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

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.

Government legislative authority to direct measures during COVID-19

Saskatchewan has declared a state of emergency over the COVID-19 pandemic. The province’s legislative authority to declare this state of emergency can be found under The Emergency Planning Act (the “Act”). Measures taken by the provincial government under the Act can include the introduction of an emergency plan, the control or prohibition of travel within the province and acquiring a resident’s property which is deemed necessary to prevent, combat or alleviate the effects of the emergency (with compensation). A provincial declaration of emergency and any subsequent orders will take precedence over municipal declarations and orders.

The Government of Saskatchewan has introduced amendments to The Saskatchewan Employment Act (“SEA”) and multiple Public Health Orders to combat COVID-19. First, the government has made sick leave under the SEA available to all employees, regardless of how long they have been employed. The government also introduced a new “public health emergency leave”, where employees may go on unpaid leave for the duration of the public health orders (click here for a summary of the public health emergency leave). Second, the Minister of Health and Chief Medical Health Officer has the authority to introduce Public Health Orders, according to s. 38 and s. 45(2) of The Public Health Act, 1994, to combat the transmission of COVID-19. If a Saskatchewan resident or corporation contravenes one of the orders made pursuant to the Act, the provincial government has the power to fine that individual or business $2,000 or $10,000, respectively (see s. 16 of the Act).

The Government of Saskatchewan has released Re-Open Saskatchewan, a five-phase plan to reopen the province’s economy as the COVID-19 curve continues to be flattened. Re-Open Saskatchewan is mandated under the authority of the Public Health Orders and the Act. As of June 2, 2020, Saskatchewan is in Phase Two with a target date for Phase Three being June 8, 2020. For information on the phases of Re-Open Saskatchewan and a full list of Public Health Orders, please click here.

Federally, the Government of Canada has legislative power under the Quarantine Act and Emergencies Act to respond to the COVID-19 pandemic. The purpose of the Quarantine Act is to protect public health by taking comprehensive measures to prevent the introduction and spread of communicable diseases. The Quarantine Act grants the power to direct and control international travellers or others at entry or departure points of the country who might have an infectious disease. On March 26, 2020, the federal government declared mandatory 14-day isolation for any traveller returning to Canada under the Quarantine Act, whether you have symptoms of COVID-19 or not. Contravention of these restrictions may lead to fines of up to $1,000,000 and jail time up to three years. For more information on the federal restrictions, please click here.

The Emergencies Act, previously known as the War Measures Act, grants the Government of Canada the power to declare four types of emergencies: public welfare, public order, international and war emergencies. Section 8 of the Emergencies Act outlines the exceptional powers granted to the federal government in a public welfare emergency, which the COVID-19 pandemic would classify as. Such powers can include the prohibition of travel to, from or within the country, the evacuation of people, the requisition, use or disposition of a citizen’s property and the establishment of emergency shelters or hospitals. As of June 2, Prime Minister Justin Trudeau has not declared a public welfare emergency.

For more information, please contact:

Brett J. Maerz

306.933.1358

Email: b.maerz@rslaw.com

Brett Maerz published in Saskatchewan Advocate

Brett Maerz was published in the March edition of the Saskatchewan Advocate with her article “Summary Judgments, Personal Guarantees and the Court’s Attitude” that provides an overview of how Canadian Courts have treated summary judgment applications relating to personal guarantees.

The Saskatchewan Advocate is a quarterly publication of the Saskatchewan Trial Lawyers Association. Its purpose is to canvas new jurisprudence and trends in the law and provides practice tips and topics. The publication draws authors not only from Saskatchewan lawyers but from the bench, the medical profession, accountants, engineers, law professors and others.

Lawyers Brett Maerz