywhere between 7 per cent and 12 per cent each year since 2016. On the other hand, S.B.’s testimony that the increase in value at theapplication date was a direct result of his own hard work is unsupported by any other evidence. He provided no evidence to support hisclaim that his ongoing farming of the land is what caused any significant increase in the value of the land. [35] The trial judge was required to make her decision based on the evidence before her.

That evidence established, in her view, thatthe date of adjudication was the more appropriate date. Both S.B. and T.B. had provided evidence of the value of the property fromindependent appraisers. T.B.’s appraiser provided land values as close as possible to the adjudication date, whereas S.B.’s appraiser onlyvalued the land at the date of application.

Because the trial judge found that the adjudication date was the appropriate date and that S.B.had provided no evidence regarding the land value for that date, the trial judge chose to use the values given by T.B.’s appraiser. [36] S.B.’s reliance on Rapp v Bauman, 2018 SKQB 134 [Rapp], for the proposition that, because he was in operational control andsolely responsible for the success and risk of the business, the date of application is more appropriate, is misplaced.

In Rapp, there wasevidence presented that indicated specific improvements paid for by the husband since the application date had increased the value of theproperty and the value at the date of adjudication was not discernible. [37] The spousal relationship in Rapp was approximately six years, with the time between the application and adjudication datebeing approximately eight years. During that time, the husband made significant improvements to the family home and took on the soleresponsibilities of the dairy operation when his brother left and incorporated the business.

In comparison, in the case before this Court, theparties were married for 22 years and the period between the application date and the adjudication date was four years. There wasevidence provided at trial that, in general terms, the prices of farmland in Saskatchewan had increased in the intervening years. Unlike thefacts in Rapp, S.B. did not adduce evidence of any specific improvements or changes that he had made during that time. [38] In my opinion, there is no error present in the trial judge’s reasoning.

Given that there was no evidence presented by S.B. thathe made improvements which had a direct bearing on the increased value of the land, aside from simply maintaining it and continuing touse it for the purpose of farming, the trial judge was unable to discern any other reason for the increase in value other than that it wasdriven by purely market forces. In the absence of such evidence and, given the deferential treatment of the trial judge’s choice for theappropriate valuation date, the trial judge’s selection of the date of adjudication does not represent an error requiring this Court’sintervention.

There is no merit to this ground of appeal. B. Did the trial judge err in determining the issue of the inheritance in relationto the claim for an unequal division of the family home and/or property? [39] S.B. submits that the inheritance he received from his father’s estate should not be treated as shareable property considering theexpress intentions of his father pursuant to his last will and testament to exclude spouses of beneficiaries from receiving property from hisestate.

He further submits that, should the property be considered in the family property division, the trial judge should have determinedthat there were extraordinary circumstances which called for an unequal division of the home quarter and family property in an amountless than what the trial judge had determined. [40] Again, it is my view that the trial judge made no error here. The court has the discretion to distribute inherited family propertyin the most fair and equitable way it sees fit, regardless of the intentions of the testator: Olson v Olson (1988), (SKCA), 67 Sask R 257 (CA) at paras 27–28 [Olson].

The fact that S.B.’s father expressly stated that spouses were not to benefit from theproperty in the will is only one factor to be considered in how the court treats the distribution of inherited property: Peltier v Peltier, 2007SKQB 264 at para 114, 298 Sask R 161. [41] This issue is twofold because the inheritance included the home quarter where the family home was located, and the trial judgetreated the family home and the rest of the inherited land differently. [42] Dealing first with the family home, the FPA defines this term as follows: 2(1) In this Act: … “family home” means, subject to subsection (2), property: (

a) that is: (

i) owned by or leased to one or both spouses, or in which one or both spouses have an interest, including, without limiting the generalityof the foregoing, an interest pursuant to a partnership or trust or an interest as a purchaser pursuant to an agreement for sale; or (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 entitledto 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 byone or both of them as the family home; and that is: (

c) a house or part of a house, including the land appurtenant to it consisting of not more than 65 hectares; (

d) part of business premises used as living accommodation; (

e) a trailer or vehicle commonly referred to as a mobile home, including the land appurtenant to it consisting of not more than 65 hectares;

(

f) a unit as defined in The Condominium Property Act, 1993 , including the owner’s share in the common property; or (

g) a suite; “ family property ” means any real or personal property, regardless of its source, kind or nature, that, at the time an application is made 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 third person, and, without limiting the generality of the foregoing, includes the following: (

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

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

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

d) property mentioned in

section 28; …

(2) For the purposes of Parts IV, V and VI, a family home must also meet the requirements of family property as defined in subsection (1). [ 43 ] Pursuant to this definition, the fact that the parties did not own their home during their marriage does not exclude it from the definition of “family home” within the meaning of the FPA . [ 44 ] That point was explained by this Court in Carruthers v Carruthers , 2021 SKCA 52 , 56 RFL (8th) 110 [ Carruthers ]: [50] Further, it is important to recognize that finding a residence to be a family home, does not mean it will have any value for division purposes.

This is so because value for division purposes will depend to a large extent on the nature of the interest held by the spouses 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 in the home pursuant to an express, resulting, or constructive trust. They may have an interest in accordance with the terms of a written agreement. 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 the shares of the corporation. This is so because the corporation owns the home and the spouses’ interest is based on their share holdings in the corporation.

In every case, a contextual analysis is required, always keeping in mind that the overarching purpose of the FPA is to achieve equity. [ 45 ] Here, although there was no express agreement in place, the interest of the parties in the family home could be characterized as a tenancy interest as suggested in Carruthers . Then, when S.B. inherited the home through L.B.’s will, his interest became one of beneficial ownership.

Further, the parties clearly occupied the home, raised their three children there and made improvements to it as if it was their own. [ 46 ] The division of the family home is treated differently than the division of other family property. The division of the family home is governed by s. 22 of the FPA , which states: Distribution of family home 22

(1) Where a family home is the subject of an application for an order pursuant to subsection 21(1), the court, having regard to any tax liability, encumbrance or other debt or liability pertaining to the family home, shall distribute the family home or its value equally between the spouses, except where the court is satisfied that it would be: (

a) unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (

b) unfair and inequitable to the spouse who has custody of the children.

(2) Where clause (1)(

a) or (

b) applies, the court may: (

a) refuse to order any distribution; (

b) order that the entire family home or its value be vested in one spouse; or (

c) order any distribution that the court considers fair and equitable.

(3) Where there is more than one family home, the court may designate to which family home this

section applies, and any remaining family home is to be distributed in accordance with

section 21 . [ 47 ] S.B. argues that the family home is inherited property and is subject to an exclusion clause, which is an extraordinary circumstance that makes an equal division unfair and inequitable. [ 48 ] The evidence established that the parties farmed the land that the home is on, running both grain and cattle operations. The couple raised their children at this home and treated it as their own. Although the parties did not have title to the home, it was viewed and treated by them as family property.

Both parties agreed that they had an equal partnership in their marriage with T.B. taking on a large role in the household duties, childrearing, bookkeeping and then eventually a major role in the cattle operation. S.B. took care of most of the other farming operations, however, he was still an active father. The trial judge found both parties’ efforts contributed significantly to the

family unit. [49] This Court in Olson summarized the rules regarding the division of inherited family property: [27] The principles governing the treatment of inheritances are well settled. An inheritance or an entitlement to an inheritance receivedduring the marriage is a shareable asset. And an inheritance conferred on one spouse to the exclusion of the other is not for that reason,alone, to be excluded from the distribution of the matrimonial property on the ground of unfairness and inequity.

Property which is notexempt is to be shared equally, unless there is something in all of the circumstances, including but by no means limited to its acquisition,which makes an equal sharing unfair and inequitable. The onus is on the party making the claim that the equal sharing otherwisecontemplated by the law is unfair and unequal: Seaberly v. Seaberly (1985), (SK CA), 37 Sask. R. 219. [28] In Seaberly’s case and in Ross v. Ross (1986), (SK CA), 49 Sask.

R. 52, we indicated that among thecircumstances to be taken into account in determining whether an inheritance ought to be distributed unequally, (having regard for thecourt’s power to do so under s. 21(2)€ of the statute) was the timing of the inheritance. When, relative to the span of the marriage, did thebeneficiary become entitled to the gift?

We held, as well, that the intention of the testator, while relevant, is certainly not conclusive. (Emphasis in original) See also, Tyacke v Tyacke, 2021 SKCA 80 at paras 27–29 [Tyacke]. [50] The present situation is similar to that in Seaberly v Seaberly (1985), (SK CA), 37 Sask R 219 (CA)[Seaberly]. In Seaberly, this Court said: [11] However, Pepper v. Pepper (1982), (SK KB), 18 Sask. R. 144, and Raes v.

Raes (1983), (SK KB), 30 R.F.L.(2d) 91, were cited as authority for the proposition that an inheritance conferred on one spouse to the expressexclusion of the other, is for that reason alone, to be excluded from distribution. In Raes the trial judge declined to give the wife any partof two quarters of farm land inherited by the husband, saying: “If the father had intended to benefit both parties surely he would have said so in his will. The bequest was made to the husband only andfurther provides that the land be divided equally among the children of the husband if the husband predeceased him.

If the father hadintended to benefit both the husband and wife he would have provided that the land would go to both of them. It would be unfair andinequitable to distribute any of the land so bequeathed to the husband.

The [land] will therefore be excluded from the distribution ofmatrimonial property.” While the will in Raes is indistinguishable from the will in this case, the timing of the inheritance was appreciably different, since in Raesthe gift was received two years before the end of a 30 year marriage, while here it was received 15 years before the end of a 22 yearmarriage. [51] Although in Seaberly the inheritance was received during the seventh year of the parties’ 22-year marriage whereas, in thiscase, the inheritance was received at the very end of the parties’ relationship, this Court’s reasoning in Seaberly applies to the division ofthe family home here.

While it is true that the timing of the inheritance and the intention of the donors are to be considered, in my view,the trial judge saw these factors as not being sufficient to overcome the principle of equal division of the family home. This is especiallyso when one considers the fact that the family home, which was part of the inheritance, was used and treated throughout the marriage asfamily property and was part of the economic base of the family unit.

Because the family home was used and improved extensively by theparties during the duration of their marriage, it would be inequitable and unfair for S.B. to solely benefit from the property. S.B.’s fatherdied suddenly.

This is not a situation where a third party deliberately gifted property to one of the spouses after their separation with theintention that only one spouse would benefit from it (see, J.E.S. v J.G.B., 2018 SKQB 17 at paras 154 and 158 [J.E.S.]). [52] S.B.’s argument that it was unfair and inequitable to distribute the value of the family home equally solely because it wasbequeathed to him conflicts with what this Court said in Seaberly: “an inheritance conferred on one spouse to the express exclusion of theother, is not, for that reason alone, to be excluded from distribution in whole or in part” of the family property on the ground of unfairnessand inequity (at para 13).

The trial judge was alert to S.B.’s argument and considered whether there were any extraordinary circumstancesthat warranted unequal distribution. In the end, she concluded as follows: [50] I have determined that there is no evidence of an extraordinary circumstance that would lead me to divide the home quarter otherthan equally. [S.B.] takes the position that there should be no distribution of the family home. He argues that he rented the home andhome quarter from his father during the course of their marriage, and never owned it. I accept that as being the evidence.

However, theevidence of [T.B.] and other witnesses was to the effect that [T.B.] and [L.B.] had a wonderful relationship and that they worked closelytogether on maintaining the family home and yard. In addition, [S.B.] and [T.B.] did renovations to the property as if they owned it. [53] S.B. also takes issue with the trial judge’s treatment of L.B. and T.B.’s close relationship and argues that the trial judgeerroneously found that T.B. had a close bond with his father.

The trial judge was entitled to take account of both S.B.’s evidence that hedid not own the home during the marriage and T.B.’s evidence that, despite them not owning the home, they put significant work into it asif they did and that she had an amicable relationship with S.B.’s father.

The trial judge’s decision to divide the family home equallyrepresents a weighing of the evidence in a consideration of the factors outlined in Tyacke, Olson and Seaberly, as well as the legislativeintention expressed in s. 22 of the FPA. [54] Turning now to the other three quarter sections of farmland that L.B. bequeathed to S.B., S.B. argues that land should bedivided unequally pursuant to the equitable considerations that the court can consider under s. 21(3) of the FPA. Section 21(3) is asfollows: 21(3) For the purposes of subsection (2), the court shall have regard to the following: (

a) any written agreement between the spouses or between one or both spouses and a third party;

(

b) the length of time that the spouses have cohabited; (

c) the duration of the period during which the spouses have lived separate and apart; (

d) the date when the family property was acquired; (

e) the contribution, whether financial or in some other form, made directly or indirectly by a third party on behalf of a spouse to the acquisition, disposition, operation, management or use of the family property; (

f) any direct or indirect contribution made by one spouse to the career or career potential of the other spouse; (

g) the extent to which the financial means and earning capacity of each spouse have been affected by the responsibilities and other circumstances of the spousal relationship; (

h) the fact that a spouse has made: (

i) a substantial gift of property to a third party; or (ii) a transfer of property to a third party other than a bona fide purchaser for value; (

i) a previous distribution of family property between the spouses by gift or agreement or pursuant to an order of any court of competent jurisdiction made before or after the coming into force of this Act or The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (No. 2) ; (

j) a tax liability that may be incurred by a spouse as a result of the transfer or sale of family property or any order made by the court; (

k) the fact that a spouse has dissipated family property; (

l) subject to subsection 30(3), any benefit received or receivable by the surviving spouse as a result of the death of his or her spouse; (

m) any maintenance payments payable for the support of a child; (

n) interests of third parties in the family property; (

o) any debts or liabilities of a spouse, including debts paid during the course of the spousal relationship; (

p) the value of family property situated outside Saskatchewan; (

q) any other relevant fact or circumstance. [ 55 ] As mentioned above, S.B. takes specific issue with the trial judge’s reference to T.B. and L.B.’s close relationship and argues that she put undue weight on this fact in weighing it against the exclusion clause in L.B.’s will. In my view, this allegation is unfounded.

When assessing the equitable considerations under s. 21(3) , the trial judge referred to the fact that T.B. and L.B. were close, but that was not the decisive factor as she ultimately concluded that it was “the work that S.B. and T.B. did jointly that I consider a significant factor” ( Trial Decision at para 87). [ 56 ] In making her decision about the division of the inherited land, the trial judge considered the fact that, although the property came into S.B.’s ownership after the separation and at the end of the marriage, the inherited land was a part of both T.B.’s and S.B.’s lives and part of their livelihoods for the entirety of the marriage.

This was an entirely reasonable

interpretation of the evidence that was open to her (see, J.E.S. at para 152 ). [ 57 ] In her analysis of how to divide the remaining inherited farmland, the trial judge correctly referenced the decision in Seaberly and stated that she must identify whether it would be unfair and inequitable to include the land in the property division. As mentioned, this Court in Seaberly held that, in cases where property is inherited to the express exclusion of the other spouse, it “is not, for that reason alone, to be excluded from distribution in whole or in part” (at para 13).

Rather, the totality of the circumstances must be examined. The property will be deemed equally shareable unless there is something in all the circumstances that would otherwise render equal sharing unfair. [ 58 ] After instructing herself as to the relevant law and after considering the relevant facts, the trial judge held that 75 per cent of the inherited farmland should be equally divisible.

Given that the trial judge felt that an unequal division of the property was the fairest and most equitable conclusion, it was clear that she was aware of the need for a delicate balancing of the parties’ competing rights and interests. [ 59 ] T.B. and S.B. farmed the property that was bequeathed to S.B. for the entirety of their marriage and lived off the profits from those farming endeavours.

Although S.B. managed most of the farming operations, the entire operation was clearly a joint endeavour through the years, with T.B. contributing significantly to it. [ 60 ] The trial judge’s determination to divide 75 per cent of the inherited property was a discretionary decision for her to make. I am satisfied that the trial judge instructed herself on the relevant law and analyzed all of the facts and evidence before her. I am not persuaded that she erred in a manner that would permit appellate intervention. [ 61 ] There is no merit to this ground of appeal. C.

Did the trial judge err in her valuation of the trust and mineral rights?

[ 62 ] The trial judge found that, upon L.B.’s death, S.B. and his sister became the sole trustees and beneficiaries of the trust property. The trial judge noted that, before his death, L.B. had established a partnership between himself and the trust and had transferred his personally owned mineral rights into the partnership by way of agreement. Therefore, when L.B. passed away, the residue of his estate – including his interest in the partnership and the mines and mineral titles owned by it – was left to S.B. and his sister.

The trial judge acknowledged this at paragraph 70 of her decision where she said that “now that [L.B.] has passed away, [S.B.] and [his sister] are now the registered owners of the mineral titles”. [ 63 ] Based on the expert evidence before her, the trial judge determined that the value of the mineral rights was $752,500. She found that S.B. was a half-owner of the mineral rights and thus valued his interest in those rights at $376,250. However, she did not analyze and determine S.B.’s interest, if any, in either the trust or the partnership.

Although she determined the value of S.B.’s share of the mineral rights, the trial judge did not include that value in her final calculation of family property available for distribution. [ 64 ] This failure to include the value of the mineral rights in the family property calculation led to an application by T.B. to correct this error, which resulted in the Subsequent Judgment by the Second QB judge.

The Second QB judge applied the same analysis for division of the rest of the inherited family property to the apportionment of the trust and mineral rights as follows: [13] Thus it is clear that [the trial judge] turned her mind to the issue of whether there was divisible family property in the asset. Otherwise there is no reason to undertake the valuation analysis.

A simple conclusion would suffice that the asset is not family property thus the expert evidence would not need to be assessed. [14] The result is that the judgment ought to include the additional asset, being $188,125 in value representing [S.B.’s] interest in the shares of the mineral rights. [ 65 ] Although it was not brought up by either party on this appeal, I note that the Second QB judge appears to have erred in his calculation of the value of the mineral rights. It seems he reduced the value of S.B.’s share of the mineral rights by half from $376,250 to $188,125.

In my view, the Second QB judge must have mistakenly interpretated $376,250 as representing the entire value of the mineral rights and divided this figure in half to account for S.B.’s 50 per cent share of those assets. By doing so, the Second QB judge failed to recognize that the trial judge had already halved the full value of the mineral rights to arrive at a value of $376,250, which represents S.B.’s 50 per cent share.

In any event, this slip of the pen seems to have been corrected at paragraph 16 of the Subsequent Judgment when the Second QB judge increased the equalization payment by $141,093.75 as opposed to further reducing it to account for the division of the asset. As noted above, neither party raised this issue and it does not appear that anything turns on it, however, to avoid confusion it should be corrected. [ 66 ] With that observation dealt with, I will turn to S.B.’s submissions about the portion of the Trial Decision and Subsequent Judgment dealing with mineral rights. 1. Errors in

interpretation of the legal status of agreements and titles related to the mines and minerals [ 67 ] S.B. submits that the trial judge erred in making her determination of the legal status and

interpretation of the agreements and titles to the mines and minerals, and in particular by ignoring the interests of third parties, namely L.B.’s grandchildren. S.B. also argues that, in making her decision, the trial judge neglected to consider this Court’s decision in Grosse v Grosse , 2015 SKCA 68 , 387 DLR (4th) 473 [ Grosse ], which deals extensively with the treatment of trust property in family property disputes. [ 68 ] I will first attempt to clarify the true nature of the property held by S.B., an issue that is the subject of some confusion between the parties.

The discretionary trust was created on April 26, 2006. The original trustees were L.B. (S.B.’s father) and his friend, H.G. The beneficiaries of the trust are defined as follows: “Beneficiaries” means [L.B.], and his issue, [S.B.’s sister], her spouse and her issue, and [S.B.], his spouse and his issue. [ 69 ] Following the passing of H.G. in 2013, S.B. and his sister were added as trustees of the trust.

Thus, on the date of petition, S.B. was both a trustee and beneficiary of the trust while T.B., as S.B.’s spouse, was a beneficiary of the trust. [ 70 ] The partnership, on the other hand, was constituted on April 30, 2006. It was created with two partners, L.B. and the trust. Both L.B. and the trust contributed $1.00 to the partnership as the initial contribution of capital pursuant to clause 6. The percentage interest in the partnership for the two partners was left to be determined by them from time to time, pursuant to clause 7.

There is nothing further that speaks to the respective partnership interests held by L.B. or the trust and, consequently, I accept T.B.’s submission that, absent evidence establishing the exact percentage of L.B.’s partnership interest, s. 26 of The Partnership Act , RSS 1978, c P-3 , establishes a presumption of equal partnership. [ 71 ] Finally, on the same day that the partnership was created, a Mineral Transfer Agreement was executed, transferring the mineral rights held by L.B. personally to the partnership. In that agreement, L.B. sold to the partnership his mineral rights for a sale price of $62,500. The

preamble to the agreement noted that the sale of the mineral rights to the partnership was for the purpose of L.B. acquiring a greater interest in the partnership. Unfortunately, however, such a greater interest was not defined in the agreement. [ 72 ] Further, there is nothing in the Mineral Transfer Agreement that contemplates L.B. retaining any personal interests in the mineral rights transferred to the partnership.

Thus, it appears that the partnership owned the entirety of the mineral rights, with the corresponding result that the trust and L.B. each had a 50 per cent interest in the mineral rights due to the equal partnership interests of the two partners. The allocation of the partnership’s income between L.B. and the trust is not indicative of the respective partnership interests held by the partners.

Here, there was no evidence of the respective percentages of partnership interests. [ 73 ] Therefore, the trial judge ought to have made multiple valuations at trial: a valuation of the trust and, more specifically, of S.B. and T.B.’s interest in the trust; and a valuation of S.B.’s personal share of the partnership that he would have received on L.B.’s death. Since the mineral rights were the only asset of the partnership, and the partnership the only asset of the trust, the valuation of the mineral

rights themselves is a useful starting point in the analysis of the value of the respective assets comprising family property. I see no basis to disturb that specific valuation. [ 74 ] However, merely attributing to S.B. a 50 per cent interest in the mineral rights themselves, as the trial judge did, fails to account for the complex arrangement by which the beneficial ownership of the mineral rights was divided. The remainder of the mineral rights were held by the trust. The trial judge did not, unfortunately, follow the proper methodology pursuant to Grosse for valuing an interest in a trust.

The proper step would have been to value the trust and, more specifically, the respective interests in the trust held by S.B. and T.B. as beneficiaries. [ 75 ] The approach to be taken in situations such as this was set out by Ryan-Froslie J.A. in Grosse , as follows: [28] In my opinion, by virtue of the operation of subparagraphs (a), (

b) and (c) [of the definition of “family property” in The Family Property Act , SS 1997, c F-6.3 ], a court in determining what constitutes family property for division purposes must “pierce the veil” of whatever legal entity or device is used to hold property, including a trust and power of appointment to see what degree of control a spouse actually exercises over the property.

If a spouse retains the power to consume, invoke or dispose of that property, then the property is deemed , by virtue of the definition provisions of the Act , to be “family property” and its fair market value is prima facie subject to an equal division between spouses. [29] In the case at hand, I agree with Ms. Grosse that subparagraphs (a), (

b) and (

c) all apply with respect to Mr. Grosse’s interest in the Trust with the result that all of the Trust’s assets, as of the application date, constitute family property for division purposes. I say this for three reasons: First, Mr. Grosse is a contingent beneficiary of the trust and its sole trustee. He therefore has at least two interests in the Trust which constitute family property pursuant to subparagraph (a). Second, as trustee, he has a power of appointment over the Trust’s income and capital, which—based on the terms of the Trust Agreement—is exercisable in his favour.

Accordingly, all the Trust’s assets, including the Growth Shares, are family property in accordance with subparagraph (b). Third, Mr. Grosse caused the Growth Shares in Suite 100 to be issued to the Trust. The parties did not take issue with the trial judge’s conclusion that as the Trust’s sole trustee, he retains the power to consume, invoke or dispose of those Growth Shares. He also continues to be Suite 100’s sole director.

The Growth Shares are thus deemed to be family property pursuant to subparagraph (c). (Emphasis in original) [ 76 ] Therefore, the trial judge should have “pierced the veil” of the trust, in this case, in order to determine what degree of control and what degree of interest both S.B. and T.B. enjoy in the trust. On the face of it, it seems that S.B., as one of the two trustees of the trust, enjoys sufficient power to consume, invoke or dispose of the trust property such that the trust property itself could be deemed to be family property.

Although it might be reasonable to conclude that S.B.’s role and the historical distributions of trust income would likely warrant a finding that his interest in the trust was tangible enough for the trust to be considered family property, it is possible that a trial judge could come to a different conclusion given that S.B. is not the sole trustee and does not maintain exclusive decision-making authority with respect to the trust. All this being said, the trial judge failed to make either finding in regard to the trust. [ 77 ] However, that does not put an end to the analysis.

In Grosse , at paragraph 29 (see above), Ryan-Froslie J.A. focused on the fact that Mr. Grosse was a contingent beneficiary of the trust and as its sole trustee , could exercise a power of appointment over the trust’s income and capital directly in his favour and was solely responsible for issuing the trust property to the trust, in finding that all of the trust property was family property subject to division. In the present case, the circumstances are not directly analogous.

S.B. is a contingent beneficiary of a discretionary trust but is not the sole trustee, nor does he have a direct power of appointment exercisable in his favour given that clause 19 of the trust stipulates that decisions by the trustees are to be made on a majority basis. Whether these circumstances mean that the value of the trust subject to division is 50 per cent or some other figure is a decision that should have been made by the trial judge with reference to the circumstances of the case and this Court’s guidance in Grosse . Unfortunately, this analysis was not done by the trial judge. 2.

Failure to consider the interests of third parties [ 78 ] S.B. further submits that the trial judge erred in her assessment and valuation of the trust property by her failure to consider the interests of third parties, namely, L.B.’s grandchildren. In response, T.B. argues that, pursuant to Grosse , since no other third parties were added to the present action, no analysis need be done of their potential interest in the trust. [ 79 ] With respect, in my view, T.B. misinterprets Grosse .

Specifically, Ryan-Froslie J.A. explained that the non-joinder of the parties’ sons in that case did not automatically preclude the Court from considering the nature of their interest in the trust. Rather, Ryan-Froslie J.A. considered the nature of the sons’ interest in the trust and concluded as follows: [44] In my view, there is no merit to the argument that Ms. Grosse should receive less than an equal division of the property of the Trust pursuant to s. 21(3)(

n) of the Act , on the basis of the sons’ interest in the Trust or otherwise. The sons have only a contingent beneficial interest in the Trust. It is up to Mr. Grosse, as trustee, if, when and what they receive. As of the application date, the sons on their own , had no legal or equitable right to demand any of the Trust’s income or assets. This is so because Mr. Grosse is also a beneficiary of the Trust and according to the terms of the Trust, as trustee, he has sole control over the Trust’s income and assets.

He can choose, at any time, to take for his sole benefit whatever portion of the income and capital of the Trust he desires. In the circumstances, an unequal division of the Trust on the basis of the sons’ inchoate contingent beneficial interest in the property of the Trust is not appropriate. (Emphasis in original) [ 80 ] The above passage demonstrates the proper approach required for the valuation of an interest in a trust held by a spouse who is a party to a family property claim.

After determining that the trust property is family property, it would then be for the trial judge to determine whether the contingent beneficial interest of others in the trust affect the value of the trust that ought to be divisible as family property. It may be that, in the present case, the interests of S.B.’s spouse and his sister’s spouse and their issue are too remote or contingent to reduce the value of the trust that is divisible as between S.B. and T.B. Or it could be that the facts of the case support a

reduction in that value.

However, it is evident that the trial judge failed to grapple with this issue and failed to make a properdetermination of the value of the trust that was divisible as family property, and instead focused exclusively on the valuation of themineral interests, titles to which were in S.B.’s name. [81] The case of Gordon v Neilson, 2018 SKQB 207 [Gordon], is instructive on whether to reduce the value of a trust to account forthe potential interests of other beneficiaries: [155] In [Purtzki v Saunders, 2016 BCCA 344, 85 RFL (7th) 325], the British Columbia Court of Appeal said the question whether aninterest in a trust is vested or contingent is one not of entitlement, but of valuation.

There are degrees of contingency in trust arrangementsranging from a beneficiary’s faint hope of receiving something, someday, to a beneficiary possessing a more fixed and predictableexpectation of reward.

Contingent interests that have some degree of concreteness or solidity, or some degree of assurance that a party willactually derive or enjoy the benefit of those interests, are interests that are more susceptible to valuation. [156] This appears to be in keeping with comments made in Stein v Stein, 2008 SCC 35, [2008] 2 SCR 263, albeit in the broader contextof contingent interests in family property matters generally.

At paragraph 11, the Supreme Court of Canada noted that spouses have a rightto claim an interest even where the asset itself is “inchoate, contingent, immature, or not vested”. [157] On that analysis, the task, effectively, is to assess reasonable and probable outcomes in relation to the particular interest underconsideration. In the body of case law addressing the subject of family trusts, the outcome in each case is inevitably bound up with theunique facts before the court.

Trust arrangements are infinite in their variety. [82] This passage suggests that the effect of the interests of other beneficiaries on the value of the trust property for division must beassessed by the trial judge in light of the facts before the court. In Gordon, Wilkinson J. further stated, as follows: [153] Two court decisions, Kachur v Kachur, 2000 ABQB 709, 14 RFL (5th) 98, and Sagl v Sagl (1997), (ON SC),31 RFL (4th) 405 (Ont Ct J), underlie the husband’s proposition that the assessment of a contingent beneficiary’s interest should properlytake into the historical pattern of use of the trust.

Other relevant considerations include the source of the trust property, the intentions of thesettlor, the fiduciary responsibilities of the trustee(s), the competing interests of other beneficiaries. [83] Although, in Grosse, this Court declined to apply Kachur v Kachur, 2000 ABQB 709, 14 RFL (5th) 98, on the basis ofdifferences in the legislation, the factors identified in Gordon and Kachur are instructive and can nonetheless be helpful in determiningwhether it would be appropriate to discount the value of the trust in the present case.

As noted by Ryan-Froslie J.A. in Grosse: [44] In my view, there is no merit to the argument that Ms. Grosse should receive less than an equal division of the property of theTrust pursuant to s. 21(3)(

n) of the [Family Property Act], on the basis of the sons’ interest in the Trust or otherwise. The sons have only acontingent beneficial interest in the Trust. It is up to Mr. Grosse, as trustee, if, when and what they receive. As of the application date, thesons on their own, had no legal or equitable right to demand any of the Trust’s income or assets. This is so because Mr. Grosse is also abeneficiary of the Trust and according to the terms of the Trust, as trustee, he has sole control over the Trust’s income and assets.

He canchoose, at any time, to take for his sole benefit whatever portion of the income and capital of the Trust he desires.

In the circumstances, anunequal division of the Trust on the basis of the sons’ inchoate contingent beneficial interest in the property of the Trust is notappropriate. (Emphasis in original) [84] In Grosse, Ryan-Froslie J.A. did not close the door on valuing a contingent interest held by a third-party in a discretionary trust.Rather, she held that placing a value on such an interest is not automatic (as it was in Kachur), nor is it appropriate in a case where there isno history of distributions of trust property to beneficiaries other than the parties to the family property proceedings.

Therefore, at leastimplicitly, Grosse supports the proposition that the distribution history of the trust may be taken into account by the trial judge inassessing whether the value of the trust subject to division ought to be adjusted to account for the contingent interests of the otherbeneficiaries. [85] The trial judge did not err by valuing the mineral rights rather than the trust and the partnership interests as a starting point. Theonly asset of value held by the trust is the interest in the partnership.

In turn, the only assets held by the partnership are the mineral rights.Thus, underlying the value of both entities are the mineral rights themselves. Therefore, that value had to be determined. [86] Where the trial judge fell into error was by failing to assess S.B.’s interests in the partnership and trust and T.B.’s interest in thetrust to determine the proper valuation of divisible family property.

These issues must be remitted to the Court of Queen’s Bench. [87] Finally, S.B. submits that the analysis performed by the trial judge to determine the apportionment of family property was notappropriate for deciding the apportionment of the trust and mineral rights.

S.B. argues that the Second QB judge erred in applying thatsame analysis to both categories of property and that he “did not direct [his] mind to the unique status of this property as being trustproperty with other third party interests at stake”. [88] Given the above comments and the fact that the trial judge herself did not direct her mind to the unique status of the property asbeing trust property, the Second QB judge’s decision to apply the same inheritance analysis to the minerals must also be remitted.

Inaddition, there is only one asset (the partnership) that was inherited, while the trust was of a different nature. This was not addressed. Thevaluation for division of family property may be affected by a full analysis of the nature of the interest held by S.B., such that thediscretion to account for the fact that the assets were “inherited” may change if a different value is ascribed to the assets for divisionpurposes. 3.

Error in placing inappropriate weight on proven undeveloped land and failure to make an “ifand when” order [89] S.B. additionally argues that the trial judge erred in valuing the mineral interest by placing inappropriate weight on “proven

undeveloped land” [PUD] and disregarding the evidence of his expert, Robert Shirkie, an expert in wellsite geology with training and experience in the industry. Mr. Shirkie took issue with T.B.’s experts in two key respects: (

a) the need for a present value calculation, and (

b) including the value of PUDs. In his opinion, the mines and minerals should be valued at $286,000. S.B. also argues that the trial judge erred by failing to consider or apply an “if and when” order in accordance with s. 26 of the FPA with respect to mines and minerals. [ 90 ] I do not agree with either of these submissions, for the following reasons. [ 91 ] The trial judge was clear in her reasons for preferring T.B.’s expert, Darrel Schire’s valuation of the minerals over that of Mr. Shirkie. She then valued the mineral rights at $752,500 by using the mid-range provided by Mr. Schire.

While S.B. suggests that the trial judge “inappropriately plac[ed] weight on ‘proven undeveloped land’ … and disregard[ed] the evidence of Mr. Shirkie”, it is not this Court’s place to reweigh the evidence tendered at trial and come to a different factual conclusion.

A trial judge’s valuation of divisible family property is a finding of fact and cannot be disturbed on appeal absent palpable and overriding error: Frondall v Frondall , 2020 SKCA 135 at para 21 , 49 RFL (8th) 293 [ Frondall ]. [ 92 ] Regarding the “if and when” order argument, S.B. suggests that such an order would have been appropriate in respect of the valuation and division of the mines and minerals in this context. Section 26(2) of the FPA states: 26

(2) In order to effect a distribution pursuant to this Part, the court may make any order that it considers fit in the circumstances whether or not it affects title to family property. [ 93 ] In Grosse , this Court outlined some of the advantages and disadvantages of “if and when” orders, stating: [56] The principal advantage of an “if and when” order with respect to the division of a spouse’s interest in a trust is that it avoids dissolving the trust or burdening the spouse who has the interest with a high equalization payment. The disadvantages of such orders are (

i) it forges an indefinite financial bond between individuals whose relationship is ending; (ii) the calculation of each spouse’s share of the divisible “interest” in a trust may be problematic; and (iii) the actual amount paid under such an order may vary from the value of the interest for division purposes. [ 94 ] This Court set aside the order finding that Mr.

Grosse’s interest in the trust equalled the value of the trust assets and therefore the rationale for the “if and when” order was no longer valid. [ 95 ] As it was determined by the trial judge that S.B. and his sister were equal owners of the mines and minerals and were the trustees and beneficiaries of the trust, the reasoning in Grosse is applicable. Contrary to S.B.’s argument that their value is difficult to assess, significant evidence was led at trial by both parties as to the value of the minerals. This evidence was used by the trial judge in her valuation of the mines and minerals.

If the value of the property can be determined, it is usually preferable to do so rather than making an “if and when” order, which has the potential to leave the parties in limbo for years following trial (see, Grosse at para 60 ). [ 96 ] How a trial judge chooses to distribute family property is a discretionary decision which should be accorded deference by an appellate court: Riley v Riley , 2011 SKCA 5 at para 5 , 366 Sask R 110. That discretion must, of course, be exercised with the objects and purposes of the FPA in mind.

As stated in Grosse , “[a]n appeal court will intervene where the order defeats the purpose of the Act or runs contrary to its statutory provisions” (at para 57). The trial judge believed that because the value of the minerals was discernible, an “if and when” order was not appropriate. This Court cannot interfere with the exercise of that discretion unless the trial judge committed a reviewable error.

In my opinion, the trial judge’s exercise of her discretion on the matter discloses no such error. [ 97 ] To summarize, the trial judge erred by failing to appreciate the complex structure of interests that was in place and the principles that guide the valuation of trust property. The trial judge merely ascertained the current value of the mines and minerals, concluding that alone was family property for division purposes. The proper approach would have been to determine the value of S.B.’s interests in the trust and whether and how much of it constitutes family property for the purposes of division.

Because this analysis requires findings of fact that were not made by the trial judge, this issue must be remitted to the Court of Queen’s Bench. D. Did the trial judge err in her valuation of the livestock? [ 98 ] S.B. argues that the trial judge erred in her valuation of the livestock in using the application date rather than the adjudication date.

Confusingly, S.B. goes on to also say that the trial judge erred for this reason: “Firstly, she failed to render a determination as to whether the valuation of livestock would be made as at the date of adjudication or date of application, and the reasons for same.” [ 99 ] While it is unclear what date the trial judge used in valuing the livestock, it is equally unclear what exactly S.B. takes issue with as regards to the trial judge’s decision – whether it be her failure to indicate which date she used or her alleged use of the application date. [ 100 ] In her decision, the trial judge pointed to the values given by the appraisers called by both parties: Robin Hill, called by S.B., valued the livestock at $586,889 at the date of application and $440,829 at the date of adjudication; Robert Ross, called by T.B., only valued the livestock at the date of application at $767,732.

The trial judge then referred to the suggestion that some of the livestock consisted of purebred Black Angus cattle and that T.B. “says that the value including a recognition for the Black Angus cattle would be the sum of $850,626” (at para 67). After referencing each of the valuations provided, the trial judge found that the value of the livestock that should be used for property division purposes was the sum of $700,000.

However, she did not specifically indicate whether she considered the date of application or the date of adjudication to be the more appropriate date for valuation. [ 101 ] In the Trial Decision , the trial judge said: [67] Mr. Ross valued the livestock at the date of adjudication. … Mr. Ross’s valuation in his expert report indicates a conservative herd valuation of $767,732.00. … [ 102 ] However, Mr. Ross’s valuation of $767,732 is based on the date of June 3, 2016, which is the application date and not the

adjudication date. I consider this to be a typographical error or slip of the pen and will proceed on the assumption that the trial judgeunderstood that the value of $767,732 was the valuation provided by Mr. Ross as at the application date and not at the date ofadjudication. [103] Because the trial judge valued the rest of the family property at the adjudication date, it might have been logical for her to havevalued the livestock at that date as well, as in Ackerman.

Although not specifically stated, the value of $700,000 chosen by the trial judgeis a value that falls between the values given by both experts for the application date. Therefore, it is reasonable to infer that the trial judgedetermined that the application date was more appropriate for the valuation of the livestock. [104] At paragraph 68, the trial judge stated that she carefully considered the experts’ evidence in coming to her valuation of $700,000.Based on the evidence, the value of the livestock was difficult to assess, particularly between the different dates, because the herd sizefluctuated.

The evidence regarding the valuation of the Black Angus cows versus the commercial cows in the herd was equally difficult toassess, as both appraisers acknowledged they were unaware that some of the livestock were purebred Black Angus and were, therefore,not valued as such. T.B. submitted that the herd, including the Black Angus cattle, should be valued at $850,626, but the trial judge foundthat number to be an overstatement and that T.B. had not provided much evidence to support her submission. Therefore, the trial judge didnot give it much weight. Mr.

Ross provided testimony that purebred cattle are higher in value than commercial cattle but, again, he did notappraise the herd with this in mind. Additionally, Mr. Hill was not qualified to comment on the presence or lack of purebred cattle in theherd and admitted as much at trial. [105] Given the incomplete, inadequate and contradictory evidence that was adduced at the trial, one can readily appreciate that comingto a conclusion on this issue was difficult. The trial judge had to work with the evidence that she had.

At paragraph 67, she acknowledgedthe differences in the approaches of each appraiser, stating: [67] … [Mr. Ross] did not, as was the case with Mr. Hill, only look at one auction facility. However, Mr. Hill did personally inspectthe animals while Mr. Ross did not. … [106] It does not appear that the trial judge explicitly rejected either appraiser’s evidence.

Rather, she acknowledged the frailties andstrengths of both opinions and decided on a value between the two application date values provided. [107] Although mentioned earlier, several of the general principles regarding the selection of valuation date are relevant to this issue aswell. First, divisible family property should generally be valued consistently at either the date of petition (i.e., date of application) or thedate of adjudication and if the trial judge strays from this approach, an explanation should be provided.

Second, the choice of valuationdate must be based on the evidence and on the sufficiency of that evidence, keeping in mind the purpose of the FPA and the interests ofjustice (see, generally, Ackerman).

In addition, the most fair and equitable choice for valuation date will be informed by a variety offactors, some of which the parties will have control over and some of which they will not, and a judge must consider all these factors indetermining the appropriate date (see, generally, Kassian v Kassian, 2019 SKCA 101, 33 RFL (8th) 333 [Kassian]). [108] Therefore, given that it appears that the trial judge chose a value that reflects the application date, the question is whether sheerred in choosing that date. [109] Inasmuch as the choice of a valuation date for division of family property purposes is a discretionary decision and will beafforded deference on appeal (see, Frondall at para 21) and given the evidentiary difficulties that the trial judge faced, it is my view thatthe trial judge’s choice of the application date is not an error.

Although the date of valuation for the family property is not consistentthroughout the decision, the trial judge provided the requisite explanations for her decision to choose the dates she chose. This Court, inTataryn v Tataryn (1984), (SK CA), 30 Sask R 282, stated that, generally, all property should be valued at the samedate, but it is not a requirement that this be done.

This Court went on to say, “[i]n some cases it may be desirable, even necessary, to valueone asset as at the time of application and another as of the time of trial, but I would add that whenever this is done it should be explained;otherwise it may appear unfair. And there ought to be good reason for it” (at para 9). [110] The trial judge valued the real property of the parties at the adjudication date and, in doing so, she was explicit in her reasoningthat the adjudication date was more appropriate than the application date.

Additionally, the grain on hand and the growing crop werevalued as of the application date but that was because the parties had agreed on this approach. Because the trial judge was clear about herchoice of a valuation date for the other property, and because the balancing of the evidence provided by each party reasonably supportedchoosing the application date to value the livestock, the trial judge’s choice of that valuation date, in my view, does not represent an error. [111] Duckworth v Duckworth, 2019 SKQB 165 at para 49, offers further support.

In that decision, Tholl J.A. (ex officio) found that theapplication date was the appropriate date for the valuation of livestock. In that case, similar to the matter before us, there were significantdiscrepancies in the evidence provided for the value of the livestock and Tholl J.A. found that the number of animals owned wassomewhat greater than what Mr. Duckworth said and somewhat less than what Ms. Duckworth said. In the end, he valued the livestockbased on his best estimate of the quantity of animals at the petition date.

Similarly, in Lehr v Lehr, 2011 SKQB 343 at para 55, 383 Sask R125, the trial judge indicated, in relation to the livestock valuation, that the evidence was confusing and, despite the serious evidentiaryissues, decided that the livestock would be valued at the date of petition. [112] Section 2(1) of the FPA defines “value”. It gives the trial judge the discretion to choose the value of property that is subject todivision under the Act.

In the face of the evidentiary issues regarding the value of the livestock, the inconclusive nature of the presence ofpurebred Black Angus cattle in the herd and the fact that the choice of valuation date is highly fact specific, putting her in the best positionto make an informed decision on the matter, the trial judge’s choice of the application date for the valuation of the livestock does not, inmy view, represent a legal error. Although the trial judge’s comments and analysis on this issue are sparse, her decision is reasonable andis supported by the evidence, such as it was. E.

Did the trial judge err in not finding there to be any tax consequences orother costs of disposition which ought to have been included in determining the value

of family property for division purposes? [113] Pursuant to s. 21(3)(

j) of the FPA, a trial judge may deviate from making an order for the equal distribution of family property ifit would be unfair or inequitable to do so in light of a potential tax liability. The

section provides as follows: 21(3) For the purposes of subsection (2), the court shall have regard to the following: … (

j) a tax liability that may be incurred by a spouse as a result of the transfer or sale of family property or any order made by the court[.] [114] It is clear that any consideration of this

section of the FPA must have an evidentiary base: Vilcu v Vilcu (1999), (SK CA), 172 Sask R 201 (CA) at para 50 [Vilcu]; and Ackerman at para 35. The party seeking a discount for a potential taxliability bears the burden of establishing that evidentiary foundation: M. v M., 2012 SKCA 55 at para 38, 393 Sask R 229. The sufficiencyof the evidence is an important component of this analysis. As this Court said in Ackerman: [35] It is not sufficient to merely raise as an issue concerning potential tax liability on the disposition of assets.

Evidence sufficient tocalculate such contingent tax liability, with some degree of precision, is required. Absent such evidence, allowing an unequal division ofthe family property based on what amounts to no more than speculation is neither fair nor equitable.

Expert evidence is not necessarilyrequired, but a tax calculation based on supporting evidence is. (See: the Saskatchewan Court of Appeal decisions in Frank v Linn at para.52 and Vilcu v Vilcu (1999), (SK CA), 172 Sask R 201 at para 49.) [115] James v Belosowsky, 2012 SKQB 316, [2013] 5 WWR 415 [James], has been cited numerous times on this issue, andparagraph 70 of that decision provides a succinct list of principles to consider. The sixth principle outlined in that case provides insightinto the type of considerations that should be taken into account:

(6) The contingencies referred to in the case law that may result in a discount

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