SCHERMAN U.F.C. 1123 of 1982 and U.F.C. 378 of 1984 IN THE UNIFIED FAMILY COURT AND IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: DONNA ADRIENNE OLSON APPLICANT and ALLAN REIER OLSON RESPONDENT Mr. J. Seibel for applicant Mr. Olson for himself JUDGMENT DICKSON,J DATE: January 8, 1986 I granted a decree dissolving the parties\' marriage at trial and reserved judgment on the issues of maintenance, costs and division of matrimonial property. Although the applicant claimed spousal maintenance in her petition, her counsel indicated she was willing to withdraw her claim if she is awarded an equal share of matrimonial property. The parties commenced living together in April, 1978. Two children, now ages and 4, were born before they married in September, 1981. The applicant left the matrimonial home with her children on December 6, 1982 upon discovering her husband in bed with the co-respondent She commenced this action few days later. The respondent attended the trial without counsel. His original counsel withdrew his services shortly after the action was commenced and counsel who replaced him withdrew almost year before the trial. The respondent stated he had no intention of hiring yet another lawyer and was willing to conduct the trial himself. He seemed rather uninterested in the proceeding, refusing to cross-examine any witness. When given the opportunity to take the stand himself, he did so but once there would only express his indignation at the applicant being allowed to proceed with her claim. He protested that he was brought to Court under false pretenses because his wife had said to him the previous spring that she thought his proposal of settlement was pretty good idea. However, he again refused my offer of adjournment for the purpose of hiring counsel and declined to present evidence bearing on the issues to be determined. Therefore, must accept the evidence presented by the applicant as uncontested. That evidence discloses no exceptions, exemptions or equitable considerations that would make equal distribution of matrimonial property unfair or inequitable. With the exception of the two quarters of farmland registered in the name of the respondent, all matrimonial property owned by the parties on the date the application was commenced was acquired during the time the parties cohabited as man and wife. The respondent purchased the land in 1976. He borrowed the entire purchase price from the Farm Credit Corporation. No evidence of the fair market value of the land was presented. However, supervisor of the Farm Credit Corporation, called by the applicant testified that between 1976 and 1980 there was rapid increase in the value of farmland but since 1980 values have declined. He was unable to inform the Court of the value of the land owned by the parties on the date of the marriage. Therefore, am unable to determine the exemption to which the respondent may be entitled. Even if I knew the net value of the farmland at the date of the marriage, I am satisfied that it would be unfair and inequitable to exempt that value from distribution. During cohabitation, the applicant often made machinery and land mortgage payments from her own savings. In total, she contributed $23,000.00 of her savings and all her employment income to the farming operation and family expenses. The respondent admitted, quite blandly, that he spent "just about everything" on booze and drugs; as he so graphically put it: "dusted off on foolishness". The appraised fair market value of the land, on July 30, 1984, is $165,000.00. No other proof of value was offered. Therefore, am willing to accept that figure as the fair market value of the land on December 15,1982, the date the action was commenced, which is the appropriate date for valuing the assets. Value of other assets shown in the following schedule are sworn to in the respondent's financial statement. In 1979, caveat was registered against the title to the land by the respondent's father, claiming an interest as the holder of an equitable mortgage securing advances made to the respondent totalling $25,000.00. In his exam for discovery, the respondent testified that he owned his father nothing. Despite this contradictory evidence, the applicant, in fair-minded gesture, acknowledges the debt owing to the respondent's father. Therefore, the value of matrimonial assets available for distribution is as follows: Fair market value of farmland 165,000.00 Less: mortgage debt 53,008.55 debt owing to respondent's father 25,000.00 78,008.55 86,991.45 Other matrimonial assets: cattle 12,500.00 machinery 43,500.00 grain on hand 35,000.00 cash on hand l,000.00 tools 1,200.00 vehicles 12,950.00 household goods 2,000.00 $108,150.00 Less liabilities: Royal Bank 38,000.00 Fuel bill 1,500.00 cash rental due 6,400.00 45,900.00 62,250.00 Net value of matrimonial property available for distribution: 149,241.45 All matrimonial property is in the respondent's possession. The applicant left the matrimonial home with only personal possessions and clothing. Therefore, the respondent must pay her $74,620.00 as her share of their matrimonial property. He has no cash. Again, in fair-minded gesture, the applicant is willing to accept periodic payments, provided they are secured against the land. The applicant and her children have been dependent upon social assistance since they left the matrimonial home. The respondent was ordered to pay interim maintenance but is many months in arrears. Because matrimonial property has been divided equally, the applicant abandons her claim for spousal maintenance but the respondent must bear his share of the cost of maintaining his children. Therefore, there will be an Order: 1. that the respondent shall pay maintenance of $250.00 for each child, commencing January 1, 1986 and continuing on the first day of each succeeding month for so long as each child remains a child within the meaning of the Divorce Act. 2. that the respondent shall pay the applicant the sum of $74,620.00 with interest on the unpaid amounts from today's date at the rate of 5% per annum, as follows: (a) 5,000.00 on January 15, 1986 (b) 5,000.00 on March 31, 1986 (c) $13,000.00 on November 30, 1986 (d) $13,000.00 on May 31, 1987 (e) $13,000.00 on November 30, 1987 (f) $13,000.00 on May 31, 1988 and (g) the balance plus accrued interest on November 30, 1988. Payment of the sum of $74,620.00 plus interest thereon shall be secured by a charge upon the folowing lands: The North West Quarter of Section Twenty-two (22) in Township Thirty-two (32), in Range Three (3), West of the Third Meridian, in the Province of Saskatchewan, in the Dominion of Canada, containing One Hundred and Sixty (160) acres, more or less. MINERALS IN THE CROWN. and The South East Quarter of Section Twenty-eight (28) in Township Thirtytwo (32), in Range Three (3), West of the Third Meridian, in the Province of Saskatchewan, in the Dominion of Canada, containing One Hundred and Sixty (160) acres, more or less. MINERALS IN THE CROWN. Should periodic payment of the said sum be in arrears for more than 30 consecutive days, the remaining sum owing shall become immediately due and payable and in such even the applicant shall have leave to apply for an order of judicial sale of the said land to satisfy payment of the remaining sum. 3. The applicant shall recover her costs of $500.00 and the respondent shall pay her an additional sum of $512.50 to cover one-half the cost of appraising the real property. 4. The lis pendens registered as item 84-S-26535 shall be vacated.
Division of matrimonial property. Husband owned farm land at the time of the marriage. During the marriage he spent heavily on booze and drugs. Wife spent her savings and employment income on the farming operation and family expenses. Held: Inequitable and unfair to exempt value of farm land from matrimonial assets. Equal division ordered, to be paid in installments secured against the land. Husband ordered to pay maintenance for support of the children.