Q.B. A.D. 1991 J.C.Y. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: JEANETTE MAY HESHKA and TERRANCE MICHAEL HESHKA RESPONDENT Jeanette May Heshka appearing on her own behalf K. W. Wasylyshen for the defendant JUDGMENT GEATROS J. May 16, 1994 The issues raised in this action is custody andaccess, child and spousal support, and division of thematrimonial property. The petitioner, Jeanette, the wife, is 43 years of age; the respondent, Terrance, the husband, 44 years. They were married in May 1983 and separated in March, 1991. There are two children of the marriage, Mark, born September 19, 1983, and Michelle, born February 11, 1987. Jeanette issued her petition in May 1991. Thehusband counter-petitioned in January 1992. On February 24, 1992, Osborn J. granted interim maintenance as follows: Spousal support$ 400.00 Child support for Mark$ 400.00 for Michelle$ 800.00 $1,600.00 An application by Terrance to reduce the interim support was denied by Matheson, J. on May 11, 1993. It is apt to proceed first with division of the matrimonial property. The result may have an effect on the other issues. The assets and the values placed thereon by the parties are as follows: Assets Valued by Terrance Valued by Jeanette 1. NE 13-29-4-W2 2. SE 13-29-4-W2 3. SE 12-29-4-W2 5. Farm machinery 6. Grain on hand 7. Cash on hand 8. His teachers' superannuation 9. Sask. Wheat Pool equity 10. Yorkton Co-op Investors portfolio (joint 4,186.34 The NE 13-29-4-W2 is the home quarter. It was purchased in 1985 for $75,000.00. There is $5,400.00 owing on that quarter section. One appraisal is by Four Seasons Realty. The other by Cliff Durnford Appraisal. prefer the valuation of the "accredited appraiser" over that of the "realtor". Including the grain bins, fix the value of the NE 13-29-4-W2 for distribution purposes at $42,375.00 (by Jeanette's appraiser) less $5,400.00 due or $36,975.00. There are no "improvements" to take into account as regards the other two quarter sections. There is $25,000.00 owing against the SE 13-29-4-W2. In his "summary" prepared for trial Terrance values the quarter section at $34,500.00, and Jeanette in her brief at $47,680.00 on the basis of "eight times the assessment". This land was purchased in 1989 for $55,000.00. The valuation of the appraiser and the realtor approximates that submitted by Terrance. The value for the purposes of distribution find to be $34,500.00 less $25,000.00 or $9,500.00. The SE 12-29-4-W2 was purchased by Terrance from his brother Eugene for $55,000.00 in 1982. According to the agreement for sale, $30,000.00 was to be paid before May, 1983, the date of the marriage. Jeanette contends that only $20,000.00 had been paid so that Terrance should be given an exemption of $20,000.00, not $30,000.00. Upon the evidence, on balance, would allow an exemption of $30,000.00 given that Terrance was able to acquire title so it can be presumed it is likely the purchase price was paid according to the tenor of the agreement for sale. Jeanette places the value of the SE 12-29-4-W2 at $52,720.00, again based on "eight times the assessment", but her appraiser's value is lower. accept Terrance's value of $36,750.00. There is fourth quarter section of land, the NW 6- 29-3-W2, acquired by Terrance prior to marriage and accordingly Jeanette is not seeking division of that land. Lorne Korpatniski has been auctioneer for 23 years and farmer since 1980. He says the machinery "is in extremely poor condition ... it was sitting all over the yard". His view is that there is no room for further depreciation. He itemized and valued each piece of machinery. In my view, his total value of $13,150.00 is well placed. accept that value over the one submitted by Jeanette. The evidence reveals the present value of Terrance's pension benefit accrued during his marriage to be $7,774.00. One half of that amount or $3,887.00 may be transferred to prescribed R.R.S.P. for Mrs. Heshka. The manager of the superannuation program for the Saskatchewan Teachers' Superannuation Commission in her letter in evidence says, "when the court renders an award and payment is made to Mrs. Heshka by the Teachers' Superannuation Plan, she will have no further claim or entitlement to any pension or benefit pursuant to the Plan". There is agreement on the value of the remaining assets. The parties concede there is to be equal division. There are three items Terrance says he held prior to marriage to which he claims an "exemption". would allow $1,345.00 related to Plan 24, Canora Credit Union by reason of Jeanette's consent, but not the other two. There is no basis for an exemption related to the Canora Credit Union chequing account, and find well founded Jeanette's contention that the fuel that was prepaid would have been used by the time of the marriage. The parties have divided the furniture and personal effects and it was agreed at the trial that Jeanette is allowed to have "my cabin belongings". It is ordered that Jeanette shall be entitled to take possession of them on Saturday, May 28th or Sunday, May 29th, next. In summary, Terrance's assets comprise: NE 13-29-4-W2 $36,975.00 SE 13-29-4-W2 $9,500.00 SE 12-29-4-W2 ($36,750.00 less exemption of $30,000.00) $6,750.00 Farm machinery $13,150.00 Cabin $6,000.00 Grain on hand $15,708.56 Cash on hand $4,913.68 Wheat pool equity $2,276.88 Yorkton Co-op equity $475.21 Investors portfolio (joint account) $2,832.66* Investors portfolio (Terrance only) $4,186.34 Total $102,768.33 Less agreed exemption $1,345.00 Total to be divided $101,423.33 Amount payable to Jeanette $50,711.66 *To be placed in Terrance's name solely. The "amount payable" does not include Jeanette's share of Terrance's pension benefit in the amount of $3,887.00. My ruling is that the Saskatchewan Teachers' Superannuation Commission shall transfer such sum to an R.R.S.P. as may be prescribed by Jeanette. In this regard, see the Commission's letter to "Mr. Terry Heshka" dated April 20, 1994 (exhibit D-7). It is hereby ordered that Jeanette Heshka has fromthis date a beneficial interest created by this order,sufficient to support the registration of a caveat, in thefollowing lands to the extent of $50,711.66:NE 13-29-4-W2nd,SE 13-29-4-W2nd, andSE 12-29-4-W2nd. It is further ordered that Terrance Heshka shall not transfer, mortgage, lease or otherwise encumber the said lands except in accordance with an order of the court. If the sum of $50,711.66, together with interest atthe judgment rate hereby ordered to accrue in the meantime, isnot paid by Terrance by September 1st next, Jeanette may applyto the court for a sale of the lands to facilitate payment ofthe amount then outstanding. Terrance is not seeking custody of the children, but requires firm guidelines as to access. Upon hearing theparties I am of the view that a kind of specified accessshould be put in place. There was discussion at the trial as to how it should be determined. The farm home is 22 miles from Jeanette's residence. Terrance shall be entitled to access every second weekend from Friday, p.m., to Sunday, p.m., beginning Friday, May 27th next. Should Terrance choose not to exercise his access rights during any weekend he must communicate with Jeanette to that effect no later than the prior Wednesday. Jeanette agrees, as do, that the children should be able to visit with their father during the week from time to time. It is not possible to specify the times when these separate visits shall take place. Suffice it to say that they are to be part of the reasonable access to which Terrance is entitled. Such visits must necessarily be kept in balance and require the goodwill and co-operation of Jeanette and Terrance so as not to conflict with the children's school requirements or activities that may have already been arranged for them. The children will spend either the first or second week of each of the months of July and August with their father. He is to inform Jeanette by June 1st each year what week during those months he has selected for the access period. Terrance shall have access during Ukrainian Christmas and Ukrainian Easter each year, from 10 noon Christmas eve to p.m. the day after Christmas, and from 12 noon of Good Friday to p.m. Easter day. Spousal support and child maintenance shall be inthe same terms as in the interim order. There is no basis upon which it can be varied downwards as Terrance contends. Michelle's multiple physical handicaps mitigates against change in the amount that is being paid for her. The evidence does not allow for lessening of the monthly payment of $400.00 for Mark. There is no doubt that the cost of maintaining children increases as they grow older. Concerning Jeanette, there are really no grounds upon which spousal support can be reduced below $400.00 monthly. Medication for her diabetes alone costs her up to $200.00 every month. She does not seek an increase in spousal support. Only that it remain the same as at the present time. Given the employment and farming income of Terrance during 1993 revealed in his 1993 income tax return, am not persuaded that he will not be able to continue making the support payments. In the result,Terrance will pay to Jeanette for her support the sum of$400.00 per month and, as well, the sum of $800.00 and $400.00per month for the maintenance of Michelle and Mark,respectively, for a total sum of $1,600.00, commencing thefirst of June, 1994. An award for retroactive support and maintenance sought by Jeanette must be rejected. There is no basis for an award predating the order of Osborn, J. make no order as to costs on the petition and counter-petition.
The wife petitioned and the husband counter-petitioned for a division of matrimonial property, custody, access and spousal and child support. HELD: 1)The matrimonial property was valued and divided equally. The wife was permitted to register a caveat to protect the value of her 1/2 interest. If the husband did not arrange payment by September 1st next, the wife was given leave to apply for a sale. 2)The wife was given custody of the 2 children of the marriage.  The court ordered specific access for the husband. 3)The court confirmed the interim support orders made before trial in the amounts of $400.00 per month for the wife, $400.00 per month for the oldest child, and $800.00 per month for the youngest child, who was handicapped.