K.C.F. v. A.M.F., 2011 ABQB 152

Court of Queen ’ s Bench of Alberta Citation: K.C.F. v. A.M.F., 2011 ABQB 152 Date: 20110903 Docket: 4803 145936 Registry: Edmonton Between: K.C.F. Plaintiff - and - A.M.F. Defendant Restriction on Publication: No one may publish any information serving to identify a child or guardian of a child who has come to a Minister’s or a director’s attention under the Child, Youth and Family Enhancement Act . See the Child, Youth and Family Enhancement Act , s. 126.2. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C. Read _______________________________________________________

Summary:

[ 1 ] Both parents of an eight year old child with health challenges sought custody. Access was also at issue, as was spousal and child support, division of matrimonial property and a claim for an exemption respecting real property. Preliminary Matters : [ 2 ] This divorce and matrimonial property trial proceeded atypically in two parts with a gap in time between the two parts of several months. The trial length was badly underestimated by the parties when it was set for trial in September 2010 and court and counsel scheduling difficulties made it impossible to reschedule the continuation until January of 2011.

Just before the scheduled recommencement, counsel for the Respondent mother asked to be removed as counsel of record because his client had lost confidence in him. The application to be removed from the record was heard on January 19, 2011 together with a application by the mother for an adjournment to permit her to obtain new counsel. The application for an adjournment was denied for oral reasons provided at the time. The mother was asked and indicated that she did wish counsel to renew his application to be removed from the record, notwithstanding that her request for an adjournment had been denied.

The application to remove counsel of record was allowed. However, counsel agreed to remain as a friend of the court to assist the mother in presenting her case, notwithstanding being removed from the record. He assisted the mother to the extent that counsel and the mother could agree. [ 3 ] The mother and father were married on April 2, 2002, although they commenced their relationship sometime in the year 2000. They have one child who was born in 2002.

They separated on January 19, 2008 and were divorced on September 13, 2010. [ 4 ] Because they were unable to reach agreement respecting a number of issues incidental to their marriage, they went to trial to resolve them. Issues: [ 5 ] There were six issues for resolution: custody of the child; access to the child; whether income should be imputed to the mother; quantum of retroactive and ongoing child support, including s. 7 expenses; entitlement to and quantum of spousal support; and division of matrimonial property including whether or not certain property is exempt. 1.

Custody and Access: [ 6 ] I will deal firstly with the two most important issues: the custody of and access to the child. Both parents sought custody of their daughter and each expressed strong reservations about permitting the other to have custody. In addition, the father argued that the mother should have only supervised access unless and until she could demonstrate that unsupervised access would be in the child’s best interests. [ 7 ] The custody issue was complicated by concerns both parents raised about the other parent’s mental health as well as concerns raised about the mental health of the child.

The child is now eight years old and has been living with her father since about August of 2008. [ 8 ] The child was apprehended on January 18, 2008 and made a temporary ward of the Province. The apprehension occurred at about the same time as the parents separated and occurred after a tumultuous series of events which culminated with the father calling Children’s Services. The apprehension order was made because of concerns about the effect the mother’s mental state and the father’s emotional state were having on the well being of the child.

During the course of a number of months following the apprehension, the father had increasing amounts of access to his daughter, at first supervised, then unsupervised, and then including overnight access. The mother also had supervised access to the child but this did not progress to unsupervised access. The child was in care for approximately seven months, before being returned to her father’s care. [ 9 ] In September of 2008, the father gained interim custody of the child by order. The mother continued to be permitted supervised access under the terms of the order.

The mother’s access was stated to take place on Tuesday and Thursday afternoons from

after school to 7:00 pm and each Saturday from 10 am to 6 pm. Supervision was ordered to be done by Children’s Services or, if that was not possible, by another third party. The mother has not exercised any access to the child for some time. [ 10 ] The custody and access issues are also complicated by the fact that the child is a little girl with some special needs. She has been diagnosed with pervasive development disorder or autistic spectrum disorder. It is clear from the evidence that she has had significant problems for a number of years.

Staff at her pre-school noted certain behaviour problems in 2006, when she was four years of age. She was recommended to and has been followed at the Glenrose Rehabilitation Hospital since January, 2007, in the neuro- psychological department where her case is managed by psychiatrist, Dr. Oleksandr Hodlevskyy. He works with a team of other psychiatrists, mental health care givers and other professionals such as speech specialists to deal with high needs children such as the child. [ 11 ] Dr.

Hodlevskyy’s evidence was that the child was in a state of psychiatric crisis when she came into the Urgent Children’s Mental Health Clinic at the Royal Alexandra Hospital at the age of four years, having been referred from the Stollery Children’s Hospital where she was taken by her mother in December 2006. Dr. Hodlevskyy called it highly unusual to have a child that young in such crisis.

He saw a “quite severe” lack of interactive skills, poor social interactions and adjustment skills, social anxiety, a moderate level of speech and language delays, and a moderate level of gross and fine motor delays when she first came into his program at the Glenrose. He said the child almost never established eye contact. She talked to herself and was probably hearing noises. She told him that she heard music in her head. He found it almost impossible to engage her in interactive play.

She would get easily anxious for no discernible reason and when she did would “intensely” flap her hands and arms, a symptom he called quite specific to her disorder. In his view, the child has a high risk of developing a psychotic disorder. [ 12 ] The child has been assessed by three psychiatrists, by three mental health teams, and by a number of speech specialists. According to Dr. Hodlevskyy, all have concluded that the child suffers from autistic spectrum disorder. [ 13 ] The child has been prescribed a number of drugs and is taking these on a regular basis. It is Dr.

Hodlevskyy’s opinion that the child needs to continue with this treatment. She has had a positive response to the drugs she has been prescribed but will need to take medication for the long term. Dr. Hodlevskyy indicated, as well, that he has seen the child frequently since she came into treatment, usually accompanied by her father and that her mother had attended only a few times. The last time he saw the mother was in April 2009. Dr. Hodlevskyy called the father very responsible, pro-active, supportive and very caring.

He said he thought the father provides strong advocacy for his daughter in order to access resources. In contrast, he said the mother had never agreed to or supported the multi- disciplinary mental health treatment for her daughter. [ 14 ] Dr. Hodlevskyy’s opinion is that the child’s functioning and mental health have improved in the Glenrose program but that she will require a lot of reassessment, intensive family counselling, social supports, speech therapy, occupational therapy, play therapy and continued medical treatment. He also described the specialized school program that the child attends.

It is one for children with a variety of problems including Asperger’s syndrome, Tourette’s syndrome, and schizophrenia. He did not recommend that the child be removed from the program for the time being and likely for the next two years. [ 15 ] His opinion was, as well, that tics such as the hand flapping exhibited by the child were involuntary and that it was inappropriate to discipline the child for exhibiting the behaviours or to try to stop her. He said he had told both parents this. He said, as well that he had told both parents that it was important to be careful with discipline with their daughter.

He said it was important to establish eye contact and to be gentle with discipline and not to do anything to escalate or aggravate the problem. [ 16 ] In his view, as well, the child would find it difficult to transition to a new environment. He said she liked routine and needs to feel confident and safe. [ 17 ] The mother gave much evidence and engaged in much argument indicating that in her opinion the child does not suffer from any mental health difficulty. However, I do not accept her evidence for a number of reasons. [ 18 ] First and foremost, the mother’s evidence is contrary to that of Dr.

Hodlevskyy, the child’s treating psychiatrist. [ 19 ] Secondly, the mother’s evidence generally was unreliable in my view. Indeed, throughout the course of the trial, I became

[ 19 ] Secondly, the mother’s evidence generally was unreliable in my view. Indeed, throughout the course of the trial, I became concerned that the mother, herself, may suffer from some serious mental health problems which may affect her perceptions, including her ability to accurately perceive and assess her daughter’s wellness. Her evidence was often confusing and sometimes incomprehensible. She was prone to long winded and meandering testimony that was sometimes only tangentially connected to the question she was asked. Her sentences ran on and the apparent topic of discussion changed as she talked.

Sometimes she would not finish a sentence before beginning another one. Sometimes during the course of her answer to a question, it appeared that she had forgotten what the original question was. Further, she often seemed unable to redirect herself and seemed as well to be fixated on certain aspects of the case – notably her view that neither she nor the child had any mental health problems. [ 20 ] The mother seemed to believe that she had a particular expertise which gave her an ability to diagnose her child herself.

She seemed determined to impress about her education, her experience and her superior abilities. [ 21 ] As well, the mother blamed others for her daughter’s difficulties. At various times during the trial, she blamed the father, Children’s Services, the program at the Glenrose Rehabilitation Hospital, and the bullying incident she believes happened at the child’s pre-school for her daughter’s conditions. She believes that others, notably the child’s father, have “taught” or “coached” the child to engage in abnormal behaviours.

A review of the Children’s Services material made exhibits at trial makes it clear that the mother has expressed similar concerns to and about various individuals at Children’s Services in the past. [ 22 ] The mother’s opinions respecting the cause of her daughter’s difficulties are at odds with the opinions of all of the health care professionals who have had contact with the child. As well, some of the mother’s accusations of fault were clearly irrational.

For example, on the evidence, it is not possible that the child’s behavioural problems were caused by her care and treatment at the Glenrose, as the mother asserts. As was clearly documented in the evidence, the child exhibited similar problems before she was referred to the program and were the cause of her referral to the Glenrose. [ 23 ] At the commencement of trial, the mother was represented by counsel but seemed unable to allow him to manage the course of the litigation.

She frequently exhibited inappropriate behaviour, speaking out from the well of the courtroom during proceedings and, even more frequently passing notes to her lawyer, even poking him while he was cross examining a witness to draw his attention to a note she had given him.

These behaviours continued even after she was admonished numerous times and told to stop. [ 24 ] The mother does not have any recognized expertise in diagnosis and treatment of childhood mental health problems and is not qualified to give an opinion about the mental health of her child. [ 25 ] I reject the mother’s opinion about her child’s mental health and conclude that the child does have special needs. I accept without reservation the opinion of Dr.

Hodlevskyy in respect to the child’s diagnosis and her treatment needs. [ 26 ] The father and mother both gave evidence on the issue of custody of and access to their daughter. [ 27 ] The father described the child’s routines since her return to live with him in September of 2008. Each week day morning, the father takes her to the Play Place out of school care where she has been enrolled since September 2009. She usually has breakfast there and is transported from there to school by bus. After school, she returns to the daycare where her father picks her up as soon as he gets off work.

He takes her home where he prepares dinner and they play, read or do chores until her bed time. The father works 40 hours per week, five days per week from 7:30 am to 4:00 pm. He does not work weekends. Nor does he work any overtime. When the child has medical or other appointments, the father arranges for time off work to take her. The father takes the child to visit her maternal grandmother each Sunday afternoon. Often the child’s uncle, who lives part time with the grandmother, is also present. Sometimes, the grandmother brings letters from the mother for the child to read.

The grandmother acknowledged in her evidence that these visits occurred. [ 28 ] The father’s evidence was that he also had the maternal grandmother and uncle attend at his home for special occasions such as Thanksgiving and the child’s birthday. The grandmother also acknowledged that these types of visits had also occurred although she expressed some doubt about their frequency. [ 29 ] The father also described the child’s leisure activities since her return to his home. He has purchased a bicycle for the child and they sometimes go bike riding together.

They read together and sometimes will go to Galaxyland, an indoor amusement park. He

watches for public events that children might enjoy and will take the child to these. He described the child as being quite an artist and said she likes to cut and paste. He keeps her well supplied with craft materials. She also has a pet cat that she seems to enjoy. [ 30 ] The father also described his daughter’s present behaviours. She has had a history of bed wetting and of soiling and wetting herself during the day. The father says that daytime wetting still occurs occasionally and that she still bed wets. She also still flaps her hands, a mannerism the father says the child has had since babyhood.

He has consulted a physician with respect to the incontinence issue but was told his daughter’s urinary system is normal. He says he does not see the hand flapping as a problem and does not reprimand or punish his daughter for this behaviour. He does not see much need for disciplining the child and said that he thought she was generally well behaved. [ 31 ] In cross examination, the father was asked about the medications the child is taking as well as the other treatment she is receiving.

He said that he thought the child needed all of the treatment she was getting and said he felt confident that the team at the Glenrose Hospital had worked out the best treatment for his daughter. In particular reference to the drug regime his daughter has been prescribed, the father said his impression was that his daughter was “waking up and becoming more aware of other people” as a result of the drugs. He said it seemed to him that his daughter was opening up and interacting more with the rest of the world since she began taking them.

He said he had noticed substantial improvement in his daughter since she began treatment at the Glenrose and said he was in favour of any treatment that would improve her health. [ 32 ] As I have already said, the mother has not actually seen the child for two years. She was unable to provide any evidence, therefore, about her daughter’s current functioning although she expressed grave concern about whether the present treatment, living arrangements, and school choice were positive for her daughter.

The mother did provide extensive evidence about things she did with her daughter before her apprehension, however, and, in addition, gave evidence about her perceptions and experience when she exercised supervised access to her daughter. She described activities such as day camp and dance class that the child had attended before her apprehension and expressed concern that the daughter was no longer taking

part in these activities. As well, she showed photographs of cakes that she and the child had made for various family events. [ 33 ] The mother also provided evidence respecting disciplining the child. The mother believes that the child can be redirected from hand flapping. She believes the hand flapping that the child did when she was younger was simply evidence of the child’s expressive nature. She indicated that physical restraint of the child was one means of curbing these behaviours.

She believed as well that the child soiled and wet herself as a means of aggression, defiance, or as a learned behaviour and that discipline could be used to control these behaviours. She admitted to having disciplined the child for wetting or soiling herself. [ 34 ] The last contact between the mother and child, as described by the father, was not positive. In the spring of 2010, the mother arrived at the father’s home one evening while the child was watching TV. According to the father, the mother was screaming at the door and threatened to take the child. The father did not allow the mother into the home.

He said that the child knew someone was at the door but seemed not to recognize her mother’s voice, asking what “that lady” wanted. The father said he had to call the police. The mother left but came back a short time later, according to the father, driving up to the home just as the police arrived. The father described her as being quite loud when she talked to the police in the street. Because the mother indicated that she was going to pick up the child from school the next day, the father was anxious enough that he took time off work so that he could pick up the child at school.

He said that when he arrived at the school, there was no sign of the mother, but when he and the child returned home, the mother was in the yard of a neighbour’s home. The father was worried about another confrontation and obtained an Emergency Protection Order from the Court the next day, May 25, 2010. This order disables the mother from going to the father’s residence or from having any contact with the father or the child. The mother had difficulty responding to questions about her perception of what had occurred on this occasion but minimized her behaviour.

It was her belief that it had no negative effect on the child. [ 35 ] The mother also gave evidence respecting her decision to cease access with her daughter but this was difficult to follow. She said that her daughter was being assessed at the Glenrose at the time and she decided that if she, the mother, was going to become the issue during the assessment, this would cause problems for her daughter. In her evidence, the mother then returned to a number of issues she found significant that had occurred in the past and said they were all stressors that they all constituted a stepping up of stressors.

She said, as well, that there were times when she was no longer permitted to be involved in her daughter’s health care. She seemed to blame Wendy Morgan, a Children’s Services caseworker whom, she said, had told her that she could no longer be involved in the child’s health care as a consequence of an earlier Emergency Protection Order obtained in the summer of 2008, after the mother had made an earlier uninvited visit to the father’s home while the child was being re-introduced to the father’s home by Ms. Morgan.

She also placed blame on restrictions placed on her visits by Children’s Services for her decision to stop seeing her daughter. [ 36 ] Dr. Hodlevskyy’s evidence was that he did not know why the mother had ceased to be involved in the program and that he

was not aware of any reason for her lack of involvement. He recalled, in particular, that an appointment had been set up in the spring of 2009 which was to include both Ms. Morgan and the mother. He recalled, as well, that the mother had not shown up for the appointment. Ms. Morgan gave her evidence before the mother testified and she was not asked if she had told the mother that she could not take any

part in the child’s medical care. [ 37 ] In terms of the mother’s current living situation and her plans should she obtain custody of her child, her evidence was that she lives with her own mother, the child’s grandmother, in a single family dwelling home that has a specific bedroom set aside for the child. The mother showed pictures of this room, which was nicely and appropriately decorated. The mother’s plan is to have the child live with her and the grandmother. The mother’s brother also lives in the home part time as well as at a group home.

All witnesses agreed that the brother has a diagnosis of schizophrenia and is unable to work. None of the witnesses had any concerns that he could be dangerous. Indeed, the father and the grandmother both testified that the uncle had little interaction with the child or with anyone else when he was present. The evidence of the grandmother was that her son lives in her home on weekends only and spends weekdays in the group home.

The uncle’s bedroom is in the basement of the home and the bedroom decorated for the child is on the second floor near to the grandmother’s bedroom. [ 38 ] The mother does not work and has no income. The grandmother pays the expenses associated with the home. The mother says she is currently writing a book and, according to the evidence, this has been her stated occupation for a number of years. She has not worked since the death of her father in 1994.

She does have some vague plans to go back to work at some point but believes she is no longer employable within her field because of the actions of various individuals and entities, such as Children’s Services and Ms. Morgan in particular. [ 39 ] The child’s grandmother also gave evidence at the trial.

She is in agreement with the mother’s plan for the child and is more than willing to have the child and the mother continue to live in her house. [ 40 ] The mother suggested in her evidence that she thought that the child ought to be in the regular school system and saw no need for her to be in the special program she is attending at present. She also expressed great concern about the medications her daughter is currently receiving. It was her view that at least some of these drugs were experimental.

She thought that the child was being used as a guinea pig by the child’s treating physicians. [ 41 ] The mother indicated as well that she thought she did not need to be supervised in her visits with her daughter. Indeed, this was one of her stated reasons for having refused to have supervised access through the Safe Visitation Program, which program was designated to supervise her visits with her daughter in the past.

She said that the supervisors who were part of this program would not allow her to bring anything with her when she visited her daughter and that, as well, they had “four cameras on you” during visitation. She found this unacceptable. She also said she thought her access would be limited to only one hour per week by using the Program, rather than the sixteen hours of visits she had been granted under the order.

It is her view, that if she has access to the child in the future, there is no need for it to be supervised. [ 42 ] The child’s maternal grandmother said she is 79 years old and has been involved with the child since her birth. She continues to see the child each Sunday in visits supervised by the father. She enjoys seeing her granddaughter but believes that the father interferes too much in the visits. From her evidence, it was clear that she has been a caring grandparent who provided much assistance to the family, both financially and in terms of physical help, before the parents separated.

She paid for a number of the child’s activities and drove the child to some of these activities. It was also clear from her evidence that she loves her granddaughter very much. [ 43 ] However, it was also clear from the grandmother’s evidence that she shared the mother’s belief that the father was coaching the child to flap her hands. She thought that the child did these activities to please her father and said that, in her view, the father gave certain signals to the child to cause her to flap – mentioning that he moved his eyebrows in a certain way or stared at the child during visits.

It was her view that these were signals to the child to flap her hands. She said that the child would immediately stop when she asked her to. It was also clear from both the grandmother’s and the father’s evidence, that there has been some conflict between them from time to time during these visits.

The conflict seemed to centre on the grandmother’s attempts to read letters from the mother to the child without permitting them first to be vetted by the father and the grandmother’s attempts, from time to time, to stop the child from her tic behaviours such as hand flapping. [ 44 ] Having considered all of the evidence, I have concluded that the father should continue to have sole custody of his daughter for the following reasons.

[ 45 ] Chief among them is the fact that the mother is unable to acknowledge her daughter’s health problems and, as a consequence, may be unwilling to maintain and support the treatment that has been important to the child’s improved functioning. I accept the evidence of Dr. Hodlevskyy that medication is part of an appropriate treatment for the child. In my view there is a real risk that the mother will not permit the child to continue to take the medications presently prescribed for her if she regains custody.

For example, at one point, during cross examination, the mother said that she thought Children’s Services had taught her daughter to seem ill but that she was not really ill. At another, she blamed her child’s behaviours on being in foster care with other disabled children. At yet another point, she blamed the father for teaching the child to flap her hands and otherwise show behaviours that made her appear to have special needs. In respect to Dr. Hodlevskyy’s treatment of the child with medication, it was the mother’s view that he was “verging on experimentation on human subjects at this point”. Dr.

Hodlevskyy said, as well, in his testimony that the mother was not really supportive of the diagnosis and treatment of her daughter. [ 46 ] In contrast, the father is very supportive of the treatment the child is receiving and very cooperative with the Glenrose program and the child’s physicians and other caregivers. [ 47 ] Secondly, there is a concern that the mother will change the child’s school situation if she gained custody, notwithstanding that the medical advice is that the present school situation is in the child’s best interests and that she needs and benefits from routine and finds change difficult.

The mother’s past behaviour is indicative of this. In January of 2007, for example, the mother removed her child from a pre-school program because she blamed bullying in the pre-school environment for the child’s mental health challenges. As well, during cross examination, the mother said that because she did not believe that the child had health challenges, she did not think her daughter required a special school program. Although she was present in the courtroom during Dr.

Hodlevskyy’s testimony she denied that he had testified that he believed the child needed to be in a special needs program. [ 48 ] In contrast, the father is supportive of the school program and expressed willingness to have the child continue in this program as long as it is recommended. [ 49 ] Thirdly, although the mother described grave reservations about the father’s mental health and abilities to parent the child, there was evidence that none of the professionals involved with this family had similar concerns.

When the child was apprehended in January of 2008, Children’s Services did initially have some concerns about the father’s emotional well-being. These concerns were evident as well in the initial assessment by Perlita Torres, a psychologist who was contracted by Children’s Services to assess both parents. This initial assessment was completed in January of 2008, right after the child was apprehended and the parties separated. However, the father co-operated with Children’s Services and sought support from services both within Children’s Services and in the community.

He also submitted to a further assessment with Ms. Torres. [ 50 ] While in her initial assessment, Ms. Torres called the father dependent, defensive and emotionally fragile, the father took seriously the recommendations Ms. Torres made for him. She recommended that both parents demonstrate their willingness to work with the Department of Children’s Services by following through with tasks outlined in the Department service plan. Only the father did so.

She recommended that the father continue with counselling and treatment, that both parents should attend the parenting after separation program, that both parents continue to have regular contact with the child and that both show receptiveness to suggestions of professionals involved with their daughter. [ 51 ] The father followed all of these recommendations. As a consequence, when Ms. Torres re-evaluated him at his counsel’s request in August of 2010, her assessment of the father was very positive.

She said he seemed much improved – was more relaxed and confident and had shown great resiliency and an “inner strength that keeps him going”. In Ms. Torres’ view, the father is now more confident in his child management skills and more competent in dealing with the child and managing her behaviours. In Ms. Torres’ view the father has a strong social support of relatives and friends. He understands the value of allowing the child to express herself and shows appropriate parenting techniques. In Ms.

Torres’s view the only big stressor for the father is the conflict with the mother of the child. [ 52 ] All other reports have also been positive respecting the abilities of the father to parent the child. He is described by social workers and the medical staff at the Glenrose as being stronger emotionally and able to meet his daughter’s needs, physically, emotionally and mentally. He accesses appropriate treatment for her and is supportive of and cooperative in recommendations for his daughter’s care and treatment. [ 53 ] Further, the child seems to have thrived under her father’s care.

By all accounts, she has improved in functioning and in well- being since being in her father’s care. Her verbal skills have improved as have her social skills and she is making academic progress in

her special program. [ 54 ] In contrast, many of the professionals who had contact with this family had grave concerns about the mother. [ 55 ] Perlita Torres had a generally positive view of the mother during her initial assessment of the parties in early 2008. However, she also indicated that her psychological test results showed that the mother could be quite self centred. She said the results showed, as well, that the mother sought praise and recognition and that when humiliated or stressed, she could develop narcissistic injury or could become paranoid.

She added that in child abuse inventory, the mother scored high in the abuse scale and the results showed she had a low frustration tolerance, low self esteem, she believed she was right all the time and was unhappy. In general, however, Ms. Torres said that the mother was able to present herself very well in the initial assessment. However, Ms. Torres also said that she concluded based upon the mother’s history, her behaviours and her psychiatric history that she had psycho-pathology. Ms. Torres was of the view that the mother had unrealistic fears and was unrealistically suspicious of the father.

She mentioned that she saw a deterioration in the mother after the mother was provided with a copy of and read Ms. Torres’ initial assessment, notwithstanding that it was generally positive. She saw evidence in the mother of clear dissociation, and thought her communication was disjointed, illogical, and irrational.

In her view, although the mother thinks she is normal, if those she is speaking to do not accept her competence, the mother degenerates into affective disorder and paranoia. [ 56 ] Wendy Morgan, the caseworker at Children’s Services who had the family as a part of her caseload after the child was apprehended, also gave extensive evidence of her dealings with the family.

She testified that she received a blizzard of emails and telephone messages from the mother and that she, her supervisor, and a number of other professionals employed by the Department became subject to complaints, accusations and threats from the mother. Some of the mother’s emails were made exhibits. In them, the mother accused the professionals of conspiring with one another and the father, of child abuse and racial bias. She threatened to go to the press, her elected representative, and the ombudsman among others.

From the evidence, it is clear she followed through on some of these threats. [ 57 ] By way of example, Ms. Morgan recounted one occasion she witnessed when she was visiting at the father’s home at the time the Department was working to reintegrate the child back into her parents’ care. She recalled that suddenly the mother was there. She sat down at the same table at which Ms. Morgan and the father were sitting and started to make all kinds of accusations. Ms. Morgan described the mother’s demeanour as threatening. She appeared very angry. Ms. Morgan asked her a number of times to leave.

The mother told her that she was going to be back the next day because she was moving back into the home. Ms. Morgan said that she told both parents to speak to their lawyers and that after the mother left, she spoke to the father for a while longer before leaving the home herself. However, when she was still getting into her car in front of the residence, the father came running out of the house with the telephone. The mother was on the phone. Ms. Morgan listened. She described the mother as screaming and accusing Ms. Morgan of being racist, a child abuser and a human trafficker. Ms.

Morgan said she told the mother she would not speak to her when she was that angry and that the mother should call her the next day. The next day, Ms. Morgan reported getting many, many voice mails from the mother as did her manager. [ 58 ] Although not qualified to diagnose mental health problems, Ms. Morgan said she became very concerned about the mental health of the mother through her contact with her.

One of the recommendations she made that became a condition of further unsupervised contact by the mother with the child was that the mother would have to submit to a mental health evaluation by a psychiatrist or psychologist. The mother has never complied with this condition, taking the position that a psychiatrist she saw in 2006 or 2007 has given her a clean bill of mental health. This psychiatrist’s evidence was not before the Court. [ 59 ] As well, the mother has had little contact with the child for some time.

The mother decided in November of 2008 to stop visiting the child because she did not accept restrictions placed upon her visits with the child by the supervisors of the visits. She had a further visit with the child at Christmas of 2008 and on January 3, 2009 but since then has not seen her daughter. [ 60 ] From the evidence, it is clear that the mother did have some positive interaction with the child in supervised visits after her apprehension and during the spring and early summer of 2008. As well, she called evidence from a family support worker, Mr. Gordie LaRocque and a therapist, Mr.

Heath Nightingale, both of whom were called and gave evidence on the mother’s behalf. However, the mother’s positive progress seemed to end when she learned of Children’s Services intention to allow the father, whose visits were initially also supervised, to have unsupervised visits. Rather than continuing to work on the goals established for her, the mother told Mr. LaRocque and his supervisor that she would pursue the “political and legal” route. She became convinced that the Department was conspiring against her with her husband.

In response to the Department’s stated concerns about the child’s developmental delays and special needs, the mother alternately refused to acknowledge that these existed or blamed them on the complicity between the Department and the father. She refused to complete the psychiatric assessment the Department requested, in respect to her own mental

health and instead began what seems to have been a concerted campaign of complaint against the Department employees and others involved with her or her daughter, accusing all of racism, sexism, trickery, fabrication and suppression of evidence, and conspiracy. [ 61 ] Lastly, I am satisfied based upon the evidence of Ms. Morgan, that the Department would have grave concerns if the mother had custody or unsupervised access to the child. Ms.

Morgan indicated that because of their interaction with the mother and the grandmother when the child was having supervised access to her mother under Department supervision, they would also have concerns if the grandmother was the supervisor. [ 62 ] For all of these reasons, I have concluded that it is in the child’s best interests to remain in her father’s custody. [ 63 ] Nonetheless, it was clear to me that the mother loves her daughter. The father agreed that the child loves and misses her mother and this was evident, as well, from various professional reports.

I am persuaded that the mother should have access to her child. [ 64 ] However, my own assessment, like that of the Department, is that the mother’s access cannot be unsupervised at this time. I share the Department’s concern respecting the mother’s mental health. Without diagnosis and treatment, she cannot be relied upon to put her child’s best interests first. The child is fragile and could easily be negatively affected if those she is in contact with cannot deal with her in a gentle and non-threatening manner.

Without a positive current mental health evaluation of the mother by a recognized psychiatrist, I cannot be satisfied that she would be able to deal with her daughter in this fashion. Further, because the mother cannot acknowledge her daughter’s problems, she seems determined to correct them in inappropriate ways. I heard evidence from the father and from Ms. Morgan of the mother’s attempts to stop the child from hand flapping by physically restraining her and by admonishing her. Dr.

Hodlevskyy made it abundantly clear in his evidence that attempting to stop the child’s tics was pointless and would only stress the child. Accordingly, I conclude that until the mother obtains a psychiatric assessment and until she can demonstrate to the Court that she is able to parent her child without supervision, her visits must continue to be supervised. [ 65 ] I have concluded, as well, that the grandmother cannot be the supervisor of the child.

While she clearly loves her granddaughter, I was concerned that she has to some extent bought into her daughter’s perceptions respecting the child’s mental health and respecting the father’s influence on her behaviours. As a consequence, I am not confident that the grandmother would be able to ensure that the child’s experience in access with her mother would be positive. [ 66 ] I am mindful, of course, of the cost of supervision and that the mother is of limited means. Although the grandmother has been generous in the past, the financial responsibility for paying for supervision should not be hers.

I direct, therefore, that a fund of $5,000 be set aside from the mother’s portion of the matrimonial property. This amount will be administered by the grandmother and used to pay for suitable third party supervision of the mother’s access to the child. I direct that the grandmother may choose the supervisor but that the chosen supervisor must be approved by the father before any access by the mother takes place. If difficulties arise about choosing an appropriate supervisor, I am prepared to hear a further application requesting me to choose an appropriate supervisor on proper evidence.

The parties should be aware, however, that both must make suggestions for supervisors they would find acceptable and provide sufficient evidence about the proposed supervisor(

s) so that I can make an appropriate decision. I will not be able to choose a supervisor ‘out of thin air’. [ 67 ] Once a supervisor has been chosen and approved, then the mother should have access each Saturday or Sunday from noon until 5:00 pm. This access may take place at the grandmother’s home or any other place within the City of Edmonton. The mother may not take the child out of Edmonton on access visits and the access visits must, at all times, be supervised until the further order of the court. 2.

Should income be imputed to the mother ? [ 68 ] The mother has some post secondary education from the University of Regina. She apparently attended two years of general studies in preparation for a four year degree program in Aboriginal social work. She has worked for Native Counselling in a social services role with children and youth. However, as already indicated, the mother has not worked outside of the home since 1994.

She indicated that she was stressed at that time by the illness and later death of her father and, what she says, were untrue accusations made against her father by one of her siblings respecting sexual abuse. Since then, she says she has been occupied writing two books, one on the issue of recovered memory syndrome among Aboriginals and the second that appeared from the description to be a fantasy involving serial killers. There was no evidence tendered that either of these books has been completed or published.

[ 69 ] The mother believes that she is no longer employable within her field because her reputation has been so badly damaged by accusations that she is mentally ill. She believes, in addition, that she cannot be employed until the issues before the Court are resolved because these are causing her much stress. She described various symptoms she has which she said were related to stress, such as her belief that she suffers from Temporal Mandibular Joint Syndrome from grinding her teeth. She said, as well that she thought she was suffering from depression and a sense of desperation.

She agreed, however, that she had never received a letter from a physician indicating she could not be employed because of health issues. In cross examination, however, she admitted that she had been diagnosed at one point with adult onset schizophrenia. She denied, however, that she currently suffers any mental health difficulties and attributed her involuntary psychiatric hospitalization in late 2006 to a combination of herbal remedies she was then taking in an effort to lose weight.

As well, she expressed the opinion that she was improperly hospitalized and said she had lodged a complaint against the Edmonton Police Services in respect to this hospitalization. At another point in her evidence, she attributed this hospitalization to her husband’s mistreatment of her, or a conspiracy between her husband and either the police department or the hospital staff. Her evidence on this issue was also disjointed and difficult to follow. [ 70 ] On behalf of the father, it was argued that income should be imputed to the mother, at least at the level of the minimum wage. [ 71 ] I disagree. [ 72 ]

Section 19 of the Child Support Guidelines deals with imputing income. The relevant provision is Section 19(1)(

a) which reads as follows: The Court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of the child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [ 73 ] In Hunt v. Smolis-Hunt , 2001 ABCA 229 , the Alberta Court of Appeal established that the correct

interpretation of s. 19(1) (

a) required a finding of bad faith before income could be imputed. This approach requires a finding of specific intent to avoid child support obligations. [ 74 ] I am not satisfied on the evidence that the mother has shown bad faith here. Further, even without medical evidence, I am not satisfied that the mother is currently employable. The behaviour she exhibited at trial, together with the assessments of various others who have come in contact with the mother during the past number of years, leads me to conclude that the mother may have mental health issues which cause her to be unemployable.

Accordingly, I am not prepared to impute income to the mother unless and until a physician has provided medical evidence that she is mentally well enough to be employed. [ 75 ] The mother has historically been resistant to obtain an updated medical assessment. She has provided many reasons for her reluctance to obtain this, including cost. As a consequence of my Judgment, however, she will have funds at her disposal.

I direct that a further $5,000 of the funds the mother obtains as a result of property division be held in trust by counsel for the father and used to pay the uninsured costs of a complete mental health assessment of the mother by a qualified psychiatrist. Any amount not so utilized is to be returned to the mother forthwith. If, once inquiries are made, $5,000 is found to be insufficient, either party may make application to have a further amount of the funds payable to the mother as a consequence of property division, held in trust and used for this purpose.

I direct that this assessment be obtained within six months of the date of release of these reasons, or such later date as may be ordered on further application. If no assessment has been obtained within one year of the release of these reasons, then the father, at his option, may make a further application, on notice to the mother, to have income imputed to the mother.

3. Quantum of retroactive and ongoing child support, including s. 7 expenses: [ 76 ] The father is employed as a technician at Tyco Thermal Controls, where he has worked for 13 years. His ability to work was interrupted when he was in a car accident. Subsequently, he received disability benefits for a number of months. He has been back at work full time since July of 2009. Prior to that he was on short term and then long term disability after suffering injuries in the car accident in April of 2008.

The father’s income tax returns show that he earned $46,653 in 2006, $47,091 in 2007, $26,834 in 2008 and $45,904 in 2009. His evidence was that he will earn approximately the same amount in 2010 as he did in 2009. His then most recent pay stub for the pay period ending September 4, 2010 was made an exhibit. It indicated year to date income of $27,622.20. Pro-rated for the remainder of the year, this would indicate an annual income of $41,493. However, when this action returned to trial in January of 2011, the father’s final earnings statement for the year 2010 was available and made an exhibit.

This statement shows his year to date income for the time period ending December 25, was actually $42,535.69. I accept this amount as his annual income for purposes of determining both spousal support and s. 7 expenses for child support. [ 77 ] The child attends an out of school care program before and after school. She has been in the same program since September of 2009. The cost per month was $70 from September to December of 2009. It increased to $85 per month in January 2010. In July 2010 it increased to $135 per month. These amounts all reflect a subsidy.

According to evidence from the out of school program, the total cost with no subsidy beginning September of 2010 is $395 per month. The father applied for the subsidy but as of the date of the beginning of the trial, he had received no reply. In addition, the father pays $21.50 per month for school bus fees to transport the child to her school program. [ 78 ] The father seeks lump sum ongoing child support payable from the mother’s share of matrimonial property. [ 79 ] The mother has no income and has had no income since the separation. She resides with her mother and her mother pays all costs.

Although she gave evidence of an agreement she said she had with her mother under which she would repay her mother an amount to cover her monthly room and board, her mother denied that there was any such agreement in her evidence. According to the grandmother, she and the mother have no specific arrangement for money to be paid back and the grandmother does not expect to be paid back. [ 80 ] The mother has not paid any support for the child since the separation. [ 81 ] Although the mother, like any other parent, has an obligation to help support her child, she has no income.

On the facts here, I cannot order either ongoing or retroactive child support to be paid, given the mother’s present lack of income and my concern that she may be unemployable. Nor do I consider this an appropriate case for lump sum child support. The mother has few resources and is presently dependent on her 79 year old mother. This situation may be long term or it may be temporary. If so, then income could be imputed to the mother in the future if she remains unemployed. [ 82 ] Instead of ordering lump sum child support now, therefore, I make the following order.

If the mother remains unemployed one year from the date of release of this Judgment and if she has not obtained an assessment and provided evidence to the satisfaction of the father that she is unable to work because of illness, then the father may bring a further application for child support, including lump sum support and retroactive child support from the end of trial to the date of the application. 4. Spousal Support: [ 83 ] The mother seeks both retroactive and ongoing spousal support. [ 84 ] I have set out the father’s income above. As already noted, the mother has no income.

However, her daily living expenses are being covered by her mother. [ 85 ] The parties’ relationship was not long term. They married in 2002 and separated in 2008. They did cohabit before the marriage

but, as I have already indicated, they did not meet until 2000. Thus, the total length of their relationship was eight years. Nonetheless, themother has no income. Clearly, therefore, she has a need. The mother stayed home with the child since the child’s birth, as well. Whetherthis created an economic dependence for the mother or not is a matter of speculation at this point. The mother had not worked for sixyears when the relationship commenced. Further, it seems relatively clear from the evidence that the mother had mental health issuesduring the marriage.

She was admitted to hospital in December 2006 and, from the evidence, it is clear to me that, at that time, she wasexhibiting some bizarre behaviours. It may be, therefore, that the mother’s inability to work did not stem from her role as a mother andwife in the marriage but rather from her mental illness. [86] The mother blames her current inability to work on stress associated with this court case and the conflicts she has had withChildren’s Services and other agencies and individuals, including the father.

As I have already said, I am unable to accept much of themother’s testimony because her perceptions are or may be skewed by her illness. To me it is at least as likely that her inability to work iscaused by her mental illness. Nonetheless, the disruption and emotional upset caused by the end of the marriage, the apprehension of thechild and this court case has clearly stressed both parents. Perhaps, therefore, the mother has an entitlement to spousal support, at leastfor some duration. [87] In Bracklaw v.

Bracklaw, (SCC), [1999] 1 S.C.R. 420, the Supreme Court of Canada concluded that theDivorce Act, RSC 1985, c. 3, as am, provides for spousal support based upon three different models. The compensatory modelcontemplates a marriage where a spouse has sustained an economic loss because of the marriage, such as foregoing a career. As themother had not worked for six years at the time she and the father met, this model is inapplicable to the case at bar. The contractualmodel is relevant where there is an express or implied agreement between the parties to pay support. Again, that model is inapplicablehere.

Throughout the marriage, the mother asserted that her abilities and employability were superior to the father’s and that she intendedto go back to work on the happening of certain events. The father had his own health difficulties and did not agree to support the mother.The third model is non-compensatory and arises from the social obligation that may arise from the marriage itself. This arises when it isapparent that the parties conducted themselves in a situation of mutual interdependence such as in assisting each other with extraordinaryexpenses or while the other party was ill.

Again, there is no evidence that this occurred here. [88] Further, under s. 15.2(6)(

b) of the Divorce Act, RSC 1985, c. 3, as am, I am directed to also apportion between the spousesany financial consequences arising from the care of the child of the marriage. The father does not have a high income. He also has thefull financial responsibility and care responsibility for the parties’ special needs daughter. This responsibility disables him from taking onany over time or weekend work, even assuming it were available. In addition, he must take time off from work to attend to the child’snumerous appointments.

As well, the father has, in the past, had to take time off work to deal with issues caused by the actions of themother, such as her threat to take the child from daycare or school. It also requires him to be the sole person responsible to pay all of thechild’s s. 7 expenses as well as to feed, clothe and house her. [89] The father’s budget shows expenses of $3,240.62 per month. This equates to $38,887.52 per year. The amounts set out forhousehold expenses all appear reasonable.

The budget includes the cost of the child’s daycare, assuming no subsidy, as well as thefather’s contribution of $100 per month to the child’s RESP. It also includes $250 per month the father is paying to Legal Aid in respectto his legal representation in this action. However, the amount he pays for bus services for the daughter is not included in this budget. Ihave reviewed his 2010 Statement of Earnings and it is evident that his salary deductions for income tax, pension, EI and union duesensure that his take home pay is less that $38,887 per year by thousands of dollars.

Therefore, he is running a deficit each month. Evenassuming that the mother has some entitlement to spousal support for some duration to enable her to get back on her feet, the father is notin a position to pay it. [90] Accordingly, I order no spousal support. 5. Division of Matrimonial Property: [91] The property owned by the spouses include the matrimonial home, located in Edmonton. It is subject to a mortgage. Thefather and the child currently live in this home. There is also a farm property located in Northern Alberta, and a 1995 Dodge Neon.Further the husband has a work related pension.

The only asset currently in the possession of the mother, is the Dodge Neon. The motherseeks an equal division of matrimonial property, including the farm property. The father argues that the farm property was never broughtinto the matrimonial regime and says further that the parties should share various liabilities that existed at the date of separation but havesince been paid off by the father. [92] The matrimonial home is in the name of the father alone. It was purchased for $120,000 in 2002 and is subject to a mortgage.The original principal amount was $110,970.

The grandmother provided $5,000 towards the down payment. However, her evidence was

that she did not expect to be repaid this amount. I find this was a gift. The home was valued by appraisal in August of 2010 at $260,000. The mortgage value in January 2008, when the parties separated, was $92,896.56. There was no evidence about the value of the mortgage at the date of trial. [ 93 ] The parties have agreed to the value of the home as established by the appraisal. The father wishes to keep the home and the mother does not argue that this should not occur. The case law has established that the date of valuation of matrimonial property for division purposes is the date of trial.

Based on this principle, the value of the mortgage should also be the date of trial. However, the mortgage has been reduced since the separation solely because of the father’s efforts. The mother has not paid any of the mortgage payments. Nor has she contributed any amount for the upkeep of the home. Indeed, during this entire time, the mother has lived rent free with her mother, so it is not a question of her having to pay for alternate accommodation. In my view, there is therefore, some justification for accepting the value of the mortgage at the date of separation.

In any event, I have no evidence of the value of the mortgage now and would simply be guessing. I therefore conclude that the value of the equity in the matrimonial home, distributable in matrimonial property division is $167,103. [ 94 ] In addition the father is the registered owner of two quarters of farmland in Northern Alberta. This land was acquired by the father and his brother by homestead in December of 1988. It is subject to a lis pendens filed by the wife in 2010. It was appraised on July 29, 2010 at $106,000. The land has no buildings on it of note and is used only for agriculture.

According to the appraisal 18 of the 159 acres on the south east quarter are cultivated and 58 of the 160 acres on the north east quarter are cultivated. The remainder of the land is uncleared bush land. The same appraiser was asked to value the land as of April 1, 2000. In his view, the land was valued at $49,000 on that date. [ 95 ] This land was acquired by the father prior to the commencement of the relationship between the parties. Clearly, therefore, the value of the land as of the date of marriage is exempt under the terms of s. 7(2) of the Matrimonial Property Act, RSA 2000, c. M-8.

I am provided with an appraised value as of April 1, 2000, notwithstanding that the date of marriage was April 2, 2002. I assume that April 1, 2000 was chosen because the parties’ relationship commenced on that date, although there was no direct evidence of that. Nor was there any direct evidence about when the parties commenced cohabitation although both indicate in their pleadings that they commenced cohabitation in 2001.

In the Amended Statement of Defence and Counterclaim, the mother asks for division of the value of the farmland based upon an equitable claim and says that the parties commenced cohabitation on April 1, 2000. That seems unlikely to be so. However, in the absence of evidence about the date cohabitation commenced, or of the value of the property as of that date, I am going to accept the value on April 1, 2000 of $49,000 provided in the appraisal as the value of the property before the cohabitation commenced.

This value is, of course, exempt in the hands of the husband. [ 96 ] The appraisal also establishes a value of $106,000 for the property as of August 2010. This means that the amount of $57,000 is potentially divisible as matrimonial property or on the basis of unjust enrichment. The property has been farmed by the father’s father (the “grandfather”) since about 1987. The father’s evidence was that he tried to grow a crop himself for about two years but that the property did not produce well.

Since then, the grandfather, who has other property nearby, has farmed the land and done all of the maintenance and improvement of the land, such as clearing rocks and ditching. According to the father, the grandfather would prefer the land be sold so that he no longer feels impelled to farm it. The father’s evidence was that neither he nor the mother have done any labour on the property since the date of cohabitation and, indeed, that they had almost never visited the land during the commencement of cohabitation, at the insistence of the mother.

The mother asserted that she helped with the land during the course of the relationship but when questioned closely during cross examination, admitted that she had stopped going to the farm when she was pregnant with the child, in the fall of 2001. She said that the husband did not go to the farm during the course of the marriage after that time. She said this was his choice. The husband said he did not go because the mother would not permit it. [ 97 ] Since the parties did not marry until 2002, it is clear from the mother’s evidence that neither did any work on the farm, since the date of the marriage.

As well there was no evidence that the parties paid the taxes or any other costs of the farm during the marriage and I find that it is likely that the grandfather paid these expenses. The grandfather has also kept all income from the farm. The evidence of the mother was that she went four times in total to the farm. The father says she went twice.

The mother acknowledges that she did none of the work on the property, such as seeding, cultivating, or harvesting when she did go to the farm but gave evidence that she aided the grandfather’s girlfriend in making meals for those, such as the father and the grandfather, who were doing the farm work. She also gave evidence of helping to build a granary at one point by standing inside the structure to ensure that screws being put in by someone else, were being properly placed in the pre-fabricated holes.

She said further that she took issue with the father permitting the grandfather to retain all of the crop income, criticized the grandfather for making the father feel obligated to allow him to retain the crop income, and told everyone about the way it should be done. In other evidence, it became clear that the granary she spoke about was not on the farm property and that any cooking she did was not done on the farm property either. Nor was it simply for those doing the farm work.

Basically, it appears she did a little cooking for the extended family on the occasions that she and her husband visited the farm. [ 98 ] The father argues that the non-exempt value of the farm should not be divided because the land was never brought into the

matrimonial regime. [99] The farmland is property governed by s. 7(3) of the Matrimonial Property Act. As it is property acquired before the marriage,there is no presumption that the division of the increase in value be equal. The factors set out in s. 8 of the Act are to be considered whendetermining what distribution would be just and equitable. [100] I have read Kremp v.

Kremp, (1988) 92 A.R. 188 (QB) aff’d (1989) 1989 ABCA 247 , 100 AR 6 ABCA, and the otherdecisions relied upon by the father for his position that where a property has not been brought into the matrimonial regime, it should beexempt from distribution. Notwithstanding the precise wording of the Matrimonial Property Act, I agree that it is possible, based uponthe case law, to conclude that an asset has not been brought into the matrimonial regime. In this case, the farmland comes close tomeeting this description. None of the income from the farm came to the family.

None of the work on the farm was done by either party.None of the expenses incurred were paid by the family. I note as well, if the land were to be sold, there would be tax implications for thefather as the owner. I prefer to deal with this property under s. 7(3) of the Act, taking into consideration the s. 8 factors. Bearing in mindthese factors, particularly s. 8(a), (b), (c), (k), and (m), I have concluded that the appropriate distribution is 99% distribution to the fatherand 1% to the mother.

Thus, by my calculations the wife should receive $570 of the value of the farmland. [101] The wife must remove the lis pendens from the property as a condition of being paid this amount. [102] There was a line of credit in the husband’s name alone. In January of 2008, the balance was $12,042.37. There is also a Visacard with a balance owing of $1,292.36 in January of 2008.

It is the father’s position that notwithstanding that these debts have now beenpaid off, since they were incurred when the parties were together for things that both parties used, and since it was the husband’sresources which paid these off during the separation period when the wife both had no living expenses and paid no child support, sheshould be liable to pay her half of these debts. [103] Normally, of course, the date of valuation for division of matrimonial property, which term includes matrimonial debt, is thedate of trial.

However, pre-separation debt has been considered by Alberta courts either under s. 7 of the Matrimonial Property Act byway of reduction of assets or, under s. 8 on the proportionate division of matrimonial property. [104] As is apparent in decisions such as Sparrow v. Sparrow, 2006 ABCA 155 and Carmichael v. Carmichael, 2007 ABCA 3, theCourt of Appeal favours the concept of determining “net matrimonial property” in division. The calculation of net matrimonial propertyrequires consideration of and normally equalization of matrimonial debt.

In paragraph 23 of Carmichael, the Court defined matrimonialdebt : “A debt is generally considered to be matrimonial debt if it was related to the acquisition of matrimonial assets, or to themaintenance of the lifestyle of the parties”.

On the evidence, it is clear that the line of credit and the Visa debt did maintain the lifestyleof the parties. [105] Bearing the concept of net matrimonial property in mind, in my view there is no reason to think that retirement of a debt afterseparation, should displace the presumption of equal division set out in s. 7(4), or that one must simply ignore it for purposes ofmatrimonial property division. [106] Further, I conclude that when one reads s. 8(

f) which says that a factor one may consider in division is whether the property wasacquired when the parties were living separate and apart, the term ‘property’ must be taken to include matrimonial debt in the same waythat the word ‘property’ found in s. 7 has been taken to include matrimonial debt. I consider as well that the term ‘acquired’ must betaken to include paying off as well as acquisition of debt after the separation: see for example Gillespie v.

Connelly 2007 ABQB 172,where a wife specifically sought unequal distribution of the property on the grounds that she had paid debts on behalf of the husband.Rowbotham, J. (as she then was) found that the wife was entitled to all of the limited matrimonial assets. [107] Based upon this

interpretation, I conclude that the value of the paying off of these two debts as of the date of trial is $13,334.73.In my view, the just and equitable distribution of this amount is 50/50. Therefore, the mother’s portion of this should be valued at$6,667.36. [108] There is an RESP for the child in the amount of $6,779.51. This is not matrimonial property because although it is the name of

both parents, they hold as mere trustees for the benefit of the child. This should be maintained for her benefit. Although the parties are named as joint contributors, the father has made all contributions. Because of the instability of the mother at the present time, I direct that the mother be removed as a subscriber. She will not be entitled to remove funds from the plan. However, she is entitled to receive copies of statements under the plan. [ 109 ] In addition, the father has a work based defined contribution pension plan. On June 30, 2008, this plan was valued at $31,663.

On April 1, 2008, it was valued at $30,677. Additionally, the father has an RRSP plan associated with his work. This plan was valued at $1,254 on June 30, 2008 and at $1,245 on April 1 of that same year. There is no updated valuation. As well there was no evidence provided as to when the plan and the RRSP contributions commenced. Reading the statement provided I could guess that contributions began in 2001, but this is not certain and I decline to guess. There is also no evidence of the value, if any, of the pension plan and the RRSP prior to the marriage.

Again, therefore, because of the paucity of evidence, I will assume that all of the value was acquired during the marriage and the presumption of equal division applies. Unlike the case for other assets, it will be easy for the plan holder to determine the value as of January 19, 2011. I direct, therefore that the value of both of these funds be divided equally by the holder of the plans at their value on January 19, 2011. When the pension becomes payable, one half of the value as of January 19, 2011 will be paid as a pension to the mother with the rest being paid to the father.

I direct that one half of the value of the RRSP as of that same date be rolled over into an RRSP account for the mother. [ 110 ] The 1995 Dodge Neon is in the hands of the mother. The father’s position is that its value is $650. The mother provided no evidence of the value of this vehicle and there was no indication of what her position was. I direct that the vehicle remain in the hands of the mother at a value of $650. [ 111 ] The father wishes to retain the matrimonial home and should be allowed to do so. The father will also retain the farm property.

I direct that the mother receive a lump sum payment of her share of the assets, subject to a reduction for the value of the Neon which she will retain and subject to the amounts that I have directed be held in trust for purposes of allowing the mother to have supervised access and allowing her to obtain the necessary psychiatric valuation. [ 112 ] Subject to any offers of judgment made or any other factors of which I should be aware, I make the following direction respecting costs. This trial went for more than twice the number of days it should have.

Most of the blame for the increased trial time must be placed at the feet of the mother. She was unable to govern herself in court in terms of responding directly to a question or staying on topic. For example, she was warned on numerous occasions during her closing argument that she had only the time she had estimated it would take to do her closing address and that she must move on from the topic of her mental health and that of her daughter, both of which subjects she seemed to be stuck on.

Notwithstanding being given much more time than she had been allotted and notwithstanding being warned beforehand that she would be cut off at 5:00 pm on the final day of trial, she remained on the same subject and had not dealt with most of the relevant issues, at all. She deprived herself of being able to provide argument in full, therefore, and deprived the father from being able to respond at all to her argument, except in writing. The mother’s conduct made the trial much more expensive for the father, who had counsel throughout. [ 113 ] The father has been mostly successful in this proceeding.

It is my view that the mother should pay double costs (but not double disbursements) for the trial days which took place in January. She should pay single costs to the father for the trial days in September. The costs may be deducted from her portion of the matrimonial property. [ 114 ] If there are issues respecting costs, of which I am unaware, the parties may speak to costs. Heard September 21-24, 2010 and January 19-21, 2011. Dated at the City of Edmonton, Alberta this 9 th day of March 2011.

D.C. Read J.C.Q.B.A. Appearances: Lucy Mussieux Kiriak Law Office for the Plaintiff Gregory O’Laughlin represented the Defendant for the trial September 21-24, 2010 (he was permitted to remove himself as counsel of record before the trial recommenced on January 19, 2011) A.M.F. represented herself at the continuation of the trial on January 19-21, 2011.