2002 SKQB 155 A.D. 2001 No. 02984 J.C. Y. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF YORKTON BETWEEN: SHERI ANN STACHURA and EARL JOHN STACHURA RESPONDENT R.S. Yaholnitsky for the petitioner Respondent appeared on his own behalf JUDGMENT GEREIN C.J.Q.B. April 22, 2002 [1] This is an action in which the petitioner seeks a distribution of family property in accordance with The Family Property Act, S.S. c. F-6.3. The parties cohabited for some 2½ years and then married on August 14, 1993. After seven years and three children, they separated on November 13, 2000. This action was commenced on June 20, 2001. [2] The parties lived on an acreage and rented farm land. They carried on mixed farming operation. The respondent did the major part of the farm work with the petitioner providing assistance. The respondent worked off the farm as mechanic until 1996 when he began to provide that service from the farm. The petitioner also worked off the farm throughout the marriage. [3] In the circumstances, the family property should be divided equally. The valuation date is June 20, 2001, when this action was commenced. THE FAMILY HOME [4] The family home is an acreage which was purchased in the fall of 1990. The legal description is ptn. SE¼ 26-24-4 W2. The respondent continues to live there. An appraisal of it and the out buildings was done and the report filed. Absent any evidence to the contrary, accept the valuation and find the property to be worth $43,000.00. [5] When the property was purchased, the respondent sold his trailer and the sale proceeds of $12,000.00 were used to purchase the acreage. He now claims an exemption in that amount. However, the legislation does not permit such in respect to the family home in the circumstances of this case. FARM MACHINERY [6] The farm machinery comprises major portion of the family property. It is here that there is serious dispute in respect to what pieces of machinery constitute family property; what exemptions are available to the respondent; and what value should be attributed to the equipment which is subject to distribution. In coming to my conclusions, have weighed the oral testimony of several witnesses, including the parties, while also considering the content of large number of documents. [7] Neither party said anything about the value of the machinery. Rather, was referred to three appraisals; one which was done at the behest of the petitioner and two for the respondent. As is common, there is variance amongst the opinions. In addition, not every piece of machinery was valued by each appraiser. Thus, in respect to individual pieces of machinery there is one, two or three opinions of value. Where there is only one value, have adopted it. Where there is more, have taken the average value. [8] Ownership of the following machinery is not in dispute and it clearly is family property. find the value to be as indicated. (1) Duetz 1006 tractor 1,350.00 (2) Massey Ferguson 24' swather 333.33 (3) Massey Ferguson 18' swather 166.66 (4) White 16' swather 766.66 (5) New Holland 850 round baler 1,400.00 (6) Versatile 68' sprayer 250.00 (7) 29' Morris cultivator 1,500.00 27' White deep tillage cultivator 400.00 (9) 61 I.H. B-180 ton truck 1,900.00 (10) Dodge ton truck 500.00 (11) Versatile 68' harrows 333.00 (12) Westfield 7' 41' PTO auger 366.00 (13) Westfield 7' 36' PTO auger 250.00 30' Anderson deep tillage 500.00 (15) 1988 New Idea disc bine 2,500.00 (16) Melcam rockpicker 150.00 (17) Poly water tank 100.00 (18) Stock trailer 100.00 Total $12,865.65 [9] There are several other pieces of machinery which the respondent submits should not be included in any distribution. It is alleged they are owned wholly or in part by his father, Edmund Stachura; or are exempt, having been acquired prior to the marriage. The most significant piece is Versatile 160 tractor with fork and grapple. Again the valuations vary and conclude the appropriate value at the relevant date was $10,250.00. [10] This tractor was purchased on November 6, 1996, for $16,500.00 and the contract of sale is in the name of Edmund Stachura. Since that date, or shortly thereafter, the tractor has been in the possession of the respondent and used by him. The petitioner stated that she understood the tractor was given to the respondent by the father. However, over the years she obtained very little information about the farm machinery. [11] The respondent gave conflicting evidence. He testified that the father owned the tractor. Then he testified that he owned the tractor, but that he owed the father $16,500.00. There is no doubt about the fact that the respondent never paid the $16,500.00. When the respondent provided information for financial review dated March 20, 2000 (Exhibit P-15), he claimed to own the tractor. On the other hand, he extracted from that review the relevant balance sheet and shortly before this trial endorsed thereon that the tractor belonged to the father (Exhibit P-16). In the circumstances, have little confidence in the respondent’s testimony in this regard. [12] However, the father personally testified that he owned the tractor. He acknowledged that he had given like tractor to another son, but denied making similar gift to the respondent. He produced his capital cost allowance schedule for the year of 2000 and the tractor is listed therein. At my request, he produced his comparable schedules for the years 1999 and 2001. In neither of those years is the tractor listed. One can’t help but wonder whether the schedule in 2000 was part of scheme to keep the tractor apart from any matrimonial distribution. [13] However, when consider the testimony of the father coupled with the particulars of the contract of purchase, it is my conclusion that the father is the actual owner of the tractor. Accordingly, that piece of machinery is not included in the distribution. [14] It was also suggested that the father was the owner of Case 830 tractor which appears in the 2000 capital cost allowance schedule as well as in the 1999 one. Here there is no purchase contract, but conclude that the father did own the tractor at the relevant time. Morris Seed Rite also appears in the schedule, but am not persuaded this is the same as those owned by the respondent. Therefore, two 80-11 Seed Rites of value of $800.00 are included in the distribution. The same applies to 30' Morris rod weeder of value of $225.00. [15] There were several other pieces of machinery which the respondent testified were owned in part by his father and which are so endorsed in the balance sheet marked as Exhibit P-16. In giving his testimony, the father stated that he had no interest in any equipment owned by the respondent. Accordingly, reject the contrary assertions of the respondent and hold that the following pieces of machinery were family property at the relevant date and find the values to be as indicated. (19) M.F. 1155 tractor 3,933.33 (20) Case 970 tractor 4,400.00 (21) M.F. 851 combine 1,833.33 Total $10,166.66 [16] turn now to the exemptions claimed by the respondent. He testified that prior to the marriage he owned a Case 800 tractor and a J.D. 400 mix mill. The first was acquired from an uncle’s estate and the second was purchased many years ago. The petitioner did not contest either and the father confirmed both. Accordingly, I find them to be exempt. [17] The respondent claims an exemption in respect to Yamaha snowmobile. Over the years he has owned several machines and this began before the marriage. Tracing is possible, but the values are unclear. As a result, I allow a partial exemption and in doing so fix the value of the snowmobile at $800.00. [18] The respondent claims that 1990 Ford F-150 truck is exempt. In the past, the respondent has owned several vehicles which he sold and then purchased other vehicles, including trucks. However, the vehicles which were sold never formed part of the purchase price of any replacement vehicle. As a result, while the respondent owned a truck prior to the marriage it cannot be traced to the subject truck. Accordingly, the present truck is included in the distribution at the value of $4,000.00. [19] There are tools which are valued at $4,000.00. The respondent testified that prior to his marriage he owned tools which were destroyed in fire. He subsequently was paid $15,000.00 by way of insurance. He says all the money was used to replace his tools and claims all the present tools are exempt. have some reservations about the accuracy of the replacement, but what is more important is that tools were acquired during the marriage. Therefore, some tools are family property, but there also should be some exemption allowed. arbitrarily fix the value of the tools for distribution at $2,000.00. [20] Finally, at the relevant time the petitioner had an automobile of value of $1.400.00 and boat of value of $1,000.00. [21] In summary, the value of the machinery to be distributed is calculated as follows. (a) Farm machinery (1) to (18) 12,865.65 (b) Farm machinery (19) to (21) 10,166.66 (c) Seed Rites and rod weeder 1,025.00 (d) Snowmobile 800.00 (e) Ford l50 truck 4,000.00 (f) Tools 2,000.00 Total 30,857.31 To this must be added $2,400.00 for the automobile and boat resulting in a total of $33,257.31. [22] have had an opportunity to see the capital cost allowance schedule which forms part of the respondent’s income tax return for the year 2000. recognize that different considerations and calculations enter into the preparation of that claim. However, the amounts set out do indicate that the respondent owns line of machinery of significant value. Looking at that, my conclusions do not appear to be unreasonable. [23] The parties raised pigs. The petitioner believes that when she left in November, 2000, there were 121 hogs and pregnant sows. She does not know what was there on evaluation day, being June 20, 2001. The respondent’s testimony is that there were 110 hogs, 21 sows and 1boar on that date. have no reason to reject his testimony. Therefore, the value of the pigs is as follows. 110 hogs at $70.00 each 7,700.00 21 sows at $175.00 each 3,675.00 boar at $100.00 100.00 Total 11,475.00 [24] The respondent submits that the entire sum should be exempt because of the number of pigs he owned at the time of the marriage. He says the total then was 185 hogs and 17 sows. The petitioner says the number at that time was 40 hogs. have no way of ascertaining the correct number for there are no records. expect the number was more than stated by the petitioner and less than stated by the respondent. In the end, don’t believe it matters. [25] The uncontradicted testimony of the respondent was that in 1996 there were sows, boar and 48 hogs. That being so, whatever the number brought into the marriage, it had been reduced by the sale of animals. The exemption could not exceed what then remained. Any increase thereafter was an increase of family property free of any exemption. However, as there still are pigs there is an entitlement to an exemption which determine to be the value of the animals present in 1996. [26] calculate that value to be $5,905.00 made up as follows. 48 hogs at $110.00 each 5,280.00 sows at $175.00 each 525.00 boar at $100.00 100.00 Total 5,905.00 The amount which is available for distribution is $5,570.00. [27] The parties also owned cattle. As of the date of separation, there were 11 head on hand. In January, 2001, additional cows were purchased as part of the operation. In April, 20001, cow died and cows with calves were sold for $2,200.00. As result, as of June 20, 2001, there were 15 cows and $2,200.00 on hand. [28] There is difference of opinion about the value of the cows. The one appraiser stated the value to be $891.00 per animal; whereas the other fixed the value at $856.00. When the respondent purchased the cows in January, 2001, he paid $850.00 per animal. To me this seems the best indicator, subject to market fluctuations. Therefore, fix the value at $856.00 an animal and calculate the value of the cattle on hand on valuation date to have been $12,840.00. To that must be added the sum of $2,200.00 for the cows with calves that were sold. [29] In addition, there was bull with value of $1,119.00 and 14 calves with value of $250.00 each or $3,500.00. Finally, there were chickens worth $32.00. [30] In summary, the value of livestock to be distributed as between the parties is as follows. (a) pigs $ 5,570.00(b) cows 12,840.00(c) proceeds from sale of cows 2,200.00(d) bull 1,119.00(e) calves 3,500.00(f) chickens 32.00Total $ 25,261.00 [31] The one appraisal report makes reference to goats. do not know when they were acquired and decline to make any order in respect to them. OTHER PROPERTY [32] The remaining property which is subject to distribution consists of the following. (1) 1,200 bushels of barley 1,740.00 (2) 1,100 bushels of oats 1,265.00 (4) NISA account 788.35 (5) Co-op equity 1,598.70 (6) Bank account (respondent) 1,002.32 (7) Bank accounts (petitioner) 29.47 (8) RRSP (petitioner) 1,520.93 (9) Household furniture 2,500.00 (10) Payment to petitioner by respondent 2,500.00 Total 13,456.77 [33] There appears to be an RRSP registered in the name of the respondent. However, as best I can make out, it was acquired prior to the marriage. Accordingly, I treat it as being exempt. The interest earned would not be exempt, but have no evidence as to what that has been. Accordingly, do not take it into account. The respondent also claimed that his furniture was exempt. In law that is not so as the legislation provides otherwise and there are no circumstances which would remove the furniture from the purview of the legislation. [34] The respondent has submitted large number of debts and expenses which he submits should be taken into account. have concluded that only relatively small number should be accepted. [35] There is a claim for $16,500.00 which is said to be owing to the father for the Versatile 160 tractor. I have already found that the father owns the tractor. That being so, the respondent can hardly be heard to say he owes money for it. One doesn’t owe money for something one doesn’t own or have an entitlement to. I therefore reject this suggested debt. [36] Next there is a claim in respect to monies allegedly owing to the father in respect to the Case 970, the 1155 tractor and the I.H. truck. The first was incurred on October 25, 1994, and the latter two on April 27, 1996. Both are statute barred and I therefore decline to take them into account. It is the same as to payment made by the father on August 22, 1995, in respect to fuel bill. Finally, there is a debt of $1,200.00 supposedly owed to the father in respect to the Morris rod weeder. I am not convinced this is actually owing and therefore reject it. [37] Over a period of time the respondent paid out monies on account of fertilizer, chemicals, fuel, repairs, parts and insurance. See Exhibits D-21 and D-23. These were on-going expenses and related to the on-going operation of the farm. The petitioner has received no benefit from these expenses. For example, she received no income from the farm since the separation. Accordingly, she should bear no responsibility for the payments made and I decline to take them into consideration. [38] The debts submitted by the respondent which believe should be taken into account are these. (1) Balance for Duetz tractor 500.00 (2) Balance for New Idea disc bine 1,200.00 (3) Land rental for 2000 (Dobko, Farkes) 2,132.00 (4) Loan for residence improvements 3,696.99 (5) Loan to purchase cattle 4,676.00 (6) Paid to deliver bull 50.00 Total 12,254.99 There are additional debts as follows which the petitioner has been looking after. (1) Zellers 1,149.04 (2) CIBC loan 6,500.00 (3) Credit Union loan 4,989.30 Total 12,638.34 The petitioner also claims a debt of $1,000.00 for money she borrowed from a friend to make a payment on account of legal fees. I do not consider this to be a matrimonial debt. [39] The property available for distribution is the following. (1) Family home 43,000.00 (2) Farm machinery 30,857.31 (3) Automobile and boat 2,400.00 (4) Livestock 25,261.00 (5) Other property 13,456.77 Total 114,975.08 As for the debts, the petitioner’s debts exceed those of the respondent by $377.35. To equalize them, the petitioner should be paid $188.68. [40] Each party’s share of the family property is valued at $57,487.54. When add on the petitioner’s debt adjustment, she is entitled to $57,676.22. To date she has received the following. (1) Household furniture 500.00 (2) Automobile and boat 1,400.00 (3) Bank accounts 29.47 (4) RRSP 1,520.93 (5) Cash payment 2,500.00 Total 5,950.40 To achieve equalization the respondent must pay $51,725.82 with each party paying the debts as above attributed to them. CONCLUSION [41] In the result, the petitioner will have judgment against the respondent in the sum of $51,725.82 together with taxable costs of the action. The respondent shall have three months in which to pay the amount of the judgment and, in the event payment is not made, the petitioner may apply to this court for directions as to sale of the family property including the family home. The petitioner is entitled to forthwith register this judgment as charge against the family home.
The wife sought distribution of family property in accordance with the Family Property Act. HELD: The petitioner was given judgment for $51,725.82 with taxable costs of the action payable within 3 months, failing which, the petitioner may apply for directions as to sale of the family property. The family property was divided equally from the date the action was commenced. The legislation does not permit an exemption in the circumstances for the $12,000 from the sale of the respondent's trailer used to purchase the acreage. It was concluded the respondent's father owned the tractor. Two other tractors were exempt and a partial exemption was allowed for a snowmobile and some tools. While he owned a truck prior to the marriage, it could not be traced to the current truck. The petitioner's automobile and boat were added to the distribution value of the machinery. There were no records of the value of the pigs. Whatever the number brought into the marriage, it had been reduced by the sale of the animals. The value of livestock to be distributed was $25,261. The RRSP purchase prior to the marriage was exempt. The claim for the debt for the tractor owned by the father and alleged debt for a rod weeder were rejected. Debts owed to the father for a tractor and a truck were statute-barred. The petitioner should bear no responsibility for monies paid for fertilizer, chemicals, fuel, repairs, parts and insurance as they were on-going expenses for the operation of the farm. The petitioner's claim for $1,000, borrowed from a friend to pay legal fees, was not considered a matrimonial debt.