Kuehn v. Kuehn, 2010 ABQB 805

Court of Queen ’ s Bench of Alberta Citation: Kuehn v. Kuehn, 2010 ABQB 805 Date: 20101216 Docket: 4806 017117 Registry: Lethbridge Between: Sharon Charlene Kuehn Plaintiff - and - Farley George Kuehn Defendant _______________________________________________________ Oral Decision of the Honourable Mr. Justice D.K.

Miller _______________________________________________________ [ 1 ] The issues to be decided in this trial are division of matrimonial property between the parties, and duration and quantum of spousal support for Sharon Kuehn to be paid by Farley Kuehn. [ 2 ] The parties married on July 1, 2000 after a November 25, 1999 engagement. The marriage was moved forward considerably after some discussion in January 2000. This was due to Farley’s mother’s health condition. On July 1, 2000, Farley Kuehn was 45 years old and had never been married before.

Sharon Kuehn was divorced and 36 years old at the time of the marriage. [ 3 ] Farley Kuehn has a 1760 acre farming operation in Southern Alberta near Warner. It is a dryland grain farm which is very

successful, productive and profitable. Mr. Kuehn has been farming full-time for well over 30 years. He has three years of post-secondary education. [ 4 ] At the time of their engagement Sharon Kuehn was a divorced mother of two boys aged 20 and 17, living in Lethbridge. She has a Grade 12 education, and had a full-time job in the food services department at Lethbridge Community College and had been working there for 12 years. During the time of their engagement she would go out to the farm and take meals out to Farley and stay at the farm. Farley would also stay in Lethbridge at her house from time to time.

This type of living arrangement continued until December 2000. She did not move out to the farm immediately after the wedding. She actually left her job at LCC in June 2000 just before the wedding. It was a decision made after much consideration and consultation and input from her future husband Farley Kuehn. He helped her draft her resignation letter and he simply did not want her to be driving to work in Lethbridge as it was too hard on the vehicle and it was unsafe to make the one hour commute each way every day.

Sharon Kuehn gave up a secure job with decent pay and benefits because she assumed she was going to a more secure arrangement in her marriage with Farley Kuehn on the farm near Warner. [ 5 ] In this case it is important to see how the marriage got started and in this regard I go back to the engagement of November, 1999. Mr. Kuehn purported to purchase a diamond ring of considerable size and value for his bride-to-be. He led her to believe it was an extremely expensive purchase when in fact it was a synthetic diamond that cost him $250.00.

That ruse was continued through the marriage when some four years later he personally took the ring in to get cleaned and actually had it replaced with another synthetic stone as it appeared the first stone was showing signs of wear. He perpetuated a lie at the foundation of their relationship well into the marriage. This was discovered by Sharon Kuehn only after the separation and after she took the ring in for testing to a jeweller.

While she may have had her doubts throughout the relationship she chose to believe the best of her fiancé and later her husband. [ 6 ] Another issue that needs explanation prior to getting into the issues is the topic of the Prenuptial Agreement entered by the parties. Sharon Kuehn testified that there were two separate times the parties talked about a Prenuptial Agreement in January 2000, about the time they talked of moving the wedding forward. This topic was raised by Farley Kuehn in order to protect the “family farm”, to which Sharon readily agreed.

For several years Farley Kuehn had in his back pocket, so to speak, two sample Prenuptial Agreements that he received from a friend of the family who worked at a local law firm. Sharon Kuehn testified that as they went through these precedent Prenuptial Agreements the issue of disclosure of assets came up. That seemed to shut down conversation on Farley Kuehn’s part after he simply said he was worth $400,000.00. [ 7 ] The next time the issue came up was about an hour before the wedding ceremony on July 1, 2000, in Waterton.

The best man, Gary Clark, knocked on the hotel door of Sharon Kuehn and said that as best man he had to ensure that the paper work was signed. He was at the hotel room no longer than three to five minutes and Sharon Kuehn signed and initialled a five page document as “Sharon Charlene Johnson”, which was titled “Pre-Nuptial Agreement”, and had a date of June 29, 2000. Gary Clark witnessed both her signature and Farley Kuehn’s signature. Farley Kuehn says he had printed it off her computer a few days before the wedding and signed it on June 29 and forgot to get her to sign it until the wedding day.

In addition, Farley Kuehn said they spoke about this on more than two occasions, at least four times in total, and that he had prepared the Agreement on Sharon’s computer, he says and it was completely accessible to Sharon. Sharon Kuehn’s evidence is that after the discussions in January no mention was made about the Agreement until the morning of the wedding, a little more than an hour prior to the ceremony.

She testified that she knew if she didn’t sign the Agreement, the ceremony would not go ahead and 150 guests would be in Waterton for nothing. [ 8 ] Counsel for Farley Kuehn went to great lengths in his closing submissions urging that the court must first deal with the issue of credibility. The evidence of Sharon Kuehn is lacking in detail, was vague, and was not clear or frank and forthright, he said. Plus, Sharon Kuehn’s evidence flew in the face of the actual Agreement she signed.

Farley Kuehn operated his life while they were together and the marriage strictly according to the Agreement and that is how he gave his evidence in court. In fact, counsel for the Defendant goes as far as to say the Plaintiff, Sharon Kuehn, is deceitful in conveniently forgetting certain things and in the way she described the signing of the Contract on the day of the wedding. [ 9 ] Credibility is absolutely crucial in a trial like this. While there are not a lot of variations in the evidence before me, there are some key differences, mainly between Sharon Kuehn and Farley Kuehn.

Credibility or believability of a witness is not so much a science but an art. Credibility has at least two aspects to it. First, the truthfulness of the witness and secondly, the reliability of the witness. We must first answer the question: is the witness trying to tell the truth and not trying to be deceitful?

After that question is answered, such that the witness is worthy of belief, is the factual content, in other words, are the actual words said by the witness trustworthy, accurate and reliable. [ 10 ] In assessing the evidence of the parties and keeping in mind the two step process I just described, I am then left with combining experience, logic, the demeanor of the witnesses, common sense and a whole host of other human characteristics. Things like

the general integrity and intelligence of the witness, their power to observe, capacity to remember and their accuracy, as well as all other evidence tendered in the case. [ 11 ] It is true Sharon Kuehn may be a little vague or lacking in some details. She may not have recalled everything perfectly. This may be because she trusted completely and unequivocally the man with whom she expected to spend the rest of her life. Many of the details around 1999 and 2000 were not as important to her because she made certain assumptions.

These were assumptions based on trust. [ 12 ] On the other hand Farley Kuehn was strategic and somewhat cunning, if not deceitful and parsimonious, when he started this relationship. This continued throughout their engagement, on their wedding day, and throughout their marriage. It would stretch the bounds of common sense and all judicial reasoning in my view to accept Farley Kuehn’s evidence over Sharon Kuehn’s. Without hesitation I accept the credibility of Sharon Kuehn over that of Farley Kuehn. In any area where there is a conflict between the parties I will accept her evidence.

I found her to be fair and balanced in her evidence and in describing Farley Kuehn she was astonishingly even handed, a treatment that one would not expect from a woman who was personally insulted by a man who passed off a $250.00 synthetic stone for an extremely expensive diamond. [ 13 ] There is nothing wrong with a man giving his fiancé a $250.00 synthetic diamond.

However, when he leads his fiancé and the whole world to believe it is worth several thousand dollars, when he himself is a very successful businessman with a net worth of three million dollars, he does not start well. [ 14 ] It therefore goes without saying that I find that he tricked his future wife into signing the Agreement that he thought would protect his assets. His lawyer indicated in argument that Farley Kuehn is the type of independent do-it-yourself type person that “doesn’t much like lawyer folks”.

Had he not been so miserly and retained a lawyer at the time and been fair and forthright with Sharon Kuehn I am sure, in fact I know, we would not have had this trial. [ 15 ] Accordingly, it is clear that the Agreement is not an Agreement under

Section 37 of the Matrimonial Property Act , R.S.A. 2000, c.M-8. I will comment further on the Agreement when I go through the factors under

Section 8 of the Matrimonial Property Act . [ 16 ] The Plaintiff has satisfied me of all evidential requirements for a divorce and accordingly I am prepared to grant a Divorce Judgment dissolving the marriage of Sharon Charlene Kuehn and Farley George Kuehn which took place on July 1, 2000, at Waterton, Alberta. [ 17 ] I will next deal with the division of matrimonial property. It is clear that Farley Kuehn owns and operates a very successful farming operation. That was the case when he first met and married Sharon and it is the case now.

At the time of the marriage, July 1, 2000, Farley Kuehn owned the following assets: 1. FGK Farms Ltd. which owned all the farm assets including land and equipment $1,505,848.00 2. OMAKAU Investments Ltd. which appears to be simply a holding company or investment corporate entity $ 597,670.00 3. RRSP’s $ 88,165.00 4. Non-RRSP investment accounts $ 763,149.00 TOTAL $2,954,832.00 [ 18 ] Presumably, it is this combination of assets and its growth that Farley Kuehn sought to protect by way of the homemade

[ 18 ] Presumably, it is this combination of assets and its growth that Farley Kuehn sought to protect by way of the homemade Prenuptial Agreement. It is clear that Sharon Kuehn had no idea of the existence of all these assets nor their values at the time of the marriage or during the marriage. This information only came to light after the litigation commenced and disclosure provisions of the Rules of Court came in to play. A less determined Plaintiff may have given up long ago. [ 19 ] Sharon Kuehn’s assets at the time of marriage consisted of the following: 1. Her RRSP and LAPP value $15,932.00 2.

Equity in her home in North Lethbridge $25,000.00 TOTAL $40,932.00 She had very early in the marriage gifted her home equity to her sons, and her RRSP and LAPP have increased to $40,000.00 [ 20 ] This information was all known to Farley Kuehn very early on before the marriage and in fairness he sought to protect these assets for Sharon in his homemade Prenuptial Agreement. [ 21 ] Farley Kuehn was the recipient of a bequest during the marriage in 2004 of $259,226.00. [ 22 ] The parties acquired the following property after the marriage: 1. A residential lot in Taber in September 2000 $ 27,500.00 2.

Recreational property - a cabin at Tie Lake in August 2002 $170,000.00 TOTAL of real property acquired after marriage $197,500.00 [ 23 ] I am advised by counsel that the parties each have in their possession various items of personal property including vehicles and recreational units that have been acquired after the marriage. In Farley Kuehn’s case it consists of: 1. 1979 Prowler Trailer $ 3,000.00 2. 4 Sleds $ 6,000.00 3. 1993 Goldwing Motorcycle $ 6,000.00 4. 16' Cobra Ski-boat $ 3,000.00 5. Fishing Boat $ 300.00

6. 1987 Larson Boat $ 5,000.00 7. Mayan Palace Time Share $ 6,000.00 TOTAL $29,300.00 [ 24 ] In Sharon Kuehn’s case it consists of: 1. 25,000 units American Creek $ 1,750.00 2. 3 Sleds $ 4,500.00 3. Paint Trailer, Ladders, Pressure, Hayshed Cargo Trailer, Compressor $ 2,500.00 4. Ford Escape $ 5,000.00 5 Quad $ 2,500.00 TOTAL $16,250.00 [ 25 ] It is my understanding that the vehicles and some other items in Sharon Kuehn’s possession may in fact be still registered in the name of FGK Farms Ltd.

If so, I direct that they be transferred into her name forthwith. [ 26 ] I have summarized the various assets and their values as follows: Value at Date of Marriage Value at Trial Growth During the Marriage 1. OMAKAU Investments Ltd. $ 597,670.00 $ 811,240.00 $ 213,570.00 2. FGK Farms Ltd. $1,505,848.00 $ 2,610,245.00 $1,104,397.00 3. Farley Kuehn’s RRSP $ 88,165.00 $ 233,946.00 $ 145,781.00 4. Farley Kuehn’s Non-RRSP Investments $ 763,149.00 $ 803,670.00 $ 40,521.00 5. Farley Kuehn’s Inheritance $ 259,226.00 $ 292,783.00 $ 33,557.00 6.

Tie Lake Property value at purchase $ 325,000.00 (net of $75,000.00 Mortgage) $ 325,000.00

7. Taber Lot value at purchase $27,500.00 $ 100,000.00 $ 100,000.00 8. Farley Kuehn’s Personal Property $ 29,300.00 9. Sharon Kuehn’s Investments $ 40,000.00 10. Sharon Kuehn’s Personal Property $ 16,250.00 TOTALS $1,962,826.00 [ 27 ] It is obvious by these numbers, I agree with counsel for the Defendant that the non-RRSP investments should be reduced by the approximate $27,000.00 loan advanced to Gary Clark. [ 28 ] The Plaintiff, Sharon Kuehn pleads for an order of distribution of all property acquired by the parties either together or separately since the marriage that is just and equitable.

This includes the growth in assets over the course of the marriage. In closing argument, counsel for the Plaintiff asks for an equal division of $2,027,826.00, with some specific assets to be transferred. [ 29 ] The court must look at the

Section 8 factors of the Matrimonial Property Act in making an Order of Distribution under

Section 7 of the Matrimonial Property Act. [ 30 ] I will review the relevant subsections of

Section 8 as they relate to this case: 8(

a) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent; [ 31 ] Great emphasis was made by the Defendant’s counsel that Sharon Kuehn really did not do a lot as a traditional farm wife. Comparing Sharon Kuehn’s duties from 2000 to 2008, it is clear she was not the mother to a large family, did not superintend over a large domestic operation, a mixed farm or the more work intensive role that accompanies some farming operations. She became the wife of a very successful dryland, straight grain farmer in Southern Alberta.

This meant busy time in spring seeding and very busy times in autumn harvest. Summers allowed for time at the Tie Lake cabin such that it was not feasible to have a garden at home. This was a mutual decision. [ 32 ] It is clear to me that Sharon Kuehn did what was necessary and important in her role as a farm wife to a relatively non-labour intensive farming operation.

It is true she had time on her hands and she operated a small business on the side but that was with Farley Kuehn’s endorsement, encouragement and financial help. [ 33 ] It is clear she did virtually all of the meal preparation, housework, laundry and the outside yard work, such as cutting the lawn, while the parties were together. 8(

b) the contribution, whether financial or in some other form, made by a spouse directly or indirectly to the acquisition, conservation, improvement, operation or management of a business, farm, enterprise or undertaking owned or operated by one or both spouses or by one or both spouses and any other person; [ 34 ] Sharon Kuehn never really contributed much financially to the family operation. But she did serve all of the functions of a farm wife considering the type of operation it was. As well, she offered and wanted to do more, such as the books for FGK Farms Ltd. That would have made sense in terms of income splitting but Farley Kuehn would have her do none of that.

[ 35 ] She did bring in a small income through various part-time jobs as well as run the household and do occasional farm errands. She also brought about $10,000.00 in savings into the marriage that was spent early on by herself for the household and herself. 8(

c) the contribution, whether financial or in some other form, made directly or indirectly by or on behalf of a spouse to the acquisition, conservation or improvement of the property; [ 36 ] It appears to me that Sharon Kuehn had a significant role to play in acquiring the Taber residential lot and the Tie Lake property. It is not accidental that the two pieces of real estate that Farley Kuehn owns in Canada other than the farmland were acquired within two years of their marriage. This couple seriously planned and talked about retirement, as in when Farley Kuehn retires.

Sharon Kuehn was instrumental in acquiring these properties. While Sharon Kuehn did not specifically invest any of her own money she spent a lot of time and energy in cleaning, renovating, and refurbishing the Tie Lake property. 8(

d) The income, earning capacity, liabilities, obligations, property and other financial resources (

i) that each spouse had at the time of marriage, and (ii) that each spouse has at the time of the trial; [ 37 ] Sharon Kuehn gave up a secure job with benefits and a long term pension plan at Lethbridge Community College at the time of their marriage. She was strongly influenced by Farley Kuehn to quit the job. She took a business course to give her skills to run her own business on the farm as her husband prohibited her from working in Lethbridge both because of safety concerns and transportation expense concerns. [ 38 ] Today Sharon Kuehn is part owner of a fledgling painting business and Farley Kuehn continues his farming operation as before and during the marriage. 8(

e) the duration of the marriage; [ 39 ] The parties have dated since 1998 and basically quasi cohabited since engagement in November 1999. This means their relationship can be characterized as eleven years in length. This is within the moderate length of marriage. 8(

g) the terms of an oral or written agreement between the spouses; [ 40 ] Notwithstanding counsel for the Defendant’s very able argument on this point I put no value or emphasis on the Agreement that Sharon Kuehn was compelled to sign an hour before the wedding ceremony. It is not an Agreement she had input in, it is not an Agreement that provided any disclosure from the side who wanted the Agreement and the shadowy nature of extracting her signature all lead me to exclude it completely from any calculation or judgment.

Farley Kuehn may have in fact lived by the Agreement faithfully but an Agreement must have at minimum some form of consensus ad idem which in my view the June 29, 2000 document does not. 8(

h) that a spouse has made a substantial gift of property to a third party [ 41 ] In this case Sharon Kuehn gave away the equity in her Lethbridge home shortly after marrying and moving onto the farm. She said she did it to benefit her sons and her future was with Farley Kuehn. This is a factor that is needed in order to detect and account for inappropriate dispositions of property. There is nothing inappropriate in this case and I do not count it against Sharon Kuehn or in favour of Farley Kuehn. 8(

j) a prior order made by a court; [ 42 ] It is clear that by Order of December, 2008, Sharon Kuehn had already received an advance of $60,000.00 which will be taken into account. 8(

k) a tax liability that may be incurred by a spouse as a result of the transfer or sale of property; [ 43 ] While a court cannot be guaranteed to make an Order with no tax consequences it is mindful of specifics reported by the Plaintiff that will minimize tax consequences. My Order will attempt to do that.

8(

m) any fact or circumstance that is relevant. [ 44 ] Under this heading counsel for the Plaintiff made submissions that appear to me to be more appropriate for an Order for Costs. But nevertheless the comments do emphasize a pattern of behaviour on the part of Farley Kuehn which confirms the rationale for my Order herein. [ 45 ] It is clear that what we are dealing with in terms of distribution is non-exempt assets. It is also clear that the Matrimonial Property Act starts with the clear presumption of equal division of non-exempt assets. As well, as the court reviews the evidence of the parties and in exercising its discretion in reviewing the

Section 8 factors the court has some latitude. [ 46 ] It would appear to me that a strictly equal division of growth of assets of Farley Kuehn for the snapshot in time within which this marriage occurred would border on a windfall. [ 47 ] The capital asset base which existed at the time of marriage was not contributed to by Sharon Kuehn. It was Farley Kuehn’s farm and his good luck, able stewardship and hard work that created that significant capital asset base. To distribute half of the growth would be unfair. I am awarding on an amount of 45% of the asset pool of $1,962,826.00 in Sharon Kuehn’s favour.

The amount is rounded to $900,000.00. [ 48 ] In my view Sharon Kuehn already has $76,200.00 in her possession in terms of $16,200.00 of personal property, and the $60,000.00 Matrimonial Property advance. That leaves to be satisfied a remaining $823,800.00. I am exercising my power under

Section 9 of the Matrimonial Property Act and ordering the entire Taber lot at a value of $100,000.00 to Sharon Kuehn and the Tie Lake property at a value of $400,000.00. In each case the property shall be transferred to Sharon Kuehn free and clear of all encumbrances. [ 49 ] The $900,000.00 award is thus partially satisfied as follows: $900,000.00 - $ 76,200.00 Subtotal $823,800.00 Taber property - $100,000.00 Subtotal $723,800.00 Tie Lake -$400,000.00 Subtotal $323,800.00 Mortgage paid off @ Tie Lake -$ 75,000.00 TOTAL $248,800.00 [ 50 ] There then remains a money Judgment of $248,800.00 to be satisfied by Farley Kuehn. This amount is due and owing immediately. Spousal Support

[ 51 ] The Plaintiff argues that she is entitled to spousal support. The Defendant agrees that there is entitlement. The issue then becomes quantum and duration. [ 52 ] There is an Interim Order from December 2008 for Farley Kuehn to pay Sharon Kuehn $3,000.00 per month. While this Order is not truly classified as a “Consent” Order it was arrived at by agreement after an initial application in Chambers. [ 53 ] The relevant sections of the Divorce Act R.S.C. 1985, c.3 are:

Section 15.2(1) 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Section 15.2(3) 15.2

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Section 15.2(4) 15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse.

Section 15.2(6) 15.2(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 54 ] It is worthwhile to say a word about entitlement even though there is agreement. I view entitlement in this case more along the lines as stated by Justice McLachlin as she then was in the case of Bracklow v. Bracklow 1999 CanLII 715 (SCC) , [1999] 1 S.C.R. 420 where she described the compensatory approach as one spouse’s economic disadvantage in the paid labour market flowing from different roles adopted during the marriage.

In this case, Sharon Kuehn clearly had given up a solid employment career in the City of Lethbridge which involved at least ten of her prime earning years. She moved out to the farm and while she may have enjoyed a higher standard of living her employment prospects have clearly been affected by the marriage. Again, it was a decision that was very much influenced by Farley Kuehn.

[ 55 ] Given that there is agreement on entitlement the next issue that requires determination is amount. There are two main ingredients that go into the formula for determining quantum of spousal support. They are incomes of the parties and duration of the marriage or period of cohabitation. [ 56 ] In addition, the Divorce Act requires the court to look at the needs of the recipient spouse. [ 57 ] With regard to the budget submitted by Sharon Kuehn, it shows a monthly need of almost $5,100.00 per month.

While her budget may appear to be aspirational or bordering on a wish list it does not differ significantly in my view from the lifestyle she enjoyed with Farley Kuehn. While the Plaintiff’s budget is not determinative of the amount of spousal support I cannot be critical of her assessment. [ 58 ] I would note that Sharon Kuehn expects to earn between $15,000.00 to $20,000.00 per year from her self-employed painting business. She earned just slightly over $23,000.00 in 2009 which she has described as an unusually good year.

I am putting her income at $20,000.00 per year which should be quite easy for her to reach in terms of her self-employed income given the various perks she has available to her as a self-employed entrepreneur. [ 59 ] Farley Kuehn’s income is somewhat more difficult to determine. While his average line 150 income for the past ten years is about $110,000.00, his average over the past three years is almost $115,000.00. [ 60 ] But in the case of a farmer with two corporations where he holds all the shares it would be unjust not to include the retained earnings of his income.

This is especially the case where there is no debt and in light of provisions in Sections 15 to 20 of the Federal Child Support Guidelines SOR/97-175 for determining income. [ 61 ] There was a stark difference between the positions of the parties in terms of what income should be imputed to Farley Kuehn. The Plaintiff proferred Dean Gallimore, a Chartered Accountant as an expert in determining the Defendant’s guideline income. Mr. Gallimore used the most recent three year snapshot available to him at the time, namely the years 2006 to 2008. For those years he examined Mr.

Kuehn’s personal Tax Returns as well as the Tax Returns for FGK Farms Ltd. and OMAKAU Investments Ltd. and the Financial Statements for those companies for those years. Using that data he also looked at personal tax return income of Farley Kuehn. In addition, he made an adjustment for dividend income or tax gross-ups. He also looked at the income of his companies that had not been distributed and added that amount to his personal income. One year in this period was a loss so that was included to Farley Kuehn’s benefit. The overall average arrived at by Mr.

Gallimore for a three year period amounted to $250,000.00 per year. He also calculated the most recent two years and that revealed a guideline income of just over $325,000.00 annual income. [ 62 ] On behalf of Farley Kuehn, Harvey Labuhn testified. He too is a Chartered Accountant and he was qualified as an expert to give opinion evidence as to Farley Kuehn’s true guideline income for the purposes of spousal support. Mr. Labuhn used much of the same data as Dean Gallimore, but refused to pay any heed to income calculation provisions of the Child Support Guidelines .

Accordingly, he did not include the cash flow from Farley Kuehn’s corporations and as a result his estimate of Farley Kuehn’s guideline income is considerably less. It is in the range of $100,000.00 which is noticeably less than even his line 150 income! [ 63 ] I disagree with the reasons articulated by Mr. Labuhn for rejecting the income guidelines and that it would be unfair as in his view it would be “double dipping”. The starting point for determining income for spousal support is the definition of income under the Federal Child Support Guidelines .

I prefer the approach taken by Dean Gallimore in terms of his description of a three year window or snapshot. This is particularly relevant as it is the last three years the parties were together. Further, Mr. Gallimore did not take into account any “perks” of the corporation which could have raised his income by at least $12,000.00 per year, nor did he factor in the income splitting that had been taken place. Therefore, I find Mr.

Gallimore’s determination of a three year average of $250,000.00 fair, in line with the guidelines and on the conservative end of the spectrum as he did not factor in all of the perks that were available. [ 64 ] Given that I have determined Farley Kuehn’s guideline income to be $250,000.00 per year, and Sharon Kuehn’s guideline income to be $20,000.00 per year, what then is his obligation to provide support? [ 65 ] In my view, a reasonable amount of spousal support for Farley Kuehn to pay Sharon Kuehn on an amount that is easily justifiable according to the guidelines is $3,000.00 per month.

[ 66 ] Accordingly, on a permanent basis Farley Kuehn shall pay Sharon Kuehn $3,000.00 per month starting on January 1, 2011, and continuing on the first day of each month thereafter. [ 67 ] The duration of the spousal support shall be for a fixed term of six years and it shall therefore end on December 1, 2016. Costs [ 68 ] Counsel for the Plaintiff is asking for what amounts to full solicitor client costs. This is an unusual request unless there is wanton, scandalous and vicious actions from the opposing party. It is clear that the Plaintiff is entitled to her costs because she won.

The Defendant is obligated to pay costs because he has lost. The request for an equal division has not been met with success, nor did she get the amount of spousal support she asked for. I am prepared to order costs in the fixed sum of $25,000.00, up to and including trial, plus all disbursements, including costs of all experts including their cost of coming to trial, in favour of the Plaintiff. [ 69 ] I hope to provide a written copy of my reasons to counsel within two weeks. Any requirement to settle the minutes of my Order can be arranged after that time.

Heard on the 29 th day of November, 2010 to the 1 st day of December, 2010. Dated at Lethbridge, Alberta this 3 rd day of December, 2010. D.K. Miller J.C.Q.B.A. Appearances: Patricia A. McMillan Peterson & Purvis for the Plaintiff Robert G. Bissett Stringam Denecky for the Defendant