Kretschmer v. Terrigno, 2011 ABQB 221

Court of Queen ’ s Bench of Alberta Citation: Kretschmer v. Terrigno, 2011 ABQB 221 Date: 20110406 Docket: 4801 131292, 0701 04341 Registry: Calgary Docket: 4801 131292 Between: Monica Valerie Kretschmer Plaintiff - and - Maurizio Dante Terrigno Defendant Docket: 0701 04341 Between: Antonietta Terrigno Plaintiff - and - Monica Valerie Kretschmer and Maurizio Terrigno Defendants

Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.T. McCarthy _______________________________________________________ I. Introduction [ 1 ] The 22 day trial of the above-noted matters took place in September and October of 2010. The Plaintiff Monica Valerie Kretschmer (the “Wife”) in action number 4801-131292 claims against Maurizio Dante Terrigno (the “Husband”) for the following:

i) Restraining Order; ii) Retro-active and ongoing child support; iii) Spousal Support; and iv) A determination and division of matrimonial assets and liabilities. [ 2 ] Parenting matters dealing with access and custody have been previously dealt with by an Order of this Court dated September 1, 2010. [ 3 ] The trial of action no. 0701-04341 was also heard concurrently. In this action Antonietta Terrigno (the “Mother”) of the Husband claimed for a beneficial interest in the two condominiums which were matrimonial assets.

The Mother abandoned her claim for a beneficial interest in the two units late in the trial proceedings. [ 4 ] The Husband and Wife cohabitated from approximately January 1, 2004 (the date of cohabitation) until they were married on September 3, 2005 (the date of marriage). One child of the marriage Marcello Terrigno (“Marcello”) was born on [...], 2006. The parties separated in February, 2007.

They were divorced by a judgment granted March 2010. [ 5 ] At the date of cohabitation, the Husband owned 45% of the shares in the Osteria de Medici Restaurant Ltd. which owns and operates a restaurant of the same name in Calgary (the “Osteria”). For the duration of the parties cohabitation and marriage and since their separation, the Husband has managed the Osteria and his income is directly or indirectly derived from this enterprise. II. Restraining Order [ 6 ] The Wife has requested a restraining order on terms.

The Husband has requested a no contact order against the Wife although he did not claim for this relief in his pleadings. The Wife’s claim for a restraining order has not been contested by the Husband. Therefore a restraining order on suitable terms and conditions will be granted that permits the parties contact for the limited purpose of communicating directly, by telephone, by email, by text message, through their parenting journal, at meetings with Michael Porter (their

parenting co-ordinator) solely with regard to Marcello’s parenting issues. The restraining order shall reference the Wife’s request that herresidential address not be disclosed to the Husband. III. Retroactive and Ongoing Child Support [7] The Wife claims against the Husband for child support. In order to conclude this matter, it is necessary for the court todetermine the income of the Husband. The Husband makes no claim against the Wife for either child or spousal support. There areoccasions when sources of income do not give a reliable picture of a parent or spouse’s annual income for support purposes and for theseoccasions the Court has been given a discretion in

Section 19 of the Federal Child Support Guidelines (FCSG). This discretion is broadallowing the court to impute such amount of income to a spouse “as it considers appropriate in the circumstances”.

Section 19 contains alist of circumstances but it is not exhaustive. [8] The Wife submits that there is nothing in

Section 19 that suggests that other appropriate circumstances must be analogous tothose specifically enumerated. I agree. The wording is such that the categories listed in

section 19(

a) through (

i) are examples ofsituations in which income may be imputed. The purpose of the

section is to attribute income to a spouse who has not supplied the courtwith a true indication of his or her income. See Bak v. Dobell, 2007 ONCA 304 , 2007 O.J. No. 1489 (Ont.C.A.); Riel v.Holland, (ON CA), 2003 O.J. No. 3901(Ont.C.A.); Mascarenhas v. Mascarenhas, (ON SC), 1999O.J. No. 37 affirmed 2000 O.J. No. 6030 (Ont. S.Ct.J.). [9] It is important to note that

section 23 of the FCSG provides that where a spouse fails to give adequate financial informationand because of this the court tries an issue of child support, it may draw an adverse inference against the offending spouse and imputeincome at a level it considers appropriate. [10] It is very important to note at this point the 2005 Cashflow and 2006 Cashflow analyses which are located at Binder 1, Tab Dwere prepared by Michael Terrigno, the Chief Financial Officer for the Osteria.

These Cashflow analyses as they apply to the Husband(Maurizio) state in part as follows: CASHFLOW 2005 Current MAURIZIO Petty Cash $15,544.00 Payments to visa (Personal Items) $39,000.00 Wages $24,000.00 Mortgage $39,600.00 RRSP Contribution $25,600.00 Basement Suite Income $8,400.00 Vehicle-Insur/lease/gas $11,600.00 Cash Outflow for Personal spending $86,944.00

Total Cash Outflow $163,744.00 Required Earnings Before Taxes $233,920.00 Notes: Total Cash outflow = Petty Cash+Payments to Visa+Wages+Mortgage payments+RRSP+Vehicle expenses (in your case I add the basement suite income). Cash Outflow for Personal spending=money not put towards Investment=petty cash+payments to visa+wages+vehicle expenses+(in your case basement suite income). “ IMPORTANT ”

Summary The Required Before Tax Income figure above is the amount you would need to earn to cover your life style and save in your RRSP-i.e. if you want to live in the house you do, if you want to drive the car you do, if you want to travel the way you do, if you want to go out as you do et cetera, you would need to earn this amount. Just to put things in perspective Bernard at Spruce meadows earns 65k. Yr - 25% of what you earn! I promise you these figures are as accurate as I can get them. Feel free to ask sheri to clarify.

Also note that this is only the stuff we can track and does not include what you have taken from princess and other sources that we are unable to track or that you have been successful at conceiling. CASHFLOW 2006 Current MAURIZIO Wages $24,000.00 Petty Cash $5,000.00 Overpayment to credit card $83,971.29 Mortgage $39,600.00 Utilities/gas/sewage/property/tax/telephone $13,222.19 RRSP Contribution $15,000.00 Basement Suite Income $8,400.00 Vehicle-Insur/lease/gas $16,585.51

Total Cash Outflow $205,778.99 Required Earnings Before Taxes This is the amount you would need to earn to sustain your life style $293,969.99 *Misc Payments Canmore $140,000.00 Mom payment to Canmore 20,000.00 Renovations 1404 Memorial 20,000.00 Mom investment with Philipchuck 35,000.00 $215,000.00 **No payments in the future without well in advance notice of charges and acceptance by mom/dad 2006 Total Cash Outlay Wages, overpayment to credit card, mortgage, utilities, sewage, property tax, RRSP contribution, Basement suite income, Vehicle insurance, lease, gas, payment to Canmore, renovations of 1404 $504,750.28 Required before tax earnings $721,071.83 [ 11 ] The key words used by the Chief Financial Officer of the family enterprises including the Osteria are as follows in the 2005 Cashflow “ Bernard at Spruce meadows earns 65k.

Yr - 25% of what you earn! ” This tells me that the Husband must have been earning the equivalent of $260,000.00 per year in 2005. [ 12 ] There is a further quote “ Also note that this is the only stuff we can track and does not include what you have taken from princess and other sources that we are unable to track or that you have been successful at conceiling (sic).” [ 13 ] The Husband has minimal automotive costs and this is consistent with the information shown on the cashflow statements.

I am convinced that these cash flow summaries as well as other evidence produced at trial demonstrate that the Husband has or has had access to resources or “means” other than his reported income from the Osteria. These Cashflow summaries show that the Husband has or has had rental income from the basement suite of $8,400.00 per year and $40,600.00 in RRSPs paid for in these two years in excess of his income. These are the two years immediately prior to the separation which occurred in February of 2007. [ 14 ] The Husband has no housing costs. The house he lives in is in the Mother’s name.

It appears that he pays nothing for living in the house that his Mother owns. However, he has received rental income from it in the past. It appears the housing benefit derives indirectly from the Husband’s association with the restaurant through his Mother who is also a key figure in the restaurant operation. [ 15 ] It was the evidence of the controller/bookkeeper that the basement suite was rented to the employees of Osteria and that the Husband receives this income to “reduce his debt”. Therefore, an additional $8,400.00 per year should be attributed to him.

[ 16 ] Monies in the amount of $140,093.00 which the Husband claims to be a debt owing by him to the Osteria are not a debt. Most of these monies were for the personal benefit of the Husband while some others were legitimate expenses incurred on behalf of the Osteria for which he was repaid. This purported loan will be dealt with later in this Judgment. [ 17 ] I agree with the submissions on behalf of the Wife that an amount of income should be imputed to the Husband to capture the “means” which are not reflected on his income tax returns.

This in my view should include the housing and Osteria benefits on an ongoing basis some of which have been demonstrated in the Cashflow summaries for the time the marriage was intact. I further agree with the Wife’s submissions that the Husband was and is still treated as a self-employed business man and this is how he holds himself out publicly.

For example the records of Probation Services [Binder 3, Tab K4] and the oral testimony of his Probation Officer demonstrates that the Husband claimed to “own his own business” and “have an extensive amount of money”. [ 18 ] The Wife submits and I agree that it is only post-separation and within the context of these divorce proceedings that he has purported to be something less than self-employed or an owner of the Osteria and to be financially challenged. [ 19 ] This is an appropriate circumstance where the Court should exercise its discretion pursuant to

Section 19 of the FCSG. I agree with the Wife’s submissions in this case that the Husband was and may still be the owner-manager of the Osteria together with his family members and their inter-related companies and family trusts. Whether he did or did not sell his shares in the Osteria, he is in a non-arms length relationship with his employer. Most importantly his income earning capacity is not transparent or verifiable and potentially suspect.

As the CFO of the family enterprises has said and to repeat “also note this is the only stuff we can track and does not include what we are unable to track or that you have been successful in conceiling (sic)”. [ 20 ] According to the Wife’s evidence, for the duration of the parties cohabitation and marriage, the Husband and Wife “shopped” and ate at the Osteria and in this way minimized or avoided incurring household or groceries and sundry expenses. I have no doubt that this continues to be the case for the Husband.

The Wife submits and I agree that sections 17-19 of the FCSG may be employed for instances like this one to add back the means and benefits and resources that the Husband enjoyed from the Osteria or related family companies, members, or trusts. [ 21 ] The Husband submits that everything changed after the delivery of the Cashflow analyses for 2005 and 2006. This is probably true and the Husband was probably cut back somewhat.

The CFO suggested in his 2005 Cashflow analysis that the Husband should cut back $20,000.00 per year less than he was currently spending. [ 22 ] Even with a cut back of this amount the CFO’s own notes shows that the Husband’s income would be reduced therefore from $260,000.00 per year in 2005 to $240,000.00 per year. The Husband submits that no RRSP contributions were made at all in tax years 2007, 2008 or 2009 after the break up. That is his choice. [ 23 ] The Husband’s share in the Osteria was purportedly sold for $495,000 in 2005 to a family trust after the Wife did not sign a pre-nuptial agreement.

No cash exchanged hands in the transaction and no satisfactory explanation was given at trial as to what happened to this money. [ 24 ] The Wife submits and I agree that in the unique circumstances of this case all of the resources or means afforded the Husband are in “net dollars”. The FCSG preference is on “gross dollars”.

Grossed up for tax as for the blended tax rates by year for Alberta the resources available to the Husband may be calculated as follows: Alberta (AB) combined federal & provincial tax rates Marginal Tax Rates Other Income 2007 Taxable Income 2008 Taxable Income 2009 Taxable Income 2010 Taxable Income

39.00% over $120,887 over $123,184 over $126,264 over $127,021 $60,000.00 the Amount the Husband claims to be his salary from the Osteria; $39,000.00 the equivalent of the mortgage costs paid by someone other than the Husband in the amount of $39,600.00 per year net of cash as per the Cashflow statements noted above. $15,093.00 for the value of the Husband ’ s paid for automotive costs which is the average for the years 2005/2006 ($11,600 + $16,566) as per the Cashflow statements noted above. $8,400.00 rental revenue from the basement suite as per the above-noted Cashflow statements; $20,300.00 “ paid for ” RRSPs as per the above-noted Cashflow statements.

The average $25,600 + $15,000 for the years 2005-2006 total $142,393.00. $142,793.00 Total $197,926.00 MTR Tax Gross Up @ 39.00% [ 25 ] The basis upon which the Husband claims $60,000.00 per year as his income is unclear and contradictory. For example, if the Husband’s line 150 income for his 2003 to 2007 tax returns are averaged, including his 2005 taxable capital gain, the average amount is $120,853.00. It is also important to note that the Husband submits in argument that he invested a large sum of money in a lavish wedding party.

The wedding costs were in excess of $140,000.00 and yet the controller/bookkeeper was asked at trial if the costs of the wedding were written off as an expense by the Osteria and she confirmed that they were. This could be included as a benefit to the Husband that would go toward imputing income as well. As a result, I have no concerns whatsoever in imputing an amount of income to the Husband in the amount of $197,926.00 per annum. This was the amount requested by the Wife in argument.

In my view it could have been a larger amount but based on the Wife’s representations, I will set the amount at $197,926.00. [ 26 ] I accept the Wife’s submission that the parties are unlikely ever to easily ascertain the Husband’s income and that the prospect of adjusting his child support obligations on an annual basis in the ordinary course are simply inviting a revisitation of all of the issues which have now been tried at untold expense.

The Wife’s evidence at trial was that she tried to settle matters through mediation and that the Husband told her that there was no way that he was going to let her get away that easy and that he was going to take every penny she had.

I accept the Wife’s evidence in this regard. [ 27 ] The $197,926.00 gross amount is consistent with the Wife’s testimony at trial i.e. that the Husband represented to her and demonstrated that his every living expense was paid for by or through the Osteria but for tax purposes he claimed a nominal salary. [ 28 ] The Husband’s imputed guideline income is retroactive to the date of separation of the parties. Based on the Wife’s current guideline income of $66,000.00 and an imputed guideline income of $197,926.00 to the Husband, his

section 3 Child Support obligation is $1,717.00 per month. [ 29 ] The Husband shall pay 72.10% of Marcello’s

section 7 expenses to the Wife presently consisting of $660.00 per month, of which the Husband’s proportionate share is $492.00 per month. Therefore the Husband’s combined payment owing to the Wife for child support is $2,209.00 per month on an ongoing basis. [ 30 ] On a go forward basis the Husband’s child support obligation will be based on an imputed income of $197,926.00 with the

result that he shall pay $2,209.00 per month in combined

section 3 and

section 7 support. [ 31 ] Based on the foregoing, the Husband’s retro-active child support due to her for the period March 1, 2007 to and including March 1, 2011 is in the amount of $64,299.65 calculated in the following manner: (a) 2007: March 2007 to and including December 2007:

i) Based on the Wife’s GL income of $29,368 per year; and ii) Based on the Husband’s imputed income of $197,926 per year; iii) Based on annual

Section 7's of $1,260 gross, calculated to be $791 net; iv) The Husband would need to pay $1,774 per month in Child Support (s. 3&7) x 10 months = $17,740 . (b) 2008: Based on:

i) The Wife’s GL income of $56,118; and ii) The Husband’s imputed income of $197,926; and iii) Based on annual

Section 7's of $4,060 gross, calculated to be $2,680 net; iv) The Husband would need to pay $1,890 per month in Child Support (s. 3&7) x 12 months = $22,680 . (c) 2009: On June 16, 2009 Justice Brooker granted an Interim Order that directed that the Husband would have Marcello in his care 40% of the time [Binder 3, Tab J24]. Therefore, for the period of January through June 2009, based on:

i) The Wife’s GL income of $66,507; and ii) The Husband’s imputed income of $197,926; and iii) Annual

Section 7's of $4,650 gross, calculated to be $3,069 net; iv) The Husband needs to pay $2,006 per month in Child Support (s. 3&7) x 6 months = $12,036 . (d) 2009: For the period July through December 2009, based on:

i) The Wife’s GL Income of $66,507; ii) The Husband’s imputed income of $$197,926; iii) The Husband having shared custody of Marcello; iv) Childcare costs have been included in sub-Paragraph (

c) above; Montessori costs for 2009 total $1,550.

v) The Husband would need to pay $1,364 per month in Child Support (s. 3&7) x 6 months = $8,184 . (e) 2010: By Order granted February 8, 2010 [Binder 3, Tab J30] Justice Brooker varied his July 16, 2009 parenting Order, with the result that the Husband no longer had shared custody of Marcello. For the month of January 2010, the Husband’s child support obligation continued to be $1,364 . For the period February through March, 2011 based on:

i) The Wife’s estimated 2010 GL Income of $66,000;

ii) The Husband’s imputed 2010 income of $197,926; iii) Childcare costs (to date) of $4,221 gross, calculated to be $2,786 net; iv) Montessori costs of $5,600 gross;

v) The Husband would shall pay $2,327 per month in child support (s. 3&7) x 14 months = $32,578 . [ 32 ] Base on the foregoing calculations, the Husband shall pay the Wife $94,582 for Marcello between March, 2007 and March, 2011 inclusive ($17,740 + $22,680 + $12,036 + $8,184 + $1,364 + $32,578). [ 33 ] To date, the Husband has paid $30,282.35 to the Wife or on behalf of Marcello as set out below: (a) $27,714 in Child Support directly to the Wife pursuant to Court Orders [Binder 1, Tab A9].

At trial there was evidence to suggest that there is a bank draft for $519 [Binder 6, Tab 10] that the Husband issued, but the Wife has yet to receive and it was not included in this amount. (b) $1,450 to Marcello’s Montessori school fees; (c) $550 from the Mother in two separate cheques marked “assistance” (

d) An additional $2,250 [See: Binder 1, Tab B7] paid by the Husband to Marcello’s childcare provider during “his parenting time” of which the Wife’s share is 25.26% being $468.35 which amount is included in the $30,282.35 as a credit against what is owing by the Husband to the Wife. [ 34 ] After deducting what the Husband has paid to the Wife as summarized above, the amount he still owes to her for retroactive child support is $64,299.65 ($94,582 - $30,282.35). [ 35 ] These calculations are based on the Childview Child Support Calculations which were provided by counsel for the Wife in her written argument. [ 36 ] In

summary the ongoing child support from April 1, 2011 for the Husband shall be $2,209.00 per month which includes his portion of s. 7 expenses which is 72.10 percent of Marcello’s s. 7 expenses presently in the amount of $660 per month of which the Husband’s proportionate share is $492 per month. The Husband shall pay child support to the Wife in an amount of $2,209 per month. IV. Retroactive Spousal Support [ 37 ] The Wife seeks spousal support for an 18 month period. The Wife did make considerable efforts to become self-employed in difficult circumstances after the breakdown of the marriage.

At the time of the breakdown of the relationship she was on maternity leave collecting employment insurance and could not return to employment as a full-time flight attendant and single parent of Marcello. She had to spend a significant amount of time in litigation proceedings with the Husband which impacted her employment prospects and earning capacity. [ 38 ] She did not obtain full-time employment at an income with which she could sustain herself.

In these circumstances where the cohabitation relationship was short (38 months) and the marriage itself was 18 months and where there was a significant income disparity, I am convinced that the Wife did suffer economic hardship and should be awarded an amount to assist her in her transition to

self-sufficiency resulting from the marriage breakdown and to compensate her for economic loss for a brief period after the marriage. [ 39 ] In these circumstances and considering that the Wife’s 2007 income was reported at $42,994.41 and her 2008 income was reported at $57,509.00 a lump sum in the amount of $15,000.00 is awarded to the Wife. V. Division of Martial Assets and Liabilities

A) Exemptions and Contributions by Other [ 40 ] The Wife is entitled to a $15,000 exemption from the sale proceeds of the Canmore Condominium having invested $30,000 of her pre-martial monies into their deposit. The Husband is entitled to a $7,500 exemption, having invested $15,000 of his pre-marital monies into the deposit of the Canmore Condominiums.

Another $30,000 was put into the Canmore Condominiums by way of loans from the Mother. [ 41 ] With regard to the contributions made by the Mother, she claimed that she had a beneficial interest in Canmore Condominium Unit 310 and a caveat was placed with regard to this alleged beneficial interest on January 30, 2007. Her claim for a beneficial interest was abandoned well into the trial of this matter. The Wife in her pleadings defended on the basis that there was no beneficial interest but that if monies were advanced, they were by way of loan.

The Mother is therefore entitled to be paid out of matrimonial assets the amount of $35,754 being $30,000 plus judgment interest from January 1, 2005 to April 1, 2011. The Wife is entitled to set off the amount of $2,367.42 ($2,208 plus judgment interest from April 1, 2008 to April 1, 2011) for a cost award made in the Wife’s favour against the Mother with regard to the Mother’s grandparent contact action. [ 42 ] In

summary subject to submissions on costs, the Husband shall pay the amount of $17,877 to the Mother from his share of the proceeds of the sale of the Canmore Condominiums and the Wife will pay $15,509.58 from her share of the proceeds of the sale of the Canmore Condominiums to the Mother.

B) Gifts between Husband and Wife [ 43 ] A diamond engagement ring which was gifted by the Husband to the Wife in June 2004, 14 months prior to the marriage is exempt from distribution as a marital asset. [ 44 ] The Husband gifted a fur coat, diamond earrings and a Rolex watch to the Wife during their marriage. These items are exempt from division from the matrimonial estate unless the court considers it just and equitable to do otherwise based on consideration set out in

Section 8 of the Matrimonial Property Act . [ 45 ] In my view in this case it is just and equitable to exempt from division from the matrimonial estate the above-noted assets for the following reasons: 1) The Husband in my view very significantly dissipated the exempt RRSP assets of the Wife before and during the marriage by making bad investments with her exempt RRSP.

Any attempt to explain it away by saying that she would have lost this money anyway due to a subsequent reduction in WestJet shares in her RRSP is not a satisfactory explanation in my view. 2) The parties received very significant cash gifts as a wedding present from many people and the Husband was in control of this money either directly or indirectly through his family members. He never gave an adequate explanation of accounting for where these monies went. [ 46 ] Therefore, the Wife keeps all of the gifts given to her by her Husband.

C) Household Furnishings and Contents [ 47 ] The Wife gave evidence at the trial stating that she had come into the marriage with a household of furnishings and contents that she had acquired prior to her knowing the Husband. The Wife was prevented by the Husband’s father and brother from retrieving her pre-marital household contents and furnishings which she estimates to be worth $35,000 or any share of these kinds of things that the parties had acquired during their cohabitation and marriage. I accept her evidence in this regard.

By virtue of an agreement dated November 2007, the Wife does have in her possession most of the furnishings and contents of the Canmore Condominium which she has estimated to be valued at $30,000. [Binder 1, Tab E(2)]. The Wife shall keep the Canmore Condominium items as a set off against her exempt and other household assets in lieu of those which the Husband has not returned to her. The Husband testified at trial that a considerable number of items of furnishings and decor were purchased at Killian during the marriage for Unit 310 at a cost exceeding $30,000 [Exhibit 2, Tab H(4)].

I do not believe the Husband for the following reasons: (

i) the invoices are undated and identify furniture that could not have all fit into Unit 310. It is important to note that Unit 320 was unfurnished. (ii) The Husband’s sworn evidence in his March 2007 Affidavit [Binder 1, Tab F(4) page 9, para. 79(e)] stated “one unit has no furnishings and the other in which I live has very little furnishings”. (iii) The Mother’s evidence at trial was that she only stayed overnight at Unit 310 when Rocco, the father, and the Husband were with her when Marcello was about two years old.

The Wife removed all of the Canmore furnishings from the property pursuant to an agreement in November 2007 when the child was 16 months old. The items depicted on the Killian invoice are therefore not now, nor were they ever in the Wife’s possession. In other words, the furniture and household contents in Unit 310 were delivered after November 17, 2007 long after the parties separated.

The Mother also testified that these above-noted items are not now or were they ever in the Wife’s possession. [ 48 ] The Wife submits and I agree that the only practical solution to the division of this category of assets is that she keeps what is in her possession and control because the Husband has a like or greater amount of assets in his possession. The Husband shall keep what is in his possession or control since the date of separation.

D) Calgary Princess Importing Inc. [ 49 ] Princess Importing Inc. was a company set up as a importer of wine so that the “middle man” could be cut out of the process to the benefit of the Osteria and to allow the Husband and Wife to travel abroad at company expense and import wine for the ultimate benefit of the Osteria. [ 50 ] The tax liability due and owing by Princess in the amount of $15,417 is a matrimonial liability. The Wife has paid approximately $12,000 toward this tax debt leaving a balance of approximately $3,417. This $15,417 liability should be shared equally by the Husband and Wife.

Each of the parties are therefore responsible for $7,708.50 of this debt. The amount of $3,417 shall be paid by the Husband to the Canada Revenue Agency and the Wife will be paid $4,291.50 (7708.50 - 3417) by the Husband in order to equalize this debt. [ 51 ] The $5,000 contribution by Princess to the Canmore Condominiums is a joint martial asset and should be shared equally by the Husband and Wife. [ 52 ] The Husband in argument states as follows: “PCI (Princess) is wholly owned by the Wife. Should she choose to capitalize it at her sole expense for her sole use and benefit at the

conclusion of this trial, she may do so without hindrance from the Husband who claims no interest in the insolvent entity and who has neither the interest nor the means of propping it up.” [ 53 ] Therefore I direct that any amounts collected by PCI in the future will be for the benefit of the Wife only.

E) Canmore Condominiums [ 54 ] Construction of the parties’ two Canmore condominiums was completed in late 2006. In order to qualify for “Homeline Line of Credit” financing (as opposed to traditional mortgage financing), the Husband approached Rocco, his father who was one of the principals of the Osteria, to borrow $147,751.80 to pay the cash to mortgage necessary to complete these transactions. Of the $147,761.80 lent to the parties by the Osteria, $76,856.87 was applied to the purchase of Canmore Condominium Unit 310 and $70,894.93 was applied to the purchase of Canmore Condominium Unit 320.

Caveats were contemporaneously registered against Title to each of the Canmore Condominiums to secure the repayment of this loan from the Osteria. While the Wife was not privy to any conversations the Husband had with Rocco or anyone else in this regard, and she did not sign any of the charging documents, she was aware and intended that these would occur. [Binder 2, Tab G2, pages 14, 34, 48-65]. [ 55 ] The residue of the purchase price for the Canmore Condominiums was obtained through two Royal Bank Homeline Mortgages.

Canmore Condominium Unit 310 was mortgage financed for approximately $344,000 and Canmore Condominium Unit 320 was mortgage financed for $328,000. The Unit 310 mortgage payments, condominium fees and utilities were set up to be drawn from the Wife’s Royal Bank account and the Unit 320 mortgage payments, condominium fees and utilities were set up to be drawn from the Husband’s Royal Bank account. [ 56 ] As earlier stated, the Certificate of Title to Unit 320 was not entered into evidence at trial.

Like the Unit 310 Title [Binder 2, Tab G2, pages 36-37], the Title to Unit 320 reflected that at the date of the parties’ separation in February 2007, the encumbrances against Title were the Royal Bank mortgage, Osteria’s cash to mortgage loan, and routine easements and encumbrances. [ 57 ] The trust and documentary records of lawyer Gary Daniels [Binder 2, Tab G2, Pages 181-196] reflect that on July 18, 2007 the Osteria was paid $78,370.99 and that on July 19, 2007 the Osteria was paid $78,370.99 through Mr.

Souster’s legal offices to discharge the parties’ $147,764.80 “cash to mortgage” loan, together with $8,977.18 of interest. [ 58 ] Title to Unit 310 also reflects that on July 10, 2007 Michael Terrigno registered a Caveat which he purports to have signed on July 3, 2007, claiming that the Husband owed the Osteria $140,093. As stated earlier, this amount is not due and owing and will be dealt with later in this judgment.

On July 18 and 19, 2007, the Osteria received $156,742 to “pay out” loans that the Husband and Wife took to obtain Home Equity Loan of Credit mortgages against Unit 310 and 320. [Binder 2, Tab I1, pages 410-414]. [ 59 ] It should be noted that the Husband and Wife concurred that the “whole” of the Osteria “cash to mortgage” loan should be repaid from the sale proceeds of Unit 320 in July 2007 rather than paying out only the $70,894.93 that was applicable to that specific unit. [ 60 ] As stated earlier, the Husband contributed $15,000 to the purchase of the condominiums leaving him with an exemption of $7,500.

Thirty thousand dollars was loaned to him by his Mother for the purchase of the condominiums. This is a matrimonial debt. In November of 2007 the Husband and Wife agreed to sell Unit 310 to the Husband’s Mother Antonietta. This was done under duress because the Husband steadfastly failed or refused to comply with Court Orders dated March 9, 2007, April 27, 2007, and June 28, 2007 either in regard to paying the mortgage, carrying costs or ensuring that Unit 310 could be listed and properly marketed by a specified real estate agent as ordered.

The Mother was given vacant possession in accordance with the agreement on November 17, 2007. The Mother did not pay the purchase price.

In late 2009, the sale failed and Title reverted back to the Husband and Wife. [ 61 ] Except as stipulated in Court Orders granted June 8, 2007 and October 24, 2007 [Binder 3, Tab J7] and her acknowledged receipt of $1,886 on December 19, 2007 from the Mother’s lawyer pursuant to a Tenancy-At-Will Agreement with respect to the December 2007 mortgage payment, the Wife paid the mortgage carrying-cost and the condominium fees on Unit 310 until April 2010 when it sold a second time to an unrelated purchaser.

[ 62 ] By Court Order granted April 21, 2010, it was ordered that the Wife be reimbursed $35,506 for the outstanding mortgage costs only which she had incurred on behalf of Unit 310 since March 2007 out of the proceeds of the sale.

The Husband and Osteria appealed the above noted Order of Justice Brooker and this appeal is outstanding. [ 63 ] The Wife produced some copies of substantiating documentation detailing the expenses which she paid or carried with regard to Canmore Unit 310 from the inception to present including those that were paid from the net sale proceeds of Unit 320 [Binder 2, Tab G2 un-numbered page before Tab H]. [ 64 ] The Husband and the Mother produced copies of invoices and documents which they purport confirm their payment of expenses which they paid or “carried” with regard to Canmore Unit 310 and 320 from inception to present.

Evidence was led that with regard to expenses incurred or paid between November 2007 and February 2010 (during which time the Husband and the Mother had occupation of Canmore Unit 310 by virtue of sale to the Mother and/or a Tenancy at Will Agreement which governed their occupation). This is properly the subject of the “stand alone” action which is ongoing at the present time. [ 65 ] The Husband and the Mother produced copies of cheques which the Mother purports to have paid to the Husband to contribute to the costs of Unit 320 [Binder 2, Tab G2, Pages 87-122].

The Husband’s evidence was that he had paid carrying costs to carry costs for this property pending sale. In evidence, the following was determined: (

a) As stated earlier, the Mother paid two cheques to the Wife marked “for Assistance” totalling $450 which the Wife has allocated to child support. The Wife did not associate these cheques as having any relation to the Canmore properties. (

b) Beginning at Page 107 of Exhibit 1, Binder 2, Tab G2, the “cancelled” versions of the Mother and/or Rocco’s cheques are produced. In every instance, where the “transaction endorsement” is legible, all of the cheques - no matter what date is written on the front - were all transacted months after the parties separated. (

c) In several instances, the cheques are negotiated at a bank other than the Husband’s Royal Bank account through which Unit 320's payments were drawn, and the Husband conceded in cross-examination that in some instances “he cashed them” elsewhere. (

d) The Husband did not comply with his required undertakings to produce his missing bank statements for the period post- separation until the last week of trial. Therefore it was not possible to assess whether any of these cheques were deposited in his Royal Bank account or what amounts he paid on account of Unit 320's mortgage. (

e) Contrary to the Husband’s evidence, he apparently did not pay the costs associated with Unit 320. The documents and records of Gary Daniels [Exhibit 1, Binder 2, Tab G2, pages 181-196] reflect that Unit 320's utilities and condominium fees and property taxes were all in arrears when that property was sold, and these expenses were paid out of its sale proceeds. [ 66 ] The net sale proceeds of Unit 310 were $165,669.31.

Of this amount, $36,006.61 has been paid to the wife pursuant to Justice Brooker’s April 21 and May 6, 2010 Orders (including $500 costs). [ 67 ] Except for $210.10 which has been held back for the real estate lawyer’s final reporting fees, the residue of Unit 310's sale proceeds are on deposit with the Court in the amount of $129,452.60. [ 68 ] The Husband and Wife will attract and need to pay Capital Gains Tax arising from the disposition of Canmore Condominium Unit 320.

In addition, there may be Capital Gains Tax arising from the disposition of Canmore Condominium Unit 310. [ 69 ] The Wife will be solely responsible for any Capital Gains Tax incurred or arising with regard to Canmore Unit 310. The Husband will be solely responsible for any Capital Gains Tax incurred or arising with regard to Canmore Unit 320. There may be a small

amount more payable in capital gains tax by the Husband on Unit 320. This in my view is justified considering his lack of co-operation in getting the properties sold on a timely basis.

F) Husband’s $15,000 Debt to the Mother and Rocco [ 70 ] The Husband had approximately $18,251.37 outstanding on his American Express Card at the date of separation, which is a Matrimonial Debt. [ 71 ] The Mother and Rocco paid $15,000 of that debt on the Husband’s behalf, thus the Husband’s debt to them is a Matrimonial Debt. [ 72 ] The Husband’s “overpayment” of $29,250 arises from the $300 he has paid biweekly to the Osteria from his pay cheque. By way of explanation these monies were purportedly paid to the Osteria by the Husband to pay off the $140,093 debt purportedly owing to the Osteria.

This debt does not exist. Therefore, the Husband’s “overpayment” of $29,250 shall be applied to set off the $7,500 employee loan due and owing by him to the Osteria. The Husband will also be responsible for paying the $15,000 plus interest to Rocco and the Mother. After payment of the above-noted debts the Husband will be left with a small credit in his favour.

G) Alleged $90,000 Debt to MT Consulting [ 73 ] With regard to the alleged $90,000 debt owing, MT Consulting is a company wholly owned by Michael Terrigno. Mr. Michael Terrigno acknowledged at trial that a promissory note in favour of MT Consulting was in error to the extent that it did not accord with the supporting bank documentation. I accept the Wife’s submissions with regard to the correct application of the $90,000 loan to the Husband which are as follows: (a) $29,322.58 was applied to the Husband’s RBC Credit Line 752-001.

The Husband’s Comparative Statement of Assets and Liabilities at Binder 1, Tab F2 has stated that he had $45,000 outstanding on his Credit Line at the Date of Marriage. Thus MT Consulting’s $29,322.58 loan replaced this amount of the Husband’s premarital debt, and it is not a marital debt to be shared by the Wife. (b) $18,296.58 was applied to the Husband’s RBC Student Line of Credit No. 203-001.

Thus Husband’s Comparative Statement of Assets and Liabilities at Binder 1, Tab F2 has stated that he had $35,000 outstanding against this debt at the date of marriage, and $20,233.90 outstanding at the date of separation. Thus MT Consulting’s $18,296.58 loan replaced this amount of the Husband’s premarital debt, and it is not a marital debt to be shared by the Wife. (c) $16,790.00 was applied to RBC Visa number 6847. (d) $14,343.50 was applied to American Express account number ending in 395. (e) $11,297.99 was applied to the Husband’s CIBC debt.

The Husband’s Comparative Statement of Assets and Liabilities at Binder 1, Tab F2 has stated that he had $7,119 outstanding against this debt at the date of marriage. Thus of MT Consulting’s $11,297.99, only $4,078.99 is attributable to the parties’ period of marriage and is a marital debt. (

f) At page 47, paragraph 254 of the Husband’s Post-Trial Brief, it is stated that $14,434.50 of this MT Consulting Debt is relative to the Husband’s American Express charges. At page 48, paragraph 258(

b) the Husband acknowledges that all but $3,251.37 of the Husband’s American Express debt was “paid” by the Mother and Rocco’s $15,000 loan. The Husband and Wife are therefore “ad idem” that the residual $3,251.37 paid via the MT Consulting loan is matrimonial debt. This reduces the MT Consulting debt from $90,000 to $78,7816.87 for consideration as a marital debt in these proceedings [$90,000- ($14,434.50 - $3,251.37)].

(

g) At page 48, paragraph 258(

a) of his post-trial brief, the Husband acknowledges that the $20,223.59 of the Husband’s RBC Student Loan LOC debt was “premarital” and thus the $18,296.58 which was paid by MT Consulting towards this debt is not to be included as a debt to be shared with the Wife in these proceedings. This reduces the MT Consulting debt from $78,816.87 to $60,520.29 for consideration as a marital debt in these proceedings ($78,816.87 - $18,296.58). (

h) The Husband’s Post-Trial Brief refers at page 48, paragraphs 258(

c) to (

e) to “CIBC credit card” debt, in contrast to the Husband’s Promissory Note in favour of MT Consulting which refers to “CIBC Debt”. The Husband’s Comparative Statement of Assets and Liabilities as at the date of marriage and date of separation [Binder 1, Tab F2] refers to CIBC Visa Number 1983 and CIBC LOC Number 40534 as having the cumulative amount of $7,119 outstanding as at the date of marriage; and $10,887 outstanding as at the date of separation. (

i) The Husband’s pre-trial financial disclosure was deficient. During the course of the trial, up to and including the last week, the Wife was not afforded the opportunity to scrutinize, assess or examine on any of these documents prior to or at trial. (

j) This deficiency impaired the Wife’s ability to prepare for trial, examine at trial, or now verify the Husband’s assertions in his Post-Trial Brief regarding the status of the Husband’s pre-marital and “marital” debt, whether related to the alleged MT Consulting Loan or otherwise. (

k) The Husband has testified that he “signed back” the whole of the $495,000 that he received from the sale of the Osteria share sale proceeds. At trial, he attempted to “account” for the rationale of this exchange and he was questioned on why he would not have retired his premarital high ratio consumer debt from those resources. He did not have an explanation. (

l) The Husband now asserts in his Post-Trial Brief that the Wife should “share” in some of the debt which MT Consulting paid towards the Husband’s premarital credit sources, claiming that credit revolved through these accounts during the marriage period. There is no reliable way of ascertaining what the Husband did or did not do during the marriage, and the Wife should not be obliged to “engage in a forensic analysis” of financial disclosure not disclosed until the late stages of the trial. There is no way to logically “match” the Husband’s many varied account numbers past and present, or to ensure that alleged debts are not duplicated. (

m) What appears most reliable is that with respect to the Husband’s CIBC “debt” (which was comprised of both a LOC and a Visa), it totalled $7,119 at the date of marriage, $10,887 at the date of separation, and $11,197.99 when the MT Consulting proceeds were applied to pay “the CIBC debt and the account closed”. Of MT Consulting’s loan, $3,768 is accepted as “marital debt” ($10,887 - $7,119). This reduces the MT Consulting debt from $60,520.29 to $53,090.30 for consideration as a marital debt in these proceedings i.e. 60,520.29 - [11,197.99 - (10,887 - 7,119)]. (

n) Paragraph 258(

f) and (

g) of the Husband’s Post-Trial Brief refers to the Husband’s RBC Credit Line 752-001. The statements reflected in these paragraphs corroborate the Wife’s concerns as stated above. Firstly, these assertions do not accord with the Husband’s Comparative Statement of Assets and Liabilities (Binder 1, Tab F2) which indicate that the balance of this account both at the date of marriage and the date of separation was $45,000. Secondly, there is no way of knowing the source, origin or destination of the amounts which the Husband deposited, paid or withdrew from the account during the marriage.

For example, the $15,000 December 9, 2005 debt at Production Page 0195 at Binder 1, Tab F2 correlates exactly to the December 9, 2005 deposit on the Canmore Condominium which is the “deposit” that the Mother claims to have made towards these properties and which she claims to be repaid. (

o) For all of the foregoing reasons, the whole of the $29,322.58 that MT Consulting paid towards RBC 752-001 should be attributable to the Husband’s premarital debt and neither this amount or any residue outstanding against RBC 752-001 should be included as a marital debt. This reduces the MT Consulting debt from $53,090.30 to $23,767.72 for consideration as a marital debt in these proceedings ($53,090.30 - $29,322.58). (

p) The Husband’s Promissory Note in favour of MT Consulting refers to $16,790 having been paid to RBC Visa ...6847. The Husband led no evidence whatsoever with respect to this account prior to or at the trial. The RBC Visa which is the subject of the alleged $140,093 Osteria debt is No. ...4045. The Husband’s Post-Trial Brief does not reference the RBC Visa ...6847. If RBC Visa ...6847 subsequently became RBC Acct...4045, the Husband’s disclosure reflects that there was $22,699.41 outstanding on this latter account at the date of marriage. [Wife’s Post-Trial Summation & Argument, Page 39, para 141(a)]. In either event, this amount of the MT

Consulting loan is with regard to a “premarital debt”: which was paid by MT Consulting’s loan, thus reducing the MT Consulting debt from $23,767.72 to $6,977.72 ($23,767.72-$16,790). (

q) The Wife acknowledges that $6,977.72 of the $90,000 MT Consulting debt is marital debt in which she shall share. Her one-half of this debt is to be $3,488.86. [ 74 ] The result is that the Wife’s residual share of the acknowledged debt to MT Consulting is $3,488.86. The Husband is responsible for $3,488.86 of his share of the MT Consulting debt.

H) Alleged $140,093 Debt to Osteria [ 75 ] In my view, the Husband’s alleged $140,093 debt to the Osteria is a fiction. I agree with the Wife’s submissions that however constructed or concocted there never was this alleged debt owing to the Osteria until it was conceived post-separation as a way of claiming back money from the Wife or recapturing it in the Husband and Wife’s matrimonial property division for the following reasons: (

i) In his March 8, 2007 Affidavit [Binder 1, Tab F(4)] which was executed shortly after the separation, the Husband stated that he had $121,657 of debt excluding the Canmore Condominium RBC mortgages and the $178,000 Osteria cash to mortgage debts with regards to the Canmore Condominiums and it attached corroborating documents.

This is $28,175 more than his draft pre-nuptial agreement [Binder 1, Tab F-1] had disclosed his comparable debt to be at the date of marriage. (ii) The Husband and his brother Michael Terrigno attempted to discredit both the draft pre-nuptial agreement and the Husband’s March 08, 2007 Affidavit. They stated in evidence that the pre-nuptial agreement was a draft and incomplete. The evidence demonstrates that with regard to the Wife’s assets and liabilities it is factually accurate. With regard to the Husband’s Affidavit, they stated that Mr.

Zinner had made a judgment call not to include any evidence concerning the Husband’s debt to the Osteria or his family because they rushed to complete the Affidavit. In my view these explanations have no reliability or credibility. I am satisfied that neither the Husband nor Michael Terrigno told the truth at trial with regard to these matters. It is also noted that Mr.

Zinner was not called as a witness about these matters and in fact acted as counsel for the Husband and Mother at the trial of this matter. (iii) At the trial of this matter the Husband testified that he “signed back” the whole of the $495,000 that he received from the share sale proceeds of the Osteria.

The Husband had no adequate explanation or rationale for this exchange or why he would not have retired his debts from this sale. (iv) Financial information in regard to the Osteria contained in Binder 4, Tab N, pages 1067 to 1090 includes balance sheet information as of September 30, 2006 (Page 1073 and 1074), comparative balance sheet information as of September 30, 2006 and September 30, 2005 (pages 1075, 1076 and 1077), comparative balance sheet information as at September 30, 2003 and September 30, 2004 (pages 1078, 1079 and 1080).

Nothing in these statements shows the alleged debt due and owing from the Husband. At page 1074 under Long Term Liabilities, it states in part as follows: “shareholder loan - Maurizio 1272.48". Interestingly enough he is still described as a shareholder on these documents long after he purportedly “sold” his shares in the Osteria. These statements give information up to four and one-half months before the parties separated. (

v) In tax returns for the Osteria for the year ending February 28, 2007 [Binder 6, Tab 20], the CFO Michael Terrigno testified that the alleged debt for the Husband was included in the amount showing as “due from related parties” and that the debt was reflected as a class rather than identifying individual members of the class. This debt totalled $466,352. I do not believe him in this regard. In looking at the comparative balance sheet as at September 30, 2006 at Binder 4, Tab N, page 1075, it shows under long term assets net total receivables in the amount of $502,346.55 with no amount owing by the Husband.

It defies logic for the CFO to suggest that by February 28, 2007 when the amount due from related parties had reduced to $466,352, the Husband had incurred in excess of $140,000 of debt. The evidence given by the Husband and his witnesses at trial also contradict this information and explains perhaps why the details of the $466,352 were not produced at trial. (vi) In

summary, the Husband and Michael Terrigno’s evidence regarding the Husband’s finances is not credible or reliable. The documentation submitted to verify or approve the Husband’s alleged debt to the Osteria was not produced until April 2008 - long after the fact.

(vii) It is not necessary to comment on the details of the analysis of the Husband’s alleged and contradicted Osteria debt as I am satisfied that it never existed in the first place. As previously stated, most of these monies are a benefit to the Husband that could be taken into account in imputing the Husband’s income. (viii) The purported loan agreement [Binder 2, Tab I-1-444] dated July 16, 2007 together with the promissory note [Binder 2, Tab I- 1-452] amount to an after the fact concocted fabrication designed to deny the Wife her share of matrimonial assets.

I) Other Debt [ 76 ] Both parties had “other debt” at the Date of Separation: (

a) The Wife’s Comparative Statement of Income, Assets & Liabilities at Binder 1, Tab E2 (3 rd Column) sets out her liabilities as follows: · Visa $ 9,543.00 · Personal Credit Line $20,450.00 $29,993.00 (

b) The Husband’s Comparative Statement of Income, Assets and Liabilities at Binder 1, Tab F2 (2 nd Column) sets out his liabilities (excluding the alleged loans to Osteria or the Mother and Rocco or his premarital debts which were subsequently paid by the loan from MT Consulting except as stated) as follows: · American Express/A or R $16,026.30 · Civil Litigation (Flight Centre) 5,238.00 · Jody McCallum 3,000.31 · Increase in CIBC Visa 4,079.00 $28,343.00 (

c) Each of the parties is responsible for their own “other debt”. VI. Conclusion [ 77 ] The following disposition is ordered:

a) A restraining order on suitable terms and conditions that permits the parties’ contact for the limited purpose of communicating directly, by telephone, by email, by text-message, through the Parenting Journal, at meetings with Michael Porter (their Parenting Coordinator) solely with regard to Marcello’s parenting issues. The restraining order shall reference the wife’s request that her residential address not be disclosed to the Husband.

b) The Husband shall pay $64,299.65 in retroactive child support to the Wife from his one-half share of the net sale proceeds of Canmore Unit 310.

c) Commencing April 1, 2011 the Husband shall pay the Wife $1,717 per month for Marcello’s base support prefaced on an imputed guideline Income of $197,926 per year. In addition, the Husband shall pay the Wife 72.10% of Marcello’s

Section 7 expenses, presently in the amount of $660 per month, of which the Husband’s proportionate share is $492 per month. The Husband’s current combined payment to the Wife is therefore $2,209 per month.

d) The parties shall each pay to the Mother the following amounts to pay off her $30,000 condominium loans plus interest: Wife: $15,509 Husband: $17,877.50

e) The Wife keeps all of the gifts given to her by the Husband.

f) Each of the parties is responsible for one half of the Calgary Princess Importing Inc. debt i.e. $15,417 payable to the Canada Revenue Agency. The amount of $3,417 shall be paid by the Husband to the Canada Revenue Agency and the Wife will be paid $4,291.50 (7708.50 - 3417) by the Husband in order to equalize this debt.

g) Any amounts collected by Calgary Princess Imports Inc. in the future will be for the benefit of the Wife.

h) the Wife shall receive a credit for $15,000 for her exemption with regard to the Canmore Condominium Unit’s sale.

i) The Husband shall receive a credit of $7,500 in regard to his exemption from the sale of the Canmore Condominium Units.

j) The Husband shall retain any household contents, furnishings and decor which are in his possession.

k) The Wife shall retain any household contents, furnishings and decor which are in her possession.

l) Except as otherwise stated each party shall be solely responsible for any debts in their name at the date of separation or incurred post-separation.

m) The Husband is responsible for any capital gains tax payable arising from the sale of Canmore Condominium Unit No. 320. The Wife is responsible for any capital gains tax payable arising from the sale of Canmore Condominium Unit No. 310.

o) The Husband gets full credit for the receivable due and owing from the Osteria arising from his $29,250 overpayment to the Osteria. The Husband is responsible for setting off the $7,500 loan from the Osteria against this amount and for paying the $15,000 loan plus interest to the Mother and Rocco.

p) Each of the Husband and Wife is responsible for payment of fifty percent (50%) due and owing to MT Consulting (i.e. ½ of $6,977.72 - $3,488.86 each) [ 78 ] The distribution of the proceeds $165,669.31 of the Canmore Condominium sales is set out as follows:

WIFE HUSBAND 15,000.00 exempt 7,500.00 exempt Plus 71,584.00 non-exempt Plus 71,584.00 non-exempt 86,584.00 79,084.00 Less 35,506.00 received by previous court order Less 500.00 costs to Wife Less 15,509.58 payable to the Mother Less 17,877.00 payable to the Mother $35,568.42 $60,707.00 [ 79 ] The Husband owes the Wife the following amounts: $64,299.65 retroactive child support to March 1, 2011 15,000.00 lump sum spousal support 4,921.50 Husband’s share of Princess CRA debt paid by Wife $84,221.15 [ 80 ] The Husband’s share of the net proceeds of the sale of the Canmore Condominiums in the amount of $60,707.00 shall be paid to the Wife as a set off against the $84,221.15 leaving a net amount due and owing to the Wife by the Husband of $23,513.15. [ 81 ] In the result judgment is granted in favour of the Wife against the Husband in the amount of $23,513.15. [ 82 ] The parties may make an appointment to speak to costs.

Heard on the 1 st day of September, 2010. Dated at the City of Calgary, Alberta this 6 th day of April, 2011. J.T. McCarthy J.C.Q.B.A.

Appearances: Diane Harms for the Plaintiff Garbor Zinner for the Defendant