1999 SKQB 76 D.I.V. A.D. 1998 No. 305 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: SHARON CHRISTINE LANG and EDWARD JAMES HERBERT LANG RESPONDENT E. F. Anthony Merchant, Q.C. for the petitioner Mervin C. Phillips for the respondent JUDGMENT KYLE J. September 18, 1999 [1] This action raises issues about matrimonial property and especially the matrimonial home. [2] It may be assumed that legislatures in passing matrimonial property legislation sought to eliminate the injustice of spouse, almost always wife, being left in poverty by the departure of the breadwinner in whose name most of the family assets were habitually held. In many cases she was left with nowhere to live. [3] It may also be assumed that in making the law gender-neutral it was recognized that most often the young children of broken home remain in the custody of the mother and so discretion was given to judge to ameliorate the equal division regime which the registration imposed. This has special application to the matrimonial home. [4] If in this case pursue the “ordinary case” regime would divide the matrimonial home or the proceeds of its sale equally. It was, prior to the 21 month marriage between the parties, the long term family home of Sharon Lang and her 10 children all born of a previous marriage. Five of those children live with her in the home today. Such division would mean that Edward Lang for his 21 month involvement in the family was being given one-half of the only asset the family has. They would either have to assume large mortgage or move out of their modest $60,000.00 home to far more modest home or to rental accommodation. [5] Edward Lang has some assets which can be shared but her share would only be $2,000.00 or so as he is quick to claim exemption for his own house, which they never lived in, and all of the assets which he had before the marriage. [6] Sharon Lang is 51 and has, now that her family duties allow it, sought to improve her economic prospects. She has obtained grade 12 equivalency and is engaged in training as teacher’s assistant at SIAST. She holds down two jobs, one as noon hour supervisor in the separate school system and one as an office cleaner at night. She has no savings, no pension and she is supported in part by welfare funds. [7] Edward Lang is employed by the public school system and has a permanent job. He has the prospect of an inheritance from his mother, a good pension, his own home with no mortgage and in short no financial problems. He would be even better off if were to award him the $25,000.00 or so that he has claimed against the matrimonial home. Under the provisions of s. 22 of The Matrimonial Property Act, 1997, S.S. 1997, c. M-6.11 (the “Act”), must distribute the matrimonial home or its value equally unless am 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. [8] While it might seem that this case would fit squarely under subparagraph (b) am cautioned by counsel for the respondent that “the children” in this context refers to children of this marriage and not to the five or ten holdovers from Sharon’s first marriage. make no finding in that regard. [9] Precedents arising in this Court and the Court of Appeal suggest that neither marriage of short duration nor the prior ownership of home by one party or inheritance or gifts by one side of the family constitute extraordinary circumstances. I am persuaded however, that the prior ownership of the home by Sharon and its occupancy by her many children, the economic imbalance between Edward and Sharon and the brevity of the marriage combine to make this an out of the ordinary or unusual case. This is, after all, what “extraordinary” means however narrowly it may have been construed in the past. [10] This is court of equity and the Act does not think, impair my equitable jurisdiction. In fact, it emphasizes it in s. 22 so must do equity. The matrimonial home will therefore not be distributed but allowed to remain in Sharon’s name as it was for many years before she met Edward. [11] There are other property issues. Section 21 mandates the division of matrimonial property other than the matrimonial home. There is certain personal property, vehicles etc. which is, am satisfied, divided approximately equally between the parties already and direct no further division or appraisal of those properties. There is also: (1) an accrual to Edward’s pension during the period between the marriage and the application date of May 21, 1998 valued at $8,358.00; (2) an accrual to his Standard Life contract during the same period in the amount of $1,200.00. These two items are subject to income tax so I have applied a 30% deduction to their value leaving $6,690.00. To that number must be added the accrual to a Sun Life policy during the same period of $2,200.00 for a total of $8,890.00, one-half of which accrues to each of the parties or $4,445.00. Edward has assumed debts of almost $5,000.00 of which $2,500.00 must be credited to him, leaving a credit to Sharon of $1,945.00. [12] have considered and rejected arguments that involved calculation of the precise value of the personal properties because the evidence had was not reliable and there was an appearance of equality as noted above. I have also accepted the claim that Edward’s house, jointly owned with his mother as protection “in case he meets someone” is exempt property. have rounded some of the numbers and ignored the fact that the mortgage on the matrimonial home was reduced by about $10,000.00 during the period in question. Both parties had the benefit of the matrimonial home during the marriage. [13] It is to the credit of Edward that at trial he conceded that his claim for 50% of the equity was perhaps unfair (i.e. inequitable) and that 25% would do. As well he was prepared to extend the time for payment. However the claim was, in its entirety, inequitable and had he not filed counter petition there would have been no division, no trial and no excessive legal costs because the petition made no property claims whatever. I therefore direct that there shall be judgment in favour of Sharon Lang for $1,945.00 plus an award of costs of $5,000.00 for a total of $6,945.00.
Division of matrimonial property and the matrimonial home were in issue. The respondent claimed exemption for his own house and all of the assets he had before the marriage which lasted 21 months. HELD: The petitioner was awarded $1,945 plus costs of $5,000. The respondent's claim was inequitable in its entirety. 1)Saskatchewan precedents suggest that neither a marriage of short duration nor prior ownership of a home or inheritance or gifts by one side of the family constituted extraordinary circumstances. However, prior ownership by the petitioner and its occupancy by her children, the economic imbalance between the spouses and the brevity of the marriage combined to make this an 'extraordinary' case. The home was to remain in the petitioner's name. It was the long term family home of the petitioner and her 10 children born of a previous marriage. Five of those children still lived with her in the home. The respondent had a permanent job, the prospect of an inheritance, a pension and his own home with no mortgage. 2)Credit was given to the respondent for half of the debts assumed. One-half of the accrual to his pension and his two life insurance contracts was credited to the petitioner less a 30% deduction for income tax. The respondent's house, jointly owned with his mother, was exempt property.