King v. King, 2011 ABQB 234

Court of Queen ’ s Bench of Alberta Citation: King v. King, 2011 ABQB 234 Date: 20110408 Docket: 4803 120734 Registry: Edmonton Between: Wendy Louise King Plaintiff/Respondent - and - Robert Brian King Defendant/Applicant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ The Application [ 1 ] Mr. King applies to cancel spousal support payments to his former wife. Now 55 years of age, he wishes to retire from his banking career of long duration.

He says he plans to change careers, by becoming a stay-at-home father to the daughter he has with his second wife. He argues that it is impossible for him to continue his present employment because of his health, that his former wife had been adequately compensated for any negative consequences from their marriage and its breakdown, and that she should by now be economically self-sufficient and independent. [ 2 ] Ms. King responds by arguing that she continues to suffer the disadvantage and economic hardship caused by the marriage

[ 2 ] Ms. King responds by arguing that she continues to suffer the disadvantage and economic hardship caused by the marriage and its breakdown, and that she had not yet achieved self-sufficiency. She further argues that Mr. King’s evidence does not support his assertion that he must retire for health reasons, and that his doctor’s evidence supports a change in employment, not retirement. Facts The divorce proceedings [ 3 ] The parties were married in 1978, separated in 2001 (a 23 year marriage), signed Minutes of Settlement and were divorced in June 2003.

The terms of the Divorce Judgment as they related to child and spousal support were amended by Court Order in November 2006 to decrease child and spousal support payments as a result of Mr. King’s decreased income. The parties had two children, who remained in their mother’s care at the time of the separation (when they were approximately 14 and 16) until completion of their post- secondary education. [ 4 ] The Minutes of Settlement provided that Mr.

King would pay spousal support of $1,800.00 a month from July 1, 2003 until June 1, 2005 (in addition to $1,353 a month in child support), based on an assumption that he would be earning $105,000.00 a year and Ms. King would be earning $15,000.00 a year. The spousal support was then to be reduced to $1,350 per month “until further written agreement between the parties or Order of the Court.” Those terms of the Minutes were incorporated into the Divorce Judgment and Corollary Relief Order. [ 5 ] In November 2006, a further Order, granted on consent, reduced both child and spousal support following Mr.

King’s job loss and subsequent re-employment with a new employer at a lower income. His income in 2006 was $85,000.00. Spousal support was reduced to $1,200 per month beginning August 1, 2006 until further written Agreement or Order of the Court. The Order further provided that: The question of spousal support may be revisited by either party by application... after January 2009 without that party having to demonstrate a material change in circumstances...

The marriage [ 6 ] Both parties filed affidavits in this application, and there are significant differences and disputes on the facts in their recitation of the history of their marriage and the decisions made. I note those differences in the following narrative. [ 7 ] Ms. King had finished her first year of post-secondary education in Saskatoon, Saskatchewan when she married Mr. King. Just before their marriage, he was transferred to Winnipeg and, because the program she was enrolled in was not available in Winnipeg, she gave up pursuing her post-secondary education.

Within nine months of arriving in Winnipeg, Mr. King left his job to begin a position with a new employer who transferred him to Lethbridge. Ms. King then attended the diploma nursing program at Lethbridge Community College and began working as a full-time registered nurse at a hospital there. [ 8 ] They lived in Lethbridge for about five years. Then Mr. King changed employers again, and subsequently accepted a transfer to Calgary. Ms.

King left her nursing job in Lethbridge and obtained employment as a registered nurse with the Foothills Hospital in Calgary. [ 9 ] In Calgary, their first daughter was born in 1985 and the second in 1987. According to Ms. King, the parties jointly decided that she should stay home to care for the children. Mr. King insists that he expressly indicated that he wanted her to return to work. Ms. King indicates that Mr. King encouraged her to be a stay-at-home mom, as his mother had been. She further indicates that it made economic sense, since Mr. King worked many late hours and travelled out of town. [ 10 ] Mr.

King indicates that he encouraged her to return to work, if only part-time, to maintain her RN designation, and to provide her with challenge and distraction. Once their second daughter was born, he realised that he “could not particularly force my wish (that

she return to work).” [ 11 ] In 1989, Mr. King was transferred to Saskatoon, Saskatchewan. Ms. King applied to register with the Saskatchewan Nurses Association and was told that she did not have enough hours between 1985 and 1989 to qualify. She says that Mr. King did not support her wish to take a nursing refresher course, as suggested by the Nurses Association. Mr. King alleges that, once in Saskatoon, Ms. King refused to go back to work to obtain enough hours to maintain her RN designation. He appears to suggest that she could have made up this time by working as an RN in Saskatoon, but does not address Ms.

King’s assertion that she did not have enough hours in Alberta to be able to practice in Saskatchewan. Further, he does not address the question of the refresher course. Ms. King obtained part-time employment in Saskatoon with Lewis Craft from April 1991 to December 1994. [ 12 ] The parties also disagree about whether:

a) Ms. King was supportive of her husband or a cause of his stress;

b) Ms. King spent money extravagantly or was hesitant about spending money because Mr. King was controlling and angry; and

c) Ms. King visited and helped care for Mr. King’s ill father. These disputes have little, if any, relevance to the determination of spousal support, and I do not find it necessary to determine which (if either) position is accurate. [ 13 ] Mr. King indicates that he experienced work and home pressures leading to panic attacks; but that he was initially able to control the attacks by working through his issues on his own. In 1985, he was transferred to Edmonton and experienced intense work pressures and the panic attacks returned, leaving him feeling hopeless. He says that Ms.

King was unsupportive, and eventually he sought medical assistance. The doctor prescribed medication. He further indicates that Ms. King’s response and attitude to his condition was to get angry and throw his medication around, embarrassing him in front of their daughters. He says that once he and Ms. King separated, he had fewer symptoms, implying that Ms. King was the source of much of his stress. I note that this is somewhat inconsistent with his assertion that work is now the main source of his stress. [ 14 ] Ms.

King says that she was supportive of her husband, listened to his problems, attended work functions, and encouraged him. She says that when he spoke to her about his anxiety, she encouraged him to seek professional help. Ms. King’s post separation employment history [ 15 ] The parties separated on March 1, 2001. In April 2001, Ms. King found part-time employment as a Medical Office Assistant at a medical clinic, where she was paid $12.50 per hour. She notes that her nursing education and training were important in securing the position.

A full-time position became available in May 2005, and she successfully applied for the position. In February 2007, once she was able to afford the nursing refresher program and felt she was able to handle the program while maintaining full-time employment, she commenced the program at Grant McEwan College. She was required to attend an eight week unpaid practicum at the end of the program, and had to borrow money from her daughter and her daughter’s partner in order to afford the time off work.

She completed the program at the end of April 2009. [ 16 ] The medical clinic offered her a position as an RN beginning May 11, 2009. That position is part of a pilot project in the Primary Care Network. She will not know until June 2011, when the pilot program will be assessed, whether this employment will continue. In this position, she earns $30.00 per hour and has no benefits or pension. She further indicates that the Government of Alberta had instituted a hiring freeze on nurses about the time she finished the program and so was grateful for the position. Mr. King’s plans [ 17 ] Mr.

King remarried and he and his wife, Linda, have a seven-year old daughter. Linda is employed as an administrative assistant and earns approximately $40,000.00 per year. Linda’s 18 year old son from a previous marriage lives with them and attends the University of Alberta. Linda receives no support from her ex-husband, and the son is required to pay his own tuition and books, while Linda and Mr. King provide his room and board.

[ 18 ] In his affidavit, Mr. King indicates that he and Linda plan for him to retire and take over the responsibilities of caring for their daughter and running their household . He says that he estimates his pension will be about $1,000.00 per month. He and Linda sold their home in St. Albert and purchased a condo in Ladysmith British Columbia with a portion of the proceeds, saving the remainder. When he retires, they plan to re-locate to Ladysmith, where Linda will look for suitable employment. [ 19 ] Mr.

King asserts that various changes in his positions with his employer have caused him great stress, that he barely makes it through the week, and that he “crashes” on the weekend. Attached to his affidavit is a copy of a letter from his family doctor, Dr. Zalasky, prepared at Mr. King’s request for this application. Dr. Zalasky indicates that he has been Mr. King’s primary care physician for the last fourteen years, treating him for an underlying anxiety disorder and depression. He indicates that recently Mr. King revealed that his job is the primary stressor in his life and that Mr.

King has told him that he needs little or no medication when he is away from work. Medication changes have not produced permanent improvement, and Mr. King has recognized that “the only thing he has left to do is leave his present line of employment.” Dr. Zalasky concludes, “It is my medical opinion that Mr. King should leave his present employment secondary to effect on his overall mental health.” He further adds that it is his expectation that Mr. King could reduce his medications when “ in a lower stress work environment ”. [emphasis added] The Law [ 20 ] The law regarding spousal support is relatively clear.

Its application, however, is highly dependent upon the particular facts in each case. General principles [ 21 ] The Court’s jurisdiction to award spousal support is set out in s.15.2 of the Divorce Act, R.S.C. 1985, c. 3(2nd Supp.): 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse.

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above anyobligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [22] Conrad J.A., in Corbeil v. Corbeil, 2001 ABCA 220, 286 A.R. 330 (at para. 34), noted that the objectives of spousal support,as set out in s. 15.2, involve a balancing act, and that these objectives often pull in opposite directions. Tilleman J. in P.J.G. v. Z.I.G.,2010 ABQB 711 (at para. 44), noted that, while spousal support awards are “highly discretionary”, there are three conceptual groundsfor spousal support entitlement: compensatory, contractual and non-compensatory (citing Moge v.

Moge, (SCC), [1992]3 S.C.R. 813, 99 D.L.R. (4th) 456; Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420, 169 D.L.R. (4th) 577; Miglin v.Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303). He went on to describe the purposes of these grounds (at paras. 45- 47): Compensatory spousal support is meant to compensate a spouse for economic disadvantage resulting from the marriage or its breakdown.Typically, this occurs where one spouse sacrifices their career and financial independence to assume a domestic role. Serious financialinequalities can arise as a result of the spouses respective roles within this type of marriage.

One spouse may be earning a large income,owing to years of uninterrupted participation in the workforce, while the other may be unable to earn a similar income, owing to the factthat they have spent years away from the workforce raising children and completing other domestic tasks. Entitlement to compensatoryspousal support is a recognition of the value that a domestic spouse contributes to a marriage.

The contractual ground for spousal support is one that flows from the express or implied agreements made between the parties.Traditionally the Court was very reluctant to alter a consensual spousal support agreement, favoring a self-sufficiency and clean breakpolicy... The non-compensatory ground for spousal support was detailed in Bracklow. This ground is based on the presumption that a marriage,until it breaks down, constitutes a relationship of "mutuality and interdependence" (at para. 20). This relationship can lead to expectationsthat result in obligations of support... [23] In Pelech v.

Pelech, (SCC), [1987] S.C.J. No. 31, the Supreme Court emphasized that parties should beencouraged to take responsibility for their own lives and decisions (para. 83); but in Miglin cautioned that trial judges must balanceParliament’s objectives and ensure that any agreements that the parties have reached comply with the overall objectives of the DivorceAct. In Bracklow, the Supreme Court found that non-compensatory support was also consistent with s. 15.2(6)(

c) and (d), and that, evenif a spouse has not been handicapped by the marriage, the court must also consider the spouse’s need (paras. 40 and 43). Demonstrationof need, however, did not necessarily mean that spousal support would be permanent, and that a number of factors need to be considered(at para. 53): The short answer to Ms. Bracklow's argument is that need is but one of a number of factors that the judge must consider. Similarly, theshort answer to Mr. Bracklow's contention is that the length of the marital relationship is only one of a number of factors that may berelevant.

While some factors may be more important than others in particular cases, the judge cannot proceed at the outset by fixing ononly one variable. The quantum awarded, in the sense of both amount and duration, will vary with the circumstances and the practicaland policy considerations affecting particular cases. Limited means of the supporting spouse may dictate a reduction. So may obligationsarising from new relationships in so far as they have an impact on means. Factors within the marriage itself may affect the quantum of anon-compensatory support obligation.

For example, it may be difficult to make a case for a full obligation and expectation of mutualsupport in a very short marriage. (Section 15.2(4)(

a) of the Divorce Act requires the court to consider the length of time the partiescohabited.) Finally, subject to judicial discretion, the parties by contract or conduct may enhance, diminish or negate the obligation ofmutual support. To repeat, it is not the act of saying "I do", but the marital relationship between the parties that may generate theobligation of non-compensatory support pursuant to the Act. It follows that diverse aspects of that marital relationship may be relevant tothe quantum of such support.

As stated in Moge, "[a]t the end of the day ..., courts have an overriding discretion and the exercise of suchdiscretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act".

Spousal support in traditional long term marriage [ 24 ] Accordingly, quantum and duration of spousal support will depend on the particular facts of a given case. The Alberta Court of Appeal has looked at the question of spousal support in the context of traditional marriages in a number of cases. The Court stressed that, while the goal of self-sufficiency is important, it is only one of the factors and sometimes it is not practicable to expect a spouse to ever become fully self-sufficient ( Baradoy v.

Baradoy, 2010 ABCA 33 ). [ 25 ] In Baradoy , the Court of Appeal upheld the chambers judge’s decision that the husband continue to pay spousal support. The parties were married for 26 years, and entered into a spousal support agreement under which the husband agreed to pay $1,000.00 per month, reviewable in about two and a half years from the date of the divorce judgment. The appeal arose from that review. The marriage was traditional as the wife had primarily devoted her energy to the marriage and the family, and had been financially dependent on the husband throughout the marriage.

The $1,000.00 per month was undoubtedly less than she would have received if she had applied for spousal support. The Court noted that while self-sufficiency is one of the objectives of the Divorce Act , sometimes it is not possible or practicable. The chambers judge correctly analysed the efforts the wife had made to become self-sufficient, and was correct in concluding that spousal support be continued. [ 26 ] In Templeton v. Templeton , 2005 ABCA 133 , the Court of Appeal upheld the chambers judge’s decision refusing to vary the husband’s spousal support obligations under Minutes of Settlement.

The parties had been married for 27 years. The marriage was a traditional one in which the wife was a stay-at-home mom for 16 years and then worked part-time. The husband, about seven years after the Minutes were entered into, retired due to ill health and asked that his support obligations be reduced or eliminated. Based on the terms of the Minutes of Settlement, the Court of Appeal concluded that the Minutes were intended to be a complete and final settlement of all aspects of spousal support.

The Court then went on to consider whether the new circumstances were reasonably anticipated by the parties and, if not, whether the agreement had lead to a situation that could not be condoned. The Court concluded that, even if the husband’s early retirement had not been contemplated, there was no reason for the Court to intervene. The husband had enjoyed several years of increased income since the Minutes were concluded without any adjustment to the wife’s support, and he had accumulated significant RRSP value that could be converted to additional income.

The wife, on the other hand, could not possibly afford to retire and needed to continue to work to earn an adequate pension. [ 27 ] In O'Grady v. O'Grady , 2010 ABCA 109 , 477 A.R. 216, the Court of Appeal dismissed a husband’s appeal of the quantum of spousal support awarded to the wife. The parties were married for 25 years, in what the Court described as "a long term traditional marriage". The wife’s career as a teacher was interrupted several times in order to accommodate the husband’s career and transfers.

The parties entered into a divorce contract providing for spousal support, including a provision that the husband would pay 37.5 per cent of his total gross income to the wife for the years 2006 through 2008. The wife, aged 56 at the time of the divorce and 63 at the time of the application, brought an application to determine spousal support payable after 2008, seeking an extension of the 37.5% formula. She was employed part-time, and was having problems finding full time employment.

The husband's base salary was $368,540, each party had assets of approximately $1,000,000, and the wife was employed as a teacher on a part-time basis. The husband sought either an elimination of spousal support or a gradual reduction in support, terminating when the wife reached age 65, citing the wife's level of education and training. The chambers judge found that the wife's efforts to work following the breakdown of a 25-year marriage were reasonable.

The judge ordered ongoing spousal support of $12,000 per month, noting that the amount was less than the wife sought, and less than had been payable under the contract. The order was reviewable when the wife turned 65 (at which time she would have received eleven years of spousal support). [ 28 ] In Heimsoth v. Heimsoth , 2009 ABCA 129 , 457 A.R. 22, the Court of Appeal overturned the trial judge’s decision to reduce and terminate the wife’s spousal support. The parties separated after 24 years of a traditional marriage in which the wife stayed home to care for the two children.

The parties moved seven times in the course of the marriage for the husband’s career. After the divorce the husband was ordered to pay monthly spousal support of $4,000, subject to review in three years, in order to provide her with an opportunity to try to become more self-sufficient. During that time, the wife earned an average of $5,000 per year working part-time, while the husband's annual income ranged from $128,000 to $181,000. At the spousal support review hearing she said she had been unable to become economically self-sufficient because of ongoing depression.

The trial judge rejected her evidence, concluding that the depressive episode lasted no more than six months, that any depressive episode was not the result of the marriage breakdown and was not sufficient to disable her. He also found that the wife’s contribution and sacrifice should be limited to the ten years the parties agreed she would be home to care for the youngest child.

The trial judge sharply reduced spousal support over 18 months, and then terminated it. [ 29 ] The Court of Appeal ordered the husband to pay ongoing spousal support of $2,000 per month, saying there was little evidence to support the findings that the wife was not depressed, and further that the trial judge erred in limiting the contribution and sacrifice made by the wife to a period of 10 years. The Court noted that (at para. 25):

...in the ten or so years between the tenth birthday of the youngest child and the separation, the appellant continued to care for the children and look after the household. The respondent continued to accept and benefit from her contributions. Further, the appellant continued to support her husband's career by her willingness to move with the family when the move was beneficial to his career...

Whether the parties had agreed that the appellant should return to work when the youngest child reached the age of ten years is not the only, or even the major, consideration in determining the advantages or disadvantages to the spouses arising from the marriage or its breakdown. The financial consequences or benefits of the entire period of cohabitation must be considered... [ 30 ] The Court of Appeal also held that the trial judge erred in failing to address whether the wife realistically could be expected to achieve self-sufficiency.

The mere finding that one of the parties was intentionally under-employed did not provide a complete answer to a spousal maintenance request. [ 31 ] In Warren v. Warren , 2009 ABCA 370 , the Court of Appeal upheld the chambers judge’s decision to vary an Ontario order by imposing a time limit on the support order and by imposing a series of progressive reductions in the amount of support payable leading to the termination. He concluded that with a twenty-eight year marriage, the wife could reasonably expect spousal support for "at least twelve years". [ 32 ] In Swales v.

Swales , 2010 ABCA 292 , the Court of Appeal allowed an appeal of a chambers judge’s decision to require the husband to continue paying spousal support, albeit a reduced amount, after the husband retired at age 55. The parties were married for 17 years, and entered into an agreement for spousal support that expressly contemplated that the husband would retire at 55. The wife, who was entitled to a portion of his pension income, continued to work and chose not to draw down on her share of the pension.

The chambers judge concluded that the respondent's decision to maximize her share of the pension by keeping it invested until age 65 was reasonable and prudent considering the respondent's limited ability to earn income and her modest assets.

The Court of Appeal held that there was no evidence of what her enhanced pension entitlement would be if she waited until age 65, and that the chambers judge failed to apply an objective test to whether the wife was reasonably dealing with her assets to generate income – a test that involves considering the entire context, “including the history of the marriage and the separation, the principles set out in the Divorce Act , the extent to which the decision transfers costs or burdens to the other spouse, the obligation of each spouse to become self-sufficient, and the obligation of each spouse to make reasonable efforts to generate income from his or her assets” (at para. 10). [ 33 ] In McAdam v.

McAdam , 2010 ABCA 136 , the Court of Appeal allowed a husband’s appeal of the trial judge’s decision to order ongoing spousal support payments. The parties were married for thirty years, and separated several times over the course of the marriage. During the last reconciliation, the parties agreed to retire, and the wife quit her long time job at a bank. The husband, however, changed his mind about retiring and retained his job.

The wife was unable to return to her former job for about one year, but when she was re-hired it was at an increased salary, albeit without access to short-term disability benefits and her pension had vested. During that interval, the husband paid her $2,000 per month interim spousal support. The court held the husband’s payment of the interim support had fairly compensated the wife and effectively restored her to her pre-retirement position, and ordered that the ongoing spousal support cease. [ 34 ] In Shields v.

Shields , 2008 ABCA 213 , concerning a 15 year marriage, the Court of Appeal held that the chambers judge erred when he did not sufficiently consider the following factors: a. the mother was only 34 years old at the time of separation, b. the matrimonial property had been divided equitably, c. the couple had a modest standard of living while together, d. there was no longer a need for child care, and e. the mother had achieved a degree of self sufficiency with full time employment at a level consistent with her work skills.

The Court concluded that $1000 per month for eight years, from the date of separation to the date when the application to vary was heard, was a realistic time frame for the mother to be compensated for economic disadvantage and to allow her to re-enter the job market to achieve financial self sufficiency. [ 35 ] There are a number of relevant Queen’s Bench decisions as well. In Guha v. Guha , 2005 ABQB 698 , Ross J. granted the

husband’s application to terminate the spousal support he had been paying for 17 years. The parties were married for 27 years; the wifewas 46 and the husband 57 at the time of the divorce, and at the time of the application were 64 and 74 years old. The husband was amedical doctor who brought the application to terminate after he retired. He had remarried and his new wife was disabled. TheRespondent wife had primarily worked in the home caring for the children, although at some points she worked for the husband in themedical practice.

At the time of the separation, she obtained full-time employment and at the time of the application was earning$3000.00 per month. She was building an RRSP for retirement, and claimed that she needed to work another three years to achievefinancial independence for retirement. The parties appeared to have similar net worth.

Ross J. noted that there remained no basis forcontinued support, as the contractual entitlement was subject to variation by the Court, and there was no longer any need forcompensatory support because, once he retired, the husband received no further advantage and the Respondent’s disadvantage had beenfully compensated by the 17 years of support.

She rejected the Respondent’s argument that the husband could continue to work, notingthat that might be a factor in an early retirement, but here the husband had worked long past normal retirement age, and had healthdifficulties, as did his second wife. [36] In Schuster v. Schuster, 2009 ABQB 468, Burrows J. refused the husband’s application to terminate spousal support, notingthat at the time of the separation it was doubtful that the wife would be able to be economically self-sufficient. At the time of theapplication, she had been receiving spousal support for 11 years, following an 18 year relationship.

Following separation, she hadattempted a career in massage therapy, in real estate, and professional photography. She was unsuccessful in these endeavours. Thehusband, a medical doctor, indicated that he had experienced medical problems and that he would like to reduce his work load so that, bythe time he was 60, he would only be working casually. Burrows J concluded that economic self-sufficiency meant (at para. 11): ... "capable of supporting herself at a level in keeping with the standard of living she enjoyed during the marriage without the aid offinancial support." Heimsoth v.

Heimsoth 2009 ABCA 129 , [2009] A.J. No. 371 (A.B.C.A.) at para. 29. See also Riad v. Riad2002 ABCA 254 at paras. 33-34; McEachern v. McEachern, 2006 BCCA 508 at para. 44; Moge v. Moge, (SCC),[1992] 3 S.C.R. 813 at para. 84. [37] In Abraham v. Abraham, 2010 ABQB 670, Lee J. ordered 30 months of continued spousal support to the wife, after thehusband applied to terminate spousal support on his retirement at age 55 for health reasons.

The parties were married for 22 years andthe marriage was primarily traditional as the wife’s income was never substantial, and she did not pursue a career path or acquire anylabour market skills. At the time of the application she was employed in an administrative capacity earning $30,000.00 per year, and hisincome before retirement was $104,775.00 per year. On divorce, the husband’s pension plans were divided and the wife’s portions weretransferred into a LIRA and RRSP. Were she to draw on that pension and continue employment, each would have a similar income.

LeeJ. noted that, if the wife were to retire, she would have a continued economic need, and that cutting off support at that point would havean adverse effect on the structure of the receipt of the divided pension Further, he found that the husband would likely work again givenhis professional standing, experience and relatively young age. Retirement [38] In Boston v.

Boston, 2001 SCC 43 , [2001] 2 SCR 413, the Supreme Court considered whether a spousal supportaward should be varied on the retirement of the payor spouse (at paras. 61- 65): The purpose of spousal support in cases such as this is to relieve the economic hardship suffered by reason of the marriage or itsbreakdown. There is no reason per se that spousal support cannot continue past the date of retirement of the pension-holding spouse.However, several factors must be considered in making that decision.

On retirement, the pension-holding spouse may apply to vary thesupport order if his ability to pay support is compromised (see Linton, supra, at p. 31, and Rivers, supra, at para. 17). The decision ofwhether to vary support depends on whether the applicant can demonstrate that there has been a material change in circumstancespursuant to s. 37(2) of the Family Law Act. The payee spouse's need and the payor spouse's ability to pay are always factors which a court considers when determining spousalsupport (see s. 33(9) of the Family Law Act). Another issue is the extent, if any, of "double recovery".

How is double recovery fairly avoided? (See Shadbolt, supra, per Czutrin J., at para. 46.) It is generally unfair to allow the payee spouseto reap the benefit of the pension both as an asset and then again as a source of income. This is particularly true where the payee spousereceives capital assets which she then retains to grow her estate. The comments of Walker, supra, at p. 233, bear echoing:

It is well-recognized that a borrower should not be compelled to continue monthly loan payments to the lender if the borrower has previously paid the full amount owing. "Double dipping" is analogous to such a situation and is logically and mathematically indefensible. To avoid double recovery, the court should, where practicable, focus on that portion of the payor's income and assets that have not been part [page439] of the equalization or division of matrimonial assets when the payee spouse's continuing need for support is shown (see Hutchison, supra, at para. 9).

In this appeal, that would include the portion of the pension that was earned following the date of separation and not included in the equalization of net family property. Despite these general rules, double recovery cannot always be avoided. In certain circumstances, a pension which has previously been equalized can also be viewed as a maintenance asset.

Double recovery may be permitted where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and, despite this, an economic hardship from the marriage or its breakdown persists. Double recovery may also be permitted in spousal support orders/agreements based mainly on need as opposed to compensation, which is not the case in this appeal. [ 39 ] When discussing early retirement, the question arises whether it amounts to under-employment.

In Alberta, the Court of Appeal has held that it is acceptable to be under-employed as long as the intention is not solely to reduce support payments: Hunt v. Smolis-Hunt , 2001 ABCA 229 (at para. 49 ); Taylor v. Taylor 2009 ABCA 354 , 464 A.R. 245 (at para. 13 ). Issues [ 40 ] The following issues arise here: 1. Ought there to be either a change in, or cancellation of, the spousal support Mr. King currently pays to Ms. King? 2. In connection with the above issue:

a) whether Ms. King continues to suffer a disadvantage and economic hardship as a result of the end of her marriage to Mr. King; and

b) whether she has now achieved self sufficiency, either in whole or in part, or alternatively, whether she has a continuing need for spousal support. Analysis [ 41 ] I must consider the following factors drawn from s. 15.2(4) and (6) of the Divorce Act : (

a) the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; (

c) any order, agreement or arrangement relating to support of either spouse; (

d) any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

e) apportionment between the spouses of any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (

f) any economic hardship of the spouses arising from the breakdown of the marriage; and (

g) insofar as practicable, promotion of the economic self-sufficiency of each spouse within a reasonable period of time.

[ 42 ] This was a traditional 23 year marriage. Although Mr. King argues that he was opposed to Ms. King staying home to care for the children and says he encouraged her to work outside the home, the reality is that, even if that is true (and there is significant dispute on those issues), Mr. King still benefited from Ms. King’s presence in the home caring for the children and running the household.

Further, the Court of Appeal held, in Heimsoth , that the parties’ agreement as to when the wife would return to work was not a major consideration in determining respective advantages and disadvantages. [ 43 ] In particular, in the course of the marriage, Ms. King sacrificed her career and occupational goals to benefit her husband’s career as they transferred to different locations for his job. She managed to acquire her registered nurse designation once Mr. King was transferred to Lethbridge and worked there for some period of time. She left the Lethbridge hospital when Mr.

King was transferred to Calgary, and then left the Calgary hospital when he transferred to Saskatchewan. She was unable to work in Saskatchewan, in part because she did not have enough hours to meet Saskatchewan’s requirements for registration, and in part because of the different year- ends for calculating hours between Alberta and Saskatchewan. In O’Grady , the Court of Appeal held that, where a wife has had difficulties achieving self-sufficiency because her career suffered as a result of the husband’s transfers and other career steps, continued spousal support may be warranted. [ 44 ] Moreover, Ms.

King has taken reasonable steps to become economically self-sufficient. The parties separated in March 2001, and she secured part-time employment within a month. When a full-time position became available at the clinic, she successfully applied for it. In 2007, she undertook to register in the nursing refresher program, a two year program she was able to pursue while still employed full-time. To complete the program she was required to work a practicum for two months, without pay. She accomplished this by borrowing from her daughter.

While employment in the clinic pays less than in a hospital setting, at the time that Ms. King completed the refresher program, Alberta was not hiring nurses. Ms. King’s position is in a pilot program and she will not know until June this year whether her position will continue to exist. At this point, it cannot be said that she has achieved economic self-sufficiency. While Ms.

King has, since separation, continually taken steps to improve her income earning ability and to achieve self-sufficiency, she currently is in a contract position that may not be renewed, she has no benefits, and her income level remains significantly less than Mr. King’s. [ 45 ] Mr. King says he plans to retire, and asserts that he must do so for his health. However, the letter from his doctor does not say that Mr. King should cease work, only that Mr. King has told his doctor that his present occupation is the cause of his anxiety and stress. His doctor has, as a result of this information, concluded that Mr.

King might benefit from a change in employment. Retirement is not a change in employment; it is the cessation of employment. Presumably he could obtain other employment that he might not find as stressful. As noted by Lee J in Abraham , given the husband’s relatively young age, professional standing and experience, it is possible, perhaps likely, that he will be employed again in the future. This situation is entirely different than that in Guha , where the husband was 74 when he retired. [ 46 ] Mr.

King’s salary has risen significantly since 2006, when the spousal support was reduced as a result of his then reduced income, without any increase in that support. His income in 2009 was $101,000.00. In addition, although he has a child with his current wife, he also has the benefit of his wife’s income, which until recently was higher than Ms. King’s. He has accumulated $210,000.00 in RRSPs. He also has shares worth $4,000.00, $228,000.00 in cash savings, two vehicles, and the condominium in Ladysmith. He says he also has personal effects of not more than $15,000.

These assets total approximately $457,000.00. [ 47 ] Ms. King’s share of the matrimonial property was $170,797.00. Ms. King’s assets now include $123,000.00 equity in her condominium, a Lira of $74,776.00, an RRSP of about $53,000.00, a spousal RRSP of $76,655.00, and non-registered investments of $19,262.00. Since the date of separation she has been able to purchase another $48,100.00 in RRSPs. Her assets total about $395,000.00. She has debts of approximately $8,430.00. She calculates that she must work another 12 years to pay off her mortgage and put sufficient funds towards retirement.

Her income in 2009 was $47,746.00. Her income for 2010 was likely higher, since 2009 was the year she was required to take 8 weeks without pay in order to fulfill her practicum requirements and she did not begin the higher paying position as an RN until May 2009. I estimate that Ms. King is earning about $60,000 per year, based on $30.00 per hour over a 40 hour week, 50 weeks a year. [ 48 ] Mr.

King has paid approximately $165,750.00 in spousal support over the approximately 10 years since separation. [ 49 ] Most of the factors drawn from ss. 15.2(4) and (6) of the Divorce Act weigh in favour of continued support for Ms. King. These include:

- the current condition, means, needs and other circumstances of the parties, including the length of their marriage; - the traditional functions performed by the parties during the marriage, including the fact that Ms. King’s assumption of a traditional role facilitated Mr. King’s ability to transfer locations to further his banking career; - the fact that the Minutes of Settlement and Corollary Relief Order provided for spousal support on an indefinite basis and that the Consent Amending Order reduced spousal support only because of Mr. King’s reduced income in 2006; - that Mr.

King enjoyed economic advantages as a result of his career advancement during the marriage, which was to the disadvantage or detriment of Ms. King and the furtherance of her nursing career. Weighing against Ms. King’s continued receipt of spousal support is that the Consent Amending Order of 2006 provided for a revisiting of spousal support after January 2009 without a material change in circumstance and that one of the aims of the Divorce Act is to promote the economic self-sufficiency of each spouse within a reasonable period of time. Conclusion [ 50 ] Mr.

King has not established a medical need to retire from employment, nor has he retired. [ 51 ] Ms. King has taken reasonable steps to achieve self-sufficiency and has achieved considerable success to that end. However, her current employment situation is uncertain and her income is considerably less than Mr. King’s. [ 52 ] In these circumstances, I conclude that Ms. King is entitled to further spousal support until at least June of this year. If her position at the clinic is continued or she secures full time employment as a registered nurse somewhere else, particularly if Mr.

King in fact retires, the issue of spousal support can be revisited. Heard on the 1 st day of February, 2011. Dated at the City of Edmonton, Alberta this 7 th day of April, 2011. D.L. Shelley J.C.Q.B.A. Appearances: Richard W. Rand, Q.C. for the Defendant / Applicant

Shirley A. McNeilly, Q.C. for the Plaintiff / Respondent