DIVISION OF FAMILY PROPERTY: ENTITLEMENT TO FARMLAND OWNED BY EX-SPOUSE AND THIRD PARTIES

by | Oct 21, 2020 | Agriculture, Articles & Research, Family Law, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

When two parties are separating and dividing the family property, there may be questions surrounding property owned by one of the spouses and third parties. In Saskatchewan, this is particularly true for farmland. Often a husband or wife will own farmland with their parents for estate planning purposes. So how does the court deal with this in the division of family property?

Courts ask two questions: first, is the farmland matrimonial property? And if so, what value should be attributed to it?

The answer to the first question is simple. As defined in The Family Property Act, family property means any real or personal property, regardless of its source, kind or nature, that, at the time an application for separation is made, is owned, or interest is held, by one or both spouses, or by one or both spouses and a third person. A joint tenant owns a legal right in the property by virtue of being a registered owner on title. Therefore, farmland held by one spouse in joint tenancy with their parents is family property as defined in the Act.

The second question is where the true analysis lies – what value should be attributed to the jointly held farmland? If the joint tenancy was legitimately for estate planning purposes, its value for the division of family property will be nil. This is because the spouse, and therefore the family unit, did not collect a benefit from the farmland during the marital relationship. Rather, the spouse was simply on title for estate and succession planning once their parents pass away. Courts will look to factors such as who maintained control over the land, who used the land and who paid the expenses and received the benefits from the land when determining if a transfer of title was truly for estate planning purposes. If there is evidence to suggest the spouse received a benefit from the land during the marital relationship, it will be assigned a monetary value by the court and be subject to division. 

Should you have any questions about the division of family property, or need advice on your family law matter, please contact Robertson Stromberg LLP.

Retroactive Child Support: Should you be Worried?

by | Oct 8, 2020 | Articles & Research, Family Law, Tiffany M Paulsen

The recent Supreme Court of Canada decision, Michel v Graydon, 2020 SCC 24  is likely going to cause late night anxiety for some parents as the Court determined that, no matter how old the “children” are, parents may still collect unpaid child support from the other parent.  

In Michel v Graydon, the Court unanimously ruled that a British Columbia father must pay $23,000 in retroactive child support to his former common-law partner and child, even though the “child” is now 29 years old.

The Court held that child support is a right that belongs to the child, it is not something that parents can negotiate away. Child support should provide the child with the same standard of living they had prior to parental separation. Payments required of a parent must be reasonable when taking payor income into account. Back payment orders, or retroactive child support orders, hold parents accountable to responsibilities they may have neglected.

The judges in Michel v Graydon unanimously agreed that the prevention of retroactive child support places a disproportionate burden on women as caregivers. The Court further noted it would be wrong to create an incentive by granting payor parents immunity after the child ceases to be “a child of the marriage”.

“The courtroom doors should not be closed because certain categories of debt owed to children are classified as coming too late”.

The Supreme Court was clear in their message to parents who knowingly avoid or diminish their child support obligations, payor parents will no longer profit from bad behaviour.

Should you have any further question about collecting retroactive child support, or need advice on your family law matter, please contact Robertson Stromberg LLP.

 

Saskatchewan Estate Litigation Update

by | Oct 5, 2020 | Articles & Research, Estate Litigation, James D Steele, Lawyers

An interesting recent estate litigation decision out of Saskatchewan is Leason v Malcolm, 2020 SKQB 102.

Leason reminds us that once a  bequest is vested, it may not be divested. In other words, if a beneficiary survives the testator, but the beneficiary then dies before actually receiving their share of the estate, the  beneficiary’s estate will still be entitled to receive the share.

Background

In Leason, the deceased was one Donald Aronetz who died on September 9, 2018. At issue was a gift that his Will made to Jennie Leason. Jennie Leason then died on December 24, 2018, some 15 weeks after Mr. Aronetz had died.

Facts in Leason

Under estate administration law, the bequest to Jennie Leason in Mr. Aronetz’s will would have taken effect (would have vested) on the date of his death, September 9, 2018, when Jennie was still alive. Her subsequent death would have made no difference to that circumstance, and her share of the estate would be payable to her estate.

The bequest in Mr. Aronetz’s will, however, was unusally worded. It read as follows in paragraph 2:

2. … I gift my estate in equal shares unto any SURVIVING siblings, who at the present time are named as follows: (a) Jennie Leson [sic] …, (b) Anne Malcolm …, (c) John Aronetz …, (d) Lillian Whitfield …, (e) Mike Aronetz …, (f) Nick Aronetz …. In the event either of these siblings predecease me or die before having benefited in whole or in part from this my estate, I direct any such undistributed share shall NOT be redirected unto any spouse or child of such a deceased person, rather such an undistributed share shall be equally redistributed amongst the remaining SURVIVING siblings. I have not mentioned any other siblings who have already predeceased me, as this is consistent with my wishes to gift only unto surviving siblings.

[emphasis added]

The respondent applied for letters probate in Mr. Aronetz’s estate in December 2018, while Jennie Leason was still alive, and the executor of Mr. Aronetz included Ms. Leason in the list of beneficiaries of Mr. Aronetz’s estate. The executor however received the grant of letters probate in Mr. Aronetz’s estate in January 2019, after Ms. Leason had died. The executor had not distributed any part of the estate to Jennie before Jennie died.

The issue before the Court was whether the estate of Jennie Leason was a beneficiary of the estate of Donald James Aronetz.

In light of the above provision in paragraph 2 of Mr. Aronetz’s will, the executor of Mr. Aronetz’s estate took the position that Ms. Leason is no longer a beneficiary of Mr. Aronetz’s estate.

The Decision of the Court

The Court interpreted clause 2 above as providing for:

  1. a gift to vest on Aronetz’s death; and
  2. if there was a subsequent death of a beneficiary, before distribution, the gift would be divested.

The Court then turned to consider whether this testamentary intention should be enforced?

The Court held that such intention was contrary to the established legal principle that once a bequest is vested, it cannot be divested. As such, the above provision of Mr. Aronetz’s Will was not enforceable. The Court concluded as follows:

[30]         I conclude, then, that in law a testamentary direction that purports to reverse a gift that earlier had become effective is not enforceable. Put another way, a bequest once vested may not be divested.

[31]        The bequest to Jennie Leason, in Mr. Aronetz’s estate, was effective at the moment of Mr. Aronetz’s death. The gift vested – was de jure receivable – on his death. Ms. Leason’s subsequent death, before she actually received any part of the estate, does not affect the full vesting of her interest in the estate at the moment of Mr. Aronetz’s death. Mr. Aronetz’s direction that in such a circumstance Ms. Leason’s share should go to the other named beneficiaries, rather than to her estate, is not enforceable. 

As such, the Court held that the estate of Jennie Leason was indeed a beneficiary of the estate of Donald James Aronetz, and entitled to receive the gift as if the gift had in fact been distributed to Jennie during her lifetime.

Legal costs:

As an interesting aside,  the Court awarded full indemnity (dollar for dollar) legal  costs to both sides. Their full legal costs were thus payable out of the estate of Donald  Aronetz.

The Court noted the entire court application had been necessitated by the provisions of Mr. Aronetz’s will, and by no fault of the executor, nor the fault of the heirs of Jennie Leason. The Court held that it had been reasonable for the applicants to bring the application, and it was reasonable for the respondent to oppose it.

As such, Leason also serves as a reminder to ensure that a Will is carefully drafted. This will better avoid the risk that a court proceeding may be required to give effect to your Will (as such court application may dilute your estate through awards of legal costs).

 

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or [email protected]. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

Protecting Farmer’s Equipment: A Bushel of Rights

by | Sep 29, 2020 | Agriculture, Articles & Research, Lawyers

Perhaps more than any other profession, farmers on the Prairies are susceptible to financial pressures. Whether it be due to a late winter, a lack or precipitation, family pressures or the present Covid-19 pandemic, the agricultural business carries many risks.

To that end, farmers can be faced with difficult decision as to which bills will be paid, which payments might be missed or deferred and in worst case scenarios, which equipment is to be forfeited. In response, the legislature has recognized the uniqueness of farming and implemented special protection for farmers.

The Farm Debt Mediation Act (“FDMA”)

The federal government recognized that farmers across the country required special protection to deal with their financial pressures. In response to these pressures, and in an effort to provide farmers with the opportunity to reach a compromise with their creditors, the federal government enacted the FMDA.

The main protection afforded by the FDMA is that a farmer’s secured creditors must serve a notice on the farmer indicating their intent to commence proceedings against a farmer (for example filing a Statement of Claim) or to enforce against the farmer’s property. The secured creditor must then wait fifteen business days before taking any further steps.

During the notice period, the farmer is able to apply for farm debt mediation. Applying for mediation prevents your creditors from taking any further steps against the farmer. However, it should be noted that once a farmer applies for mediation, all of his or her creditors receive notification that the farmer has applied for mediation. To a certain extent, all of the farmer’s creditors are now aware that the farmer is in financial trouble.

It should be noted that the FMDA notice provisions apply to both individual farmers and farming corporations.

The Saskatchewan Farm Security Act (“SFSA”)

The legislature in Saskatchewan took these protections one step further in enacting the SFSA. As many farmers are likely aware, a creditor must give a farmer thirty day’s notice before attempting to seize any of the farmer’s equipment. After the farmer receives the notice, they are provided with a variety of rights to either delay or avoid the seizure.

At this point, it is helpful to draw a distinction between purchase money security creditors (“PMSI Creditors”) and general creditors. A PMSI Creditor is a creditor who provided financing for the direct purchase of a piece of farming equipment. For example, if you purchase a tractor from a dealership, and the dealership provides financing to purchase that equipment, the dealership would be a PMSI Creditor.

In the other example, there are general creditors such as banks, or other financers,  who often provide an operating line of credit to farmers. In consideration for providing this funding, banks are often provided with general security agreements over all of a farmers property and/or a mortgage. 

Where a PSMI Creditor serves a notice on a farmer, that farmer is able to apply to the Court to delay seizure. In those instances, the Court will sometimes delay the seizure where it can be demonstrated the farmer can 1) come up with a viable plan to rectify the debt in a reasonable period of time and/or 2) the farmer requires the equipment for farming. While the delay is not a guarantee the Court, and sometimes creditors, will agree to temporary reprieves in order to give the farmer a chance to remedy the arrears. After all, a creditor prefers cash in hand over the hassle of seizing and selling farm equipment. This exemption applies equally to individuals and corporations.

In the other situation, where a farmer is facing bankruptcy and/or cannot pay its general creditors, the general creditor will attempt to seize part or all of its security. In certain  situations, a farmer can apply for an exemption in order to avoid the seizure of its equipment. In order to qualify for this exemption, the farmer must demonstrate it has realistic and viable farming plan going forward and that the farming equipment is reasonably necessary for the proper and efficient operation of the farm. In these exemption applications, the exemption only applies if the equipment is owned by an individual and not a corporation.

As is set out above, there are multiple remedies available to farmers in order to delay or avoid the seizure of equipment. These tactics and remedies allow a farmer to get through the year and hopefully develop a practical solution to satisfy his or her creditors.  

Should you have any further questions about your protections as a farmer, or need advice negotiating with your creditors, please give our office a call to discuss.

Why Do I Need a Will?

by | Sep 3, 2020 | Articles & Research, Ben W Parsonson, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

A commonly asked question is why do I need a will? Your will sets out what is to happen to your assets (more commonly known as your estate) when you pass away. If you pass away without a will then your estate falls into what is called intestacy. An intestate estate puts more strain and stress on your loved ones as they will first have to all agree upon and determine who will administer the estate and then do so in the absence of a formal will.

Administering an intestate estate often involves more steps than one with a will and also makes the estate subject to The Intestate Succession Act, 2019 (the “Act”) for determining who stands to benefit from your estate. The Act not only sets out who is to benefit from your estate but also in what proportions, regardless of what you may have otherwise wanted. Having a proper will therefore not only makes it easier to obtain letters probate from the court but also control who is to benefit from your estate and in what way. Failure to have a properly drafted will can also lead to more conflict and expense as loved ones argue over what they believe your testamentary intentions were.

Having a properly drafted and executed will is beneficial for your loved ones to ensure that your intentions are met, and they are looked after. A properly done up will along with appropriate estate planning can also save your estate money, ultimately leaving more for your loved ones. It can also assist them sooner in ensuring your assets from your estate flow to them in a more expeditious manner.

For more information on having your will prepared or estate planning, please contact Ben Parsonson at [email protected] or at 306-933-1353.

Using home inspectors as insurance for a home purchase- Think again

by | Aug 31, 2020 | Articles & Research, Construction, Jared D Epp

For many people buying a new home is one of the most significant financial decisions they will make in their life. To safeguard this investment, many people choose to hire home inspectors. What happens when a home inspector misses something was the subject of a recent case in Saskatchewan known as Smith v Hawryliw.

In this case extensive mould and fire damage was discovered in a home months after the buyer had moved in. As the buyer had retained a home inspector prior to purchasing the property, the home inspector was sued. In defending the claim, the home inspector relied on a limitation of liability clause that was contained within the Home Inspection Agreement. This clause limited the home inspector’s liability to the amount paid by the buyer for the home inspector’s services. In arguing that this limitation clause should not apply, the buyer claimed that the home inspector had an obligation to bring the clause specifically to her attention before she signed the agreement. The judge, however, rejected this argument holding that the clause was written in plain language and was right above the buyer’s signature line on the agreement.

As the fee for a home inspection will often amount to only a few hundred dollars, any type of clause that limits a home inspector’s liability to the amount of its fee will significantly impact a buyer’s ability to recover costs expended to repair items that were missed during a home inspection. Given this, a home inspector should not typically be looked to as “insurance” on a home purchase. Rather, if a buyer has serious concerns or reservations about purchasing a home, especially with things like a home’s foundation or structure, other professionals (ex. engineers) should be looked to for assistance instead.

For more information, please contact Jared D. Epp at 306.933.1326 or email [email protected] 

 

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