Tomkins v. Tomkins, 2011 ABQB 125

Court of Queen ’ s Bench of Alberta Citation: Tomkins v. Tomkins, 2011 ABQB 125 Date: 20110303 Docket: 4803 153870 Registry: Edmonton Between: Lana May Tomkins Plaintiff - and - Michael James Tomkins Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] These Reasons are supplemental to my previous written decision dated February 14, 2011 now reported at 2011 ABQB 79 .

I allowed counsel to provide further submissions to me regarding my Reasons for Judgment dated February 14, 2011 to address areas that counsel needed clarification on. Counsel were not to re-argue the application, but rather to seek clarification on certain points and deal with any necessarily incidental matters arising from my decision with respect to this Interim Order. Spousal Support and Payment of Expenses Related to the Matrimonial Home [ 2 ] The Court ordered that the husband pay the wife on a without prejudice interim basis spousal support of $7,500 per month

commencing February 1, 2011 for a period fo six months on the first day of each and every month until full valuations and assessments of the financial disclosure could be completed. [ 3 ] The husband submits that the spousal support is only for six months.

However my direction contemplates that the spousal support Order will continue for six months until the full valuations and assessments of the financial disclosure can be completed, which may take my interim spousal support Order past six months, as it is my intention that interim spousal support continue until the valuations and assessments can be completed. [ 4 ] The wife was also granted exclusive possession of the matrimonial home, inclusive of the household contents, until further Order of the Court or by agreement of the parties. [ 5 ] The husband now demands that the wife be responsible on a month to month basis commencing February 1, 2011 for all ongoing matrimonial home expenses including mortgage, property tax, property insurance, and other expenses related to a line of credit HELOC for a total of $5,708.

These are expenses that the husband had paid throughout the marriage both before and after the parties separated. [ 6 ] I had assumed and presumed in my decision that he would continue to do so, considering that the monthly interim spousal support I ordered after taxes equates to $5,349.

This is less than the proposed expenses submitted by the husband, and the husband did not dispute in any of his Affidavit evidence that he took issue with continuing to pay the expenses related to the matrimonial home, that he now objects to paying. [ 7 ] Accordingly the husband will continue to be responsible for all of these reasonable expenses associated with the matrimonial home totalling $5,708 during the course of my Order in addition to the payment of interim spousal support.

He will not however be responsible for any and all expenses related to the matrimonial home, only those general categories in existence at the time of my decision and only to a maximum of $5,708 a month. [ 8 ] The husband also can deduct from the February 1, 2011 spousal support payment the sum of $2,080 that represents a net salary paid by the husband to the wife for February, since the Court had also assumed that the wife’s salary payments through the TNT Company as an employee would cease and be replaced by the interim spousal support payments. [ 9 ] I appreciate that I directed that the husband continue to pay the wife the income she was receiving from TNT until my decision was rendered, but given that my decision back dated spousal support to February 1, 2011, the $2,080 net payment from TNT to the wife as an employee should be deducted from the February 1, 2011 spousal support payment. [ 10 ] As for continuing spousal support payments, the wife objects to those payments being made through TNT considering that the wife has a property interest in the company as well.

This was not argued before me, and there is no doubt that there is a great deal of complexity to the husband’s financial situation, much of it still to be resolved. I am sympathetic to the argument that monthly support payments should not flow through the company. However at this point without making a more global determination as to the financial status of these parties based on complete valuations, I am also loathe to begin directing the husband as to where he should be sourcing his funds to make the payments that I have ordered.

This is especially the case since counsel for the husband adamantly submits that the husband does not have under any circumstances the current ability to pay in accordance with the terms of my directions, irrespective of where the money is sourced from. [ 11 ] As such I will not deal with the issue as to where the funds come from to make the payments that I have directed, other than to remind the husband that he has various legal obligations both to the CRA as well as to the wife as to where he sources the payments he makes to the wife.

The matters of where monies are paid from can and will be subject to future further adjustment at trial or otherwise, and can be dealt with at that time. [ 12 ] The husband also submits that since he is entitled to half of the contents of the matrimonial home, he should be allowed to now remove his personal possessions. In theory there is nothing wrong with allowing the husband to remove his personal possessions because they are not likely of much use to the wife, but the household contents were always to go with whoever received exclusive

possession of the matrimonial home, in this case the wife. If the parties are able to agree as to which items the wife is willing to relinquish from the matrimonial home that is fine. If the parties cannot agree however, which is the more likely scenario it appears at this point, the items in question will have to be brought back before the Court to be determined on an item to item basis by way of another Motion taken out on notice with supporting Affidavit material.

Range Rover Vehicle Return and Expenses [ 13 ] The husband has apparently demanded the return of the leased Range Rover vehicle that the wife has had the use of throughout the marriage and after separation, within 24 hours of my decision being rendered. The wife objects to this because the lease does not expire until July 2011 on the Range Rover vehicle, and the lease and insurance on the Range Rover vehicle are paid and written off through TNT the company, not by Mr.

Tomkins personally. [ 14 ] No specific time lines for the return of the Range Rover vehicle were mentioned in the Affidavits, nor was this issue addressed specifically in the Special Chambers hearing.

Accordingly I did not address it either. [ 15 ] Counsel for the wife submits that a reasonable time line for the return of the Range Rover vehicle should be offered to the wife, preferably the lease return date in July, especially considering that the husband is benefiting through the company which the wife is entitled to an interest in, by way of receiving a vehicle and writing off all of the associated expenses. [ 16 ] I conclude that the return of the leased vehicle namely the Range Rover, just as the termination of the salary that the wife received as an employee, were assumed and presumed by me to be matters that would occur when I made the decision to grant the wife interim spousal support. [ 17 ] I am advised that the wife however would be then left with no replacement vehicle, residing on an acreage with two young children, save and except a Jeep YJ stored in the garage located at the matrimonial home, which is paid off and owned by TNT.

The hard top to that vehicle is at TNT’s shop, and the wife suggests that with the return of the hard top, she could use this vehicle to transport the child from the acreage for school and their other activities. The husband refuses to do this, and demands that the vehicle be returned to him as it is owned through TNT. [ 18 ] The wife has an interest in TNT, and I am advised that the husband has various other vehicles through TNT which are either owned outright or leased that he and his other employees drive.

One of these vehicles, preferably the vehicle that is stored at the matrimonial home the Jeep YJ should be made available to the wife immediately in replacement for the Range Rover vehicle which admittedly is quite expensive to service and pay for. [ 19 ] In the event of the husband’s failure to provide the Jeep YJ, and the hard top to it, the return of the Range Rover would have to be deferred until the lease expiry date in July 2011.

It seems to me that the husband would be well advised to allow a vehicle that sits unused in the garage located at the matrimonial home that is paid off to be given to the wife with the hard top, in exchange for return of the Range Rover.

If the wife were forced to purchase an alternate vehicle, her monthly expenses would obviously increase and this would further affect her monthly spousal support payment. [ 20 ] Accordingly I am directing that the wife immediately return to the husband the Range Rover, in exchange for the exclusive use by the wife of the Jeep YJ currently stored in the garage located at the matrimonial home, and that the hard top to that vehicle at TNT’s shop be provided as well to the wife immediately. This I conclude is a matter which necessarily is incidental to my previous decision. Costs

[ 21 ] I further direct that the husband pay the wife party and party costs in the sum of $1,635, which is the Bill of Costs submitted by counsel for the wife less courier fees deducted of $143. Heard on the 14 th day of February, 2011. Dated at the City of Edmonton, Alberta this 2 nd day of March, 2011. Donald Lee J.C.Q.B.A. Appearances: Collista Coles Barr Picard for the Plaintiff Melanie Bowbell Pollock & Pollock for the Defendant