Donkin v. Bugoy, 1985 CanLII 45 (SCC), [1985] 2 SCR 85

Vera Donkin, Executrix of the Estate of the late Elizabeth Bugoy Appellant;

and

Leslie Aloysius Bugoy Respondent.

File No.: 17269.

*1983: November 29.

*Present: Ritchie, Dickson, Estey, McIntyre and Wilson JJ.

**Re‑hearing: 1985: June 27; 1985: September 19.

**Present: Dickson C.J. and Beetz, Estey, McIntyre,Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.

on appeal from the court of appeal for saskatchewan

Matrimonial law ‑‑ Distribution of matrimonial assets on divorce ‑‑ Principle of equal division ‑‑ Effect of death of spouse on distribution ‑‑ The Matrimonial Property Act, 1979 (Sask.), c. M‑6.1, ss. 20, 21, 22, 30(1), 36, 43.

Respondent husband and his late wife were married in 1951 and gradually, during their marriage, acquired a section of land and associated assets. This was accomplished in part through the assistance of the husband's family, who made loans the husband was allowed to "work off ", and of the wife's family, who contributed money and cattle. Their son helped with the farm work and was allegedly promised a half‑section of land by his parents at a future date if he continued to work their land. In 1979 the husband petitioned for divorce and the wife for an order under The Married Persons’ Property Act (continued under The Matrimonial Property Act) for a division of matrimonial assets. The wife, who had disinherited her husband and son, died before her application was heard and her personal representative carried on with the application. The trial judge ordered that the matrimonial home remain vested in the husband, and that all but $10,000 of the remaining matrimonial assets be distributed to him as well. The Court of Appeal upheld that decision. The main issue before this Court was whether or not the death of a spouse and the contents of the will of that spouse are factors which a trial judge can consider in making an unequal distribution of matrimonial property under The Matrimonial Property Act.

Held (McIntyre, Lamer and Wilson JJ. dissenting): The appeal should be allowed.

Per Dickson C.J. and Beetz, Estey, Chouinard, Le Dain and La Forest JJ.: The death of a spouse or the content of that spouse's will is not a factor to be considered in setting aside the presumption of equal distribution in an application under The Matrimonial Property Act (MPA). By virtue of ss. 36 and 30(1), while an estate may not commence an action under the MPA where none was brought by a deceased spouse, spousal rights under the MPA are continued if the application was brought prior to death. To consider the death or the will of the applicant would render the estate's power to carry on the application meaningless. The position of the personal representative of the deceased spouse is the same as if the application had been processed during the lifetime of that spouse.

None of the statutory considerations relevant to disturbing the presumption of equal distribution with respect to matrimonial property was applicable. Contributions by the families of the spouses could be considered under s. 21(2)(e), but were not sufficient to justify departure from normal distribution. Work done by the son was irrelevant as it enured to the benefit of both spouses. Tax considerations, provided for in s. 21(2)(j) had little or no bearing for an appreciable capital gain was not a certainty and in any event would be borne by both parties. Section 21(2)(n), allowing consideration of interests of third parties, was irrelevant here for an interest in the land, if any, created by the son's alleged agreement with the parents cut against the interests of both parents. Section 40 was likewise irrelevant for the only agreement on the record was the alleged tripartite agreement between the spouses and the son. The right of the court to have regard to "any benefit received or receivable by the surviving spouse as a result of the death of his spouse", permitted by s. 21(2)(l), was irrelevant here because the will created no benefit for the husband and no action was taken to set it aside.

There was no "extraordinary circumstance", on these facts, to justify unequal distribution of the matrimonial home. Sections 30(1) and 36, read in relation to s. 22(1)(a), lead to the conclusion that the death of the wife or the contents of her will was not an extraordinary circumstance. If such were not the case, then the right given to a deceased spouse by s. 30 would have been made subject to her good behaviour in making her will.

To consider the death or will of an applicant would be to make the MPA perform the function of The Dependants’ Relief Act, an attack on the will in the probate process, or a common law action in contract or restitution.

The result was properly reviewable by the Court where the discretion granted by ss. 21 and 22 had been exercised under a misapprehension of the statute given the fact that the death of the spouse and the content of her will were irrelevant and erroneous considerations.

Per McIntyre, Lamer and Wilson JJ. (dissenting): The death and will of a spouse could properly be taken into consideration in distributing property under The Matrimonial Property Act. The Act's purpose and overall scheme was to benefit the spouses personally, and not their estates, and to ensure that the parties to the marriage shared the property acquired through their mutual efforts. Whether or not the share of a deceased spouse was reduced depended on the circumstances of each case. In these circumstances, the assets were properly divided at trial for the will would have diverted a large part of the matrimonial property to strangers and the distribution of the deceased's estate would make the completion of the arrangement between the parents and their son difficult, if not impossible, without causing extreme hardship to the survivor.

A spouse's death and will could be considered without making the statutory reference to The Dependants’ Relief Act in The Matrimonial Property Act redundant, notwithstanding the right of a surviving spouse to seek relief under The Dependants’ Relief Act. In addition the right to testamentary disposition was not infringed by any consideration of the deceased spouse's will because the will continued to be effective with respect both to the property not subject to the Act and to that fixed by the order of distribution. A spouse's interest in any specific matrimonial asset, before the making of the order, was incohate and therefore not subject to a power of testamentary disposition.

Cases Cited

By the majority

Re Levy (1981), 1981 CanLII 2845 (NS SC), 25 R.F.L. (2d) 149; Howorko v. Howorko (1980), 1980 CanLII 2210 (SK UFC), 20 R.F.L. (2d) 43; Seaberly v. Seaberly (1985), 1985 CanLII 2381 (SK CA), 37 Sask. R. 219; Farr v. Farr, 1984 CanLII 2754 (SCC), [1984] 1 S.C.R. 252; Harper v. Harper, 1979 CanLII 168 (SCC), [1980] 1 S.C.R. 2, referred to.

By the minority

Re Spencer; Spencer v. Spencer (1983), 1983 CanLII 2616 (SK QB), 34 R.F.L. (2d) 358; Van Meter Estate v. Van Meter (1983), 1983 CanLII 2111 (SK QB), 25 Sask. R. 109; Troendle v. Canada Permanent Trust Co. (1981), 1981 CanLII 2088 (SK UFC), 11 Sask. R. 47; Maroukis v. Maroukis, 1984 CanLII 76 (SCC), [1984] 2 S.C.R. 137, affirming (1981), 1981 CanLII 77 (ON CA), 125 D.L.R. (3d) 718.

Statutes and Regulations Cited

Civil Code, arts. 480 to 517.

Dependants’ Relief Act, R.S.S. 1978, c. D‑25.

Family Law Reform Act, R.S.O. 1980, c. 152.

Family Relations Act, 1972 (B.C.), c. 20.

Intestate Succession Act, R.S.S. 1978, c. I‑13.

Married Persons’ Property Act, R.S.S. 1978, c. M‑6 and (Supp.), c. 43.

Matrimonial Property Act, 1979 (Sask.), c. M‑6.1, ss. 20, 21, 22, 30(1), (3), 31, 36, 37, 40, 43, 50.

Matrimonial Property Act, 1980 (N.S.), c. 9.

Wills Act, R.S.S. 1978, c. W‑14.

APPEAL from a judgment of the Saskatchewan Court of Appeal, 1981 CanLII 2461 (SK QB), [1981] 4 W.W.R. 136, dismissing an appeal from a judgment of Cameron J. Appeal allowed, McIntyre, Lamer and Wilson JJ. dissenting.

Richard L. Finlay and F. Zinkhan, for the appellant.

Randy Kachur, for the respondent.

The judgment of Dickson C.J. and Beetz, Estey, Chouinard, Le Dain and La Forest JJ. was delivered by

1. Estey J.‑‑In my view, with all respect to those who reach and have reached other conclusions, the results below reflect a misapprehension of the principal statute as well as the relationship between that statute and other laws of the Province of Saskatchewan.

2. We are, for the most part, concerned with The Matrimonial Property Act, 1979 (Sask.), c. M‑6.1, hereinafter referred to as the MPA. The MPA deals in the main with the relationship between partners to a marriage, particularly the property held by the spouses during and after the termination of that marriage. It leaves undisturbed the probate laws of the Province, The Intestate Succession Act, The Dependants’ Relief Act, The Wills Act, and other statutes dealing with the disposition of property. Unlike comparable legislation in some of the provinces, either spouse may seek a division of the property of the family during the marriage without any allegation of marriage break‑down or proceedings with reference thereto of any kind. All such property distributions are conducted by the court under the broad principles enunciated so clearly in the MPA, as for example in s. 20:

20. The purpose of this Act, and in particular of this Part [Distribution of Matrimonial Property], is to recognize that child care, household management and financial provision are the joint and mutual responsibilities of spouses and that inherent in the marital relationship there is joint contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities that entitles each spouse to an equal distribution of the matrimonial property, subject to the exceptions, exemptions and equitable considerations mentioned in this Act.

3. The sequence of significant events in the history of this family is as follows:

Feb. 5, 1951: Date of marriage; wife then 17, husband 21.

1979: Husband petitioned for divorce.

Dec. 12, 1979: Wife applies under the MPA for distribution of the matrimonial property.

Mar. 26, 1980: New will of wife disinherits husband and only child (son).

Aug. 15, 1980: Wife dies before divorce petition or the application under MPA are heard.

4. At the death of the wife, therefore, the marriage subsisted, there had been no distribution of matrimonial property, and the wife had left a will (not under challenge) in which no provision is made for husband or son. In due course the will was probated and the executor, as the personal representative of the deceased wife, continued the application for distribution of matrimonial property. This proceeding is authorized by s. 30(1) of the MPA. Cameron J., in a judgment now reported at 1981 CanLII 2461 (SK QB), [1981] 4 W.W.R. 136, made the distribution of the matrimonial property as follows:

(a) The family home (registered in the husband's name) was allocated to the husband, the court ordering that "the entire value be vested in him";

(b) The other matrimonial property was distributed as to $10,000 to the wife's estate and as to $122,000 (all the remainder) to the husband.

The actual order reads: "The remainder of the matrimonial property and its value shall be vested in the respondent and shall not be distributed". The court concluded: "Costs may be spoken to". No order appears in the record to indicate the disposition of costs before the judge at first instance. In argument both parties referred to the results before Cameron J. in general terms as ninety‑five per cent of the matrimonial property to the husband and five per cent to the wife. The Court of Appeal, without reasons, dismissed the appeal of the personal representative of the wife and dismissed a cross‑appeal by the husband, both without costs. We are here concerned only with the appeal by the personal representative of the wife from the dismissal of her appeal below.

5. While the learned trial judge purported to exercise his discretion under the MPA in the distribution of the matrimonial property according to certain specified provisions in the statute, I share, with respect, the conclusion of my colleague McIntyre J. that the departure by the court from an equal division (the statutory norm) of these assets was based largely upon the judge's finding that the wife's death and the provisions of her will made an equal distribution of the family property "unfair and inequitable". The issue confronting this Court therefore resolves itself to this: is the death of a spouse or the content of the will of that spouse a "relevant fact or circumstance" and/or an "extraordinary circumstance" which may be taken into account under ss. 21 and 22 respectively of the MPA, when determining whether it would be "unfair and inequitable to make an equal distribution of [the] matrimonial property".

6. The MPA is, as we have seen in s. 20, premised on the joint contribution of spouses in the marital relationship entitling each spouse to an equal distribution of matrimonial property. Much is made by the respondent of the fact that more of the farm land came into the family from contributions of land and money from the husband's relatives than from the wife's family. In each case, when land was made available from the husband's family, the husband was allowed "to work off " much of the agreed consideration by assisting the transferor in farming operations on the farm of the father of the husband. There is no question but that the industry and skill of the husband in these farm operations were a great contribution to the success of this family in assembling a section of land with associated farm equipment and livestock and two residences. On the other hand, the record reveals a considerable contribution to this family undertaking by the deceased wife both on the farm and by driving a school bus. The wife's family also assisted in the early days of the marriage. Their son likewise, from his very early years, worked on the family farm. The learned trial judge recited the wife's contributions and rejected any attempt at denigrating the importance of those contributions. The Saskatchewan statute effectively puts an end to what was for so long in matrimonial litigation a wasteful and hopeless process of assessment of spousal contributions. There is nothing in the record to support a departure from the format established in s. 20, supra, that "inherent in the marital relationship...is [a] joint contribution...by the spouses".

7. We turn then to the provisions of the MPA which bear upon the claims by the wife's estate to this matrimonial property. Section 36 of the MPA states that "the rights conferred on a person under this Act do not survive the death of that person for the benefit of his estate". However, that section is prefaced "but subject to sections...30(1)". Subsection 30(1) is the basis upon which the proceedings reached the courts following the death of the wife. That subsection provides:

30.‑‑(1) An application for a matrimonial property order may be made or continued by a surviving spouse after the death of the other spouse or may be continued by the personal representative of the deceased spouse.

The result of the interaction between ss. 36 and 30(1) is that while an estate may not commence an action under the MPA where none was brought by a deceased spouse, spousal rights under the MPA are preserved if the application was brought prior to death.

8. It is clear, notwithstanding s. 36, that this legislation contemplates the distribution of family property after the death of a spouse providing that spouse has made application for such a distribution in her lifetime. Subsection 30(1) reflects the Legislature's desire to respect the wishes of the deceased as expressed by his or her application to divide the assets of the marriage. To consider the death of the applicant or the provisions of a will which disinherits the other spouse would be to render virtually meaningless the power given to an estate to continue the MPA application already commenced. By the same token, the provision in subs. (1) of s. 30, allowing the surviving spouse to commence an application after the death of the other spouse, ensures that a spouse who remains in an unhappy marriage is not worse off than if separation had been sought while the other party was alive. (See Hallett J.'s comments on the similar power under the Nova Scotia Matrimonial Property Act, 1980 (N.S.), c. 9, Re Levy (1981), 1981 CanLII 2845 (NS SC), 25 R.F.L. (2d) 149, at p. 170.) This may, in effect, involve some disruption of the testamentary intention of the deceased spouse, but only to the extent necessary to fulfil the policy of the Act. In contrast, where no application has been brought by the deceased spouse prior to death, it is reasonable to assume that the deceased saw no need to disrupt the property arrangements which existed as between the spouses. The same cannot be said when the application has been brought prior to that spouse's death. Subsection (3) of s. 30 goes on to provide:

30. ...

(3) No court shall consider the amount payable to a spouse under The Intestate Succession Act in making a distribution of matrimonial property pursuant to an application made or continued by a surviving spouse or continued by the personal representative of a deceased spouse where the deceased spouse died intestate, and no order made under this Act affects the rights of the surviving spouse on intestacy.

The Legislature enacted this section in Part IV of the Act entitled "Application on Death of Spouse". The provision would appear to ensure that the effect of the MPA is not to reduce the minimum entitlement of a surviving spouse or family member where the deceased died without a valid will. This section is not applicable in the proceedings before us but may have some relevance in indicating legislative intent. In an intestacy the absence of a will makes it impossible to determine what effect the MPA application would have on the intention of the deceased. The result of the interaction of these provisions is clearly a scheme designed to balance the protection of the interests and intentions of the deceased with the policy of the Act that either spouse is entitled to his or her respective share of the fruits of the marriage when such is sought by an application for a distribution.

9. The result is that the position of the personal representative of the deceased spouse in law under the MPA is the same as though the application had been processed during the lifetime of that spouse. This is further supported by s. 31 of the MPA. That section provides in part that where an application is continued under s. 30, as is the case here:

...this Act applies mutatis mutandis in respect of the estate of the deceased spouse, and the property of the deceased spouse, whether or not it has vested in the personal representative, is matrimonial property that is subject to this Act.

10. The conclusion that the application of the deceased is to proceed as if it had been processed during his or her lifetime is further reinforced by s. 37(1) which provides that the MPA shall not affect the right of a surviving spouse to make an application under The Dependants’ Relief Act, and indeed the section goes on to authorize the joining of such an application with an application for distribution of matrimonial property under Part IV. The proper place for the husband or son in this case to seek relief from the perceived harshness of the deceased‑applicant's will is not under the MPA, but rather through a proceeding under The Dependants’ Relief Act or, as will be seen, through the probate process or an action in contract or restitution.

11. We turn then to those parts of the statute which deal specifically with what a court might entertain in determining the distribution, if any, to be made on a post‑mortem continuation of an application for matrimonial distribution by the personal representative of a deceased spouse.

12. The distribution of matrimonial property other than the matrimonial home is regulated by s. 21 of the Act.

13. Section 21(1) directs the court in a distribution of matrimonial property to order that that property or its value be distributed equally between the spouses "subject to any exceptions, exemptions and equitable considerations mentioned in this Act". Subsection (2) authorizes the court to distribute the matrimonial property on some other basis where the court is satisfied "that it would be unfair and inequitable to make an equal distribution...", "having regard to" some sixteen considerations listed in paras. (2)(a) to (p). Paragraph (2)(q) is a catch‑all provision which allows the court to have regard to "any other relevant fact or circumstance". As McIntyre J. has set out the whole of subs. (2) of s. 21 I do not repeat it here. Of all these considerations the court of first instance has made specific reference to paras. (2)(e), (j) and (n). The trial judge also catalogued subs. (1) as one of the considerations to which he was to have regard, but this may have been in error (as the editors of the W.W.R. felt) as the only later discussion, in addition to paras. (e), (j) and (n), is in relation to para. (q). It is para. (2)(q) which is said to be the basis for reference to the death of the wife after the application for distribution has been instituted. It is convenient to deal with these considerations in the order raised in the judgment below.

14. Section 21(2)(e):

(e) the contribution, whether financial or in some other form, made directly or indirectly by a third party on behalf of a spouse to the acquisition, disposition, operation, management or use of the matrimonial property;

This provision is evidently invoked by the court in order to consider the contributions by the families of the husband and wife respectively. The husband's family (his sister and brother‑in‑law) loaned the husband money and otherwise assisted him in purchasing parts of the land assembled by this family. In each instance, in the expression on the record, the arrangement allowed the husband to "work off " part or all of the consideration payable for these items of land. While the régime of the MPA dictates that " ‘Contributions’ by each party [i.e., spouses to the marriage], whether financial or otherwise, are not among the matters spelled out in s. 21(2) which the court has regard to" when considering whether it is proper to disrupt the presumptive division of matrimonial property (see Howorko v. Howorko (1980) 1980 CanLII 2210 (SK UFC), 20 R.F.L. (2d) 43, at p. 46, per Carter U.F.C.J.), it may be noted that the wife, during the period of these assisted acquisitions of land, was actively engaged in the role of a farm wife. The wife by law did as much to "work off " the unpaid balance for lands purchased by the family as did the husband. There is no suggestion, as already mentioned, that she did not make her contribution to this family's progress. Of more significance under s. 21(2)(e), since the courts, under the MPA, are not to engage in a cataloguing of contributions made by each spouse, is the fact that the deceased spouse's parents gave her $1500 and four head of cattle very early in the marriage in or about the year 1953. In any event, the third party contributions in this case were not such as to justify a departure from the normal distribution of matrimonial assets. The Saskatchewan Court of Appeal has recently considered s. 21(2)(e) in Seaberly v. Seaberly (1985), 1985 CanLII 2381 (SK CA), 37 Sask. R. 219. Relying in part on the decision of this Court in Farr v. Farr, 1984 CanLII 2754 (SCC), [1984] 1 S.C.R. 252, the Court of Appeal, overturned a trial decision which failed to include in the division of matrimonial property the value of an inheritance of land received by the husband seven years into the marriage, and some fourteen years prior to the couple's separation. The court held, at p. 225:

The fact alone that an item of property was acquired through gift by one of the spouses to the exclusion of the other does not by itself render it subject to unequal sharing. All of the circumstances must be looked at, and only where the spouse making the claim can show that the equal sharing otherwise contemplated by the law is unfair and inequitable, will an unequal, or fairer, sharing be justified.

In this case then, the trial judge erred in failing to look beyond the fact the testator left the farm solely to his son. He should have considered whether, having regard for all of the facts, the husband had made out a case for unequal sharing. This is a small farm, 480 acres. The parties had lived on it from the day of the marriage, and had greatly improved it, converting it in the process from a straight grain farm to a chicken and hog enterprise. And the gift was made in the seventh year of a 22 year marriage. With respect, the husband did not establish that the usual equal sharing contemplated by the Act was, in these circumstances, unfair and inequitable.

14. Reference is made by the learned trial judge to the work done by the son on the farm which contributed much to its operation. This consideration is, of course, not relevant in determining the respective entitlements of one spouse or the other but must surely enure to both spouses since there is no provision in the statutory machinery for a distribution to the son.

15. Section 21(2)(j):

(j) a tax liability that may be incurred by a spouse as a result of the transfer or sale of matrimonial property or any order made by the court;

Reference is made in the judgment below to evidence that there would be capital gains realized on the sale of these lands. This may or may not be so depending upon the workings of the federal Income Tax Act. There has been no opinion put upon the record and no argument made in this Court as to the operations of the Income Tax Act in the event of an in specie distribution of these lands and other assets. It may be that s. 50(1) of the MPA, which replaces the presumption of advancement with a presumption of resulting trust in matters relating to the ownership of property as between husband and wife, when read in conjunction with s. 54 and other provisions in the Income Tax Act of Canada, would operate to relieve the parties from any tax burden in the event of a distribution in specie of these assets. If the sale of assets is made necessary to order for one spouse to purchase part or all of the distributive share of the other spouse, taxation consequences should have little or no bearing. In any case, the taxation impact will be borne by both spouses in the event a sale becomes necessary to implement a distribution order. In this case the division of the capital gain attributed to each spouse would appear to attract a relatively low rate of taxation and when borne by the spouses in equal shares would appear to be considerably reduced as a controlling consideration in this matter. In any event it is not entirely clear, and indeed unsupported by the record, that in the words of the court below: "These lands carry with them the burden, so far as tax is concerned, of an appreciable taxable gain." This may be so only in the event that sale is necessary rather than division in specie, and it may be entirely unnecessary if the interworkings of s. 50 of the MPA, and the Income Tax Act provisions referable to trusts operate independently on each of the entitlements of the spouses.

3. Section 21(2)(n):

(n) interests of third parties in the matrimonial property;

On the record this can only have reference to the alleged arrangement between the son and his parents whereby they would give him the west half of section 8 of the land comprising the Bugoy farm when the father reached the age of sixty (about 1990) if he worked their land in conjunction with his own land nearby. There is of course doubt on the minimal record which could properly be established under an application under the MPA as to whether or not the alleged agreement has created, in law or in equity, an interest in the son in any of these lands. The son, in an action to assert his land claims against his father and mother, is, by the death of the mother, faced with a greater task than in making his claim against the father. He is required to produce to the courts some corroboration of his claim against the mother's estate. In doing this there may be problems under the Statute of Frauds or difficulties in the law of evidence which in Saskatchewan includes the rule of corroboration from the Chancery Court of England. The MPA authorizes the personal representative of the deceased wife to continue a claim for distribution of family assets, and the statute, of course, starts with the assumption of equal distribution. It would be surprising if the Legislature had given the wife, through her estate, a right to seek a distribution in this way but at the same time authorized the use of this special process as a mechanism to defeat the ordinary defences available to the wife's estate. This would be so if the asset sought in the litigation by the son against the estate of the mother was kept out of that estate by the device of uneven distribution without any requirement by the son to corroborate his claim. His father's evidence in the MPA process, being axiomatically self‑serving, cannot serve to establish the son's claim against his mother's estate. It would, in my view, require the clearest of language on the part of the Legislature to reduce the personal representative's right, granted under s. 30(1) of the Act, effectively to zero in cases where, as here, a third party makes a claim to an asset which, on equal distribution, would form part of the wife's estate. In any event, while the son's entitlement might reduce both the husband's and the wife's interest in these lands, it would not appear to be, in the circumstances of this tripartite agreement, a factor in determining as between husband and wife what their distributive shares in these lands should be under the MPA. The son has commenced no action against the father and the estate, and of course such an action is premature at least to the extent the agreement is said to be based upon the attainment by the father of the age of sixty. If an action for declaration were commenced perhaps different considerations would prevail but from the state of the record as it now stands it is difficult for a judge sitting on an application under the MPA to establish an interest in the third party son in these properties. Of controlling concern, however, is the fact that any such interest cuts against both the interests of the mother and the father in the matrimonial property.

15. Reference is made below to s. 40 of the MPA as being likewise relevant in considering the interests of third parties. That section provides that a court, in any proceeding under the MPA, may "take into consideration any agreement verbal or otherwise between spouses that is not an interspousal contract and may give that agreement whatever weight it considers reasonable". There is no contract on the record between the respondent and the deceased wife except the tripartite agreement to which I have referred, and I do not therefore believe that this section has any relevance.

16. Section 21(2)(a) is another factor to which regard may be had by a court on such an application. It allows consideration of "any written agreement between the spouses or between one or both spouses and a third party" in disrupting the presumptive distribution of matrimonial property. This cannot relate to the alleged agreement with the son because it is said to have been an oral agreement. Section 21(2)(a) is, however, relevant for in reading s. 40 in the light of the terminology employed by the Legislature in para. (a), it is difficult to give s. 40 an interpretation which would include a tripartite agreement. This is surely obvious and is caught up in the maxim expressio unius est exclusio alterius. One might also consider whether the alleged oral agreement between the son and his parents can be properly considered at all as giving rise to an "interest" within the meaning of s. 21(2)(n) in the light of the express reference in s. 21(2)(a) to written agreements only. As the interrelationship of these two paragraphs was not argued in this Court, I do no more than direct attention to the problem which arises in that connection should one rely in the disposition of this appeal upon the alleged oral agreement.

17. Section 21(2)(l):

(l) subject to subsection 30(3), any benefit received or receivable by the surviving spouse as a result of the death of his spouse;

17. Section 21(2)(l) entitles a court to have regard in disposing of an application under the MPA to "any benefit received or receivable by the surviving spouse as a result of the death of his spouse". By reason of s. 30(3) this cannot include a benefit under The Intestate Succession Act. It would, of course, include a benefit received or receivable under a will. The express inclusion in the Saskatchewan Act of only benefits received or receivable upon death as an "equitable consideration" may very well have been intended to mesh with the right granted to a surviving spouse to bring an application for division of matrimonial property. As already discussed, while such a right ensures that a spouse who remains in an unhappy marriage is not worse off than if separation had been sought while the other party was alive, neither should the surviving spouse necessarily benefit twice by receiving property under both the will and the MPA if his or her application would have the effect of defeating testamentary intentions beyond that necessary to fulfil the policy of the Saskatchewan Act. The result may be different in those provinces which do not expressly allow for the consideration of such benefits. Here the will creates no benefits for the husband and no action has been taken to set aside the will. (Parenthetically it may be added that s. 21(2)(l) may also contemplate consideration of other benefits received or receivable by a surviving spouse as a result of death in addition to those arising from a will. These include, and are certainly not limited to, joint tenancies, life insurance and pension rights. This issue need not be decided as none of these interests were present here.) The paragraph therefore would appear to have no application. I point this out because much was made of the subsection in argument before this Court, and reference was made to it in the judgment of the learned trial judge.

18. The trial judge made reference later in the judgment to para. (2)(q), "any other relevant fact or circumstance," but did so with reference to the entitlement of the son, presumably in the context of permitting a consideration of the alleged agreement even though it may fail to qualify under other provisions of s. 21 or s. 40.

19. In conclusion, none of the considerations relevant to disturbance of the presumptive distribution of matrimonial property is applicable on the facts.

20. The matrimonial home is dealt with in s. 22 of the MPA. Again the rule is to distribute the matrimonial home or its value equally between the spouses "except where the court is satisfied that it would be: (a) unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (b) unfair and inequitable to the spouse who has custody of the children". In this case, a court would be confined to finding an "extraordinary circumstance" to justify a departure from the rule of equality. The learned justice, at first instance, concluded:

Mrs. Bugoy's death at age 46 has served to alter radically the issue as respects the matrimonial home. And that is, in my opinion an extraordinary circumstance within the meaning of the Act. By reason of her death and the will she left, were I to order an equal division of the matrimonial home or its value half of it would go to strangers or others who have no need of it, have contributed nothing to it and would be depriving the respondent of what he worked for 30 years to build with the assistance of his father, his sister and his brother‑in‑law.

21. It is frequently difficult in the life of the court to apply, as we must, the cold words of the statute to the animated facts of the human record. The comments quoted from the court below are undoubtedly germane to an assessment of the state of affairs in this family following the death of the wife. The question before the Court, however, is whether or not under the terms of the MPA the death of the applicant is a factor which the Legislature had in mind when they used the term "extraordinary circumstance" as being the only basis upon which the rule of equality can be displaced. Section 30(1) clearly extends the process of distribution of matrimonial property, including the matrimonial home, to a situation where the wife has died. If the death of the wife were to be a circumstance to be considered then, in my view, the Legislature would have said so when they listed, as they did extensively in s. 21, the factors to which regard may be had by a court. Section 36 cuts off rights on death which are not crystallized by action taken under s. 30(1). Again it is difficult to read those provisions in relation to s. 22(1)(a) and conclude that the death of a spouse, which occasioned the continuance of a proceeding under s. 30(1), is an extraordinary circumstance when it is not mentioned in the section authorizing such a continuance of proceeding.

22. All the more obvious, in my respectful view, is the provision of the will. It can hardly be an extraordinary circumstance when, in the ordinary course of proceeding under this Act, the contending spouses are both alive and before the court. It is clearly, in my view, outside the purview of the court under s. 22. If such were not the case then the right given to a deceased spouse by s. 30 of the MPA would have been made by necessary inference subject to good behaviour of the spouse in making her last will and testament. These considerations would normally be applicable and relevant to any proceedings under The Dependants’ Relief Act in which any hardship created by the terms of a will is clearly addressed. The respondent, by his submissions to this Court, is seeking to make the MPA perform the function of The Dependants’ Relief Act, and in the case of the son, of an action at common law in the courts on contract or restitution. To elevate the term "extraordinary circumstance" to the level sought by the respondent, and indeed adopted in the court below, would be to defeat the purpose of s. 30(1) of the MPA.

23. I return to the concept to which I earlier adverted, namely that the application of the MPA is to determine the property rights as between the spouses. In this case, that finding will determine the property constitution of the wife's estate. If in all the circumstances revealed to the court in a proper application under The Dependants’ Relief Act hardship on the part of dependents is demonstrated, the property thus acquired under the MPA might well be diverted in whole or in part to the dependents depending upon their state of necessity and the financial extent of the estate. The compression of these processes into one creates difficulties illustrated by the disposition of the matrimonial home made in the court below. The court refers to extraordinary circumstances and this, in the plural use of the term, can only relate to the combination of the death and the will of the spouse. I find it difficult to conclude that the Legislature of Saskatchewan would employ the term "extraordinary circumstance" to include the exercise by a wife of a valid and unfettered right in law to dispose by will of her property as she may determine and that where she does so to the detriment of a spouse who does not invoke The Dependants’ Relief Act, it is said to be an extraordinary circumstance.

24. The son's claim I have already dealt with above. I refer again to it only to illustrate the difficulties when legal rights which are properly the subject of separate and other actions at law are drawn into a process for the distribution of property under a statutory program. The son has his claim against his father and the wife's estate. If the wife's estate on a proper application is found to have no interest in the lands in question by reason of the MPA or otherwise, then his action is limited to a claim against the father. The father's holdings in these lands would then be free and clear of any claim of the mother under the MPA. The first stage of the program again is a determination of the wife's interest in these lands. Thereafter, the son has remedies in law available to him providing, of course, the alleged agreement is enforceable at law. It may well be that the husband has a right against the wife's estate which would arise from a violation of the alleged agreement by the wife in revoking her will and in willing her interest, if any, in these lands contrary to the alleged agreement. That too must be the subject of appropriate process and cannot be determined by an extension of the MPA. If the father and son maintain their present position with reference to the alleged agreement of sale, the effect of the "distribution" directed by the trial judge is in effect a judgment in favour of the son on his contract claim, without the requirement of a trial.

25. A final illustration of the difficulties arising from an artificial combination within one forum of unrelated claims in law is the will of the deceased spouse. By a perversion of the application for distribution of matrimonial property under the MPA, the respondent is attempting to set aside the will of the wife without doing so by an attack upon it in the probate process. This is the opposite side of the coin to The Dependants’ Relief Act proceeding by a neglected dependent. That proceeding is undertaken where the will is valid. Where the will is said to be invalid the proceeding must be in the probate process. In neither arena is the MPA an appropriate instrument.

26. The result is clearly a two‑stage process. First the establishment of the extent of the assets comprising the deceased spouse's estate, and secondly the application to that result of the various statutes and general law already discussed. In this respect the MPA places the Province of Saskatchewan, in some respects, in the midway position between the like regimes in the Provinces of Quebec and Ontario. Under the Quebec Civil Code, Book 2, art. 480 to 517, the property of the family is automatically divided upon the death of a spouse. Thereafter distribution takes place in accordance with the applicable provisions of the Code. In Ontario, on the other hand, the Family Law Reform Act creates the right to a division of matrimonial property only during the lifetime of the spouses. These rights do not survive the death of either one. In Saskatchewan, disposition of matrimonial property does not take place automatically on the death of one spouse as under Quebec law, nor does the right to disposition of matrimonial property die with the spouse as under the Ontario law if, as here, the deceased spouse had in her lifetime invoked the provisions of the MPA by an application for disposition.

27. Applying the statute as it is found and in the context in which it operates in association with the aforementioned statutes and general rules of law, I have come to the conclusion that the exercise of discretion required under ss. 21 and 22 by reason of an application made under s. 30 has been conducted on the basis of a misapprehension of the statute. Accordingly, as this Court enunciated in Harper v. Harper, 1979 CanLII 168 (SCC), [1980] 1 S.C.R. 2, it is appropriate for a court to review the result. At issue in Harper was, inter alia, the appropriateness of this Court interfering with an exercise of discretion under s. 8 of the Family Relations Act, 1972 (B.C.), c. 20. Laskin C.J., for the majority, held at p. 18:

Although an appellate Court, and especially an ultimate Court, should ordinarily refrain from interfering with the exercise by a trial judge of the type of broad discretionary jurisdiction conferred by s. 8 of the Family Relations Act, there is the fact that the trial judge acted on certain irrelevant considerations and ignored relevant ones....

Pigeon, Pratte and McIntyre JJ. and myself, who dissented in part, held at p. 22:

[This] is a proper case for this Court to review the trial judge's discretion because the trial judge proceeded on the basis of irrelevant and erroneous considerations.

The irrelevant and erroneous considerations here were the death of the applicant and the content of her will.

28. It has often been said that difficult circumstances, perhaps beyond the contemplation of the Legislature at the time the statute in question was adopted, make the application of statutes sometimes very difficult. This is particularly so in the field of family law where legal expense is to be avoided if at all possible. A combination of actions or the use of a single action for multiple objectives is ordinarily to be commended. This case falls into the category of such difficulties. Here, in my view, the combination of remedies in a single process leads to inequitable difficulties and to results not supported by the wording of the authorizing statute. It may be that injustice, in the broad sense of the term, can result from the application of the MPA, notwithstanding the directive from the Legislature that orders made must be just and equitable. Those orders, however, must be measured with both the interests of the husband and the interests of the wife in mind. Here the wife had a right to apply for distribution of marital assets in her lifetime which she did. Those assets, once determined, can properly be made subject to testamentary disposition by will, which she did. If, in the operation of these two legal processes, dependents are injured, they have rights under The Dependants’ Relief Act, which they have not invoked. They also have the right to challenge the will under probate process, which they have not done. The son, and perhaps the husband, have asserted rights in contract which can be brought before the appropriate court for a determination, which has not been done. Instead the respondent has sought to raise all these issues within the narrow framework of an application under the MPA. This application properly can extend only to a distribution of the marital property according to the interests of the husband and wife determined in accordance with the standards established in the statute. The statute by its terminology does not extend to become a substitute for the other proceedings mentioned. Notwithstanding the facts or the difficulties which have been described both to this Court and in the courts below for the surviving members of the Bugoy family, that is the extent to which the MPA, in my respectful view, can be applied.

29. It is urged by the respondent here that hardship may be produced for the survivors and that legislative action would be required to effect any different result than that sought by the respondent. The opposite, in my view, is the case. The answer to the claims by the several surviving members of the family must be sought in the statute as it presently exists, and any hardship which results from a fair and reasonable interpretation of that statute must be an intended result, and future solutions must lie in the hands of the Legislature if that is the desired course. In my view, the statute in its present form balances the hardships and resolves the issue in favour of the deceased wife by affording and preserving to her the right to succeed to her share of the family holdings and to will her share as she sees fit. All this is, of course, subject to the existing protections under The Dependants’ Relief Act, the probate processes for challenging of wills and for actions in contract or restitution by those claiming an interest in the wife's distributive share of the family assets.

30. Accordingly, I would allow the appeal and award the appellant judgment for one‑half of all matrimonial property or a sum equivalent to the same. I would not award any costs in this Court.

The reasons of McIntyre, Lamer and Wilson JJ. were delivered by

31. McIntyre J. (dissenting)‑‑The principal question raised in this appeal is whether the death of a spouse who has commenced proceedings for a division of matrimonial property under The Matrimonial Property Act, 1979 (Sask.), c. M‑6.1, may be a factor which the trial judge may consider in making an unequal division of matrimonial property.

32. Elizabeth and Leslie Bugoy were married in 1951. She was seventeen and he was twenty‑one. They had one son, Ervin, born shortly after the marriage. At the time of the marriage, the wife was living at home with her parents and the husband was a farm‑hand for his older sister and brother‑in‑law. They began with nothing but four heads of cattle and an old cultivator and tractor worth $1000 which the husband brought to the marriage. Mr. Chesney, the husband's brother‑in‑law, built a small two‑room house on his farm for the couple which they occupied for eight years. In the autumn of 1952 the husband bought a quarter‑section of land from the Chesneys for $3000. The husband's father gave him $1800 towards the purchase price of the land and the Chesneys loaned him the remaining $1200 interest free, and allowed him to "work off" this sum on the Chesney farm. In 1956 the husband acquired an adjoining quarter‑section of land, largely by way of a gift from his sister, Stella Chesney. The price of $600 was again "worked off" on the Chesney farm. In 1959 they moved the two‑room house to the quarter‑section they had acquired in 1952, which therefore became the matrimonial home. In 1961 the husband purchased another quarter‑section for $3000 and in 1964 a further quarter for $5500. These four acquisitions completed the farm on contiguous quarter‑sections. From 1951 to 1967 the respondent farmed his land and also the Chesney land in order to assist them. From 1964 to 1974 the husband, in addition to his other work, drove a school bus to earn additional income and in 1972 took a job with a lumber yard in Yorkton. The livestock herd was built up to 40 heads. Additional farm machinery was acquired and farm buildings, including a bungalow costing $20,000, were constructed on the home quarter.

33. During the early years of the marriage, the wife's father gave her $1500 and four calves. The wife assisted in some of the farming operations. She helped with raising poultry, milking cows and gardening, and it would appear from the reasons for judgment of the trial judge that she performed the busy role of an average farm wife. The wife took over the husband's school bus route from 1974 until 1979. The son, Ervin, helped his parents with the farm work. When he was thirteen he moved to the Chesney farm where he continues to live. In 1970 he acquired a quarter‑section of land and some machinery and has worked his land, the Chesney land, and his parents' farm since that time. The son asserted, and in this he was supported by his father, that in the year 1971 his mother and father promised him that if he would work their land for them they would give him the west half of section 8 when his father reached sixty in 1990.

34. The husband petitioned for divorce and on December 12, 1979 the wife applied for an order under the provisions of The Married Persons’ Property Act, R.S.S. 1978, c. M‑6 [R.S.S. 1978 (Supp.), c. 43], for a division of farm property, including land, livestock, grain, machinery, cash and household effects owned by the husband. Before the matter could be heard, The Married Persons’ Property Act was repealed and The Matrimonial Property Act replaced it. The proceedings were continued under the new Act, but on August 18, 1980 the wife died before the application was heard. Shortly before her death, she destroyed her will in which she had named her husband and her son as beneficiaries and made a new will disinheriting both of them and naming the appellant, Vera Donkin, as her Executrix. The application was continued by the appellant as personal representative of the wife in accordance with the provisions of s. 30(1) which provides:

30.‑‑(1) An application for a matrimonial property order may be made or continued by a surviving spouse after the death of the other spouse or may be continued by the personal representative of the deceased spouse.

35. The trial judge concluded that no distribution of the south‑west quarter of section 7, the matrimonial home, should be made. His reasons for judgment are now reported: Bugoy v. Bugoy, 1981 CanLII 2461 (SK QB), [1981] 4 W.W.R. 136. He considered that the death of the wife was an extraordinary circumstance under s. 22(1)(a) of the Act. He said, at pp. 141‑42:

Is there any "extraordinary circumstance" here to be taken into account which may justify an order for other than an equal distribution, if for one or more of the reasons I have mentioned I was satisfied it was unfair or inequitable to do so? I believe there is. Mrs. Bugoy's death at age 46 has served to alter radically the issue as respects the matrimonial home. And that is, in my opinion an extraordinary circumstance within the meaning of the Act. By reason of her death and the will she left, were I to order an equal division of the matrimonial home or its value half of it would go to strangers or others who have no need of it, have contributed nothing to it and would be depriving the respondent of what he worked for 30 years to build with the assistance of his father, his sister and his brother‑in‑law.

In my view it would be altogether inequitable and unfair in these extraordinary circumstances to divide the matrimonial home or its value equally between the respondent and the personal representative. Having come to that conclusion, I have the power under the Act to refuse an order, or to order that the entire matrimonial home or its value be vested in the respondent or to do otherwise as I consider fair and equitable.

Under the circumstances I refuse to order any distribution of the matrimonial home. The ownership of the matrimonial home is currently vested in the respondent and no order as to ownership is thus required. As to its value I order that the entire value be vested in him.

36. The trial judge then dealt with the remaining matrimonial property valued at $132,000. This total was made up of:

Land $ 75,000

Cattle 20,000

Vehicles and machinery 22,000

Feed and grain on hand 5,000

Cash & miscellaneous 10,000

$ 132,000

While he referred to a number of equitable considerations, including contributions by third parties (s. 21(2)(e)), tax liabilities which could flow from the transfer of assets (s. 21(2)(j)) and the interests of the son, Ervin, under the agreement with his parents (s. 21(2)(n)), it is evident that the departure from an equal division was based largely upon the judge's finding that the death of the wife and the contents of her will would render an equal division of the matrimonial estate unfair and inequitable. He noted, however, that the wife's family had contributed assets to the couple and concluded that some distribution should be made. He said, at p. 147:

Mrs. Bugoy received $1,500 and four cows from her parents, the Holowkas. She names them in her will. It seems to me that I should respect the fact that she wished to leave some portion of her estate to her parents in recognition of their assistance to her. I believe I may have regard to these factors, for section 21(2)(t) empowers the court to make any other order that it considers both "fair and equitable". I think it fair and equitable under the circumstances of this case that I make some distribution.

He therefore ordered that $10,000 of the matrimonial assets be paid to the wife's personal representative and left the balance with the husband. An appeal by the appellant and a cross‑appeal by the respondent were dismissed without written or recorded reasons.

37. From a review of the evidence and from the reasons for judgment of the trial judge, I conclude that had the wife survived there would have been no basis upon which the trial judge could have departed from an equal division of the property between the spouses, subject to the interest of the son, under the aforesaid agreement. The issue thus becomes: Where a spouse commences proceedings for a distribution of matrimonial property and dies prior to the determination of the application, may the death and the provisions of any will be considered as factors in deciding upon an unequal distribution? In order to answer this question, it is necessary to examine the Act and the nature of the rights conferred by the statute.

38. The purpose of The Matrimonial Property Act is set out in s. 20:

20. The purpose of this Act, and in particular of this Part, is to recognize that child care, household management and financial provision are the joint and mutual responsibilities of spouses and that inherent in the marital relationship there is joint contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities that entitles each spouse to an equal distribution of the matrimonial property, subject to the exceptions, exemptions and equitable considerations mentioned in this Act.

The Act superimposes upon the law of property in the province a special code for the distribution of matrimonial property between spouses. Under the provisions of the Act, if the husband and wife live out their days without invoking the distribution provisions, their separate property rights remain in force, pursuant to s. 43:

43. No provision of this Act vests any title to or interest in any matrimonial property of one spouse in the other spouse, and the spouse who owns the matrimonial property may, subject to subsection 18(2) and sections 28 and 50, any interspousal contract and any order of a court made under this Act, sell, lease, mortgage, hypothecate, repair, improve, demolish, spend or otherwise deal with or dispose of the property as if this Act had not been passed.

The new property régime envisaged by the Act‑‑that is, the prima facie entitlement of each spouse to one half of the matrimonial property, regardless of ownership‑‑does not affect individual property rights until, on the application of one spouse, the court orders distribution. Sections 21 and 22 govern the making of a distribution order. Section 21 provides:

21.‑‑(1) Upon application by a spouse for the distribution of matrimonial property, the court shall, subject to any exceptions, exemptions and equitable considerations mentioned in this Act, order that the matrimonial property or its value be distributed equally between the spouses.

(2) Subject to section 22, where, having regard to:

(a) any written agreement between the spouses or between one or both spouses and a third party;

(b) the length of time that the spouses have cohabited before and during their marriage;

(c) the duration of the period during which the spouses have lived separate and apart;

(d) the date when the matrimonial property was acquired;

(e) the contribution, whether financial or in some other form, made directly or indirectly by a third party on behalf of a spouse to the acquisition, disposition, operation, management or use of the matrimonial property;

(f) any direct or indirect contribution made by one spouse to the career or career potential of the other spouse;

(g) the extent to which the financial means and earning capacity of each spouse have been affected by the responsibilities and other circumstances of the marriage;

(h) the fact that a spouse has made:

(i) a substantial gift of property to a third party; or

(ii) a transfer of property to a third party other than a bona fide purchaser for value;

(i) a previous distribution of matrimonial property between the spouses by gift or agreement or pursuant to an order of any court of competent jurisdiction made before or after the coming into force of this Act;

(j) a tax liability that may be incurred by a spouse as a result of the transfer or sale of matrimonial property or any order made by the court;

(k) the fact that a spouse has dissipated matrimonial property;

(l) subject to subsection 30(3), any benefit received or receivable by the surviving spouse as a result of the death of his spouse;

(m) any maintenance payments payable for the support of a child;

(n) interests of third parties in the matrimonial property;

(o) any debts or liabilities of a spouse including debts paid during the course of the marriage;

(p) the value of matrimonial property situated outside Saskatchewan;

(q) any other relevant fact or circumstance;

the court is satisfied that it would be unfair and inequitable to make an equal distribution of matrimonial property or its value, the court may:

(r) refuse to order any distribution;

(s) order that all the matrimonial property or its value be vested in one spouse; or

(t) make any other order that it considers fair and equitable.

It may be seen that the distribution is to be equal, subject to the exceptions, exemptions, and equitable considerations mentioned in the Act. Subsection (2) goes on to provide that if upon a consideration of the factors mentioned in paras. (a) to (q) the court is satisfied that it would be unfair and inequitable to make an equal distribution of matrimonial property or its value, the court may decline to order a distribution, vest all property in one spouse, or make any other order it considers fair and equitable.

39. Section 22 deals with the matrimonial home in these words:

22.‑‑(1) Where a matrimonial home is a subject of an application for an order under subsection 21(1), the court shall, having regard to any tax liability, encumbrance or other debt or liability pertaining to the matrimonial home, distribute the matrimonial home or its value equally between the spouses except where the court is satisfied that it would be:

(a) unfair and inequitable to do so, having regard only to any extraordinary circumstance; or

(b) unfair and inequitable to the spouse who has custody of the children;

and in that case the court may:

(c) refuse to order any distribution;

(d) order that the entire matrimonial home or its value be vested in one spouse; or

(e) order any distribution that it considers fair and equitable.

(2) Where there is more than one matrimonial home, the court may designate to which matrimonial home subsection (1) applies and any remaining matrimonial home shall be distributed in accordance with section 21.

Again, an equal distribution is envisaged, except where the court is satisfied that it would be unfair and inequitable, having regard only to an extraordinary circumstance or the needs of a spouse having custody of children. In such event, the court may make any of the orders provided for in s. 21.

40. It has been the practice of some judges in Saskatchewan to consider the death of a spouse and the contents of a will as relevant factors in making distribution orders. In Re Spencer; Spencer v. Spencer (1983), 1983 CanLII 2616 (SK QB), 34 R.F.L. (2d) 358 (Sask. Q.B.), McIntyre J. dealt with the distribution of a substantial matrimonial estate where the husband had died prior to its resolution and where the applicant wife had contributed greatly to the acquisition of the property. At pages 364‑65, he said:

It seems to me that the purpose of the Matrimonial Property Act is to distribute property between spouses and when one spouse is gone, as is the case here, then this factor must weigh heavily in my decision as to what, if any, distribution should be made to anyone else. The position taken by the solicitor for the applicant is that Mrs. Spencer should receive 100 per cent of the matrimonial estate. The position taken by the solicitor for the respondent is that Mrs. Spencer is entitled to one half of the estate and that the other half should be distributed in accordance with the testamentary wishes of Ralph Spencer. The hard fact that I must keep in mind is that there is no order I could possibly make which could give effect to the testamentary wishes of Ralph Spencer because his principal benficiary was his bachelor brother, who has departed this world.

and continued, at p. 365:

This, then, brings me to the crucial question: what should the applicant Marion Ruth Spencer receive? After carefully considering all of the facts and the applicable law, I am of the view that it would be totally unfair and highly inequitable to make an equal distribution of this matrimonial property and I direct that all of the matrimonial property be vested in Marion Ruth Spencer. It seems to me that the life of deprivation and hard work of Marion Ruth Spencer brings this application squarely within s. 21(2)(s) and, pursuant to s. 21(2)(t), I consider that this order is fair and equitable. I need not look carefully into the Dependants' Relief Act application because of my disposition of the estate under the Matrimonial Property Act but, in accordance with the agreement to apply the evidence, I am satisfied that if I had to decide the matter pursuant to the Dependants' Relief Act, I would likely make the same order, namely, that all of the estate of Ralph Spencer vest in Marion Ruth Spencer.

41. In Van Meter Estate v. Van Meter (1983), 1983 CanLII 2111 (SK QB), 25 Sask. R. 109 (Sask. Q.B.), Gerein J. ordered an unequal division where the wife died prior to completion of her application for distribution of assets. He weighed a number of factors in reaching this decision including the length of the marriage (six years), the date of acquisition of the home, the death of the wife, and the contents of her will which would have distributed the property to strangers.

42. In Troendle v. Canada Permanent Trust Co. (1981), 1981 CanLII 2088 (SK UFC), 11 Sask. R. 47 (Sask. Fam. Ct.), a surviving spouse brought an application for division of matrimonial property. It was coupled with an application under The Dependants’ Relief Act, R.S.S. 1978, c. D‑25. By his will, the deceased husband had left all his property to his Trustee in trust to run the farm and pay the net income therefrom to his wife during her lifetime. The wife was capable of running the farm operation on her own but the Trustee had refused to lease the land to her. The wife would have been entitled, had her husband been living, to fifty per cent of the farm, but Dickson J. ordered that the entire estate vest in the wife. While the only reason given for this unequal division was the finding that a division of the farm would result in two uneconomical units, it is apparent that the death and will of the husband were decisive factors since there was nothing else in the relationship of the parties which would have justified a distribution of one hundred per cent of the assets to the wife. Having disposed of the application under The Matrimonial Property Act, Dickson J. dismissed the application under The Dependants’ Relief Act.

43. I am of the view that the trial judge in the case at bar and the judges in the cases cited above were not in error in taking the death and will of a spouse into consideration in distributing matrimonial property. This approach is consistent with the overall scheme of the Act which is designed to insure that the parties to a marriage share the property they have acquired through their mutual efforts. The Act's purpose is to benefit the spouses personally, and not their estates. This is evident from a reading of s. 36 of the Act which provides.

36. Notwithstanding any other Act or law, but subject to sections 8, 10 and 11 and subsections 26(2) and 30(1), the rights conferred on a person under this Act do not survive the death of that person for the benefit of his estate.

None of the exceptions mentioned in ss. 8, 10, 11 and 26(2) is applicable here. Section 30(1) does apply. Its purpose, however, is not to oust the jurisdiction of the Court to make an equitable division but to preserve the rights under the Act of a deceased spouse who has invoked the jurisdiction of the Court during his or her lifetime. It does not in any way interfere with the deceased spouse's right to dispose of his or her property by will. The decision made by the Court will, of course, determine the extent of the property over which that spouse has disposing power. That result follows on the continuation by a personal representative of an application commenced by a deceased spouse. Had Mrs. Bugoy not brought her application her rights under the Act would have died with her by virtue of s. 36. As it is, they remain open for determination by the Court in accordance with the provisions of the Act. There is nothing in s. 30(1) to eliminate consideration of the death of the deceased in determining those rights. The exception could have other purposes as well, in that it could be employed by a personal representative in advancing a claim that certain property is not subject to distribution under the Act and forms part of the estate of the deceased's spouse independently of the provisions of the Act.

44. Counsel for the appellant contended that the will of a deceased spouse should not be considered in the division of matrimonial assets, but rather under The Dependants’ Relief Act. Section 37 of The Matrimonial Property Act expressly provides that a surviving spouse retains the right to seek relief under The Dependants’ Relief Act and to join that application with proceedings under The Matrimonial Property Act. It was therefore argued that dependants' relief proceedings were the only means by which the testamentary dispositions of a deceased spouse could be questioned. I see no reason why the right to seek relief under The Dependants’ Relief Act should bar consideration of the death and will of a spouse in the division of matrimonial property. Consideration of these factors in an application for a distribution of matrimonial property under the provisions of the Act would not render redundant the statutory reference to The Dependants’ Relief Act. The right to invoke the provisions of The Dependants’ Relief Act could, for example, be of great significance in a case where the assets subject to distribution were small in value and insufficient to provide for a surviving spouse and where, at the same time, the assets of the deceased spouse were in great part exempted from distribution under s. 23 of the Act. It is for this reason that s. 37 leaves intact the right of a surviving spouse under The Dependants’ Relief Act.

45. Furthermore, the consideration of the will of the deceased by the trial judge involves no undue interference with the right of testamentary disposition, as was contended by the appellant. The will of the deceased spouse will still be effective to deal with property not subject to the provisions of the Act, such as property falling within the premarital exemption under s. 23, as well as his or her share of property as fixed in the order of distribution. It should be remembered as well that the deceased spouse has not, prior to the distribution order, acquired any vested interest in the matrimonial property subject to division. Until the order is made the rights of a spouse are limited to a right to apply to the court for a determination of the extent of his or her interest: see Re Maroukis and Maroukis (1981), 1981 CanLII 77 (ON CA), 125 D.L.R. (3d) 718 (Ont. C.A.), (appeal dismissed in this Court, 1984 CanLII 76 (SCC), [1984] 2 S.C.R. 137).

46. The purpose of the Act is to deal equitably between the spouses with respect to the assets which have been acquired by their joint efforts during marriage. When one of the spouses dies after submitting her rights to the court but prior to the court's determination as to what equity calls for, it seems quite unrealistic to say that such a circumstance is not a relevant factor for the court to consider. What constitutes equity between two spouses who will continue to enjoy their respective shares of the assets which they worked in concert to acquire will not necessarily constitute equity between spouses one of whom will continue to enjoy his share and one whose sole interest will be her power to pass her share on to others. I would not say that in all cases where a spouse dies before the making of a distribution order his or her share may be automatically reduced. There will, no doubt, be many cases where the death of a spouse and the contents of a will would be of no consequence in the court's decision.

47. In this case, where the will would divert a large part of the matrimonial property to strangers who made no contribution to the acquisition of the assets, and where a substantial distribution to the deceased's estate would affect the interest of the son in property subject to the agreement found by the trial judge to have been made with his parents, I am of the opinion that the trial judge was right in his disposition of the matter and I agree with the Court of Appeal that it should not be disturbed. I would therefore dismiss the appeal. The appellant is entitled to costs at trial and in the Court of Appeal. There will be no order as to costs in this Court.

Appeal allowed, McIntyre, Lamer and Wilson JJ. dissenting.

Solicitors for the appellant: Olive, Waller, Zinkhan and Waller, Regina.

Solicitors for the respondent: Rusnak, Balacko & Kachur, Yorkton.