Bradshaw v. Bradshaw, 2010 ABQB 830

Court of Queen ’ s Bench of Alberta Citation: Bradshaw v. Bradshaw, 2010 ABQB 830 Date: 20101230 Docket: 4801 121028 Registry: Calgary Between: Janet Lynn Bradshaw Plaintiff - and - Philip John Bradshaw Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice P.R. Jeffrey _______________________________________________________ Introduction [ 1 ] These are my reasons for the decision I rendered orally December 10, 2010. [ 2 ] Mr. and Mrs. Bradshaw met in the 1970s, began cohabiting in the 1980s and were married in November 1987.

They separated September 2003; they were divorced February 2010. There were, but are not now, two children of the marriage: a son Travis, born 1988, and a daughter Chanelle, born 1990. [ 3 ] Though Mr. and Mrs. Bradshaw separated in September 2003 they remained within the matrimonial home, just on separate floors. In November and December 2005 they participated in a judicially facilitated dispute resolution process. For the remainder of this judgment I shall simply refer to that process as the “ JDR ” . One by-product of that process was the matrimonial home being sold. That property was divested June 30, 2006.

From shortly before that date the parties have lived fully separate and apart.

[ 4 ] Both parties before me took the position that an agreement was reached at the JDR. It became known as the Divorce and Property Agreement. For purposes of this judgment I will simply refer to it as the “ Agreement ” . Additionally, both parties before me took the position that terms of that Agreement were the ones that I have appended to this Judgment as

Schedule “ A ” . [ 5 ] The parties disagree on whether that Agreement is still binding. Mr. Bradshaw says that it is not. He says that Mrs. Bradshaw repudiated the Agreement in January 2006 and that, at that time, he accepted the repudiation. In any event of the alleged accepted repudiation, Mr. Bradshaw says circumstances changed materially since the time of the Agreement and therefore relief of the court from the effect of the Agreement is warranted. [ 6 ] The parties returned to the JDR justice in June 2006.

As an interim without prejudice measure the Justice required portions of the proceeds of sale of the matrimonial home to be placed in trust pending determination of the repudiation issue. Issues and Preliminary Comments [ 7 ] Mr. Bradshaw brought an application in September 2006, which was the genesis of an acrimonious process culminating in this trial. The issues before me for determination from that application are: 1. Whether the Agreement was repudiated, 2. Spousal support, 3. Child support, and 4.

Certain matrimonial property (five missing “ personal effects ” and “ balancing ” RSPs). [ 8 ] Before proceeding to my decisions on those four issues, I wish to make some preliminary comments and observations. [ 9 ] First, the overwhelming majority of the evidence adduced before me came from the two parties, Mr. and Ms. Bradshaw. Each was quick to pounce on the slightest error, omission or exaggeration of the other, no matter how trivial and regardless of relevance.

Regrettably, through the cross-examination by the other, each was shown to be less than forthcoming over the years in which this matter has tortuously wended its way through the system. Both appeared all too happy to place in the path of the other any possible impediment to the other ’ s progress. [ 10 ] During the course of this trial, each party at different times referred back to the comments of other justices of this Court from earlier applications and steps in this action.

As the parties referred to those comments they each implied that those earlier judicial comments somehow represented determinations of this Court in respect of the issues between the parties. The parties were both wrong in doing so. Not every comment of a judge in court is a binding or final ruling. In 1942 the Judicial Committee of the Privy Council issued a Practice Note on this perception.

It states ([1942] W.N. 89): During the hearing of an appeal Viscount Simon L.C., referring to reports which might be made of the case, said that it was well understood that interlocutory observations of the members of the Board or of a Court were not judicial pronouncements. They did not decide anything, even provisionally. They were made to elucidate the argument, to point the question, or to indicate what were the matters which the judicial spokesman thought needed to be investigated, and that was all.

It would be a very great pity, and a profound error, if anybody, foreigner or fellow subject, supposed that interlocutory observations were anything more. [ 11 ] By way of example of this, during the course of trial reference was made to the record of the attendance before Justice Rooke of this Court, as he then was, in June 2006. The transcript of that attendance was referred to numerous times during this trial. Mr. Bradshaw referred to his comments about the non-binding nature of the JDR and said therefore no agreement resulting therefrom is now binding. Mrs.

Bradshaw referred to his comments about there having been no deadline for the papering of the deal reached at the JDR.

Both were wrong to regard those as “ judicial pronouncements ” . They were not. They were interlocutory observations, nothing more. They were made without the benefit of the full array of evidence on the points now in issue and before me for determination. [ 12 ] If Justice Rooke ’ s comments were judicial pronouncements, binding upon the parties, they would not have come before me for trial on those points.

Any challenge of them would have to go before the Alberta Court of Appeal. [ 13 ] Furthermore, Justice Rooke ’ s comment of the process not being a binding one was a reference to the type of JDR being conducted. He was saying it was not what we refer to as a “ binding JDR ” . The non-binding JDR he conducted with the Bradshaws was in the nature of a mediation, in which neither party would be bound by any outcome unless both agreed to be so bound. However, parties to a non-binding JDR are at liberty to reach a binding agreement. That is the whole point. And that is what both Bradshaws said happened in their JDR.

They reached a binding agreement. They just disagree now on whether it continues to be binding. [ 14 ] Third, a person need not have a bank account in order to wire funds from that bank. Also, with respect to Caroline using Phil ’ s money to loan to Rick, she had Phil ’ s Power of Attorney and therefore did not need to check with or ask Mr. Bradshaw prior. There is nothing unusual about that. However, there is something quite unusual about coming into some 87,000 Euros and not knowing a thing about it, particularly when struggling for employment and cash flow. [ 15 ] Fourth, it is evident to me that both Mr.

Bradshaw and Mrs. Bradshaw continued after their separation in lifestyles to which they had become accustomed prior to their separation, when their aggregate income was most substantially higher. In the days soon after their separation their combined income dramatically declined.

To their current peril this did not immediately affect the spending habits of either party. [ 16 ] Fifth, there was reference periodically through the trial about the tax implications of support levels, how the payments were to be treated for tax purposes, who would be entitled to any such favourable tax treatment, and complaints about amounts Mr. Bradshaw allegedly improperly claimed on his tax returns.

My decisions that follow are on the issues properly placed before the Court on notice to the party opposite; that was not one of them. [ 17 ] Sixth, and finally, I found both parties playing fast and loose with the truth. Mrs. Bradshaw, by way of just one example, earlier represented to the court that she did not ever have a safe deposit box. During trial it was quite evident that she did. She was dismissive and cavalier about this revelation. Other examples occurred during the trial, each of which were most disconcerting. [ 18 ] Mr.

Bradshaw maintained that he had very limited income levels which were as described on his Canada Revenue Agency

summary reports. He testified to the sources of those funds. Yet when shown contrary information, for example the level of income from some non-Mexico employment, which by simple math showed his testimony about Mexico income to be false, he too was dismissive, resentful in fact at any suggestion his testimony should have been more accurate than it was. [ 19 ] These behaviours called to mind the words of the B.C. Court of Appeal years ago. It was speaking of the way courts must look to the prevailing circumstances to fairly assess the credibility of witnesses, when it said (Faryna v.

Chorny, 1951 CanLII 252 (BC CA) , [1951] B.C.J. No. 152 , [1952] 2 D.L.R. 354 , at 357 (B.C.C.A.) ): Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. [ 20 ] That now becomes my task, being unable to rely fully on what either party said, to sift through the skilful exaggeration, the half-lies and the truth suppression.

I am left to search for the reasonably plausible in the circumstances, assessing from the preponderance of the common theme and content what is more consistent with statements and actions of third parties or counsel, trying to assess what probably occurred where relevant to the issues, in order to fashion a just determination according to law. Repudiation

[ 21 ] The threshold issue before me is whether or not the Agreement continues to be binding upon the parties, as Mrs. Bradshaw maintains, or was repudiated by Mrs. Bradshaw as Mr. Bradshaw maintains. Mr. Bradshaw claims that the Agreement was repudiated and, as was his prerogative upon that repudiation, that he accepted that repudiation. As a consequence, Mr.

Bradshaw maintains, he is no longer bound by its terms. [ 22 ] Repudiation “ ... occurs ‘ by words or conduct evincing an intention not to be bound by the contract. ... [S]uch an intention may be evinced by a refusal to perform, even though the party refusing mistakenly thinks that he is exercising a contractual right ’ ” : Guarantee Co. of North America v . Gordon Capital , 1999 CanLII 664 (SCC) , [1999] 3 SCR 423 , at para. 40 . [ 23 ] In a more recent decision this Court summarized the law of repudiation in Pivotal Capital Advisory Group Ltd. v.

NorAmera BioEnergy Corporation , 2008 ABQB 206 , at para. 122 , stating: ... I accept the

summary of the elements required for a repudiation set out in G.H.L. Fridman, The Law of Contract in Canada, 5 th ed., (Toronto, ON: Thomson Canada Ltd., 2006), p. 606: The authorities reveal that, for this type of breach to occur the following must be established: (1) conduct which amounts to a total rejection of the obligations of the contract; (2) lack of justification for such conduct. If, to these, is added the acceptance by the innocent party of the repudiation, then the effect will be to terminate the contract. [123] The words of Mason J. in Burntwood Holdings Ltd. v.

Salt (1988), 1988 CanLII 3941 (AB KB) , 93 A.R. 161(Q.B.) are also instructive, at para. 37: Repudiation of a contract is “not to be lightly found or inferred”. Mere refusal to perform or a breach of some terms of an agreement does not amount to repudiation. To prove repudiation, it must be clear that the defaulting party does not intend to perform its side of the bargain. [ 24 ] Mr. Bradshaw claims that Mrs. Bradshaw, in January 2006, was in default of the Agreement they had reached and demonstrated her intention not to perform its side of the bargain. Has that been proven? [ 25 ] On January 20, 2006, Mrs.

Bradshaw ’ s lawyer informed Mr. Bradshaw ’ s lawyer by letter (in part): We have been unable to contact Ms. Bradshaw and, as such, the documents are not executed. [ 26 ] On January 26, 2006 Mr. Bradshaw ’ s lawyer wrote to Mrs. Bradshaw ’ s lawyer saying, in part: I ’ m extremely puzzled and concerned as to why your client has been apparently unable to get herself down to your office to sign the settlement documents. I understand from my client that Ms. Bradshaw has been back in the matrimonial home since January 14. She is continuing to cash the support cheques provided to her, but has not signed the Agreement.

I ’ m not interested in having this matter limp along. Your client was, to say the least, extremely reluctant to go along with the Agreement. As far as I am aware, she may have again changed her mind. Accordingly, I look forward to your immediate advice as to where you believe we are at in this process. I want this response from you no later than Monday, January 30.... [ 27 ] On January 26, 2006 Mrs. Bradshaw ’ s lawyer wrote to Mr. Bradshaw ’ s lawyer as follows:

Please be advised we are awaiting instructions from our Mrs. Bradshaw. Should you have any questions, please do not hesitate to contact our office. [ 28 ] On January 30, 2006 Mr. Bradshaw ’ s lawyer wrote to Mrs. Bradshaw as follows, in part: Further to our telephone conversation of today, I understand from you that you have had no communications from your client. I am returning to your office the Divorce and Property Agreement which I had originally sent you following execution by my client on January 13.

These documents are sent to you in trust and on condition that no use of the same shall be made unless this Agreement is fully executed by your client and all certificates and acknowledgements properly completed before the close of business on Tuesday, January 31, 2006. In the event your client does not attend at your office to execute the Agreement before the close of business tomorrow, the documents are to be returned to my office. Mr.

Bradshaw has instructed me that his position is that if your client does not sign the agreement tomorrow he will be stopping payment on the February 1 support cheque which he provided to your client pursuant to this Agreement. The position we will be taking is that your client has repudiated the Agreement and that Mr. Bradshaw is accepting that repudiation. ( emphasis added) [ 29 ] On January 30, 2006 Mrs. Bradshaw ’ s lawyer then wrote to her as follows: Further to the above, please find enclosed a copy of correspondence received at 5:15 pm today from Mr. Bradshaw ’ s counsel.

Four copies of the Divorce and Property Agreement were sent to us on trust conditions that they be signed and sent back to counsel by end of business tomorrow. I confirm that our advice to you is that you should sign this Agreement and that it accurately reflects the Agreement arrived at in the JDR with Justice Rooke which is a binding agreement. If you wish to sign the Agreement, please contact Sara as soon as possible to set up an appointment.... Please note that Ms. Graham states that if you do not sign the Agreement, Mr.

Bradshaw will stop payment on the February 1, 2006 support payment based on your having repudiated or refusing to carry out your obligations under the Agreement and his acceptance of the repudiations. Their position will be that then the Agreement as well as the contract signed with Justice Rooke will no longer be valid. [ 30 ] On February 1, 2006 Mrs. Bradshaw ’ s lawyer wrote to Mr.

Bradshaw ’ s lawyer as follows: Further to the above, given that our client has not attended at our office to execute the Divorce and Property Agreement, we are returning all four original copies of the Agreement as per the trust conditions.... [ 31 ] There was a further exchange of correspondence between counsel including, on February 27, 2006 Mrs. Bradshaw ’ s lawyer wrote to Mr.

Bradshaw ’ s lawyer as follows: Further to the above, we enclose for service upon you pursuant to Rule 16.1 of the Alberta Rules of Court , a copy of the Notice of Ceasing to Act as Solicitor, filed January 20, 2006. [ 32 ] At trial Mrs. Bradshaw indicated that the document exchange process prior to trial was the first time she saw most if not all of the letters exchanged between counsel excerpted above. She further indicated that at the time of that exchange she was in disagreement with her then-counsel. This is borne out by her lawyer filing a Notice of Ceasing to Act on January 20, 2006.

[ 33 ] Mrs. Bradshaw was not asked the basis of her disagreement with her counsel nor was she obliged to disclose that information. However she did volunteer some information about that disagreement and I am satisfied that the disagreement related, at least in part, to the legal fees charged or forecast to be charged in the future by her lawyer. Mrs. Bradshaw testified that she had questions about some of the contents of the Agreement and was not able to get satisfactory responses. [ 34 ] In her affidavit of September 26, 2006, Mrs. Bradshaw said that her counsel requested a disclosure clause be included.

This might be considered to be some evidence that Mrs. Bradshaw had intended not to perform her side of the bargain in its then form. But reading on in that transcript, it becomes clear she was not referring to the lawyer she had in January 2006, when Mr. Bradshaw said she repudiated the Agreement, but much later in the year. Under cross-examination on her affidavit Mrs. Bradshaw refers to that counsel as “ Diann ” , referring of course not to Mr. Vogel but her next lawyer, Ms. Castle. Therefore this comment in her examination on affidavit is not evidence of the events in January when Mr. Bradshaw says Mrs.

Bradshaw repudiated the Agreement. [ 35 ] During that cross-examination on her affidavit, Mrs. Bradshaw also said: A Whatever. I ’ m not – I was not signing anything – Q Well, Mrs. Bradshaw – A – because Mr. Bradshaw already breached – Q – let me put it to you you met with Mr. Vogel on January – A Yes. Q – 9th – A Correct. Q – you reviewed with him the draft Divorce and Property Agreement – A No, I did not. Q – you refused at that time to sign – A I would not sign. I will not sign anything. He hands it to me as I ’ m going and says that I needed to sign it, okay.

First of all, if it ’ s totally reflected into what that was, no, we did not review the document on that day. Again, I tell you it wasn ’ t done on that day. And because Philip had already breached the Agreement that we had discussed with Justice Rooke, which was taking the house off the market without discussing it with me – and Mr. Vogel obviously didn ’ t seem to think it was a big deal. But when I sign any document, it should be what ’ s going on at the time. [ 36 ] Mrs.

Bradshaw at that cross-examination on affidavit categorically denied being asked by her counsel to attend his office to sign a copy of the Agreement. She says she met with him on January 9 to discuss her belief that Mr. Bradshaw had already breached the Agreement by taking the matrimonial home off the real estate market without her knowledge or approval.

[ 37 ] In her affidavit, she stated: I left the meeting with my previous counsel with the understanding he would be corresponding with opposing counsel regarding my concerns about the document. [ 38 ] When cross-examined about that comment in her affidavit she explained that the “ concerns about the document ” to which she was referring was “ the fact that [Mr.

Bradshaw] had taken the house off the market. ” [ 39 ] Towards the end of the cross-examination on that affidavit, after being pressed repeatedly for just what she was referring to by her use of the term “ document ” in that portion of her affidavit just referred to, the transcript contains this exchange: Q Ms. Graham: I simply want to know what is the document you are referring to when you used the term – A There is no document. Q – “ document ” at the end of Paragraph 12 and the end of Paragraph 14 of your Affidavit sworn May 23? A I ’ ve answered this question. Ms. Logie: Asked and answered. Move on. Ms.

Graham: Really? What is it? Because I ’ m quite confused. A So am I. Ms. Logie: The document that he handed her when she left the meeting. Q Ms. Graham: So the document is the Divorce and Property Agreement? A We never had a Property Agreement. Ms. Logie: The document she says she never looked at. Q Ms. Graham: But that is the document that you were referring to in the last line of Paragraph 12 and Paragraph 14? A We didn ’ t have a Property Agreement ever. Still don ’ t. [ 40 ] It is evident to me from review of the entire transcript of that examination that Mrs.

Bradshaw among other things was reaching a point of exasperation, probably akin to the exasperation she reached many, many times during this trial. She has great difficulty addressing these matters dispassionately or distancing herself from her emotional reactions. This is not uncommon in

matrimonial disputes. Regrettably in Mrs. Bradshaw ’ s case, however, at such times she swears, gets belligerent and loses track of the truth. [ 41 ] When I read Mrs. Bradshaw ’ s statements in this full context of the evidence and events they attest to, I am satisfied that what Mrs. Bradshaw is referring to in that last exchange is just the typed-up version of the oral agreement reached in December 2005; she was saying in effect there was not an executed signed papered-up contract. In that sense, she was saying the parties do not have an agreement.

Both parties have acknowledged before me in their evidence that an agreement was reached orally in December 2005 at the conclusion of the JDR process. Both parties have confirmed before me the specific terms of that agreement are those appended hereto at

Schedule “ A ” . The question before me is not whether there was an agreement. There was. The question is whether that agreement was repudiated. I do not regard the comments of Mrs. Bradshaw during the examination on her affidavit as saying there was not an agreement, but that there was not yet a typed-up, papered contract capturing the terms of that agreement. [ 42 ] Towards the end of the transcript of the cross-examination on affidavit of Mrs. Bradshaw, she responded to questioning about why she did not sign the Agreement. That exchange reads as follows: Q Yes?

So why didn ’ t you phone your lawyer to get in to sign. A I think – Erin, if you would like to answer that – it is between me and my lawyer, okay. I had great difficulty at the time with communication between me and my lawyer. [ 43 ] That comment I found borne out by the remainder of the evidence before me. When asked during the trial about this, Mrs.

Bradshaw explained that the rift that had developed between her and her counsel, her uncertainty with the de-listing of the house, and whether her husband might have failed to disclose everything, caused her to defer in executing the papered version of the Agreement. She was unable to get satisfaction on those points of uncertainty because she was without counsel. [ 44 ] When Mr. Bradshaw asked during the trial why in late January 2006 he concluded that Mrs. Bradshaw repudiated the Agreement, Mr. Bradshaw pointed only to Mrs.

Bradshaw not signing and returning the typed-up version of the Agreement and not being able to be reached. I do not find any term, clause or provision of the Agreement in any way obliging either party to sign a typed-up version of the Agreement that had been reached in December 2005, let alone to do so before any particular deadline. Further, delay in being reached by her counsel can have many causes; it is not reasonable to infer from that seclusion an intention to repudiate. [ 45 ] Mr. Bradshaw instructed his counsel to put Mrs.

Bradshaw on notice that if she failed to sign by a certain date he would consider the Agreement to have been repudiated and that he would then accept the repudiation. That is unilaterally amending the contract. Not only was the demand unreasonable (by communicating the demand at 5:15 pm, January 30, 2006 with a deadline for performance on January 31, 2006), there was no basis in the contract for him to expect that performance let alone demand it by that deadline. [ 46 ] Mrs.

Bradshaw ’ s counsel, even though already having ceased to act in the matter, continued their attempts to reach her but made it clear that their office had encountered difficulties reaching Mrs. Bradshaw. The inability to reach someone is not evidence that the unreachable person is repudiating an agreement. That is just speculation. [ 47 ] Upon review of all the evidence, including the exchanges of communications, I am unable to find any clear intention on Mrs. Bradshaw ’ s part, by words or conduct or both, to not perform her side of the bargain. She felt Mr.

Bradshaw may have hidden information during the negotiation process. She thought he may have breached the Agreement by de-listing the matrimonial home from the sale market. She was seeking legal advice on those points. Mr. Bradshaw read into the delay more than was justified in the circumstances. [ 48 ] Since I have concluded that the Agreement was not repudiated, it continues to bind the parties including with respect to the remaining issues that are before the Court. In dealing with the remaining issues then, the terms of the Agreement are the starting point in each case.

Child Support [ 49 ] The Agreement contains many very specific terms in respect of child support. At clause 22 of the Agreement, the parties agreed that child support would be $2,550 per month, commencing the first day of the first month following closing of the sale of the matrimonial home, and continuing thereafter until further agreement or court order.

The ensuing three clauses provide the rationale for reaching that figure: the parties agreed to joint custody of the two children of the marriage, agreed that they would set child support based on the differential between the amounts in the guideline tables based on their respective incomes, and then they would apply a discount factor of 30 percent to that. In other words they agreed that the amount owing by Mr. Bradshaw would be 70 percent of that differential number. They did so, it appears, based upon the fact that Mr. Bradshaw elsewhere in the Agreement agreed to pay all of the

section 7 expenses for the children. [ 50 ] By clause 26 of the Agreement, these child support terms were open to review upon a material change in circumstances. The parties further agreed on what would constitute a material change in circumstances. It could be, first, a change in the shared parenting arrangements contemplated. That didn ’ t occur. Second, it could be a change that a court of competent jurisdiction shall determine is material. Third and finally, it could be such change as the parties may agree is material. The parties didn ’ t agree that there was a material change in circumstances.

The only question then is whether I consider circumstances to have materially changed. If not, child support was payable based upon the aforementioned formula in the Agreement applied to actual incomes. [ 51 ] In my view there was a material change in circumstances. There was a drastic change in income levels from those the parties anticipated at the time of entering into the Agreement as a result of a structural, and material, change in the industry in which Mr. Bradshaw was engaged and as a result of the unfortunate deterioration in Mrs.

Bradshaw ’ s physical condition. [ 52 ] I find that Travis remained a child of the marriage until May of 2008. It was after that time that he relocated to North Bay, Ontario for a full hockey season, and upon return demonstrated much greater independence, including his present living arrangements separate from both parents. [ 53 ] I find that Chanelle remained a child of the marriage until July of 2010. Following August of 2008 she commenced residence at or near Burnaby, B.C., to attend Simon Fraser University. Then in the summer of 2010 she enrolled in Capilano College and demonstrated greater self sufficiency.

It appears to me and I am satisfied that as of July 2010, she has ceased being a child of the marriage. [ 54 ] Mr. Bradshaw was responsible for all

section 7 expenses of the children until each was no longer a child of the marriage, including post secondary costs. He fulfilled that obligation though apparently at times by use of Mrs. Bradshaw ’ s retirement savings plan ( “ RSP ” ) monies. [ 55 ] With respect to an appropriate amount of child support, for the period of July to December 2006, I use the amount agreed upon between the parties of $2,550 per month.

For that period of time the arrears of child support is $15,300. [ 56 ] For the periods beyond December of 2006, I set the amount based not upon the 70 percent of the differential, but 100 percent of the differential. The evidence at trial was clear that Mr. Bradshaw was using RSP funds to pay the

section 7 expenses, yet the Agreement required that the RSP monies be divided equally between the parties. So, in effect, Mr. Bradshaw has used some of Mrs. Bradshaw ’ s funds to pay the

section 7 expenses. Therefore, I find no reason to continue discounting the child support obligations. [ 57 ] Therefore, for January through June of 2007, using actual income, which was what the parties had agreed would be done by clause 24 of the Agreement, the monthly child support is $1,525 for an aggregate arrears sum of $9,150. [ 58 ] For the period of July 2007 to June 2008, on similar rationale and reduced in accordance with the decline in actual incomes, I set the child support at $1,067 per month. That works out, rounded, to arrears of $12,800.

[ 59 ] These are commensurate with Mr. Bradshaw ’ s and Mrs. Bradshaw ’ s guideline incomes over the relevant years. In 2006 Mr. Bradshaw ’ s guideline income was $107,275; Mrs. Bradshaw ’ s was zero. In 2007 Mr. Bradshaw ’ s guideline income was $74,019; Mrs. Bradshaw ’ s was zero. In 2008 Mr. Bradshaw ’ s guideline income was $12,906; Mrs. Bradshaw ’ s was zero. In 2009 Mr. Bradshaw ’ s guideline income was $12,000; Mrs. Bradshaw ’ s was zero. And so far in 2010 both Mr. and Mrs.

Bradshaw ’ s guideline income has been zero. [ 60 ] By reason of those guideline incomes, the independent living arrangements of the children, Travis ceasing to be a child of the marriage in May 2008, and Mr. Bradshaw continuing to pay or contribute to post-secondary costs, I award no child support after June of 2008. The total then of the arrears that I have awarded for child support is $37,250.

It is payable forthwith. [ 61 ] Further, the rest of the RSPs in entirety as at their value at the close of business on the first day of trial, November 8, 2010, not 50 percent of them but all remaining RSPs, are to be rolled over by Mr. Bradshaw to Mrs. Bradshaw, to at least partially compensate Mrs. Bradshaw for Mr. Bradshaw ’ s dissipation of her interest therein. That is also to be done forthwith. Spousal Support [ 62 ] With respect to spousal support, first, clause 34 of the Agreement required a lump sum payment of $150,000 from out the proceeds of sale of the matrimonial home by Mr. Bradshaw to Mrs.

Bradshaw. As already indicated, this Agreement continues to be binding. [ 63 ] That $150,000 was paid into Court. It has been drawn down over time by Mrs. Bradshaw on an interim basis upon demonstration of need to the Court, in a number of Court applications. Those payments are not changed and are now final. The amount that remains in trust is to be paid out to Mrs. Bradshaw forthwith. The costs Mrs. Bradshaw incurred in applying to access those funds are payable to her forthwith by Mr. Bradshaw. Mrs.

Bradshaw will need to prepare a bill of costs for that purpose. [ 64 ] In addition to the $150,000 payment at clause 34, the Agreement also requires periodic spousal support for a period of up to 10 years, at $3,500 per month, subject to review if the income of either Mr. Bradshaw or Mrs. Bradshaw falls below in his case, or above in her case, set amounts. If that occurs, then there is a right of review. [ 65 ] Mr. Bradshaw ’ s income did fall below the threshold floor and therefore a review of the ongoing spousal support provisions of the Agreement is required.

The Agreement required the payment of $5,000 per month until the sale of the matrimonial home. It was anticipated that the sale would occur on or before March 31st, 2006. It didn ’ t sell on or before March 31st, 2006, but Mr. Bradshaw did not make the February and March payments of $5,000 per month. He is now ordered to do so. [ 66 ] With respect to April to June the Agreement is silent. The Agreement contemplated that the matrimonial property would be sold by then and that thereafter the sum of $3,500 per month would be payable. At least one reason for the home not selling by March 31st is that Mr.

Bradshaw took it off the market. It would be unjust to relieve him from any spousal support payment as a consequence of him removing the home from the market, so I find reasonable spousal support the sum of $3,500 per month for the months April through June of 2006 and so order. Mr. Bradshaw ’ s employment dramatically changed in February 2006. I find the sum of $3,500 per month for April to June, 2006 appropriate. [ 67 ] For after June 2006 the Agreement required payment of $3,500 per month, until such time as it was reviewed. Mr. Bradshaw brought this review application in September of 2006.

So for the months of July and August of 2006, I order Mr. Bradshaw to pay the agreed $3,500 per month. [ 68 ] The review this triggered requires me to consider the proper legal principles for whether or not there is an entitlement to spousal support after September 2006, and if there is an entitlement, the appropriate amount and duration. [ 69 ] Mrs. Bradshaw says that Mr. Bradshaw was intentionally under-employing himself. This has not been proven by her. Mrs.

Bradshaw says that Mr. Bradshaw was not disclosing all income sources. With respect to possible income from Malta, in my view it has not been proven that there is additional income available from Malta. There are certainly other assets accessible to Mr. Bradshaw in Malta.

Furthermore, the Agreement provides at paragraph 61 that the wife releases any claims against the real property and personal property held by the husband in Malta, including any increase in value of any such assets since 1998. [ 70 ] With respect to additional income from Mexico, there was a very strong appearance that not all income had been disclosed. Mr. Bradshaw admitted to not having records of Mexico income because it was a cash based economy. It appeared that expenses of Mr. Bradshaw over that period of time exceeded the disclosed income.

I ’ ve already referred to one such occasion of that (covering post- secondary costs). Then there was the purchase of an extravagant vehicle, extensive travel, rent and other living expenses both in Mexico and Canada. Mr. Bradshaw refers to utilizing RSP funds. Those, as I ’ ve indicated, were to have been split, not used for that purpose, but that is a plausible explanation for the source of some of this other revenue. He also refers to GICs that he was drawing down. No explanation was offered for the source of the GIC money. Mrs.

Bradshaw says that trial was the very first time in all of the disclosure that there has been any reference to or disclosure of GIC monies. [ 71 ] I accept that, at most and on the balance of probabilities standard, RSPs and GICs may be plausible explanations for the apparent additional monies spent by Mr. Bradshaw beyond his reported income.

I have already made my findings on his income for child support purposes and I do not vary it for spousal support purposes. [ 72 ] With respect to the issues of entitlement, amount and duration, I ’ m guided by the principles of the Supreme Court of Canada decisions in the Moge and Bracklow cases, and I ’ m mindful of the objectives for such support stated therein. [ 73 ] In my view, Mrs. Bradshaw is entitled to spousal support on both compensatory and non-compensatory grounds.

She is entitled to further spousal support on compensatory grounds because she has suffered, in my view, a significant loss due to the marriage and its breakdown. It was evident to me that she sacrificed income and career development, in her case even greater development of her business, during the marriage. Her entrepreneurial success was impressive, but it was evident that she juggled her career and family far more than Mr. Bradshaw did through this period. She relied on family and friends to ensure her children and husband ’ s needs received priority attention. Many of Mrs.

Bradshaw ’ s activities were in support of Mr. Bradshaw ’ s career and advancement. [ 74 ] Further, on non-compensatory grounds, Mrs. Bradshaw is currently disabled and her ability to re-employ is diminished. It is not gone completely, but it is significantly diminished. I find as a fact that she does suffer from fibromyalgia and as a fact that she does suffer from multiple sclerosis. These have a pronounced effect on her ability to either re-train or be available for further employment, or to engage fully in any such further employment. [ 75 ] Mr. Bradshaw repeatedly implied that Mrs.

Bradshaw is an alcoholic, or at a minimum that her alcohol consumption rendered her the author of her own misfortune. If that ’ s true – and I make no finding either way on that point – alcoholism is an illness and any such finding would only enhance Mrs. Bradshaw ’ s non-compensatory entitlement to spousal support.

Beyond this possible relevance to spousal support entitlement, any alleged alcohol inspired misconduct of a spouse in relation to the marriage cannot be taken into consideration in determining spousal support: Divorce Act , R.S.C. 1985, c.3, s.15.2(5). [ 76 ] I turn then to amount and duration of such spousal support. I consider that the relationship extended well in excess of 20 years, 18 of them as a married couple. I consider that the parties are both into their late 50s. I consider that they enjoyed a relatively high standard of living during their marriage.

I consider that there is no longer any child support obligation which would be paramount to spousal support obligations where there are insufficient funds for both. I consider that both earned income during the years the children were reared, but that Mrs. Bradshaw, not Mr. Bradshaw, reduced employment workloads through those years for home responsibilities and child rearing responsibilities. Both supported the other ’ s career success as circumstances permitted. I consider that hard times have now fallen on both Mr. and Mrs. Bradshaw. I ’ ve referred already to Mrs. Bradshaw ’ s debilitating illnesses.

I ’ m satisfied that Mr. Bradshaw also has a physical impediment regarding his spine and is scheduled for an operation early next year. I do regard Mr. Bradshaw to be very capable, entrepreneurial and polished, and I am satisfied he will again generate employment income, perhaps self- employment income, post-convalescence. [ 77 ] I further consider the post-separation living circumstances and conditions of each. I consider the prospects for further income and self-sufficiency. I consider the amounts each party has already received from the matrimonial home.

In my view, both parties are able to work more than they are now. Perhaps the pride of each or just the implications of new employment on the progress of this action has kept them from pursuing all available kinds of employment.

[ 78 ] By the Agreement, the parties felt that the lump sum plus ten years of spousal support was appropriate. That too influences my decision. I also consider the value to both parties, more heightened in this case than many, that they have no further connection or dependence on one another going forward. I also consider that the industry in which Mr. Bradshaw earned his livelihood has significantly restructured.

I ’ m satisfied that the earlier income levels he enjoyed are not going to be achieved going forward, but I am confident in all that I have seen in him and of him, that he will be gainfully employed very soon after his operation and convalescence in the new year. [ 79 ] Based on these factors, for the period of September 2006 to June 30, 2011, I fix a lump sum spousal support amount of $20,250.

For the period commencing July 1st, 2011 and continuing for five years, I set the monthly spousal support amount at $1,800 per month: $900 is to be paid on the 1st and 15th of each month. [ 80 ] In setting spousal support at these levels the economic advantages and disadvantages to the spouses are recognized, there will be an equitable apportioning between the spouses in the circumstances, bearing in mind the $150,000 lump sum payment already made, and that insofar as practicable the economic self-sufficiency of each spouse within a reasonable period of time has been promoted. Mr.

Bradshaw ’ s Personal Effects [ 81 ] Mr. Bradshaw claims for return from Mrs. Bradshaw of five “ personal effects ” , namely: (

i) a gold cross, (ii) a bullet removed from Mr. Bradshaw ’ s side, (iii) a pocket watch, (iv) a gold bracelet, and (

v) a book of charcoal “ etchings ” . Mrs. Bradshaw claims to have no knowledge of their whereabouts. [ 82 ] Paragraph 46 of the Agreement deals with all matrimonial property and says that “ this Agreement is in full and final satisfaction of the property rights of the parties including any claims arising out of their marriage under the Matrimonial Property Act of Alberta, the parties hereto covenant and agree as follows: ” .

And there is then set out the treatment of the RSPs, the vehicles, the matrimonial home, household goods and furnishings, the Malta inheritance and some general matters. [ 83 ] In my view it has not been proven that Mrs. Bradshaw has the five articles. The most that has been proven is that she has had a safe deposit box, but it has not been proven they were ever in the safe deposit box, and at least one of the items would not even fit in most safe deposit boxes. [ 84 ] In the event Mr.

Bradshaw ’ s five articles are somehow considered to be household articles, the Agreement requires the parties to attend before Patricia Blocksom, to resolve the matter through mediation. In the event that they do not fall in that category, I order, consistent with paragraph 58 of the Agreement, that by December 31st, 2010, Mrs. Bradshaw is to swear a statutory declaration acknowledging under oath that she does not have the five articles and that if she ever comes into possession of them, she will deliver them up to Mr. Bradshaw forthwith. [ 85 ] I will add, however, that if they are found in Mrs.

Bradshaw ’ s possession at any time after December 31st, 2010, then she is required not only to return them forthwith, but to pay to Mr. Bradshaw twice their fair market value or $100 each, whichever is greater.

Summary [ 86 ] In

summary, the rest of the money in Court from the $150,000 is to paid out forthwith to Mrs. Bradshaw. The amounts in the RSPs in the control of Mr. Bradshaw as at the close of business November 8, 2010, are to be rolled over or otherwise transferred forthwith to Mrs. Bradshaw. The arrears of child support and of spousal support are to paid forthwith, though I stay the enforcement of payment of the arrears of child support and of spousal support until January 31st, 2011. The child support arrears again were $37,250, the spousal support arrears are $47,750, for a total of $85,000. [ 87 ] The order is to include the standard provision in respect of maintenance enforcement being involved.

[ 88 ] This decision and the associated Order supercede anything to the contrary in the Agreement. The remainder of the Agreement remains binding on the parties. [ 89 ] With respect to costs, except for the costs that I have already awarded to Mrs. Bradshaw for those occasions when she had to come to court to get access to her $150,000, each party will bear their own costs. In my view success has been divided. Mrs. Bradshaw succeeded on the repudiation issue; Mr. Bradshaw succeeded on demonstrating that the terms of the Agreement should have been reopened and reviewed years ago.

And both parties could have avoided extensive legal and personal cost by applying the terms of their Agreement, reasonably, to their changing circumstances. [ 90 ] I also give both parties leave to return to me, on notice to the other in accordance with the Rules of Court or with their consent, for clarification of my Order in this matter, for any issues arising or further Orders required in implementing this Order or, on consent of the other party and me, for the hearing of any new or unrelated issue arising between the parties.

This does not limit the parties in proceeding in the normal course before any member of this Court. Heard on the 8 th , 9 th , 10 th , 12 th , 15 th , 16 th , 17 th , 18 th , 19 th and 22 nd days of November and the 10 th day of December, 2010. Dated at the City of Calgary, Alberta this 30 th day of December, 2010. P.R. Jeffrey J.C.Q.B.A. Appearances: Janet Lynn Bradshaw Self represented Philip John Bradshaw Self represented

SCHEDULE “ A ”

===================================================================== THIS AGREEMENT made between: JANET LYNN BRADSHAW (hereinafter referred to as the “ Wife ” ) - and - PHILIP JOHN BRADSHAW (hereinafter referred to as the “ Husband ” ) DIVORCE AND PROPERTY AGREEMENT RECITALS 1. The parties hereto are husband and wife, having been married at the City of Las Vegas, in the State of Nevada, in the United States of America on November 17, 1987, after previously having cohabited for a period of time. 2. The parties having been living separate and apart although under the same roof since September 2003. 3.

The Wife has commenced proceedings by way of Statement of Claim for Divorce and Division of Matrimonial Property in the Court of Queen's Bench, Judicial District of Calgary, under Action Number 4801-121028, seeking a divorce judgment, a division of matrimonial property and such corollary relief as is claimed therein. 4. There are two children of the marriage, namely: TRAVIS GORDON BRADSHAW, born March 23,1988 ("Travis"); and CHANELLE DIANE VANDA BRADSHAW, born October 16, 1990 ("Chanelle"); 5.

The parties have each had the opportunity to make an independent examination and determination of the affairs of the other, and

to consider and resolve, independently from the other, the terms that may appear in this Agreement. 6. The parties are aware of their respective rights and claims against the other that may arise under the laws prevailing in the Province of Alberta, including but not restricted to the provisions of the Matrimonial Property Act , being

Chapter M-8 of the Revised Statutes of Alberta, 2000, and amendments thereto. 7. Each of the parties has had the opportunity to obtain independent legal advice about the terms of this Agreement and is voluntarily entering into this Agreement and has not been forced to sign it. 8. The parties intend this Agreement to be: (

a) the final settlement of their respective rights in the estate of the other; (

b) the final settlement of their respective rights in or to their assets and debts; (

c) the final settlement of all claims for spousal support, including compensatory support for the Husband; (

d) the final settlement of the Wife's claims for spousal support, including compensatory support, by way of a fixed term of spousal support payable by the Husband to the Wife; (

e) the settlement of all claims for custody, access and child support. 9. It is the intention of the parties that

Part I of the Matrimonial Property Act shall not apply to their property and this Agreement shall be the sole determinant of the division of the property now or in the future owned, used or enjoyed by either or both of them. 10. In consideration of the premises and undertakings one to the other herein contained, the parties mutually promise and agree as follows: LIVING SEPARATE AND APART 11. The parties have agreed to live separate and apart from each other and neither of them will interfere with the other in any manner, or make any demands whatsoever upon the other, arising from their status as husband and wife.

PARENTING 12. The parties agree that they shall share parenting and custody of Travis and Chanelle, on the basis that the children shall live with each parent on a two-week rotating basis, commencing upon the closing date of the sale of the former matrimonial home. 13. The parties further acknowledge and agree that the shared parenting arrangements shall be reviewed upon the agreement or court application of either party. 14. The parties shall consult with one another on all important matters affecting the present and future well-being of Travis and

Chanelle, including with respect to substantial questions relating to educational programs, attendance at schools, colleges or universities, special training, changes in residence and non-emergency health care. The parties shall exert their best efforts to work cooperatively in future plans consistent with the best interests of Travis and Chanelle and in amicably resolving such disputes as may arise. 15.

Each of the parties shall exert every effort to maintain free and liberal access and unhampered contact the children and the other parent and to foster a feeling of affection between the children and the other parent. 16. Neither party shall do anything which would estrange the children from the other or which would injure the opinion of the children as to their mother or father, or which would impair the natural development of the children's love and respect for each of the parties. INFORMATION EXCHANGE 17.

Each party shall provide the other all information regarding the health, education and welfare of Travis and Chanelle in a timely manner. 18. Each party is entitled to obtain all information regarding Travis and Chanelle directly from the school, health care providers or other professional groups or associations. The parties shall take the steps necessary to facilitate this arrangement. 19.

In the event of a medical emergency relating to Travis or Chanelle, the parties agree that each will use their best efforts to immediately contact and consult the other party, failing which the party having the care of the child shall make the decision for emergency medical care for the child, having regard only to the child's best interests, and shall contact the other party at the earliest opportunity. ABSTINENCE FROM DRUGS OR ALCOHOL 20. The parties each agree that during periods that the children are in the care of a party hereto, such party shall abstain from consumption of illicit drugs and alcohol.

CHILD SUPPORT 21. The parties acknowledge and agree that, for the purposes of the Federal Child Support Guidelines, the Wife's guideline income for 2006 is $nil per annum, based upon her current situation and the Husband's guideline income for 2006 is $300,000.00 per annum, based upon his anticipated income as a commissioned salesman. 22. The parties acknowledge and agree that pursuant to

Section 9 of the Child Support Guidelines, the Husband shall pay basic child support for the children in the sum of $2,550.00 per month, commencing on the first day of the first month following the closing of the sale of the former matrimonial home, and continuing thereafter until further agreement or court order, for so long as the children remain children of the marriage and a shared parenting arrangement. 23. The parties acknowledge and agree that they have determined that the amount of child support that should be paid pursuant to

Section 9 of the Child Support Guidelines, taking into account the amounts payable under the applicable tables, the fact that the Husband shall be responsible for payment of the

Section 7 expenses for the children, and the increased cost of shared custody arrangements, and the condition, means, needs and other circumstances of each party of the children, is 70% of the offset amount calculated based upon the child support payable by the Husband to the Wife and the child support payable by the Wife to the Husband in accordance with their Guideline incomes as determined from time to time.

24. The parties further acknowledge and agree that they shall exchange annually no later than July 1 of each year, their tax return and Notice of Assessment or Reassessment for the previous year, commencing July 1, 2007. At that point, the parties shall retroactively adjust the amount of support that should have been payable for the previous year in accordance with the parties' actual Guideline Incomes, and any over-payment or under-payment shall be paid in six equal monthly installments during the months of July-December, inclusive. 25.

In addition, the parties shall retroactively adjust to January 1 of the current year the child support payable for the current year to reflect 70% of the offset based upon the actual guideline incomes of the parties for the previous year. Payments in the adjusted amount shall commence as and from July 1 and any retroactive over-payment or under-payment for the months January-June shall also be made in six equal installments during the months of July-December, inclusive. 26. The parties acknowledge and agree that the child support payments shall be open to review upon a material change in circumstances.

It is agreed that a material change in circumstance includes: (

a) a change in the shared parenting arrangements contemplated in this agreement; (

b) such change as a court of competent jurisdiction shall determine is material; and (

c) such change as the parties may agree is material. 27. It is acknowledged that while the Wife does not presently agree with his position, she understands that the Husband may argue that the following circumstances constitute a material change in circumstance under clause 26(b): (

a) Travis or Chanelle attaining the age of 18 years and not being in attendance at school; (

b) the child commencing or recommencing educational post-secondary studies outside of the City of Calgary. 28. A review of child support shall be conducted by a court of competent jurisdiction unless the parties agree to some form of alternate dispute resolution.

SECTION 7 EXPENSES 29. The parties acknowledge and agree that the Husband shall be responsible for the

Section 7 expenses for the children, including post-secondary education costs. He will pay these expenses directly and shall be in control of them. SPOUSAL SUPPORT 30. The Husband agrees that he is not in need of spousal support and releases the Wife from any and all spousal support obligations which may arise as a result of the marital relationship. 31. It is the firm intention of the Husband to forever release the Wife from any spousal support obligations, now and in the future other than as set out in this Agreement no matter how his circumstances may change.

The Husband will not apply now, or in the future, under the Divorce Act or any other federal or provincial statute, for support for himself, other than as set out in this Agreement. The Husband expressly waives any rights to proceed against the Wife under any law or statute for additional payments in the nature of alimony or spousal support and relies upon the law of contract to govern in respect of this issue.

32. The Husband independently acknowledges and agrees that the objectives and factors contained in

Section 15.2 of the Divorce Act will have been adequately and properly met by the provisions for spousal support for himself set forth in this Agreement and that he: (

a) acknowledges that this Agreement and the support and property settlement concluded herein addresses any economic advantage or disadvantage experienced by him due to the marriage or its breakdown; (

b) acknowledges that this Agreement apportions between the parties any financial consequences arising from the care of the children over and above any obligation for the support of the children; (

c) acknowledges that this Agreement and the support and property settlement concluded herein relieves any economic hardship experienced by him arising from the breakdown of the marriage; (

d) acknowledges that the provisions of this Agreement provides him with the opportunity and ability to become economically self- sufficient. 33. The Husband realizes that his financial circumstances may be altered in the future by reason of changes to his health, the cost of living, his employment or otherwise. No such change will give him the right to vary the spousal support provisions in clause 30 to seek support for himself pursuant to the Divorce Act or any other legislation, provincial or federal.

It is understood by him that this Agreement represents a final disposition of all maintenance and support claims by him and without limiting the generality of the foregoing, he specifically agree that none of the following events will give rise to an application by him to vary the spousal support terms in clause 30 of this Agreement: (

a) the temporary or permanent illness or disability, mental or physical, of either party; (

b) the temporary or permanent loss of employment of either party; (

c) any increase or decrease in financial obligations of any nature and kind; (

d) inflation; (

e) economic depression; (

f) any increase or decrease in income of either party; (

g) the bankruptcy or insolvency of either party; (

h) any windfall gains or inheritance received by either party. 34. The parties acknowledge and agree that in full and final settlement of the Wife's claims for spousal support, the Husband shall pay to the Wife spousal support in the following amounts: (

a) a lump sum payment in the amount of $150,000.00, payable by the Husband from his one-half share of the net sale proceeds arising upon the sale of the former matrimonial home.

(

b) periodic spousal support for a period of no more than ten (10) years, commencing on the first day of the first month following the closing date of the sale of the former matrimonial home as follows: (

i) the sum of $3,500.00 per month payable in two equal installments on the 1st and 15th of each month of $1,750.00, unless varied as set out below; (ii) in any year that the Husband's income falls below $150,000.00 the Husband has the right to seek a review of the quantum of support to be payable by him to the Wife for such period of time that the Husband's income is below $150,000.00 during the balance of the 10 year term; (iii) in any year that the Husband's income is above $415,000.00, the Wife has the right to seek a review of the quantum of support to be payable by the Husband to her for such period of time that the Husband's income is above $415,000.00 during the balance of the 10 year term; (iv) in the event that the Wife's income (apart from child support or spousal support) is $40,000.00 per annum or more, the Husband has the right to seek a review of the quantum of support to be paid by the Husband to the Wife for such period that her income is $40,000.00 or more during the balance of the 10 year term; (

v) upon the completion of payment of five years of spousal support, the Husband shall have a further right of review of the spousal support to be paid by him for the balance of the 10 year term upon the Wife remarrying or living in a marriage-like relationship for a period of one year. 35. The payments of spousal support shall be made by automatic bank deposit unless the Wife chooses to register with Maintenance Enforcement. 36.

Upon the payment in full of the spousal support as outlined above, the Wife shall not be entitled to any further spousal support from the Husband; provided, however, the Wife's waiver of further support may be reviewed in the event that the Husband has defaulted in any payments due and owing by him pursuant to this agreement or any subsequent court order for a period of more than two weeks. 37.

The Wife agrees that these spousal support payments provide adequately for her support and that upon receipt of the payments in accordance with this agreement, she shall be economically self-sufficient and in no further need of spousal support and she releases the Husband from any and all other spousal support obligations. She undertakes not to commence any action now or in the future in any court of law to claim alimony or support for herself, other than as provided for in this Agreement. 38. The Wife independently acknowledges and agrees that the objectives and factors contained in

Section 15.2 of the Divorce Act will have been adequately and properly met by the provisions for spousal support for herself set forth in clause 34 in this Agreement and that she: (

a) acknowledges that this Agreement and the support and property settlement concluded herein addresses any economic advantage or disadvantage experienced by her due to the marriage or its breakdown; (

b) acknowledges that this Agreement apportions between the parties any financial consequences arising from the care of the children over and above any obligation for the support of the children; (

c) acknowledges that this Agreement and the support and property settlement concluded herein relieves any economic hardship

experienced by her arising from the breakdown of the marriage; (

d) acknowledges that the provisions of this Agreement provides her with the opportunity and ability to become economically self- sufficient. 39. The Wife realizes that her financial circumstances may be altered in the future by reason of changes to her health, the cost of living, her employment or otherwise. No such change will give the Wife the right to vary the spousal support provisions set out herein in clause 34 pursuant to the Divorce Act or any other legislation, provincial or federal.

It is understood by the Wife that this Agreement represents a final disposition of all maintenance and support claims by her and, without limiting the generality of the foregoing, the Wife specifically agrees that none of the following events will give rise to an application by her to vary the spousal support terms of clause 34 of this Agreement, except as provided in this Agreement: (

a) the temporary or permanent illness or disability, mental or physical, of either party; (

b) the temporary or permanent loss of employment of either party; (

c) any increase or decrease in financial obligations of any nature and kind; (

d) inflation; (

e) economic depression; (

f) any increase or decrease in income of either party; (

g) the bankruptcy or insolvency of either party; (

h) any windfall gains or inheritance received by either party. 40. The Wife and the Husband agree that in the event that either of them attempts to apply to court to receive spousal support, in breach of the terms of this Agreement, this Agreement shall constitute an absolute defence to such application. In the event a court of competent jurisdiction should make an order or award of support contrary to this paragraph, the party receiving the benefit of such order or award of support shall become liable to the other in an equal amount to such award under the provisions of this Agreement. 41.

The Husband and Wife also acknowledge that they have also independently considered the provisions of Section 17(7) of the Divorce Act .

The Husband and the Wife acknowledge that they have each considered that any variation order varying a support order that provides for the support of a former spouse should recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown, and apportion between the former spouses any financial consequences arising from the care of any children of the marriage over and above any obligations for support of any children of the marriage apportioned between the former spouses pursuant to the Divorce Act.

The Husband and the Wife have further independently considered that any variation order varying a support order that provides for the support of a former spouse should relieve any economic hardship of the former spouse whether or not arising from the marriage or its breakdown and so far as is practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

The Husband and the Wife are each satisfied the within Agreement achieves those objectives and that neither of them will apply hereafter to vary the within Agreement as to spousal support or any corollary relief order incorporating the terms of this Agreement as to spousal support for himself or herself, as the case may be, except as otherwise provided in this Agreement. 42. The Husband covenants and agrees that he shall maintain in full force and effect a life insurance policy on his life with the Wife

named as the beneficiary in order to secure the spousal support payments due and owing by him to the Wife for the 10 year period, paying all premiums for the same. He shall provide the Wife with a copy of the then-existing insurance policy upon demand, no more than once annually, and proof of the payment of the premiums for the same. Interim spousal support payments pending sale of former matrimonial home 43. Pending the sale of the former matrimonial home, the parties agree that the Husband shall pay to the Wife interim periodic spousal support in the sum of $5,000.00 per month for the months of November 2005 through March 2006 on the following terms and conditions: (

a) the payments shall be made in two equal installments of $2,500.00 on the 15t and 15th day of the month, commencing November 1, 2005 and ending on March 15th , 2006: (

b) the payment for the month of November 2006 retroactively paid on December 9, 2005 in the amount of $4,000.00 takes into account the previous payment made by the Husband in the amount of $1,000.00, which forms part of the periodic support payment by the Husband to the Wife for the month of November in the amount of $5,000.00; (

c) the payment for December 1, 2005 retroactively paid on December 9, 2005 in the amount of $2,000.00 takes into account the previous payment made by the Husband in the amount of $500.00, which forms part of the periodic support payment by the Husband to the Wife for the month of December in the amount of $5,000.00; (

d) the Wife shall be solely responsible for the tax due and payable on the spousal support payments received by her for the months of November and December 2005, while the Husband shall be responsible to pay the tax due and payable by the Wife on the spousal support payments received by her for the months of January - March 2006, inclusive, in the amount of $5,000.00 per month; (

e) in the event that the former matrimonial home is sold with a closing date prior to March 31, 2006, the Husband's obligation to pay these interim payments shall terminate and the payment of spousal support by the Husband pursuant to clause 34 of this Agreement shall commence as of the first day of the first month following the closing of the sale of the former matrimonial home. (

f) the Husband shall provide the Wife with post-dated cheques for the payments of $2,500.00 each for the period December 15 through March 15 on or before December 15, 2005; provided, however, that in the event any of these payments are not required to be paid by the Husband pursuant to the preceding clause as a result of the closing of the sale of the former matrimonial home prior to March 31, 2006, the remaining cheques shall be returned by the Wife to the Husband unused. 44.

The parties acknowledge and agree that the Husband has paid to the Wife interim spousal support in the amount of 51,000.00 per month, payable in two equal installments of $50000 during the months of January through October 2005, inclusive.

The parties acknowledge and agree that the support payments paid by the Husband to the Wife prior to the date of execution of this agreement, including these payments and the payments of periodic spousal support for the months of November 2005 through March 2006 as outlined in the preceding clauses are to be considered as having been paid by the Husband to the Wife and received by the Wife pursuant to this Agreement.

The parties further agree that they shall be deemed to have been separated pursuant to this Agreement at the time such amounts were paid and throughout the remainder of the year and that such amounts shall be deemed to have been paid pursuant to this Agreement by the Husband to the Wife and received by the Wife as allowances payable on a periodic basis for the maintenance and support of the Wife, pursuant to subsections 60.1 (3) and 56.1 (3) of the Income Tax Act of Canada . 45.

The Husband acknowledges that he shall be responsible to pay the tax due and payable by the Wife on the support payments received by her for the months of January through October 2005. MATRIMONIAL PROPERTY 46. In full and final satisfaction of the property rights of the parties, including any claims arising out of their marriage under the Matrimonial Property Act of Alberta, the parties hereto covenant and agree as follows:

Registered Retirement Plans 47. The parties acknowledge and agree that the Husband shall transfer to the Wife by way of tax-free spousal rollover pursuant to Section 146(16) of the Income Tax Act , funds sufficient to equalize the Husband's Raymond James RRSP Account #4EO-220R-0 and the Wife's Raymond James RRSP Account #409700R-0. 48. The parties further acknowledge and agree that they have advanced a claim for compensation arising from the wrongful withdrawal of funds from their Registered Retirement Savings Plans by their investment broker, which claim is being handled by James Laycraft.

They agree that the Wife shall be responsible for the management of the advancement of the claim with their counsel and that the Husband shall pay any reasonable disbursements, to be reimbursed to him as a first charge from any proceeds recovered for such claim. The parties shall share the balance of any proceeds equally after payment of their legal fees and any other reasonable and necessary expenses.

The parties shall cooperate in the prosecution of this claim, including responding in a timely manner to all reasonable requests from James Laycraft or any successor legal counsel received directly or through the Wife. Vehicles 49. The Husband shall retain his 1987 Porsche motor vehicle purchased with his exempt funds from his mother's estate and his leased Acura motor vehicle, free and clear of any claim by the Wife. The Wife shall retain the 1990 Celica, free and clear of any claim by the Husband. Matrimonial home 50.

The parties acknowledge and agree that they are the owners in joint tenancy of the lands and premises municipally described as 2960 Signal Hill Drive S.W. and legally described as: Plan 9011331 Block 1 Lot 18 Excepting thereout all mines and minerals referred to throughout this Agreement as the "former matrimonial home". 51. The parties acknowledge and agree that they have been attempting to sell the former matrimonial home on a multiple listing service basis and that it is presently listed for sale at a list price of $895,000.00 with Sheldon Zacharias pursuant to a Consent Order granted August 10, 2005. 52.

The parties acknowledge and agree that commencing January 2006, the listing price for the property shall be reduced to $849,000.00 and as of February 1, 2006, the listing price shall be reduced to $799,000.00. In the event that the parties have not accepted an offer to purchase the home prior to March 1, 2006, they shall attend upon the Honourable Mr.

Justice Rooke in a binding Judicial Dispute Resolution session to be held on a date agreeable to counsel and the parties and Justice Rooke between March 15, 2005 and April 1, 2006 in order to deal with matters relating to the terms of sale of the former matrimonial home, ongoing occupation of the former matrimonial home pending sale and any matters necessarily arising therefrom pending the sale of the former matrimonial home.

53. Upon the sale of the former matrimonial home, the proceeds therefrom shall be applied as follows: (

a) In payment of any real estate commission; (

b) In payment of any legal fees and disbursements incurred to close the transaction; (

c) In payment of any monies necessary to discharge the existing mortgage and line of credit secured against the former matrimonial home; (

d) In payment of any normal adjustments of sale; (

e) In payment of the Wife's outstanding personal tax liability to the Canada Revenue Agency for the 2003 taxation year in the amount of $518.02 plus interest and penalties; (

f) The balance of the funds shall be divided between the parties; provided, however, that from the Husband's share, he shall pay to the Wife the lump sum spousal support payment owing by him in the amount of $150,000.00. 54. The parties further agree that upon the sale of the former matrimonial home, any outstanding debts existing between them and arising from this Agreement shall be paid from the proceeds, including the Wife's one-half share of the costs of repair incurred by the Husband pursuant to the Consent Order granted November 24, 2004.

The Husband shall produce receipts for all items for which he wishes to be reimbursed. 55. The parties and their children shall continue to have joint possession of the former matrimonial home until March 31, 2006 unless the sale of the same closes at an earlier date. It is understood that the terms of the previous orders relating to the possession and sale of the former matrimonial home shall continue to remain in full force and effect until March 31, 2006 save and except to the extent varied by this Agreement or any subsequent agreement between the parties. 56.

Until March 31, 2006, the Husband shall continue to be responsible for the normal operating costs of the household. 57. The parties acknowledge and agree that to lower tension between the parties and their children pending the sale of the former matrimonial home, the Husband and Wife each agree that: (

a) neither shall bring into or consume in the former matrimonial home alcohol or non-prescription drugs; and (

b) neither shall communicate with the other while impaired by alcohol or drugs; and (

c) each shall use their best efforts not to be impaired by alcohol or drugs while living in the former matrimonial home. Household goods and furnishings 58. The parties acknowledge and agree that they shall divide equally between them the household goods and furnishings contained within the former matrimonial home as of December 9, 2005, save and except for those items which belong to the Husband and are outlined in the

schedule attached hereto and marked as

Schedule A; save and except that:

(

a) it is acknowledged that item 38, namely the Filippo Morghen half leather over marbled boards with gilt stamped titles bound set of 45 full sheet copper engravings, entitled “In Pozzuolo Cuma E Baja”, Napoli: Nicola Gervasi, 1803 is presently missing from the former matrimonial home and that the Wife shall sign a Statutory Declaration acknowledging that she does not have this item in her possession or control and that she will deliver it up to the Husband if the same comes into her possession or control; and (

b) it is acknowledged that the Wife is entitled to receive item 58 as her personal property. 59. In the event of any dispute between the parties arising from the division of the household goods and furnishings, the parties shall attend upon Patricia Blocksom to resolve the matter through mediation, and in the event that mediation fails, she shall be empowered by the parties to arbitrate the issues outstanding and her decision shall be final. The parties shall each be responsible for one-half of the costs of such mediation/arbitration subject to Ms. Blocksom's power to award costs of the arbitration. 60.

Any household goods for furnishings acquired by either party after December 9, 2005 shall remain the property of the party acquiring the same. The Husband's Malta inheritance 61. The Wife releases any claims against the real property and personal property held by the Husband in Malta, including any increase in value of any such assets since 1998. General 62. The parties are entering into this Agreement having contemplated the effect of the Matrimonial Property Act of Alberta, being

Chapter M-8 of the Revised Statutes of Alberta, 2000, and amendments thereto, and it is their intention that the said Act shall not apply to the status, ownership and division of their property, held either jointly or separately, or to the future property, whether real or personal, and owned by either or both of them. 63. The parties acknowledge and agree that all property acquired by either or both of them has been satisfactorily divided between them and each party shall retain all right, title and interest in and to the assets in his or her possession, free and clear of any claim by the other. 64.

Without limiting the generality of the foregoing and except as otherwise provided in this Agreement, each party shall retain his or her own Registered Retirement Savings Plans, investments, pension plans, motor vehicles, household goods and furnishings, real property and other assets, unless otherwise set out herein. 65.

Each party shall retain sole ownership and control of his or her property, now owned or subsequently acquired, including any property acquired by way of gift or inheritance, and any income or profit therefrom, and any property acquired in substitution therefor, and the proceeds of any disposition of the same, free and clear of any claim by the other party. CANADA PENSION 66. The Husband and Wife further acknowledge and agree that either party hereto is entitled to make an application for the equal division of the unadjusted pensionable earnings of the parties pursuant to the Canada Pension Plan ,

Section 55.1, R.S.C. 1985, C-8. It is understood that the property release provided by this Agreement is not a release by either party of those rights provided to them as a spouse pursuant to the Canada Pension Plan .

DEBTS 67. The Husband and Wife covenant and warrant that there are no outstanding debts or liabilities which have been incurred up to the date of this Agreement by them jointly, or by either of them on the credit of the other, save and except as expressly set out in this Agreement. 68.

The Husband and Wife further covenant and agree that each of them shall be responsible for his or her own debts or liabilities, including those debts designated as his or hers, as the case may be, and each shall indemnify the other from and against all such costs, charges, losses, damages and expenses that may be incurred by the other on account thereof including all legal fees and disbursements incurred on a solicilor-and-his-own-c1ient basis. The parties hereto mutually declare that neither shall pledge the cred

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