Leier v Leier, 2023 SKCA 108

Court of Appeal for Saskatchewan Docket: CACV3999 Citation: Leier v Leier , 2023 SKCA 108 Date: 2023-09-11 Between: Wayne Arthur Leier Appellant (Respondent) And Barbara Ruth Leier Respondent (Petitioner) Before: Leurer, Kalmakoff and McCreary JJ.A. Disposition: Appeal dismissed (orally) Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Kalmakoff The Honourable Madam Justice McCreary On appeal from: 2022 SKQB 56 , Regina Appeal heard: September 11, 2023 Counsel: Sterling McLean for the Appellant Peggy Benko for the Respondent Leurer J.A. I.

Introduction [ 1 ] Wayne Arthur Leier and Barbara Ruth Pittroff (formerly Leier) separated in 2019 after a marriage of more than 40 years. During their time together, they accumulated family assets that, by every account, had a value of many millions of dollars. [ 2 ] A Court of Queen’s Bench judge granted

summary judgment dividing the parties’ family property: Leier v Leier , 2022 SKQB 56 [ Judgment ]. For the most part, the parties accept the Judgment as an appropriate final resolution of matters between them. Mr. Leier contends, however, that the judge overlooked one item, valued at just under $100,000, when she ordered a final division of their family property. [ 3 ] Following the hearing, the parties were advised that Mr. Leier’s appeal against the Judgment was dismissed, with reasons to follow. These are the reasons we promised. II. Background A. Procedural history [ 4 ] On November 4, 2019, Ms.

Pittroff issued a petition for divorce, division of family property and other relief. At the same time, she swore a property statement that she described as being true and complete to the best of her knowledge and belief as of October 2019. Among the many financial assets Ms. Pittroff identified in her property statement were mutual funds with Conexus Credit Union with an estimated market value of $97,478.70 [Purported Fund]. [ 5 ] Approximately one year after Ms. Pittroff’s property statement was sworn, Mr. Leier filed his own property statement, which he also swore to be true and complete as of October 2019.

Mr. Leier’s property statement also listed the Purported Fund as an asset owned by Ms. Pittroff. His counsel asserts in the factum filed in this appeal that in doing so, Mr. Leier “relied upon the November 4, 2019 Property Statement” sworn by Ms. Pittroff. Ms. Pittroff has taken no issue with this representation of fact. [ 6 ] The parties proceeded to a pretrial conference on August 13, 2021. At it, the parties agreed on some matters. Their agreement was evinced in a consent judgment ( Pittroff (formerly Leier) v Leier (19 August 2021) Regina, DIV 522 of 2019 (Sask QB) [ Consent Judgment ]).

This allowed the parties to distribute some items of family property. However, many points of disagreement remained. The Consent Judgment contemplated that the parties might reconvene the pretrial conference, but that neither party would be “precluded from making an application for

Summary Judgment” (at para 6). [ 7 ] In October of 2021, Ms. Pittroff served an application for

summary judgment to resolve the remaining property issues. In support of her application, Ms. Pittroff filed an affidavit that she swore on October 20, 2021. Mr. Leier agreed that matter was amenable to

summary disposition, however he proposed a different division of the property than Ms. Pittroff had proposed. In doing so, he relied on his own affidavit sworn on November 2, 2021. Together, the two affidavits provided evidence with respect to the family assets and their values. B. The Judgment

[ 8 ] After providing some background, the judge first considered whether this was an appropriate case to decide on a

summary basis. She found that it was. Neither side to the dispute in this Court challenges this conclusion. [ 9 ] The judge then turned to discuss the division of the value of the family property. She did so under headings described as “Family home”, “Household goods”, “Farmland”, “Bank accounts” and “Taxable assets”. For the most part, I see no need to review the detail of her analysis under these headings since Mr. Leier does not contend that the judge erred in any way other than by failing to identify and divide the Purported Fund.

However, it is of note that the judge made several findings of fact in connection with certain financial assets. After doing this, she stated that the “remaining non-taxable assets were agreed to by the parties” (at para 21, emphasis added). After making this statement, the judge identified numerous financial and non-financial assets and the values the judge ascribed to them. No mention is made by the judge in the Judgment of the Purported Fund. III. Issue [ 10 ] For the most part, Mr. Leier accepts the outcome of the Judgment .

However, he contends that the judge erred in by failing to ascribe a value to the Purported Fund. IV. Analysis [ 11 ] The submission that the judge erred by failing to ascribe a value to the Purported Fund is an allegation of an error in fact- finding. This is to be assessed on the palpable and overriding error standard of review: Deren v SaskPower , 2017 SKCA 104 at para 41 . [ 12 ] In this case, Mr. Leier argues that the judge should have counted the Purported Fund when she identified the assets that must be split.

He contends that the error is obvious – hence the judge’s findings as to what property was to be divided was palpably wrong – because the existence of the Purported Fund is proven by Ms. Pittroff’s property statement. He says the failure of the judge to assign value to it is patent from the face of the Judgment . Finally, he asserts that these two errors are overriding because they affect the equalization payment that he is otherwise required to make to Ms. Pittroff by an amount that is equivalent to one half of the Purported Fund. [ 13 ] For her part, Ms.

Pittroff says that the judge properly dealt with all matters in dispute. Her position is that the property statements were sworn in error and that the judge was given more accurate, and up-to-date, information in the affidavits filed in connection with the

summary judgment application. Based on this, she says that the judge did not err at all. Ms. Pittroff also seeks leave to file, in this Court, an affidavit explaining the error in the property statements. She makes this application under Rule 59 of The Court of Appeal Rules , which allows a party seeking to adduce evidence on appeal that was not before the court appealed from to do so by notice of application returnable on the date fixed for hearing the appeal. [ 14 ] I am satisfied that the judge did not err in the identification or division of the family property.

Three facts convince me that this is the case. [ 15 ] First, Ms. Pittroff’s October 20, 2021, affidavit comprehensively dealt with the assets that were left to be divided following the Consent Judgment . Ms. Pittroff swore that her affidavit contained a “list of the non-taxable assets and debts held between [Mr. Leier and herself] to the best of [her] knowledge and belief at or near the Petition date”. Many financial assets are mentioned by Ms. Pittroff, but the Purported Fund is not. [ 16 ] Second, Mr. Leier responded to Ms. Pittroff’s October 20, 2021, affidavit with his own, sworn on November 2, 2021.

In it, he does not claim that Ms. Pittroff failed to disclose any assets. Mr. Leier did attach to his affidavit a document described as a “statement which [he had] prepared based upon the account and asset information” other than what was contained in a corporation that was part of the family property. The statement includes, among many other entries, “Mutual Fund $97,478.70”. Although this entry does not mention the financial institution with which these funds are held, as can be seen, it corresponds in amount with the Purported Fund.

Nonetheless, there is no evidence that the judge was asked to find that this was an asset that had to be accounted for in the division of family property.

To the contrary, as I have mentioned, the parties had agreed before the judge as to which assets were to be divided without mentioning the Purported Fund. [ 17 ] Third, not only was the judge not invited to find that the Purported Fund existed, had she inquired about this based on the differences between the original property statements and the affidavits sworn on October 20, 2021, and November 2, 2021, she would have had reason to doubt the correctness of the property statements or, at very least, question their use for the division of family property.

In this regard, the omission of the Purported Fund is not the only difference between the property statements and the affidavits that the parties relied upon in their request for a final division of their family property. Accordingly, even without reference to the evidence Ms.

Pittroff seeks to adduce pursuant to Rule 59 explaining the error in her own property statement, I would not see palpable error in the fact that the Judgment did not refer to the Purported Fund as an item of family property to be divided between the parties. [ 18 ] Having said all of this, I accept that there might be a reason for this Court to intervene if there was a credible basis to conclude that the parties and the judge overlooked a material asset. This brings me to Ms. Pittroff’s application to adduce evidence in this appeal.

Her affidavit is tendered to show that the listing of the Purported Fund in her property statement was made in error. She explains that Conexus Credit Union “does not have mutual funds”. She states that the “Conexus Mutual Fund”, as the Purported Fund was referred to in her property statement, was the same investment as another financial asset she had also disclosed in the property statement and that it was only through inadvertence that she had listed it twice. Her evidence about all of this is corroborated by a letter from a wealth management firm and financial statements. [ 19 ] Mr.

Leier made no effort to challenge the credibility of Ms. Pittroff’s evidence about these points. Instead, he based his opposition to the admission of her affidavit solely on the ground that her evidence could, with due diligence, have been brought before the judge at the time the

summary judgment application was argued: Barendregt v Grebliunas , 2022 SCC 22 at para 36 , 469 DLR (4th) 1.

[ 20 ] I do not accept that this is a basis to refuse to admit Ms. Pittroff’s affidavit. Her evidence only became relevant after Mr. Leier resiled from the agreement expressed before the judge as to the identification of the family assets to be divided. After Mr. Leier raised a question about whether Ms. Pittroff’s October 20, 2021, affidavit disclosed all the divisible financial assets, she moved with alacrity to confirm that listing of mutual funds with Conexus Credit Union was done in error. In these circumstances, I see no basis to conclude that the due diligence requirement was not met. Although Mr.

Leier’s appeal might be dismissed without reference to Ms. Pittroff’s affidavit, its admission dispels any lingering uncertainty as to whether the judge erred in not identifying the Purported Fund as a family asset. She did not. [ 21 ] For all these reasons, Mr. Leier’s appeal must, therefore, be dismissed. V. Conclusion [ 22 ] Mr. Leier’s appeal is dismissed, with costs in favour of Ms. Pittroff. These costs are fixed amount of $5,000, inclusive of Ms. Pittroff’s application to adduce evidence under Rule 59 and all disbursements. “Leurer J.A.” Leurer J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.

I concur. “McCreary J.A.” McCreary J.A.