J. U.F.C. A.D. 1992 No. 996 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ANNA MAY SHRIMPTON and RONALD SHRIMPTON RESPONDENT Merri-Ellen Wright for the applicant (petitioner) M. Henderson for the respondent FIAT NOBLE J. January 7, 1994 Following a trial before me in November of 1993, Iissued a judgment on December 3, 1993 dealing with a number of issuesincluding the division of matrimonial property. When the evidence concluded but before heard argument, issued the following fiat: Order that there be nothing removed from the matrimonial home or any other assets disposed of until further ordered. (Continuation of Dickson, J.'s order of June 14/93). Matter is adjourned for argument to Wednesday, November 10th/93 at 12 noon. Written briefs on distribution of matrimonial property to be filed by Tuesday, Nov. 9th/93. (emphasis is mine) This motion came before me on short notice, apparently with consent of the respondent's counsel but subject to his procedural objections which shall deal with in moment. The motion is really in two parts: the first seeks variation of my written judgment of December last; the second part seeks an order pursuant to Rule 344 to prevent the respondent from violating my order of November that nothing be removed from the matrimonial home or other assets disposed of. There are other prayers for relief in the notice of motion which reads as follows: 1.an Order pursuant to the inherent jurisdiction of this Court to amend the Judgment of this Honorable Court herein, dated December 3, 1993, for the purpose of taking into consideration the sum of $23,106.02 as matrimonial property subject to division; 2.an Order pursuant to Rule 344 of the Queen\'s Bench Rules:(a) Itemizing the household contents and personal items removedby the Respondent from the matrimonial home in order to allow for aWrit of Delivery; (b) an Order prohibiting the Respondent from disposing of any ofthe assets that the Respondent removed from the matrimonial home; (c) An Order requiring the Respondent to pay all outstandingutility payments and other expenses associated with his occupation ofthe matrimonial home up to and including December 26, 1993, as wellas any losses experienced as the result of no insurance coveragebetween September 28, 1993 and December 29, 1993; 3.an Order pursuant to Rule 372 of the Queen's Bench Rules committing the Respondent, Ronald Shrimpton, to goal for contempt of the Court Orders of Mr. Justice Noble dated November and December 3, 1993; 4.an Order for solicitor client costs of this application and all costs or poundage levied by the Sheriff; 5.an Order pursuant to Queen's Bench Rule 534 abridging the time for service of the within Notice of Motion. Counsel for the respondent took issue with the jurisdiction of the Court to deal with the relief sought by the applicant on the ground that no formal extension of my judgment of December has ever been issued. In my opinion the law permits the court both to vary its judgment and to give directions on how the judgment should be carried out whether or not formal order is issued by the Court. See: Shaw v. Regina et al, 1943 CanLII 154 (SK CA), [1944] D.L.R. 223 which has long been the law in this province. So in my opinion can entertain that part of the motion seeking variation of my judgment Clause No. of the notice of motion. As for the second part of the applicant's prayer for relief ie: Clauses 3(a), (b), (c) and 5, this relates not to my judgment of December 3, but my prohibition order of November 5, so even if am wrong in concluding can entertain an application for directions on how my judgment is to be carried out, it matters not since the respondent is clearly in violation of my order of November 5. Issue No. Should vary my judgment to include in the list of matrimonial property for distribution $23,106.02 as the applicant requests? have reviewed my notes taken at the trial as well as my remarks about these monies (which initially came from the sale of the respondent's interest in farm company called Key International Supply Corp.) on pp. and of my judgment. am not inclined to vary my conclusions as stated there. was not satisfied that the respondent attempted to hide these funds. When he sold the condo he did receive around $23,000.00, but these funds went into his account after the final separation of the parties. However, there is no indication that the respondent had any great amount of cash on hand even after he received these purchase monies. do know that from the end of January to the final separation at the end of May, great deal of money was squandered which the wife was aware of and benefitted from to some degree. So conclude that one way or the other the $23,000.00 received by the respondent was to large degree offset by debits incurred while they were together. In any event it is not clear and therefore decline to grant this part of the motion. The balance of the issues: (Items 2, 3, and 5) When the respondent finally moved out the matrimonial home, he took great number of assets with him. It is important to note that at trial the respondent indicated he had earlier removed some seven items with total value of $2,725.00 from the home. He testified that that was all he wanted implying, clearly in my view, that his wife could have the rest of the household furnishings then situated in the house. It was for this reason divided the household goods, jewellery and antiques in the manner did (see: pp. 10 and 11 of my judgment). Because at trial the respondent had possession of the house, counsel for the petitioner sought the order of November (supra) prohibiting anything from being removed or sold except with approval of the court. It is now clear the respondent has violated that order of November 5. suggested that he might forthwith return all the items in his possession that the petitioner indicates she found missing when she took possession of the house on December 26 last. Counsel indicated his client was not in the city and he would require week to ten days to comply with any order might make in that regard. This, notwithstanding he moved out on December 21, and apparently he has not even unpacked good part of what he took away. This is not satisfactory. Since the respondent does not want to co-operate, the court is left with no alternative but to assist the petitioner in regaining the assets taken out of the house by granting the order sought subject to one or two modifications. The applicant has attached to her affidavit list of items she claims are missing (see Exhibit "E" to her affidavit). Under para. 2(a) of her prayer for relief, direct that the items listed in said Exhibit "E" to the applicant's affidavit filed excluding the four items listed under the heading "Ryan's Room" shall be declared the list of household contents and personal items removed by the respondent from the matrimonial home when he gave up possession to the petitioner. The petitioner shall have leave to exercise any legal remedy available to her to have the said list of items returned to her forthwith including the issue of writ of delivery. Under para. 2(b) of the prayer for relief, the respondent is hereby ordered to return the "list of items" referred to above forthwith. He is further ordered not to dispose of any of the said items without leave of the Court. Under para. 2(c) of the prayer for relief, hereby order that the respondent pay all outstanding utility payments and other expenses associated with his occupation of the matrimonial home up to and including December 26, 1993, as well as any losses experienced as the result of no insurance coverage between September 28, 1993 and December 29, 1993. Under para. of the prayer for relief, decline to cite the respondent for contempt at this stage of the proceedings but adjourn this whole matter over to the regular chamber day on January 14, 1994 at which time this matter, at the discretion of counsel for the petitioner, can be pursued further. Under para. of the prayer for relief, the petitioner shall have her costs of this application to be taxed on solicitor and client basis and shall include any costs of poundage or other fees levied by the sheriff. Finally, since will not be available to counsel after January 10 next, adjourn any other issues that may arise out of this motion to the chamber judge on January 14 for resolution by him or her as the case may be.
FIAT Matrimonial property dispute. A previous order had prohibited the removal of any assets from the matrimonial home and the disposal of all other assets. By this fiat an order was granted pursuant to Queen's Bench Rule 344 itemizing the household contents and personal items removed by the respondent from the matrimonial home in order to allow for a Writ of Delivery and prohibiting the respondent from disposing of any of the assets that the respondent had removed from the matrimonial home and also requiring him to pay all outstanding utility payments and other expenses associated with his occupation of the matrimonial home. The judge declined to cite the respondent for contempt.