Elliott v. Elliott, 2010 ABQB 789

Court of Queen ’ s Bench of Alberta Citation: Elliott v. Elliott, 2010 ABQB 789 Date: 20101213 Docket: 4801 107257; FL01 06426 Registry: Calgary Between: Kevin John Elliott Plaintiff - and - Karen Marion Elliott Defendant Corrected judgment: A corrigendum was issued on January 28, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.J. Hall

_______________________________________________________ [ 1 ] The parties were married on November 17, 1984. They agreed to separate in the Spring of 1999. Mr. Elliott moved out of the matrimonial home on November 15, 1999. The divorce proceedings were severed from issues respecting corollary relief, and the parties were divorced on June 6, 2005, effective July 7, 2005. [ 2 ] Since the date of separation Ms.

Elliott has resided in the matrimonial home, and has been the primary caregiver to their 4 children: Tamara, born [...], 1985; Cassidy, born [...], 1988; Tessa, born [...], 1990; Courtney, born [...], 1992. [ 3 ] Mr. Elliott is a chartered accountant, obtaining his qualification in 1983. He established a pattern of working for oil companies in internal auditing. For the last 3 years before separation, Mr. Elliott had earned between $82,300.00 and $87,000.00 per annum. [ 4 ] Ms. Elliott received a bachelor of science in household economics from the University of Alberta in 1977.

Immediately after graduating she obtained a job as an interior designer, an occupation that she worked at when she met and then married Mr. Elliott. [ 5 ] Between the date of marriage and the birth of her first child, Ms. Elliott did not work. Nor did she work up to the time her last child was born, nor for some time after. She became a stay at home mother. She incorporated a company called Albertine Design Group Ltd. (“Albertine”) in 1980, and in the later years while still with Mr. Elliott she worked on some small renovation jobs. However, her income tax returns (prepared by Mr.

Elliott) show that she earned very little income during the marriage, up to the date of separation. [ 6 ] Mr. Elliott was fully employed during the course of the marriage before separation. On 3 occasions he was laid off from positions with oil companies, but on those occasions he received a severance package and was able to immediately find new employment. [ 7 ] On December 15, 1999, the parties entered into a Separation Agreement. Neither was represented by counsel, and the Separation Agreement is quite brief and to the point. It deals with custody, access, child support and spousal support.

The parties agreed to shared custody of the children, Ms. Elliott was the primary care giver and Mr. Elliott had specified access. Mr. Elliott agreed to pay $2,900.00 a month to Ms. Elliott, of which $500.00 was deemed to be spousal support (deductible in his hands and reportable in hers) and the remainder was child support. While the child support was not broken down as between

section 3 and

section 7 child support, the parties agree that the child support was based on an income for Mr. Elliott of $85,000.00 a year, which generated

section 3 child support of $1,733.00 per month. The remaining $667.00 per month is attributed as being Mr. Elliott’s portion of

section 7 expenses, which he says represented 88% of envisioned

section 7 expenses. [ 8 ] At the time of physical separation, the parties both knew that Mr. Elliott’s employment with Gulf Canada was to end at the end of 1999, once the Y2K Project at Gulf had been concluded. [ 9 ] While Mr. Elliott was at the various oil companies working as an internal auditor, he had developed some programs and expertise in an area he calls “audit recovery”; which is a process by which a company audits its books to determine whether it has made overpayments, or double paid invoices, and the amounts are recalculated and claimed back.

During the course of the marriage and before separation, Mr. Elliott had done some work for a number of clients in this area, being paid a contingency on the amounts recovered. [ 10 ] Mr. Elliott says that when he was laid off at Gulf Canada there were few opportunities for advancement as an internal auditor. He decided to pursue the audit recovery business in a company which he named Details Financial Inc. (“Details”).

[ 11 ] However, Mr. Elliott admits that in the early years after separation the business of Details was not particularly successful. He blames advances in technology, the advent of a local competitor, the entrance into the arena by public accounting firms, and the need to market his services, as being detractors from his ability to be successful in this area with Details. In 2004, Mr. Elliott started working in Florida for an outfit named “Minecore”.

He says that it was anticipated that he would be remunerated in excess of $100,000.00 per year; however he was drawing no income, waiting for the company to obtain financing so that his salary could be paid. He worked at this job for 2 years, and says that, due to a fraud within Minecore, he never was paid. He estimates that he received no more than about $5,000.00 or $6,000.00 per annum in cash from Minecore. However he was still receiving residuals from his audit recovery business.

During this time, he cashed in his RRSP’s, and the amount that he had deposited into an RESP, in order to meet living expenses. [ 12 ] In 2006 Mr. Elliott took a short term contract with Husky Energy which ended February, 2007. Thereafter, Details contracted as comptroller for 2 businesses, Tarim Resources, and Caval Energy Services. This provided some income to Mr. Elliott in 2007 and 2008. In 2009 he was basically unemployed. [ 13 ] In 2010 he looked for work as a chief financial officer for small companies.

Eventually he has obtained positions, whereby Details provides chief financial officer services to 3 different client companies. He expects to earn $120,000.00 in 2010. [ 14 ] In 2001 Mr. Elliott shows income of $24,200.00. In 2002 through 2008 he shows income varying from a low of $49,600.00 (2008) to a high of $65,773.00 (2007), as per his income tax returns.

However, for purposes of calculating his income, he acknowledges business income in 2006 of $46,620.00 and in 2007 of $43,226.00, to be added to the amounts in his Income Tax Returns; such that in 2006 his combined income is $111,423.00 and in 2007 is $108,999.00. [ 15 ] After separation, Ms. Elliott renewed her efforts at interior design through Albertine. She had some success in obtaining contracts to provide interior design services.

In addition, she commenced a business within Albertine, which she calls “home staging” in which she provides advice and services to people who are intending to sell their home, to prepare the home for sale. She was a pioneer in this industry, particularly in Canada, and as a result she got a lot of free advertising by way of television interviews and newspaper articles. She was able to grow this business quite successfully. Albertine has grown, increasing its revenues (before expenses), from $68,000.00 in 2000, to almost $500,000.00 in 2008.

From those amounts, must be deducted considerable expenses, particularly for materials used in renovations and for the work of subcontractors; nevertheless the growth in business has been quite dramatic, until, in 2009, the gross revenue slipped down to approximately $175,000.00. [ 16 ] Ms. Elliott advises that she is the only full time employee of Albertine, and that the value of Albertine is dependent upon her providing the services. [ 17 ] Neither party makes a claim against the other’s businesses as Matrimonial Property. [ 18 ] A Consent Order was given by Justice McMahon on November 14, 2000 whereby Mr.

Elliott’s monthly obligations to Ms. Elliott were reduced from $2,900.00 a month to $2,200.00. None of that was treated by the parties as being spousal support for income tax purposes, and there is no breakdown between

section 3 child support and

section 7 expenses. [ 19 ] In May of 2001, Mr. Elliott ceased making any child support payments whatsoever. His reasons revolve around a breakdown of negotiations. He acknowledges he had no right to stop making payments at that time. [ 20 ] In March of 2002, an Interim Consent Order was granted by Mr. Justice Mahoney, whereby Mr. Elliott was required to pay $1,000.00 per month to Ms. Elliott for child support.

The Order reads as follows: That the Plaintiff shall pay to the Defendant interim child support in the amount of $1,000.00 per month commencing on April 1, 2002, without prejudice to either party to vary same retroactively to January 1, 2001. [ 21 ] From that time forward, Mr. Elliott has made the required payments of $1,000.00 per month for child support, not broken down in any fashion between

section 3 child support and

section 7 expenses.

[ 22 ] In total, the parties agree that Mr. Elliott has made payments in the amount of $157,563.00 as at the date of trial. Of that amount, $42,200.00 was paid before January 1, 2001 (Exhibit 88), such that, in the period starting January 1, 2001 to the date of trial, he has paid $115,363.00. By the date of these reasons he will have made a December 1, 2010 payment of an additional $1,000.00. Spousal Support [ 23 ] While Ms. Elliott was originally seeking spousal support in this action, she abandoned any such claim before trial.

Section 7 Extraordinary Expenses [ 24 ] While Ms. Elliott has demonstrated that she has incurred

section 7 expenses, for which she has not been reimbursed by Mr. Elliott, and while she puts forward those amounts as evidence in trial that the amounts have been paid, Ms. Elliott is not making any claim for reimbursement of any portion of the

section 7 expenses incurred by her to date. However, on an ongoing basis, she and Mr. Elliott agree that they will each bear 50% responsibility for

section 7 expenses yet to be incurred. Matters in Issue [ 25 ] Two matters are placed in issue by the parties: Division of Matrimonial Property, and Retroactive

Section 3 Child Support. [ 26 ] As to Matrimonial Property, the parties are now in agreement that the matrimonial home should be put up for sale, at an amount either to be agreed upon by them or set by the Court. Appraisals range between a low of $875,000.00 and a high of $1,000,010.00; the City of Calgary valued the property, for tax purposes, at $1,000,060.00, and rejected an appeal by Ms. Elliott with respect to that valuation. Mr. Elliott seeks equal division of that property. Ms. Elliott maintains that there should be an unequal distribution of this asset. She argues for 80% to her and 20% to Mr. Elliott. She maintains that a review of the matters to be considered, enumerated in

section 8 of the Matrimonial Property Act , supports her claim for such an unequal distribution. [ 27 ] The parties also require the Court to deal with other matrimonial property, particularly the RRSP’s held by each of the spouses at the time of separation. [ 28 ] As to child support, Ms. Elliott maintains that Mr. Elliott has been underemployed since the separation, such that his income is understated from what he should have earned over that period. While Ms.

Elliott points to a CA Profession Compensation Survey 2009, showing that an average chartered accountant in Alberta would be earning in excess of $180,000.00 per annum, she asks the Court to attribute income to Mr. Elliott of $85,000.00 per annum from the date of separation until the present, based upon his income earning capability demonstrated in the years before separation. Ms. Elliott asks that a calculation be performed that would be retroactive to January, 2001 up to the present. [ 29 ] Mr.

Elliott maintains that he has not been underemployed nor has he intended to act in such a fashion as to decrease his child support obligations. He maintains that his various reasons for following the employment pattern described above are valid and were not intended to decrease his child support obligations; but for various reasons were unsuccessful. He argues that his actual income should be used to calculate any retroactive support. [ 30 ] Mr. Elliott also argues that retroactive child support should not be calculated back to 2001, and suggests a shorter period, to be determined by the Court. Mr.

Elliott maintains that a particular factor weighing in his favour in this regard is that there has been significant delay, in his view, by Ms. Elliott, in prosecuting this claim.

[ 31 ] Both parties are in agreement that Mr. Elliott is to pay ongoing child support for the remaining “children of the marriage”, as defined in the Divorce Act and they each agree that, on a go forward basis, an equal distribution of

section 7 extraordinary expenses would be appropriate. Determination Regarding Matrimonial Property [ 32 ] At the time of separation Mr. Elliott had RRSP’s valued at $123,688.00. Ms. Elliott had a spousal RRSP with a value of $48,200.00. Mr. Elliott has since used up his RRSP’s, as indicated above. Ms.

Elliott has added to her RRSP. [ 33 ] In circumstances where the assets have been added to or subtracted from by the parties controlling them, since the date of separation, the date for valuation of those assets cannot be the date of divorce or the date of judgment. [ 34 ] Those RRSP’s are to be split equally between the parties, using their values at separation for the purpose of such equalization. In order to equalize, Mr. Elliott must pay Ms. Elliott the sum of $37,744.00. Since the equalization should have occurred at the date of separation, Ms.

Elliott is entitled to interest on that amount from November 15, 1999 to the date of these reasons, calculated in accordance with the rates set out annually for calculation of interest on pecuniary damages under the regulations to the Judgment Interest Act . [ 35 ] Turning to the matrimonial home, it was purchased jointly by Mr. and Ms. Elliott. Ms. Elliott had previously owned a condominium, which she had purchased with a $30,000.00 gift from her father, and the remainder by way of mortgage on the property.

By the time the Elliotts purchased the matrimonial home, the mortgage on the condominium had been jointly retired by them. Virtually all of the down payment on the matrimonial home came from the sale of Ms. Elliott’s condominium. [ 36 ] In such circumstances, Ms. Elliott has contributed $30,000.00 of her own assets into the matrimonial home. Ms. Elliott claims an exemption for one half of that contribution, relying on Jackson v. Jackson , 1989 ABCA 197 (CanLII) , [1989] AJ No. 630, and says that, while half of the amount so contributed is a gift to the marriage, the other half remains exempt. I agree. Ms.

Elliott is entitled to a $15,000.00 exemption upon division of the matrimonial home proceeds. [ 37 ] Evidence was given at trial that, at the time of separation, the house was valued, albeit by a realtor friend, as having a value of $348,833.00. I accept that as a reasonable value of the property at the time of separation. While Mr. Elliott had been the primary earner during the marriage, Ms. Elliott devoted herself full time to caring for the children and for the home. Therefore, up to the date of separation, the presumption of equal distribution contained in section 7(4) of the Matrimonial Property Act applies.

After subtracting Ms. Elliott’s exemption from the market value at separation, $333,833.00 from the proceeds of sale of the matrimonial home is to be divided equally between the parties, such that Mr. Elliott will receive $166,916.50, and Ms. Elliott will receive $181,916.50 of the first $348,833.00 realized from the sale of the matrimonial home. [ 38 ]

Section 8 of the Matrimonial Property Act enumerates those matters to be taken into consideration in making a distribution under

section 7, in determining whether the remaining value of the matrimonial property should be equally or unequally distributed. Ms. Elliott argues that, since separation, she has paid off family debts arising under a line of credit, which was $78,085.00 at the time of the separation (including $6,500.00 taken out by Mr. Elliott upon separation); a debt for which she has paid principal and interest in the total amount of $111,592.00. [ 39 ] The evidence also shows that she has paid all utilities, property taxes, insurance and repairs to the home since separation. [ 40 ] In addition, Ms.

Elliott indicates that she has had no assistance from Mr. Elliott in paying any of the children’s expenses other than the $1,000.00 per month that he has paid in child support.

She has provided evidence that she has paid in excess of $42,000.00 for the Calgary Waldorf School, in excess of $10,000.00 for public school expenses, in excess of $61,000.00 for university tuition, $14,000.00 for orthodontics, $2,700.00 for optometrists’ expenses, $14,266.00 for dental expenses, $2,224.00 for driver training, $1,850.00 for physiotherapy treatments, $600.00 for chiropractic treatments, $1,000.00 for prescription medication, and almost $40,000.00 in soccer fees for her children; for a total claimed payment of $191,766.05. However, Ms.

Elliott acknowledged that a lot of the tuition expenses had been paid from an RESP to which both she and the children had contributed and as topped up by the Government; as well as by scholarships and bursaries obtained by the children; and by a healthcare plan, such that the amount she paid for the orthodontic, optometric, dental, physiotherapy, chiropractic and prescription expenses only amounted to 10% of those expenses

plus GST on the full amount. Having listened to the evidence, I conclude that the amount claimed of $191,766.00 is overstated by approximately $45,000.00 to $50,000.00, given these deductions aforesaid. Still, Ms. Elliott has borne some $142,000.00 in these types of expenses and nothing has been paid towards them by Mr. Elliott. [ 41 ] The matters set out above are relevant to the distribution of matrimonial property as being considerations under

section 8(

a) and (

c) of the Matrimonial Property Act . I also find them to be relevant under the general provision of

section 8(m). In support of her claim for an unequal division of the matrimonial home in her favour, Ms. Elliott cites the decision of Madam Justice Hughes of this Court in Warwoda v. Warwoda , 2009 Carswell Alta. 1594 , a case in which the wife and 3 dependent children remained in the matrimonial home for 10 years following the date that the husband moved out. In that case the husband did not pay support after leaving home; the wife determined that the husband had defaulted on mortgage payments. The wife took 2 jobs to bring the mortgage back into good standing.

The husband had made no contribution to the home since 2000. In dealing with the increase in value of the matrimonial home since the time of separation, Justice Hughes granted 80% of the value of that increase to the wife and 20% to the husband on the basis set out as follows: 1. Mr. Warwoda has caused the mortgage to go into arrears prior to the end of 2000. Ms. Warwoda brought the mortgage back into good standing in 2004 because she worked 2 jobs - one during the day and one in the evening - for part of that time. Thus, it was through her hard work and determination alone that the property was conserved. 2. Mr.

Warwoda made no financial contribution to the home since the latter part of 2000, some 9 years ago. 3. Mr. Warwoda made no contribution to the welfare of the family after he left the matrimonial home. 4. Mr. Warwoda contributed nothing to the increase in the value of the home since he moved from the home. [ 42 ] It is to be noted that, in that case, Mr. Warwoda made a claim for “occupation rent,” a claim that is made in this proceeding as well. Justice Hughes refused to award occupation rent to the husband. [ 43 ] Here, some of the circumstances are similar, and some differ. Mr.

Elliott has paid nothing to retire the joint line of credit. Mr. Elliott has paid very little with respect to

section 7 expenses. Mr. Elliott has paid nothing towards the expenses, maintenance and repairs to the matrimonial home. [ 44 ] A distinguishing feature is that in Warwoda the husband had paid no child support since separation; in this matter, Mr. Elliott has paid such child support as was either agreed upon or ordered by consent, throughout the period of separation, except for the period between May of 2001 and March of 2002 when he made no payments whatsoever. [ 45 ] Mr. Elliott argues that Ms.

Elliott has lived rent free in property jointly owned by the 2 of them since the date of separation; he says that, if she is to be credited for payments made on the line of credit, taxes, insurance and repairs for which he should have been 50% responsible, then he should have from her 50% of the rental value of the property during that same period as occupation rent. Mr. Elliott provided his estimation that the rental value of the property for the years 2000 through 2002 would be $1,800.00 per month, and from 2003 to the present would be $2,500.00 per month.

He gives no support for that opinion other than suggesting that he has done some research as to rental values in the area. By Mr. Elliott’s calculation, if he is given credit for the occupation rent, less one half of the expenses and one half of the line of credit payments, there is due to him in excess of $50,000.00. [ 46 ] Mr. Elliott claims half of the amount that the matrimonial property would have rented for, over the period from separation to trial.

While he argues for an offset of 50% of the amount the property would have rented for, it is to be noted that the property provided housing not only for his wife but also for his children throughout this period, and continues to do so. [ 47 ] Ms. Elliott has made all of the payments enumerated above without contribution from Mr. Elliott other than in the very early period of their separation. To my mind, these payments by Ms. Elliott far outweigh any notional “occupation rent”. Were it the case that

Mr. Elliott had borne his one half share of these expenses, I would be more disposed to awarding a notional occupation rent setoff. He did not. [ 48 ] In these circumstances, because Ms. Elliott has paid the joint line of credit herself, all of the expenses of maintaining the home, and has borne all of the children’s expenses, without the help of Mr. Elliott, I consider that it is appropriate to make an unequal distribution of the increase in value of the matrimonial home from the time of separation to the time of this judgment.

The factors not being as grievous as the case in Warwoda , I consider that an appropriate distribution is 2/3's to Ms. Elliott and the remaining 1/3 to Mr. Elliott. [ 49 ] Ms. Elliott urges that I should also order Mr. Elliott to pay half of the amount spent to retire the line of credit, of approximately $111,000.00. I have taken that matter into consideration in awarding an unequal distribution of the proceeds from the matrimonial home. To do so again would be double counting and that claim is not allowed. [ 50 ] Turning to retroactive child support, I must determine whether to impute an income to Mr.

Elliott greater than that which is disclosed in his income tax returns, on the basis that he has been underemployed through the period of separation; I must determine the period of retroactivity; and I must determine whether such retroactive obligations apply to some or all of the children of the marriage. [ 51 ] The Order of Justice Mahoney of March 21, 2002 was given “without prejudice to either party to vary same retroactively to January 1, 2001". The parties consented to that Order.

In my view, it has always been understood and contemplated by the parties that either party could return to the court and seek to vary child support back to January, 2001. [ 52 ] Mr. Elliott argues that Ms. Elliott has delayed making any application, in essence since the date of Justice Mahoney’s Order, with a view to “banking” arrears. Ms. Elliott says that she found the whole exercise of appearing before court and making applications to be extremely stressful, particularly in that her husband had made some 16 applications over the course of this action for various interlocutory orders. [ 53 ] I do not fault Mr.

Elliott for having made the applications that he did. He is entitled to make them. He had some success on occasion, and others less so; but he is entitled to bring the applications and to have the Court decide interlocutory matters in issue in the litigation. I also accept Ms. Elliott’s explanation for why she did not seek to vary the child support order. [ 54 ] The decision in S.(D.B.) v.

G.(S.R.) of the Supreme Court of Canada 2006 SCC 37 (CanLII) , [2006] 2 SCR 231 cautions the court against awarding child support retroactively beyond an approximate 3 year period, on the basis that the payor parent should have some certainty and finality, having met his obligations as ordered by the court or agreed by the parties. [ 55 ] Where, however, as is the case here, the Order, granted on consent, provided that either party could apply to vary retroactively, I consider that the parties had consciously agreed between them, and accepted an Order that allowed either one of them to seek variation in child support going back to January 1, 2001.

Accordingly, I consider that it is appropriate for me to review whether Mr. Elliott’s payments have been insufficient, going back to the January 1, 2001 date, and that the concerns expressed in S.(D.B.) v. G.(S.R.) , about certainty for the payor, do not exist here where the parties agreed and accepted a Consent Order, that either party could apply to vary, going back to January, 2001. [ 56 ] Ms. Elliott maintains that Mr. Elliott should have been earning somewhere in the neighbourhood of $180,000.00 per year as an average chartered accountant, citing the survey in support.

However, she only seeks an attribution of an earning ability of $85,000.00 per annum, based upon Mr. Elliott’s previously demonstrated ability to earn. [ 57 ] Normally, the Court determines child support obligations on the basis of the actual earnings of the payor parent, rather than imputing an income. However, if the payor parent embarks upon a deliberate course of conduct for the purpose of evading child support obligations the court may impute a greater income to that parent. An intention to evade child support can be either a specific intention, or the Court may infer an intention. [ 58 ] In Hanson v. Hanson

(1999) BCSC 2545, the B.C. Supreme Court stated that persistence of the payor in pursuing

unremunerative employment may entitle the court to impute greater income for purposes of calculation of child support. It is no excuse for the payor parent that he persisted in pursuing unremunerative or unproductive employment choices. I find that reasoning to be very persuasive in this case. [ 59 ] In Bartel v. Evans , 2002 Carswell Alta. 974 , Justice Coutu of this Court determined that an intent to evade child support obligations may be found where underemployment indicates a deliberate refusal to live up to the obligations to support the children; in Vitaliano v.

De Stavolo , 2001 Carswell Ont. 1065 the Court was willing to impute a greater income to the payor parent than his actual income, on the basis that his decisions regarding employment were made recklessly, and without regard to his obligations to his children. [ 60 ] I am satisfied that Mr. Elliott has followed a pattern of employment that has been unproductive and unremunerative for a person of his qualification, training and experience. Further, it is clear that Mr.

Elliott has continued to pursue such poor employment choices in the face of the knowledge that he was not being successful; and this has been to the detriment of his children with respect to child support which he should have been paying to them. While Mr. Elliott denies any intent to avoid his support obligations, I consider his actions in persisting in unremunerative and unproductive employment choices evidence of either an intention to avoid his obligations or recklessness as to the result of these choices and actions. I therefore infer an intent, on the part of Mr.

Elliott to be underemployed in order to avoid or reduce child support obligations. I impute income to Mr. Elliott from January 1, 2000 to January 1, 2010 in the amount of $85,000.00 per annum, which is the amount sought by the Defendant. Indeed, I consider that to be the least amount of income that should be imputed to Mr. Elliott during those years. [ 61 ] Although Tamara is no longer a child of the marriage, and Cassidy is at present, not a child of the marriage, as defined in the Divorce Act , they were both children of the marriage when Ms. Elliott sought increases in child support.

As such, I am not precluded from awarding retroactive child support in respect of them: Hartshorne v. Hartshorne , 2010 BCCA 327 . Accordingly, judgment is granted against Mr. Elliott for child support from January 1, 2001 to December 31, 2010 calculated in accordance with the Child Support Guidelines, under the old child support guidelines rates pre May 1, 2006, and under the new rates thereafter, for the support of all 4 children. [ 62 ] In the result, therefore: 1. Ms. Elliott is entitled to Judgment against Mr. Elliott for the difference between the amount of Mr.

Elliott’s RRSP’s and her RRSP, in the amount of $37,744.00, and is entitled to interest thereon at the rates set out in the regulations in the Judgment Interest Act regarding pecuniary damages, calculated from January 1, 2000 to the date of these reasons; 2. The matrimonial home is to be sold; 3. From the sale of the matrimonial home, Mr. Elliott is entitled to $166,916.50, being one half of the value of the matrimonial property at the time of separation (the Court having deducted $15,000.00 in exemption for Ms. Elliott’s original contribution); 4. Mr.

Elliott is to receive 1/3 of the remainder of the proceeds from the sale of the matrimonial home; 5. Ms. Elliott shall have judgment against Mr. Elliott for child support calculated from January 1, 2001 to December 31, 2010 in accordance with the Child Support Guidelines, for the support of all 4 children, based upon an imputed income to Mr. Elliott of $85,000.00 per annum in that period. [1] From that amount will be deducted $116,363.00 being the amount he paid in that period for child support, to arrive at the amount owing in retroactive child support.

Such judgment debt shall be paid by subtracting it from the amount to be received by Mr. Elliott from the sale of the matrimonial home; 6. On an ongoing basis, Mr. Elliott shall pay child support for the children of the marriage, as defined in the Divorce Act , based upon an income of $120,000.00 per annum for payments to be made in 2011, such payments to be made to the Director of Maintenance Enforcement. Mr. Elliott will annually provide income information to Ms. Elliott, for purposes of calculating future

section 3 child support obligations;

7. Commencing January 1, 2011, the parties shall share equally in payment of

section 7 extraordinary expenses, which expenses shall include school expenses, tuition expenses not otherwise paid for, health expenses not otherwise paid for, and soccer expenses incurred in respect of the activities of the “children of the marriage”. 8. Mr. Elliott’s debt to the Director of Maintenance Enforcement is subsumed in this Order and these Reasons. Therefore no present debt is owed to Maintenance Enforcement. [ 63 ] As to the sale of the matrimonial home, the property is to be listed for sale.

Should an offer to purchase be received, which is an offer which either party wishes to accept, each party shall have a period of 30 days within which to match that offer and purchase the property. Should agreement not be reached with respect to acceptance of third party offer, either party may apply to the court for directions. [ 64 ] Counsel may speak to me with regard to costs within the next 45 days. Heard on the 15 th to 19 th days of November, 2010. Dated at the City of Calgary, Alberta this 13 th day of December, 2010. R.J. Hall J.C.Q.B.A. Appearances: William J. Coll for the Plaintiff Carolyn M.

Allan Matkovic Allan LLP for the Defendant _______________________________________________________

Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice R.J. Hall _______________________________________________________ The first page of this judgment only has one action number recorded on it, therefore the action number of FL01-06426 was added to the front cover page as this judgment was reserved under both action numbers. [1] My calculations are: 64 months x $1,733 = $110,912 56 months x $1,909 = $106,904 $217,816