16. 2002 SKQB 54 D.I.V. A.D. 1999 No. 02777 J.C. Y. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF YORKTON BETWEEN: MARTHA KLETTKE and IRVIN ERNEST KLETTKE RESPONDENT C.L. Gattinger for the petitioner G.J. Schmidt for the respondent JUDGMENT MALONE J. February 13, 2002 [1] The petitioner seeks an order for equal distribution of matrimonial property. [2] The parties married on August 27, 1988, each for second time, and separated on December 26, 1997. Each of the parties had significant assets at the time of the marriage which have increased in value since that date. The respondent's assets then, and at the time of the application herein, were greater in value than those of the petitioner. They both testified that at the time of the marriage they agreed to keep their assets separate and to not make claim on the assets of the other. [3] The petitioner, on cross-examination, agreed with the suggestion that "her money was hers and his money was his". She also testified that "We did not tell each other what to do with our money". The respondent testified that they agreed "each would own what they have". [4] They agreed further that after their deaths their entire estates would be left to their respective children. They each completed new wills shortly after the marriage to this effect. [5] One of the assets the petitioner owned prior to the marriage was residence in Melville. After the marriage the parties resided in the petitioner's home for approximately three and one-half years. The respondent left the Melville residence after the petitioner's daughter came to live with them and purchased condominium in Regina. At this time, he testified, he thought the marriage was over but, at the request of the petitioner, reconciliation was effected after brief separation. The parties resided in the condominium for approximately the next six years until the final separation occurred. [6] During the marriage the respondent purchased furniture for the condominium, 1993 Buick and camper for total agreed upon value of $24,000.00. After the separation the respondent sold the condominium for $84,000.00 which sum is being held in trust pending the outcome of this proceeding. [7] After the separation took place the petitioner returned to her Melville residence which the parties agree has value of $30,000.00 both at the time of the marriage and the time of the application. [8] The petitioner testified that her only expenses during the marriage were the maintenance of the Melville residence and her share of vacation costs. She testified the respondent, with the exception of the odd grocery bill, paid all of the expenses of the marriage and did not seek financial assistance from her in this regard. As result, her investments and assets increased significantly in value during the time the parties lived together. [9] The respondent takes the position that the petitioner is not entitled to any distribution of matrimonial property because of their agreement at the time of the marriage that each would maintain their own assets separately and not make claim on the assets of the other. The petitioner argues, in effect, that the agreement is not applicable to the present situation where the parties have separated and was only in effect during the time of the marriage or upon the deaths of the respective parties. [10] The only evidence in writing of the parties' intentions is the respective wills they executed shortly after the marriage leaving all of their assets to their respective children. There is, however, no conflict in the evidence of the parties as to the verbal agreement they made at the time of the marriage. [11] In my opinion this is an appropriate situation to apply s. 40 of The Family Property Act, S.S. 1997, c. F-6.3 which provides as follows: 40 The court may, in any proceeding pursuant to this Act, take into consideration any agreement, verbal or otherwise, between spouses that is not an interspousal contract and may give that agreement whatever weight it considers reasonable. [12] In the present circumstances where there is no conflict in the evidence of the parties as to their intention at the time of the marriage, the fact that they each executed a will to give effect to at least part of that intention and the respondent paid practically all of the day to day expenses of the marriage leads me to conclude that their verbal agreement should be considered binding upon each of them notwithstanding the fact the marriage ended by separation and not by death. Accordingly, find that only the value of the assets acquired after the marriage is subject to distribution between the parties and the increased value of the assets which the parties owned prior to the marriage is exempt from distribution. [13] Furthermore, I conclude that the condominium purchased by the respondent to be the "family home" as provided for in s. 2(1)(a) as set out in The Family Property Act. This provision provides 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 generality of the foregoing, an interest pursuant to partnership or trust or an interest as purchase pursuant to an agreement for sale; or (ii) owned by 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 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; and that is: (f) unit or additional unit in condominium plan or replacement plan, as the case may be, as defined in The Condominium Property Act, 1993, including the owner's share in the common property as shown on that plan. [Emphasis added] [14] I am not satisfied there is any "extraordinary circumstance" as provided in s. 22(1) of the Act which would prevent the value of the family home from being divided equally between the parties. [15] also conclude that the value of the Melville residence owned by the petitioner at the time of the marriage to be exempt from distribution in accordance with the parties' agreement at the time of the marriage. It has not increased in value and the maintenance thereof was born solely by the petitioner during the years of the marriage. Although it may be argued that the Melville home was at one time the "family home" of the parties, designate the Regina condominium to be the family home of the parties pursuant to s. 22(3) of the Act as the parties resided therein for most of the marriage. [16] The petitioner therefore is entitled to judgment for half of the value of the assets acquired after marriage being:➢ One-half of the value of the condominium $42,000.00➢ One-half of the value of the furniture, vehicle and camper $12,000.00$54,000.00 [17] In the circumstances make no order as to costs.
The wife sought an order for equal distribution of matrimonial property. They married in 1988, each for a second time, and separated in 1997. Each had significant assets at the time of the marriage, which had increased in value. They agreed at the time of the marriage to keep their assets separate and to not make a claim on the assets of the other and that their entire estates would be left to their respective children.  The wife argued the agreement was not applicable to the present situation where they have separated and was only in effect during the time of the marriage or upon their deaths. HELD: The wife was entitled to judgment for $54,000. 1)There was no conflict in the evidence as to the verbal agreement made at the time of the marriage nor as to their intention. This is an appropriate situation to apply s.40 of the Family Property Act. The fact they each executed a will to give effect to that intention and the husband paid practically all of the day-to-day expenses led to the conclusion their verbal agreement should be considered binding, notwithstanding their marriage ended by separation rather than death. 2)The condominium purchased by the husband was the 'family home' as provided for in s.2(1)(a). There was no extraordinary circumstance as provided in s.22(1), which would prevent equal division of the value of the family home. The Melville residence owned by the wife at the time of the marriage was exempt in accordance with their agreement. It had not increased in value and the wife solely paid its maintenance. 3)No costs.