THE COURT OF APPEAL FOR SASKATCHEWAN EDMUND CHRISTOPHER BANKOWSKI and PATRICIA MARIE EDMISON CORAM: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Sherstobitoff The Honourable Madam Justice Jackson COUNSEL: Ms. C.R. Werry for the appellant Mr. E.F.A. Merchant for the respondent DISPOSITION: Appeal Heard: November 1993 Appeal Decided: December 1993 On Appeal From: Q.B. 014241 of 1992, J.C. of Regina Appeal File: 1441 Reasons by: The Honourable Mr. Justice Sherstobitoff In concurrence: The Honourable Mr. Justice Cameron and The Honourable Madam Justice Jackson SHERSTOBITOFF J.A. This appeal is from judgment of Maurice J. under The MatrimonialProperty Act, R.S.S. 1985, c. M-6.1. The main issue is whether the judge erred in his distribution of assetsacquired with the proceeds of a severance package which the appellantreceived when his employment of twenty- three years was suddenly andunexpectedly terminated. The following excerpts from his judgment give the background facts, his reasoning leading to the disposition and the disposition itself: The wife, age 50, and the husband, age 50, were married October 8, 1988. They lived together until February 1, 1991, when they commenced living separate and apart under the same roof. The wife left the matrimonial home on March 21, 1992, and commenced proceedings for divorce and division of matrimonial property on May 14, 1992. On September 28, 1990, the husband's employment with Co- Operative Trust Company was terminated. severance package of $110,000.00 was ultimately agreed upon. The husband rolled $46,000.00 over into an R.R.S.P. and used $8,585.00 to purchase his company car. The balance was used for various expenses. At the date of application, the husband still retained the car and $36,000.00 was still invested in R.R.S.P.'s with Maritime Life Assurance. The husband says that he should not have to share these assets equally with the wife. The assets are matrimonial property owned by the husband, at the date of application, and subject, unless it would be unfair and inequitable, to equal sharing. The Act mandates equal sharing of assets acquired during the marriage. Section 20 of the Act states: That inherent in the marital relationship there is joint contribution that entitles each spouse to an equal distribution of the matrimonial property. Assets acquired before the marriage or after its breakdown are not subject to the same constraints. In my opinion, if the severance pay is additional remuneration given as reward for past service, it should be shareable to the extent that it is attributable to past service during the existence of the marital relationship. If the payment represents compensation for remuneration that would have been paid after the cessation of the marital relationship, then it should not be shareable. The termination of his employment came as complete surprise to the husband. After 23 years of service, he was told `It is not working out'. In the circumstances, it is obvious the severance package hereceived was not a reward for past service; it was for payment in lieuof reasonable notice of termination. As part of the settlement, the husband signed release acknowledging `That have received sufficient notice of termination of my employment by the employer or payment of salary in lieu thereof.' It is common ground that the severance packagewas based on 20.4 months of future earnings. If the severance package represented future wages for 20.4 months from the date of termination, then from that date (September 28, 1990) to the cessation of the marital relationship (if we take the date of the application, May 14, 1992, as the date of breakdown of the marriage) is 19.4 months: only one month of future wages can be said to have accrued after the breakdown of the marriage. It would be fair and equitable to exempt one month's salary ($5,392.16) from the matrimonial property in the possession of the husband, that is subject to equal sharing. The judge was indisputably correct in his determination that the property in question was matrimonial property as defined by s. 2(h) of the Act and that it was prima facie subject to equal distribution to each spouse under ss. 20 and 21(1) of the Act. Under s. 21(2), the judge had discretion, based upon considerations of equity and fairness, to adjust the equal distribution. While we do not all agree with the formula used by him to arrive at his disposition, and expressly refrain from approving it as applicable to all such cases, the result was well within his discretionary power and was reasonable result in the circumstances of the case. We can therefore find no basis upon which to change the disposition. Another ground of appeal was that the judge either overlooked or failedto take into consideration that the wife had taken a quantity offurniture and household goods and that, as a result, he failed to givethe husband credit for his one-half share of them. The record shows that to be the case. The items in question shall be valued at the amounts stated in an appraisal, exhibit P-4, and the appropriate credit given to the husband according to which items each of the parties, in the end, received, and the judgment shall be varied accordingly. In the event that the parties fail to agree on the amount of the adjustment, the matter shall be referred to the trial judge for determination. The last ground of appeal concerned failure to allow for depreciation in the valuation of an automobile. Since the judge used the only value put in evidence, he can hardly be faulted for assigning that value to the car. The appeal is allowed to the extent referred to above. In all other respects, it shall be dismissed. Since success was divided, each party shall bear his and her own costs. DATED at the City of Regina, in the Province of Saskatchewan, this 7th day of December A.D. 1993. SHERSTOBITOFF J.A. concur. CAMERON J.A. concur. JACKSON J.A.
Appeal from 107 SaskR 135, 44 RFL(3d)185. Appeal from a judgment directing matrimonial property. The main issue was whether the judge erred in his distribution of assets acquired with the proceeds of a severance package which the appellant received when his employment of twenty-three years was suddenly and unexpectedly terminated. The couple's marriage had lasted less than four years. HELD: The QB judgment was upheld regarding the severance package. The severance package was not a reward for past service; it was for payment in lieu of reasonable notice of termination. The severance package was based on future earnings, which would have occurred within the duration of the marriage. The QB judge did however fail to take into consideration that the wife had taken a quantity of furniture and household goods and that, as a result, he failed to give the husband his one-half share of them. Judgment varied accordingly.