Fedor v. Fedor, 2011 ABQB 185

Court of Queen ’ s Bench of Alberta Citation: Fedor v. Fedor, 2011 ABQB 185 Date: 20110318 Docket: 4801 145558 Registry: Calgary Between: Ursula Margott Fedor Plaintiff - and - Joe Fedor Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice G.H. Poelman _______________________________________________________ I.

Issues [ 1 ] Ursula Fedor, by an application filed on October 28, 2010, applies for interim spousal support (retroactive to September 1, 2010) and interim costs to fund her legal expenses. [ 2 ] The primary issues that arise with respect to the claimed spousal support are her entitlement (including the applicability and enforceability of a pre-nuptial agreement), and if entitlement is established, the proper amount of support.

II. Facts A. The Relationship [ 3 ] After a relationship of approximately three years, the parties were married on April 4, 1998 and separated shortly over 12 years later at the end of August or early September, 2010. It was Ms. Fedor’s third marriage and Joe Fedor’s second marriage. Both had adult children from their previous marriages. On the date of their marriage, Ms. Fedor was 57 years old, and Mr. Fedor was 66 years old. They are now aged, respectively, 70 and 79. [ 4 ] Prior to their marriage, Ms. Fedor had been diagnosed with fibromyalgia, osteoarthritis and rheumatoid arthritis.

She had once worked as a medical receptionist, but was unemployed for some time before the marriage. Her income was comprised of disability insurance and a widow’s pension ($1,100.00 per month, $13,200.00 per year), and she lived in accommodations owned by a brother who resided in the United States. [ 5 ] As of their marriage date, Mr. Fedor was retired and received income from various pensions and investments, in the amount of about $64,500.00 per year. He also owned, debt free, his home. B.

The Pre-Nuptial Agreement [ 6 ] As a result of consulting with a solicitor, Douglas Korman, by telephone on March 9, 1998, Mr. Fedor decided that the parties should make a pre-nuptial agreement. It was prepared by Mr. Korman. The parties had one attendance at his office. Ms. Fedor was advised to obtain independent legal advice, and on the same visit met with Calum Bruce, in the office adjacent to Mr. Korman’s. Mr. Korman and Mr.

Bruce did not practice with the same firm. [ 7 ] The pre-nuptial agreement (“the Agreement”) was executed on April 1, 1998, and the acknowledgements contemplated under the Matrimonial Property Act [1] , including certificates of independent legal advice signed by Mr. Korman in respect of Mr. Fedor and Mr. Bruce in respect of Ms. Fedor, were completed. [ 8 ] For later reference, it will be helpful to set out the principal terms of the Agreement that are relevant to this application.

There are as follows: WHEREAS the parties hereto are about to enter into a marriage with each other and they desire to fix and determine by this Agreement the status, ownership and division of property, including future property owned by either or both of them; AND WHEREAS the parties desire to provide for the settlement of their affairs under the marriage or upon separation or annulment or dissolution of the marriage or upon the death of either party; ... AND WHEREAS it is the intention of the parties that

Part 1 of the Matrimonial Property Act ... shall NOT apply to their marriage and that this Agreement shall be deemed to be an Agreement pursuant to

Section 37 of the said Act and the sole determinant of the division of the property, now or in the future owned, used or enjoyed by either or both of them; ...

1. In this Agreement: (

a) The Husband’s premarital assets shall be those assets owned by the Husband at the time of the marriage and shall include any subsequent substitutions or any appreciation of same or any proceeds from the disposition of same and any income earned from the same including but not limited to those assets set forth in

Schedule A; ... (

c) The Husband’s future assets shall be: 1. The assets purchased or acquired by the Husband after the date of marriage and owned solely by the Husband, and 2. Any real and personal property inherited by the Husband after the date of marriage, and 3. All property received by the Husband as damages, except damages in respect of loss of income, and 4. All gifts received by the Husband from any source, and shall include any subsequent substitution or appreciation of same, any proceeds from the disposition of same and any income earned from the same. ... (

e) Matrimonial assets shall be any assets purchased by the Husband and the Wife together after the date of marriage and shall include assets purchased as tenants-in-common or as joint tenants. ... 2. The Husband and Wife are entering into the Agreement and have contemplated the effect of the Matrimonial Property Act ... [It] is their intention to have

Section 37 of the Act apply and the Husband and Wife do hereby agree that

Part 1 of the Matrimonial Property Act shall NOT [2] apply to the status, ownership and division of their property, either jointly or separately, or to any future property, whether real or personal and owned by either party or both of them. 3. The Husband and Wife agree that this Agreement shall be the sole basis for determining a division of the matrimonial assets, premarital assets and future assets of both the Husband and Wife. 4. Neither party shall ... have or acquire any right, interest or claim to the other party’s premarital assets or future assets ... except as set out in this Agreement.

Further each party forever releases the other party from any interest, claim or division of the other party’s pre- marital assets or future assets. ... 6. The Wife agrees that the Husband’s premarital assets and future assets shall remain the Husband’s sole and exclusive property during the marriage and upon the termination of the marriage. Further, the Wife agrees that the Husband’s premarital assets and future assets shall remain under the sole control, direction and ownership of the Husband at all times.

7. ... [N]either party shall have a right to an interest, claim or division of the other party’s premarital assets or future assets, or have the right to compensation ... by reason of any direct or indirect contribution by one party to the other party’s premarital assets or future assets whether: ... (

c) by reason of the parties having disproportionate assets or liabilities, or ....

(2) The parties and each of them accept the terms of this Agreement in full and final satisfaction and discharge of all claims and demands of every nature and kind whatsoever which either of them has or hereafter can or shall have as against the other with respect to the matters provided for in this Agreement. ...[T]hey will not bring an action against the other party claiming an interest in the other party’s pre-marital assets or future assets by way of quantum merit, constructive trust or resulting trust or otherwise. ... 8.

Except as otherwise specifically provided for in this agreement, upon the termination of the marriage, other than the death of one of the parties, all matrimonial assets, and all matrimonial liabilities shall be divided equally between the parties. ... 9.

In the event that there is a termination of the marriage, and if either party has converted any premarital asset or future asset or part thereof into a matrimonial asset, the value of the converted asset (or the value of the part thereof) shall be traced into the matrimonial asset before the division referred to in clause 8 hereof is effected and the party who converted the premarital asset or future asset shall be reimbursed or given credit for the value of the premarital asset or future asset (or the value of the part thereof) and thereafter the parties shall share the net equity in the manner set forth in paragraph 8.

C. Financial Affairs During Marriage [ 9 ] The parties lived initially at 77 Street S.W., Calgary. That residence was sold on July 31, 2006 for $2,100,000.00. Some of the funds were put into investments, and the balance was used to purchase these parties’ matrimonial home at West Meadows Court S.W., Calgary. [ 10 ] During argument, counsel agreed that the appreciation of the matrimonial home should be divided equally, pursuant to clause 9 of the Agreement.

The difference between its purchase price in 2006 ($739,000.00) and its current estimated value ($911,100.00, based on the current municipal tax assessment value as no appraisal has yet been done) is $172,100.00, of which Ms. Fedor’s share would be $86,050.00. There has, however, not yet been a property settlement, nor an agreed valuation of the matrimonial home. [ 11 ] Mr. Fedor did not earn employment income during the marriage, as he was retired. Ms.

Fedor had occasional income when called to work as an interpreter at the Court of Queen’s Bench, which amounted to about 15 hours a year at $45.00 per hour; and occasional work at Sewing World, for which she received fabrics rather than monetary payment. [ 12 ] Finally, Ms. Fedor declared some of Mr. Fedor’s pension income on her income tax returns during the marriage, in order that the parties could reduce the amount of tax payable between the two of them. D. Separation

[ 13 ] Ms. Fedor left the matrimonial home around the end of August or very early September, 2010. A couple of days later, she returned to remove some of the contents. On September 7, 2010 she withdrew $91,000.00 from a joint account. Pursuant to a consent order, $75,000.00 was paid into her solicitor’s trust account. E. Current Finances [ 14 ] Ms. Fedor currently earns $1,425.48 per month ($17,105.77 per year) from Old Age Supplement and Canada Pension Plan. There remains the possibility of minor income from interpreting, although she has not been called to work since before the separation. [ 15 ] Mr.

Fedor earns $116,625.00 per year from his pensions and investments. III. Entitlement to Spousal Support A. Pre-nuptial Agreement [ 16 ] As is evident from the above, the Agreement does not expressly exclude liability for spousal support. It is nevertheless strongly urged on Mr. Fedor’s behalf that it should be interpreted to have that effect. [ 17 ] The basis of the argument is that Mr. Fedor’s exempt pre-marital assets were defined to include assets that were income- earning (such as pensions and investments) and “any income earned from the same,” and the Agreement provides that Ms.

Fedor has “no right, interest or claim to [Mr. Fedor’s] ... assets.” Further, the Agreement provides in clause 7 (quoted above) that neither party has “a right to an interest, claim or division of the other party’s pre-marital assets or future assets.” [ 18 ] Mr. Fedor’s position is that because all of his income is a pre-marital asset, a claim for spousal support is a claim to a pre- marital asset. [ 19 ] Mr. Fedor relies upon Mastalerz v. Mastalerz [3] for the proposition that an agreement may exclude spousal support even if it is less express than would be expected under current practice.

It is acknowledged on behalf of Mr. Fedor that acceptable practice today would require express reference to spousal support if it is intended to be excluded, but it is argued that the practice may have been different in 1998.

A similar point was addressed in passing by Shelley, J. in Mastalerz , [4] where an argument was made that while a pre- nuptial agreement contained absolute waivers of any claim to maintenance the parties might have, it did not specifically waive rights under the Divorce Act . [5] The argument was apparently not pursued, and it was clear that the Agreement extended to both support and property division. In fact, it was held to be enforceable, although the main dispute concerned property. [ 20 ] In my view, on a plain reading the Agreement does not exclude spousal support claims.

In the recitals, it expressly states that

Part I of the Matrimonial Property Act does not apply; and the Agreement is deemed to be made pursuant to

section 37 of the Act and to be the sole determinant of the division of all of the property ever owned by either or both of them. Further, it defines the parties’ assets and sets out terms that exclude claims to assets or, in very limited circumstances, allow them. The structure, words and tenor of the Agreement show that it is intended to deal with rights to property (real and personal), not personal support claims.

I cannot find that these parties intended to exclude spousal support claims under the Divorce Act without words that expressly refer in some fashion to a spousal claim for support, alimony, maintenance or similar expression. That conclusion is reinforced by the contrast of very express language used in relation to division of property and the Matrimonial Property Act . [ 21 ] Both parties made extensive submissions in their materials and in court on whether the Agreement was valid, primarily in relation to arguments of undue influence, duress or lack of independent legal advice.

Because of my finding that the Agreement does not address spousal support, it is unnecessary to make a finding on validity. It would be unwise to do so on an interim application, because of the incomplete evidence and the impact that finding might have on other issues between the parties.

B. Entitlement under the Divorce Act 1. Non-Compensatory Support [ 22 ] Having found that the Agreement does not exclude spousal support, it must be determined whether Ms. Fedor is entitled to interim support under

section 15.2 of the Divorce Act . As the Court of Appeal has stated, the right to spousal support on marriage breakdown is not automatic, but will be ordered only in compliance with

section 15.2 . [6] [ 23 ] In Bracklow v. Bracklow , the Supreme Court of Canada stated that there are three conceptual grounds for entitlement to spousal support: compensatory, contractual and non-compensatory. [7] In argument, counsel agreed that there is no basis for Ms. Fedor to receive compensatory support because she did not make sacrifices or suffer hardships as a result of the marriage. Further, there is no basis for contractual support, because (on anyone’s

interpretation), the Agreement does not provide for spousal support. Thus, Ms. Fedor’s entitlement depends on whether there is a basis for non-compensatory support. The objectives of a spousal support order under

section 15.2(6) of the Divorce Act that are potentially relevant on the evidence are any economic disadvantages to Ms. Fedor arising from the marriage breakdown, any economic hardship arising from the marriage breakdown, and the promotion of economic self-sufficiency. [ 24 ] It is instructive to review what Bracklow teaches concerning non-compensatory support. McLachlin J. (now C.J.C.) referred to it as based on the “basic social obligation” model of marriage, [8] which remains part of the mix of modern social reality and legal theory (along with the “independent, clean break” model).

She recognized that the mutual obligation theory “posits marriage as a union that creates interdependencies that cannot be easily unravelled,” and that in its modern version it acknowledges both the theoretical and legal independence of each spouse and their interdependence. “It postulates each of the parties to the marriage agreeing, as independent individuals, to marriage and all that it entails – including the potential obligation of mutual support.” [9] [ 25 ] The policy ends and social values underlying the statutory provision for non-compensatory support were explained by McLachlin J. as follows: 31 The mutual obligation view of marriage also serves certain policy ends and social values.

First, it recognizes the reality that when people cohabit over a period of time in a family relationship, their affairs may become intermingled and impossible to disentangle neatly. When this happens, it is not unfair to ask the partners to continue to support each other (although perhaps not indefinitely). Second, it recognizes the artificiality of assuming that all separating couples can move cleanly from the mutual support status of marriage to the absolute independence status of single life, indicating the potential necessity to continue support, even after the marital “break”.

Finally, it places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistance rolls. 32 Both the mutual obligation model and the independent, clean-break model represent important realities and address significant policy concerns and social values. The federal and provincial legislatures, through their respective statutes, have acknowledged both models.

Neither theory alone is capable of achieving a just law of spousal support. The importance of the policy objectives served by both models is beyond dispute. It is critical to recognize and encourage the self-sufficiency and independence of each spouse. It is equally vital to recognize that divorced people may move on to other relationships and acquire new obligations which they may not be able to meet if they are obliged to maintain full financial burdens from previous relationships.

On the other hand, it is also important to recognize that sometimes the goals of actual independence are impeded by patterns of marital dependence, that too often self-sufficiency at the time of marriage termination is an impossible aspiration, and that marriage is an economic partnership that is built upon a premise (albeit rebuttable) of mutual support. The real question in such cases is whether the state should automatically bear the costs of these realities, or whether the family, including former spouses, should be asked to contribute to the need, means permitting.

Some suggest it would be better if the state automatically picked up the costs of such cases: Rogerson, ‘Judicial

Interpretation of the Spousal and Child Support Provisions of the Divorce Act , 1985 (Part 1)’, supra , at p. 234, n. 172. However, as will be seen, Parliament and the legislatures have decreed otherwise by requiring courts to consider not only compensatory factors, but the ‘needs’ and ‘means’ of the parties. It is not a question of either one model or the other. It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court. [10]

[ 26 ] McLachlin J. found that non-compensatory support is firmly mandated by the Divorce Act .

Section 15.2(4) requires that when making an order for spousal support or interim spousal support, a court must “take into consideration the condition, means, needs and other circumstances of each spouse.” The objectives of support orders under

section 15.2(6) extend to economic hardship arising from the breakdown of marriage, and might extend to “the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it.” [11] That provision also recognizes that a spouse’s lack of self-sufficiency could be related to many factors, including ill health. [12] [ 27 ] In

summary, McLachlin J. rejected the contention that the Divorce Act contemplated only a compensatory basis for spousal support. Rather, she held: But while the focus of the Act may have shifted or broadened, it retains the older idea that spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation.

Need alone may be enough. [13] [ 28 ] In the result, Bracklow holds that need may be a sufficient basis for awarding spousal support, even where it may not be justified on compensatory or contractual grounds. “Absent negating factors, it is available, in appropriate circumstances, to provide just support.” [14] 2. Need [ 29 ] Ms. Fedor earns about $17,100.00 per year from Old Age Supplement and Canada Pension Plan payments. She is 70 years old. She may earn occasional income if called as an interpreter, but there have been no requests for some time and such income would not exceed $500.00 per year.

She has no savings or other assets, and has been borrowing money from her brother for her needs. She states that she now owes him about $20,000.00 (although there is no documentary proof of indebtedness). [ 30 ] Ms. Fedor prepared a budget to establish her need, claiming monthly requirements of $5,514.25. On behalf of Mr. Fedor, it is suggested that a more reasonable monthly budget (after corrections and deletions) would be $2,325.00. It was conceded on behalf of Ms. Fedor that, as demonstrated in Ms. Fedor’s questioning, the original budget contained errors and duplications, but she disputes Mr.

Fedor’s reduced amount. [ 31 ] In Chutter v.

Chutter , the British Columbia Court of Appeal held that “the concept of ‘needs’ in the context of non- compensatory spousal support goes beyond basic necessities of life and varies according to the circumstances of the parties.” Further, they held that the objectives of the Divorce Act and the principles of non-compensatory support require a court to have some regard to the standard of living enjoyed by the parties during the marriage and the other spouse’s post-separation standard of living, rather than focussing solely on an applicant’s ability to meet her expenses. [15] [ 32 ] I agree with Mr.

Fedor that the original budget must be reduced to arrive at a reasonable estimate of Ms. Fedor’s needs. Mr. Fedor’s approach is for the most part reasonable, although it is overly aggressive in refusing items for which receipts are not provided - for example, parking, auto servicing, and toiletries and cosmetics. There is also a difference between the parties on what the documentation shows as out of pocket costs for Ms. Fedor’s many prescription drugs. [ 33 ] On the material before me, it is not possible to determine an exact budget.

It is not, however, necessary to be exact – particularly when addressing interim support. Furthermore, at the best of times budgets can only approximate monthly needs, as they cannot accurately forecast all contingencies. For present purposes, taking into account the proposed budget, the evidence concerning it and the parties’ submissions, I find that a reasonable and modest monthly budget for Ms. Fedor is $2,500.00. [ 34 ] Even on Mr. Fedor’s suggested monthly budget, there would be a disparity of about $860.00 per month, or $10,320.00 per year between Ms. Fedor’s income and her needs.

At the revised monthly amount of $2,500.00, the difference would be about $1,030.00 per month, or $12,360.00 per year.

[ 35 ] Mr. Fedor nevertheless maintains his argument that need has not been established. In support of his position, he argues that Ms. Fedor was married twice before, has three adult children, and a brother and sister who are capable of supporting her – and that her brother has, in fact, “been helping to support [her] since separation, as he did prior to the marriage.” Further, Mr. Fedor argues that “she has clearly shown previously that it is possible to be self-sufficient on her present income, with the help of her family (her siblings and three adult children).” [ 36 ] Ms.

Fedor responds by referring to her affidavit evidence that the assistance she is receiving from her brother is in the form of a loan. More importantly, however, in my view a case of need cannot be answered by pointing to relatives who could provide support. Mr. Fedor has only succeeded in reinforcing what should be obvious from Ms. Fedor’s annual income and any reasonable view of her budget: she is unable to obtain the reasonable necessaries of life for someone in her position, without support. [ 37 ] I am, therefore, satisfied that Ms. Fedor has established need.

It is no answer at this stage of the analysis that the need should be met by someone else. 3. Negating Factors [ 38 ] It is therefore necessary to consider whether there are any “negating factors,” as contemplated in Bracklow , [16] which would indicate that support should not be ordered despite need having been established. I bear in mind that while it is practically useful to deal separately with “entitlement” and “quantum” the same factors that go to entitlement often have an impact on quantum. [17] [ 39 ] The factors that Mr.

Fedor argues “negate” entitlement to support, despite need, may be summarized as follows:

a) Ms. Fedor did not contribute to household expenses. Rather, she retained her own income during the marriage.

b) There is no evidence that her illnesses (fibromyalgia, osteoarthritis and rheumatoid arthritis) are worse than they were at commencement of the marriage.

c) Ms. Fedor has not been disadvantaged by the marriage. Rather, she leaves the marriage with approximately a 30 percent increase in income (without taking into account inflation) over what she was earning approximately 12 years ago, before the wedding.

d) There has been no economic hardship arising from the breakdown of the marriage. Rather, Ms. Fedor is in about the same position as she was before marrying Mr. Fedor, except that she probably acquired significantly more household goods. [ 40 ] The last points capture the essence of Mr. Fedor’s position: Ms. Fedor is back where she was 12 years ago, and it was her decision to leave the marriage. In these circumstances, she cannot be said to have been disadvantaged in any way, and he has no obligation to provide support. [ 41 ] With respect, Mr.

Fedor’s arguments would more properly be made in answer to a claim based on compensatory grounds. Further, the issue of which spouse caused the marriage breakup is expressly made irrelevant by

section 15.2(5) of the Divorce Act . In any event the evidence does not permit a finding on that point. [ 42 ] Mr. Fedor’s submissions are inconsistent with McLachlin J.’s recognition that marriage will usually entail some obligation of mutual support in the case of need following separation.

The mutual obligation view of marriage, part of the theory informing legal principles, “places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistance rolls.” [18] In my view, that primary burden of support takes precedence over the possible availability of support from relatives,

particularly as they have no legal obligation to provide support. That objective is consistent with recognition of the economic disadvantage and hardship sustained by Ms. Fedor arising from the marriage breakdown, within the meaning of sections 15.2(6) (

a) and (c). In other words, while she may be situated similarly to her pre-marriage position, she is disadvantaged in comparison to the position she enjoyed while married. [ 43 ] Finally, Mr. Fedor argues that his financial circumstances must be considered. I accept that when considering a claim for non- compensatory support, the payor spouse must have an ability to pay; that is expressly stated in

section 15.2(4) of the Divorce Act . Mr. Fedor argues that most of his interest income will disappear in 2012 (because a term deposit matures, and he intends to give the proceeds to his son), and his costs are likely to rise substantially because of his age and health. He pays for the cost of maintaining the matrimonial residence. [ 44 ] In my view, the evidence falls far short of establishing that Mr. Fedor is unable to pay reasonable monthly support to Ms. Fedor. He has no obligation to turn over his interest-earning assets to his son, and a desire to do so cannot displace an obligation to Ms. Fedor.

His argument about the likelihood of increasing health costs applies equally to the risks facing Ms. Fedor, and has not yet caused him financial difficulties. Finally, it was acknowledged in argument that the costs of maintaining the matrimonial home will be claimed as a credit when the property division is determined. [ 45 ] I am satisfied that Ms. Fedor has established need and there are no factors negating an entitlement to non-compensatory support. IV. Amount of Spousal Support [ 46 ] Mr.

Fedor argues that if spousal support is ordered, the amount should be based on a revised budget, should allow for the fact that some of Ms. Fedor’s needs should be paid for by other relatives, and should recognize the funds withdrawn by Ms. Fedor on separation and income tax paid on her behalf by Mr. Fedor. [ 47 ] Need does not necessarily determine the amount of support.

As McLachlin J. stated in Bracklow , “need is but one of a number of factors that the judge must consider,” and “the quantum awarded, in the sense of both amount and duration, will vary with the circumstances and the practical and policy considerations affecting particular cases.” [19] Circumstances mentioned by McLachlin J. include limited means of the supporting spouse, obligations arising from new relationships, and duration of marriage. [ 48 ] The parties’ marriage was, at 12 years, not short – particularly in light of their age at its commencement. Ms.

Fedor has established need, and the evidence shows that Mr. Fedor has reasonable means to pay – particularly in light of his stated desire to give away nearly half of his income-earning assets to his son. He has not taken on new obligations. Given Ms. Fedor’s age and disabilities, there is no reasonable basis to expect her to become self-sufficient in the future, except for the possibility that she will receive a property settlement based on the appreciation of the matrimonial home.

Finally, in my view, an order that would assume continued support by relatives would be inconsistent with the commitment involved in marriage recognized in the Divorce Act and the authorities. I cannot assume, in effect, that the marriage never took place. [ 49 ] Of the factors identified in

section 15.2(4) of the Divorce Act , the evidence does not disclose that functions performed by either spouse during co-habitation are significant for the question of support, and there is no order, agreement or arrangement relating to support. [ 50 ] Based on my findings regarding the budget, the shortfall between Ms. Fedor’s monthly needs and her income is about $1,030.00. That amount is a strong indicator of a starting point for the proper level of support, in light of Ms. Fedor’s inability to earn additional income and her relatively modest monthly requirements. (The budget submitted by Mr.

Fedor for his monthly expenses, by comparison, is $5,310.00.) [ 51 ] The Spousal Support Advisory Guidelines prepared by Carol Rogerson and Rollie Thompson [20] have been recognized as a useful cross check or starting point in the exercise of judicial discretion. [21] The Guidelines show a range of monthly spousal support in

this case of between $1,493.00 and $1,990.00, with a mid point of $1,742.00. [ 52 ] In my view, the proper monthly spousal support to be paid by Mr. Fedor on an interim basis is $1,500.00. That amount is based primarily on Ms. Fedor’s ill health, the length of the marriage, her inability to become self-sufficient, the disparity between needs and income, the need for some protection against adverse contingencies, Mr. Fedor’s means, and the range of support indicated by the Guidelines . A higher amount, however, would not be justified. Ms. Fedor had a relatively modest lifestyle before and during her marriage.

She must now adjust to a standard of living that is less than she enjoyed with Mr. Fedor, but spousal support is not intended to equalize income or even the marital standard of living. [22] [ 53 ] For purposes of this interim spousal support order, I will not specify duration.

I am mindful that assumption of responsibility for another’s support does not equate to “a pension for life for the dependent party,” and that “indefinite support cannot be demanded by a spouse if that individual has not been asked to or required to compromise their economic self-sufficiency for the benefit of the family unit.” [23] As noted above, it seems likely that Ms. Fedor will receive a lump sum payment on account of her interest in the matrimonial home’s appreciation.

Thus, this interim spousal support order will continue until the matrimonial property has been divided, at which point it may be continued, varied or terminated. [ 54 ] Mr. Fedor asks that, if spousal support is granted, credits be given for $16,000.00 (the portion withdrawn from a joint account that was not paid into a solicitor’s trust account) and $7,716.00 prepaid for Ms. Fedor’s 2010 income tax. [ 55 ] I decline to give credit for those amounts in the context of an interim spousal support order.

First, the application before me does not involve a determination of property division issues, including joint accounts and tax liabilities. Those matters must be addressed later, in their proper context and with necessary evidentiary foundation. Second, my order for interim spousal support is largely based on need at this preliminary stage in the lawsuit, and granting offsets of the nature requested would defeat the purpose of the relief. V. Legal Costs [ 56 ] The evidence and counsel’s submissions have satisfied me that it is reasonable to grant Ms. Fedor’s request that Mr.

Fedor pay interim costs in the amount of $10,000.00, to enable Ms. Fedor to protect her interests in the litigation. Among other things, it may be necessary to commission an appraisal of the matrimonial home. The payment of costs will be a credit in favour of Mr. Fedor in the matrimonial property division. VI. Conclusion [ 57 ] For the reasons given above, Mr. Fedor is directed to pay to Ms.

Fedor as interim spousal support the amount of $1,500.00 per month, retroactive to September 1, 2010, and continuing on the first day of each month thereafter until there has been settlement or judgment dividing matrimonial property, at which time this order may be continued, varied or terminated; and Mr. Fedor is directed to pay to Ms. Fedor as interim legal costs the amount of $10,000.00, which will be a credit in favour of Mr. Fedor in the division of matrimonial property. [ 58 ] The parties have leave to speak to costs of this application, if they cannot agree. Heard on the 03 rd day of March, 2011.

Dated at the City of Calgary, Alberta this 18th day of March, 2011.

G.H. Poelman J.C.Q.B.A. Appearances: John C. Soby, Q.C. Soby Boyden Lenz for the Plaintiff Laurie Stephen Kirk Montoute Dawson LLP for the Defendant [1]R.S.A. 2000, c. M-8. [2]Original emphasis. [3]2007 ABQB 416, 419 A.R. 323. [4]Para. 21. [5]R.S.C. 1985, c. 3 (2nd Supp.). [6]Rockall v. Rockall, 2010 ABCA 278, para. 12. [7]Bracklow v. Bracklow, (SCC), [1999] 1 SCR 420, paras. 15 and 49; see also Corbeil v. Corbeil, 2001 ABCA 220,para. 29. [8]Bracklow, paras. 23 and 25. [9]Bracklow, para. 30. [10]Original emphasis. [11]Bracklow, para. 41. [12]Bracklow, para. 42. [13]Bracklow, para. 43. Original emphasis. [14]Bracklow, para. 49.

[15] 2008 BCCA 507 , paras. 55 , 60, and 88. [16] Bracklow , para. 49 . [17] Bracklow , para. 50 . [18] Bracklow , para. 31 . [19] Bracklow , para. 53 . [20] Ottawa: Department of Justice, 2008. [21] Sawatzky v. Sawatzky , 2008 ABCA 355 , 440 A.R. 267, paras. 13 to 17 . [22] Bracklow , para. 50 . [23] Fritze v. Day , 2001 ABQB 172 , para. 48 .