The Canadian Abridgment eDigests - Family Law ... - Westlaw Canada

The Canadian Abridgment eDigests - Family Law - Western 

FAM.III.4.a.i.C 

The Canadian Abridgment eDigests -- Family Law - Western 

2011-7 

February 14, 2011 

Subject Title: Family law 

Classification Number: III.4.a.i.C 

Division of family property -- Determination of ownership of property -- Application of trust 

principles -- Resulting and constructive trusts -- Matrimonial homes 

Parties began living together in 2004 and separated in 2008 -- Woman initially lived in man's apartment for 

five months -- Parties then lived on property that woman acquired with settlement from divorce -- Man 

performed general contractor work on property in 2004 and 2005 without agreement as to nature of services 

-- Man contributed to groceries and paid half of utilities -- Man brought action against woman for 

unjust enrichment -- Action allowed -- Man entitled to $31,000, corresponding to one-third of equity in property 

-- All elements of unjust enrichment were present: enrichment, deprivation and deprivation corresponding 

to enrichment -- Juristic reason for enrichment and deprivation were absent -- Purpose of valuing 

unmarried parties' contributions was to avoid unfairness and remedy unjust enrichments, but not to put parties 

in same positions as if they were married -- Constructive trust approach was to value respective contributions 

of each party to property or to equity in property -- Parties did not have common intention to pool their 

resources -- Man's contributions were significant -- Woman was unjustly enriched by man's contributions of 

labour and towards purchase of materials and services for property -- Increase in value of home resulted in 

part from man's labour -- Fair and reasonable estimate of man's contribution to equity was 33 percent -- Award 

of $31,000 was charged against property. 

Seguin v. Graham 

1833, R.A. Graesser J. (Alta. Q.B.) [Alberta] 

(2010), 2010 ABQB 582, 2010 CarswellAlta 

FAM.III.6.g.i 


Classification Number: III.6.g.i 

Division of family property -- Valuation of specific assets -- Real property -- General principles 

Parties lived together for nine years, married in 1999, had three children and separated in 2006 -- Issues 

of corollary relief, including division of assets, were determined at trial -- Parties' matrimonial home and 

investment property ("properties")were declared family assets -- Court order ordered sale of properties, 

with proceeds to be divided equally -- Subsequent court order clarified issues with respect to agreed value 

of properties -- Husband disagreed with assigned values and brought motion for further clarification -- 

Husband filed notices of appeal twice and brought application to stay order to transfer title pending 

updated appraisals -- Parties entered consent order concerning how transfer of properties would take place 

-- Husband applied for order that family home and investment property be reappraised before proceeds 

were divided between parties -- Application dismissed -- Husband's conduct was abuse of court process -- 

file:///Y|/Corporate%20Marketing/public/Legal%2...20Files/11-02-14/CanAbr-Family(West)-2011-7.htm (1 of 13) [2/14/2011 2:27:21 PM]


Husband reapplied to court repeatedly on same grounds -- Husband chose not to follow through on appeals 

-- Valuation of properties had already been fixed by court order -- Husband's position was completely without merit. 

Muller v. Muller 

2607, Greyell J. (B.C. S.C.) [British Columbia] 

(2010), 2010 BCSC 1381, 2010 CarswellBC 

FAM.III.10.d.ii.B 


Classification Number: III.10.d.ii.B 

Division of family property -- Matrimonial home -- Determination of share of ownership -- 

Under matrimonial property legislation -- British Columbia 

Parties married in 1991 and separated in 2004 -- Parties had two children -- Husband commenced divorce 

action, and for several forms of relief including division of properties -- Court took into account factors 

enumerated in s. 65 of Family Relations Act, specifically need of wife to become and remain 

economically independent, and legal principle concerning division of identifiable family assets in cases such as 

this where there had been ongoing concealment of assets -- Net proceeds of sale from properties, after 

deduction for payment of existing encumbrances, commission and usual vendors' adjustments, was divided 

65 percent in favour of husband and 35 percent in favour of wife. 

L. (J.T.) v. L. (R.G.) (2010), 2010 

BCSC 1233, 2010 CarswellBC 2312, J. Harvey J. (B.C. S.C.) [British Columbia] 

FAM.III.11.f.iv 


Classification Number: III.11.f.iv 

Division of family property -- Practice and procedure -- Burden of proof -- Valuation of assets 

Parties lived together for nine years, married in 1999 and separated in 2006 -- Issues of family property 

were addressed pursuant to wife's petition for divorce -- Properties were valued in numerous court orders 

-- Registrar's report and recommendation including calculation of family assets and equalization payment 

were confirmed by court order -- Court order fixed amount of approximate outstanding mortgage on property 

-- Pursuant to consent order, wife's law firm was to retain equalization amount of $51,347 in trust, 

without prejudice to husband's application to review equalization amount by consent -- Husband argued 

that registrar made number of mathematical and accounting errors in report -- Husband applied for order 

pursuant to Ontario Supreme Court Civil Rules that registrar's report be remitted to registrar to address 

accounting errors -- Application dismissed -- Issues that husband raised had already been dealt expressly 

or implicitly in previous court decisions of four judges -- Fact that mortgage amounts were "approximate" did 

not mean that mortgage had to be adjusted to date -- Counsel and courts commonly used "approximate", 

as mortgage payout amounts were determined on daily basis to account for interest -- To accede to 

husband's arguments would not only offend judgment granted but also interfere with balance that court had 



struck in dividing family assets between parties. 



(2010), 2010 CarswellBC 2608, 2010 BCSC 

FAM.IV.1.e.viii 


Classification Number: IV.1.e.viii 

Support -- Spousal support under Divorce Act and provincial statutes -- Interim support -- Quantum 

Parties married in 1996 and separated in 2009 -- Parties moved to Vancouver Island in 1996 and wife did not 

work outside home since parties' move -- Husband was construction project manager operating under 

corporate entity of which husband was sole shareholder -- Following separation wife resided in family 

home, husband continued to pay all home expenses and husband paid wife $10,000 in August 2010 -- 

Husband reported 2009 income at $21,731, consisting of $15,000 Registered Retirement Savings Plan 

income, $6,516 in Canada Pension Plan benefits and $215 dividends -- Corporate income for 2008/2009 

was $211,162 and net corporate income for tax purposes was $139,531 -- Wife's financial statement 

reported $3,300 per month in expenses without specific itemization of expenses -- Husband was 64 years of 

age and wife was 55 years of age -- Wife applied for interim spousal support -- Application granted -- Husband 

was ordered to pay $3,573 per month in interim spousal support -- Under circumstances, determining 

husband's income at corporation's average net income over past three years, or $175,000, was fair 

representation of husband's income and earning capacity -- Imputing husband's income on basis of pretax 

corporate income required in-depth analysis not appropriate on interim application -- Amount of award 

was appropriately based on mid-range of Spousal Support Advisory Guidelines -- Given difficulty of 

analyzing reasonableness of wife's alleged expenses, payment of interim support at mid-range 

appropriately allowed wife to meet necessary expenses pending final resolution. 

Mitchell v. Mitchell 

2651, 2010 BCSC 1404, Master C.P. Bouck (B.C. Master) [British Columbia] 

(2010), 2010 CarswellBC 

FAM.IV.1.f.iii.B 


Classification Number: IV.1.f.iii.B 

Support -- Spousal support under Divorce Act and provincial statutes -- Lump sum award -- Factors 

to be considered -- Respondent unlikely to make periodic payments 


action, and wife applied for several forms of relief including spousal support -- Spousal support was ordered 

in lump sum support in amount of $50,000 to be paid to wife from husband's share of assets -- When coupled 

with proceeds from her share of assets, this properly addressed wife's claim for compensatory support -- Court 

had no confidence that husband would honour award -- Nor, because of manner in which he earned income, 



was court confident that conventional means of execution would be open to husband. 

L. (J.T.) v. L. (R.G.) (2010), 2010 


FAM.IV.3.a.iii 


Classification Number: IV.3.a.iii 

Support -- Child support under federal and provincial guidelines -- Application of guidelines -- 

Shared or split custody 

Parties had brief relationship and separated in 2000 when child was three months old -- Trial was held in 2010 

to determine issues of custody and child support -- Parties agreed that if there was to be shared parenting, 

child support would be determined on basis of set-off pursuant to s. 9 of Guidelines -- Father earned $102,471 

per year -- Mother's income was imputed at $24,000 per year -- Parties were granted joint custody of child 

under shared parenting regime whereby mother and father would parent child on seven-day rotation -- Father 

was ordered to pay child support to mother of $687 per month. 

Holliday v. Hansen (2010), 2010 SKQB 350, 

2010 CarswellSask 649, D.E.W. McIntyre J. (Sask. Q.B.) [Saskatchewan] 

FAM.IV.3.c.iii.B 


Classification Number: IV.3.c.iii.B 

Support -- Child support under federal and provincial guidelines -- Determination of spouse's 

annual income -- Imputed income -- Ability to earn income 

Parties had brief relationship and separated in 2000 when child was three months old -- In 2010, father 

and mother were granted joint custody of child under shared parenting regime -- Father earned $102,471 per 

year -- Mother's tax returns indicated income of $13,070 in 2006, $5,204 in 2007 and $5,439 in 2009 -- 

Mother was on maternity leave for parts of 2006 and 2007, and was also involved in motor vehicle 

accident, returning to work in mid 2008 -- Mother's status was that of casual employee -- Mother was working 

part-time, and acknowledged that she could work more hours -- As of May 23, 2009, mother had year-todate 

earnings of $6,222, which would extrapolate to annual income of $16,000 -- Trial was held to determine 

issue of child support -- Issue arose as to mother's income for child support purposes -- Mother's income 

was imputed at $24,000 per year -- Mother's tax returns were not reliable indicator of her present earnings 

-- Mother was capable of working more hours, and had same obligation to support child as father did -- It 

was appropriate in circumstances to impute some income to mother. 





FAM.IV.3.c.iii.D 


Classification Number: IV.3.c.iii.D 

Support -- Child support under federal and provincial guidelines -- Determination of spouse's 

annual income -- Imputed income -- Tax exempt income 

Parties had three children born in 1988, 1991 and 1993 -- Father paid child support from 2002 based on 

his employment income as teacher pursuant to order following trial -- From 2005, father had received 

substantial allowances from provincial government for care of foster children -- Father did not care for children 

in his home, but rented premises and hired staff to provide 24-hour care for children -- Since 2006, 

gross allowances had totalled more than $400,000 per year, with net allowances after deduction of expenses 

being in range of $90,000 to $110,000 per year -- Father claimed that allowances were properly excluded from 

his income for tax purposes, and were not to be taken into account when determining his income pursuant 

to Federal Child Support Guidelines -- Mother brought application for imputation of income to father -- 

Application granted -- If portion of father's allowances were to be included in his income for tax purposes, 

then same amount was to be included in calculation of income for purposes of Guidelines -- Parties both 

assumed that allowances were properly excluded from father's taxable income -- Income figure used by father 

to calculate child support payments did not fairly reflect money that was available to him for payment of 

child support -- Father and current wife, who had no taxable income, had acquired significant assets, and source 

of funds to acquire those assets had come, at least in part, from allowances -- Most courts had been willing 

to impute portions of foster allowances as income in hands of payor parent for child support purposes, 

since obligation to provide support for one's own children took precedence over contractual obligation to 

foster children -- Foster parent services provided by father was consistent with operation of business, and he 

and wife received revenue without paying income tax -- Even if allowances were not taxable income, they 

should be included in income for child support purposes under s. 19(1)(b) and (h) of Guidelines. 

Cole v. Cole (2010), 323 D.L.R. (4th) 257, 2010 BCSC 1330, 

2010 CarswellBC 2526, Butler J. (B.C. S.C.) [British Columbia] 

FAM.IV.3.k.iii 


Classification Number: IV.3.k.iii 

Support -- Child support under federal and provincial guidelines -- Practice and procedure 

-- Disclosure of financial information 

Child support order under Divorce Act was made in July 2007 -- Father was advised by letter in January 2010 

that mother had registered for Child Support Recalculation Program -- Program was designed to recalculate 

child support where payor has not provided income information required, and imputes income to payor based 

on years elapsed since last child support order -- Program sent four letters to father, and Director of 



Program spoke to him in February 2010 -- Father told director he would provide updated financial information 

but no information was forthcoming -- Director brought application for recalculation of father's income for 

child support purposes -- Application granted -- Problem arose because child support order was made 

under Divorce Act, and program was provincially-passed legislative enactment available only to Alberta residents 

-- However, agreement was reached between provincial and federal governments allowing director to attend 

before court to have payor's income adjusted for purposes of program -- Director had served father with notice 

of application -- Director was not applying to vary child support as director had no standing to apply for 

variation, but was requesting that court deem increase to father's income appropriate since there was 

no corresponding power for administrative bodies to do so under Divorce Act -- Refusing to grant such 

application would be patently unfair as it would deprive applicants of seeking benefit of program simply 

because child support order was made under Divorce Act rather than Family Law Act -- Director's application 

to have future recalculation orders relating to father not require repeated court attendances was granted, 

since program was expressly set up to avoid such court applications and attendant costs -- Father's income 

was deemed to have increased 16 per cent from July 2007 to July 2010. 

Moshuk v. Moshuk (2010), 88 R.F.L. (6th) 135, 2010 

CarswellAlta 1639, 2010 ABQB 540, L.D. Acton J. (Alta. Q.B.) [Alberta] 

FAM.IX.2.a.iv 


Classification Number: IX.2.a.iv 

Custody and access -- Factors to be considered in custody award -- Best interests of child generally 

-- Parenting skills 

Parties had brief relationship and separated in 2000 when child was three months old -- In 2004, parties 

signed parenting plan whereby father and mother would parent child on four-day rotation -- In 2008, 

father initiated review of plan seeking seven-day rotation -- Mother claimed that shared parenting 

arrangement was no longer in child's best interests -- Custody and access assessment was ordered; 

assessor concluded that parties' parenting styles were markedly different -- Mother had strong desire to be liked 

by child, and sought his input on virtually all matters -- Father had firm view of what he considered to be right 

and wrong, and believed that parent's decision was absolute -- Assessor noted that there were no difficulties 

or dysfunction observed in child's interaction in either home -- Assessor further noted that while child was 

more cautious with father, he clearly valued his relationship with him -- Parties were granted joint custody of 

child under shared parenting regime whereby father and mother would parent child on seven-day rotation -- 

Child had been in shared parenting circumstance most of his life, and it remained in his best interests -- Child 

had strong relationship with both parents, and would benefit if each would introduce aspects of the 

other's approach to parenting into his or her own relationship with child -- Four-day rotation was no 

longer appropriate, as it made scheduling a challenge -- Accordingly, each party was to parent child for seven 

days, with change of residence to occur after school on Fridays. 



FAM.IX.2.b 




Classification Number: IX.2.b 

Custody and access -- Factors to be considered in custody award -- Wishes of child 




arrangement was not in child's best interests, as child had expressed desire to live primarily with mother -- 

Custody and access assessment was ordered -- Assessor noted that in his interview with child, child's 

answers appeared to be rehearsed -- Assessor further noted that while both parents had likely 

discussed assessment with child, mother's input had likely had more sway over child's opinions -- 

Mother acknowledged that she had discussed custody issues with child during six months preceding trial -- 

Parties were granted joint custody of child under shared parenting regime whereby mother and father 

would parent child on seven-day rotation -- While child's views may be taken into account in determining 

child's best interests, in present case, child's views may have been influenced by mother's conduct -- Child 

had strong relationship with both parents, and needed influence of both parents -- Child had been in 

shared parenting circumstance most of his life, and it remained in his best interests. 



FAM.IX.2.g.ii 


Classification Number: IX.2.g.ii 

Custody and access -- Factors to be considered in custody award -- Conduct of parent -- Abuse 

of child 




arrangement was not in child's best interests, as father was physically and verbally abusive to child -- 

Mother produced child's journal in which child described being slapped, spanked, choked and berated by father 

-- Custody and access assessment was ordered -- Assessor noted that there were no difficulties or 

dysfunction observed in child's interaction in either home -- Assessor further noted that while child was 

more cautious with father, he clearly valued his relationship with him -- Assessor concluded that journal 

was therapeutic tool, and that child had portrayed events in overly dramatic fashion -- Parties were granted 

joint custody of child under shared parenting regime whereby mother and father would parent child on sevenday 

rotation -- While child's writings were troublesome, assessor's observations in this regard were noted 

-- Writings may have reflected child's feelings at particular moment; in some instances, events were 

portrayed more dramatically than reality, and in some instances, they did not occur -- Import of writings 

were weighed in context of assessor's conclusions as to nature of child's relationship with his father. 





FAM.IX.2.g.vii 


Classification Number: IX.2.g.vii 

Custody and access -- Factors to be considered in custody award -- Conduct of parent -- 

Parental alienation 


action, and parties sought determination of custody of children -- Father ordered to have sole custody 

and guardianship of both children and access, if any, shall be as arranged directly between children and mother 

-- Mother demonstrated behaviour as a parent which made it difficult, if not impossible, to disregard wishes 

of children. 

L. (J.T.) v. L. (R.G.) (2010), 2010 


FAM.IX.3.c.vi 


Classification Number: IX.3.c.vi 

Custody and access -- Interim custody -- Factors considered -- Miscellaneous 

Third party was mother's "john" when mother worked as prostitute in teenage years -- Mother had child 

during brief relationship with father -- Mother and father were drug addicts for several years -- Child was 

in mother's primary care -- Mother was granted order designating her home as child's primary residence 

pending further court order and receipt of Voices of Child Report -- Third party alleged caring for child 

during extensive periods when mother was unable to do so -- Court order determined third party to be 

"interested party" in June 2010 -- Third party applied for interim custody of child which mother and father 

opposed -- Application dismissed -- Mother granted interim primary care to child, with specified access to 

interested party -- Mother and child, now 14 years-old, had troubled relationship -- Evidence in affidavit 

material was conflicting -- Voices of Child Report indicated that child sought third party as primary caregiver 

-- Child had been able to turn to third party during turbulent childhood -- Third party provided stability to 

child when mother and father were unable to care for her -- There was no evidence that third party had 

sexually exploited child -- Child, however, did not appear particularly close to third party and choice of that 

party appeared to relate more to need for stability and financial security -- Mother should continue to 

provide primary care for child on interim basis. 

Harrison v. Marion (2010), 2010 CarswellSask 603, 

2010 SKQB 341, D.L. Wilson J. (Sask. Q.B.) [Saskatchewan] 



FAM.IX.5.a.ii 


Classification Number: IX.5.a.ii 

Custody and access -- Variation of custody order -- Factors to be considered -- Best interests of child 

Parties married in 1993, had two children and separated in 2004 -- On separation, when children were four 

and one, parties entered into separation agreement wherein they agreed to joint custody with children's 

primary residence to be with mother and father was entitled to generous access -- Parties divorced in 2005 

and terms of separation agreement were incorporated into consent judgment -- Father applied to vary 

custody arrangement to one of shared custody -- Chambers judge found that changing ages, interests 

and increased maturity of children supported change in custody arrangement but that this was not sufficient 

to support finding that shared custody was in best interests of children -- Chambers judge made minor changes 

to custody arrangement -- Father appealed -- Appeal dismissed -- In her analysis, Chambers judge 

considered factors other than just children's changes in age and enrollment in school -- Chambers judge 

correctly stated that s. 17(9) of Divorce Act did not provide that maximum contact principle alone 

provided sufficient basis upon which to order shared parenting -- Chambers judge assessed principle in context 

of children's best interests -- There was no evidence that Chambers judge stopped her inquiry at status quo 

and that she did not assess children's best interests against proposed new circumstances and its impact on them 

-- There was no error in approach taken by Chambers judge to her analysis of best interests of children -- 

There was no material error, or misapprehension of evidence, or error of law by Chambers judge in proceeding 

on evidence she had before her and in her determination of best interests of children and her crafting of 

suitable order. 

Bromm v. Bromm 

(2010), 2010 CarswellSask 800, 2010 SKCA 149, Lane 

J.A., Ottenbreit J.A., Richards J.A. (Sask. C.A.); affirming (2010), 2010 SKQB 85, 2010 CarswellSask 110, 353 

Sask. R. 198, [2010] S.J. No. 109, J.A. Ryan-Froslie J. (Sask. Q.B.) [Saskatchewan] 

FAM.IX.5.a.iii 


Classification Number: IX.5.a.iii 

Custody and access -- Variation of custody order -- Factors to be considered -- Material change 

in circumstances 

Parties married in 1993, had two children and separated in 2004 -- On separation when children were four 



and terms of separation agreement incorporated into consent judgment -- Father applied to vary 

custody arrangement to one of shared custody -- Chambers judge found that changing ages, interests 

and increased maturity of children supported change in custody arrangement but that this was not sufficient 

to support finding that shared custody was in best interests of children -- Chambers judge made minor changes 


considered factors other than just children's changes in age and enrollment in school -- There was no evidence 

that Chambers judge stopped her inquiry at status quo and that she did not assess children's best interests 

against proposed new circumstances and its impact on them -- In context of conflicting evidence 

regarding children's wishes, it was open to Chambers judge to decline to make finding on issue and to 



base decision on other factors -- There was no error in approach taken by Chambers judge to her analysis of 

best interests of children -- There was no material error, or misapprehension of evidence, or error of law 

by Chambers judge in proceeding on evidence she had before her and in her determination of best interests 

of children and her crafting of suitable order. 





FAM.IX.5.b.ii 


Classification Number: IX.5.b.ii 

Custody and access -- Variation of custody order -- Practice and procedure -- Evidence 

Third party was mother's "john" when mother worked as prostitute in teenage years -- Mother had child 

during brief relationship with father -- Mother and father were drug addicts for several years -- Child was 

in mother's primary care -- Mother was granted order designating her home as child's primary residence 

pending further court order and receipt of Voices of Child Report -- Mother and child, now 14 years-old, 

had troubled relationship -- Third party alleged caring for child during extensive periods when mother was 

unable to do so -- Court order determined third party to be "interested party" in June 2010 -- Third party 

applied for interim custody of child, and issue arose as to validity of Voices of Child Report -- Voices of Child 

Report indicated that child sought third party as primary caregiver -- Child had been able to turn to third 

party during turbulent childhood -- Third party provided stability to child when mother and father were unable 

to care for her -- Child did not appear particularly close to third party and choice of that party appeared to 

relate more to need for stability and financial security -- Voices Report could be used as evidence in 

chambers motion but in this case Report raised questions in addition to conflicting evidence -- Mother 

should continue to provide primary care for child on interim basis. 

Harrison v. Marion (2010), 2010 CarswellSask 603, 

2010 SKQB 341, D.L. Wilson J. (Sask. Q.B.) [Saskatchewan] 

FAM.IX.5.c 


Classification Number: IX.5.c 

Custody and access -- Variation of custody order -- Miscellaneous 



primary residence to be with mother and generous access to father -- Parties divorced in 2005 and terms 

of separation agreement were incorporated into consent judgment -- Father applied to vary custody 



arrangement to one of shared custody -- Chambers judge found that changing ages, interests and 

increased maturity of children supported change in custody arrangement but that this was not sufficient to 

support finding that shared custody was in best interests of children -- Chambers judge made minor changes 


considered factors other than just children's changes in age and enrollment in school -- Chambers judge 

correctly stated that s. 17(9) of Divorce Act did not provide that maximum contact principle alone 

provided sufficient basis upon which to order shared parenting -- Chambers judge assessed principle in context 

of children's best interests -- There was no evidence that Chambers judge stopped her inquiry at status quo 

and that she did not assess children's best interests against proposed new circumstances and its impact on them 

-- There was no error in approach taken by Chambers judge to her analysis of best interests of children -- 








FAM.IX.11 


Classification Number: IX.11 

Custody and access -- Evidence 




and terms of separation agreement were incorporated into consent judgment -- Father applied to vary 

custody arrangement to one of shared custody -- Chambers judge made minor changes to custody arrangement 

-- Father appealed -- Appeal dismissed -- Chambers judge's decision would only constitute reviewable error 

if evidentiary record was lacking to point it could not sustain her findings of fact -- It was implicit in decision 

of Chambers judge that she determined there was sufficient uncontroverted evidence on material issues for her 

to be able to find change in circumstances and determine best interests of children -- Evidentiary record was 

not lacking to point where Chambers judge had no proper basis for her decision -- Given voluminous 

evidence before Chambers judge as well as her careful review of evidence, issues at play, relief sought, 

arguments as framed by parties and best interests of children, it was reasonable conclusion that 

evidentiary threshold necessary to make decision based on all uncontroverted evidence had been reached -- 








FAM.XV.5.a.ii.C 




Classification Number: XV.5.a.ii.C 

Children in need of protection -- Application for permanent custody -- Factors to be considered 

-- Particular factors -- Parents' ability to provide stable environment 

Child was apprehended from parents when he was less than two months old and placed in foster care -- 

Before age of 9 months, child had moved ten times and had seven sets of caregivers -- Parents had no 

stable housing and problems with addictions -- Minister of Social Services ("Minister" successfully 

extended protection orders -- Mother suffered from mental illness and took medication intermittently 

-- Inconsistent and unpredictable access visits between mother and child were suspended in 2007 and 

occurred sporadically when access rights were reinstated -- Transient father had not seen child in two years 

-- Foster parents, with whom child had been living since 2008, wished to adopt child -- Minister applied 

for permanent order that would allow child to be placed for adoption -- Application granted -- Where application 

for Minister was to extend existing order, function of court was not to retry original need for protection order but 

to evaluate whether there was need for further order -- Mother had no understanding of child's needs -- 

Mother had not tried to establish suitable home since apprehension of child -- Mother's criminal record was 

related to anger management issues -- Child had become integrated in foster family -- There was no 

assurance even with mother's family's support that child would receive security and stability he needed -- 

Child continued to be in need of protection -- Best interests of child warranted that child be permanently 

committed to care of Minister. 

R. (J.P.E.), Re (2010), 2010 SKQB 38, 349 Sask. R. 128, 

2010 CarswellSask 611, M-E. Wright J. (Sask. Q.B.) [Saskatchewan] 

FAM.XX.1.i 


Classification Number: XX.1.i 

Costs -- In family law proceedings generally -- Special costs 

Parties lived together for nine years, married in 1999, had three children and separated in 2006 -- Issues 

of corollary relief, including division of assets, were determined at trial -- Parties' matrimonial home and 

investment property ("properties")were declared family assets -- Court order ordered sale of properties, 

with proceeds to be divided equally -- Subsequent court order clarified issues with respect to agreed value 

of properties -- Husband disagreed with assigned values and brought motion for further clarification -- 

Husband filed notices of appeal twice and brought application to stay order to transfer title pending 

updated appraisals -- Parties entered consent order concerning how transfer of properties would take place 

-- Husband applied for order that properties be reappraised before proceeds were divided between parties 

-- Husband's application was dismissed and wife sought special costs -- Special costs on application awarded 

to wife -- Grounds for awarding special costs included deliberately frustrating or delaying administration of 

justice through abuse or consistent failure to adhere to Rules of Court -- Husband's conduct was abuse of 

court process -- Husband reapplied to court repeatedly on same grounds with reckless indifference to prior 

court orders -- Court order in November 2009 had fixed valuation of properties -- Wife was entitled to 

reasonable actual legal fees and disbursements as determined by Registrar. 





(2010), 2010 BCSC 1381, 2010 CarswellBC 

FAM.XX.1.k 


Classification Number: XX.1.k 

Costs -- In family law proceedings generally -- Offer to settle 

Petitioner in family law dispute served respondent with former offer of settlement -- Offer was not accepted 

and case proceeded to trial -- About one week after conclusion of trial, but before decision was rendered, 

petitioner revoked offer -- Decision was rendered -- Parties made submissions concerning costs -- Combination 

of RR. 184B and 545 of Queen's Bench Rules led to conclusion that petitioner was entitled to party to party 

costs under Column 3 up to date offer to settle was served, and double party to party costs under Column 3 

from that date -- Decision ended up being considerably more favourable to petitioner than what petitioner 

offered to settle for -- Purpose of making formal offers to settle pursuant to Rules was obvious -- Nor was this 

new or novel proceeding under Rules -- Parties are encouraged to try to settle their disputes on reasonable 

basis and thereby avoid heavy financial and emotional burden of trial -- Sanction, so to speak, of not 

accepting reasonable offer properly tendered and proceeding to trial was found in R. 184B of Rules, which calls 

for double costs from date of service of offer -- While offer was revoked, it was revoked one week after 

conclusion of trial -- Had offer been accepted when it was tendered, there would not have been trial with 

attendant costs of running trial -- Fact that offer was revoked did not alter applicable concept and 

resulting sanction -- While positions put forth by both parties at trial did not result in either party getting 

exactly what they argued they should, fact remained that offer to settle was tendered which was not accepted 

and trial proceeded. 

Scheibel v. Croft (2010), 2010 SKQB 458, 2010 

CarswellSask 812, T.J. Keene J. (Sask. Q.B.); additional reasons to (2010), 2010 CarswellSask 786, 2010 

SKQB 439, T.J. Keene J. (Sask. Q.B.) [Saskatchewan]

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