Priest v. Priest, 2011 ABQB 294

Court of Queen ’ s Bench of Alberta Citation: Priest v. Priest, 2011 ABQB 294 Date: 20110429 Docket: 4803 147382 Registry: Edmonton Between: Judith Marie Priest Applicant - and - Tom Murray Priest Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice P.B.

Michalyshyn _______________________________________________________ [ 1 ] Before me in Chambers were applications and cross-applications in relation to the matrimonial home, child support and spousal support. [ 2 ] The wife, Judith Priest, applies for exclusive possession of the matrimonial home and for child and spousal support. The husband, Tom Priest, applies for an order directing the sale of the matrimonial home, and a declaration that Jennifer Lynn Priest, 18, is no longer a child of the marriage. [ 3 ] For reasons which follow, I decline to make any order in connection with the matrimonial home.

On the evidence before me, Jennifer Lynn Priest is no longer a child of the marriage, and Judith Priest is not entitled to spousal support.

[4] Judith Priest commenced the within action for divorce and division of matrimonial property by Statement of Claim issuedOctober 6, 2008. Until these applications, no litigation steps had yet unfolded in the action. Tom Priest left the marriage in 2008. Theparties were married in 1983. The matrimonial home was purchased 1988 and fully paid for by 1993. It remains mortgage-free. Judithand Jennifer Priest continue to live in it. [5] Tom Priest initially offered to pay spousal and child support of $500 each respectively. At the time of his offer, he hadannual earnings of just under $61,000. Mr.

Priest made two spousal support payments early on of $500 and $300. Mr. Priest did pay childsupport for Jennifer of $500 each month from August to October, 2008, and $541 each month thereafter until October, 2010. Thatsupport stopped when Mr. Priest learned Jennifer was no longer in school. Child of the Marriage [6] The definition of "child of the marriage" is found in section 2(1) of the Divorce Act: Child of the marriage" means a child of two spouses or former spouses who, at the material time, (

a) is under the age of majority and has not withdrawn from their charge, or (

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw fromtheir charge or to obtain the necessaries of life. [7] Jennifer is no longer a child of the marriage. Jennifer turns 19 in May, 2011. After high school, she entered, then withdrewfrom Grant MacEwan University, then attended NAIT part-time. She is now no longer in school. There is no evidence before me that shehas any concrete plans to return to school. At the time of the application she was not in the workforce earning income.

There is noevidence before me as to why that was so, or regarding future work plans, if any. [8] It is the Plaintiff's onus to bring evidence forward to show that Jennifer remains a child of the marriage. Judith Priest simplyargues that Jennifer is still very young, is in transition, will eventually return to school - that had always been the family's plan for her asevidenced by a sum invested by the parents in an RESP account. No one could confirm the balance of the RESP. Judith Priest arguesthat, on this evidence, child support should continue to be paid. [9] I was referred to Farden v.

Farden (1993) (BC SC), 48 R.F.L. (3d) 60 (S.C. - Master); Jackson v.Jackson 2001 ABQB 1026; Renouf v. Bertol-Renouf 2004 ABQB 885. Farden sets out the familiar tests for whether a child, havingreached the age of majority, nevertheless remains a child of the marriage. My consideration of these factors follows:

(1) Is Jennifer enrolled in full or part-time studies? As at the application, the answer of course is no;

(2) Has she applied for or is eligible for student loans or other financial assistance? The answer appears to be no, although there isalso an absence of evidence on the point;

(3) Are her studies part of a "career plan"? Of course she is not engaged in studies, and there is no evidence of any career plan;

(4) Is she able to contribute to her own support through part-time employment? I am told she is not working; there is no evidencethat she is incapable of working, nor that she is even looking for work;

(5) She is 18, turning 19 in May, 2011;

(6) What does her record of academic achievement say about her likely success in further studies? There is no evidence before meon this point;

(7) What plans did the parents make for Jennifer's education? There is evidence of the RESP, but nothing concrete before me as to

its value at the current time; moreover, investment in an RESP does not, by itself, lead to the conclusion the parents intended to continueto support the adult child in her educational pursuits - in fact, it may lead to just the opposite conclusion;

(8) Has Jennifer unilaterally terminated her relationship with her father, being the parent from whom child support is sought? Thisappears to be the case, although there is evidence that Jennifer was motivated to have no contact with her father owing to the way he leftthe marriage, and to events subsequent to that. Be that as it may, the evidence of this point is minimal. [10] I recognize that Judith Priest need not adduce evidence on each and every of the Farden factors: Darlington v. Darlington(1997), (BC CA), 32 R.F.L. (4th) 406 (B.C.C.A.).

I find, however, that there is scant evidence on any of the factors,and where evidence exists it tends to undermine, not support, the Applicant's position. [11] I also recognize that courts have awarded child support in "transition" periods even involving children having reached the ageof majority. It was argued before me that Jennifer is in such a period of transition. The evidence of that is lacking. The best evidence isthat Jennifer took certain unspecified computer courses at NAIT, formed the intention to carry on at NAIT in the fall, 2011, thenabandoned that intention.

Judith Priest deposes that: “She is not yet employed, however, her original plans to register at NAIT in September of 2011 have changed. After completing thecomputer program she has decided to take some time off while she decides what she intends to take in post-secondary education ... She isnot of an age or degree of maturity where she can live independently and will continue to be dependent upon me while she grows up andgets some more education.” [12] This evidence only establishes that Jennifer is not now in school and has no plans for the future.

The conclusion that shecannot live independently is not supported by any evidence. [13] I was referred to Gamache v. Gamache 1999 ABQB 313, wherein Trussler J. commented, in the context of determining childsupport obligations for adult children, that: “Although there was no evidence that [the child] could not find another part-time job or a full-time job, there was no evidence that shecould.” [14] In Gamache, there was some other evidence touching on the child's circumstances, certainly more than I have before me inthis application.

Reading Gamache as a whole, I would not conclude that Trussler J. intended fundamentally to alter the onus which lieson the applicant to bring at least some evidence before the Court to satisfy s. 2(1) of the Act and the factors set out in the case law. [15] Finally, I recognize that courts have ordered child support to an adult child who "regains" her status as a child of the marriagewhen returning to school after a period of travel, work or indecision. Whether a court orders child support on account of Jennifer everreturning to school is a matter for another day.

The Matrimonial Home [16] I agree with counsel for Judith Priest that a chambers application on limited and conflicting evidence is not the appropriatevenue to decide this particular issue. The evidence before me, for Tom Priest, is a dated (November 9, 2009) "Comparative MarketAnalysis" prepared by a realtor, and for Judith Priest, an even older (March 31, 2009) appraisal.

The views expressed in these documentsleave the parties nearly $70,000 apart as to a proposed listing price. [17] Tom Priest argues that if the house is ordered listed and/or sold, remaining issues of matrimonial property will fall into placewithout the need for a trial. That is not obvious and in any event is an irrelevant consideration. There was much evidence in the affidavitsbefore me of without-prejudice efforts by the parties to resolve property issues including the matrimonial home. I did not come awaywith the impression that all hope was lost to resolve issues short of trial.

Some form of ADR would be required before trial in any event.And as noted, until these applications, few formal steps appear to have been taken in the litigation. At the end of the day, the AlbertaRules of Court admonish the parties to take control of and manage their own litigation, always with settlement in mind, “with or without

assistance”: Rule 1.2(2), which provides that: “...these rules are intended to be used (

a) to identify the real issues in dispute; (

b) to facilitate the quickest means of resolving a claim at the least expense; (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable ...” [ 18 ] While I am told that while property statements have yet to be exchanged, there is some evidence of other assets which need to be taken into account in the eventual division of matrimonial property.

I am also mindful of the absence of other compelling reasons, particularly given my other findings regarding Tom Priest's obligations to pay child or spousal support, that justifies an order forcing the listing of the home. [ 19 ] For all of these reasons, I have concluded that the relatively blunt instrument of a Court-ordered listing and sale of the matrimonial home in the circumstances of this case would not be appropriate. [ 20 ] While I decline to order that the matrimonial home be listed for sale, equally I decline to make any order under the Matrimonial Property Act for exclusive possession as I was urged to do by Mrs.

Priest. [ 21 ] As I understood the submissions of counsel, the application for exclusive possession was motivated in large part as a response to Tom Priest’s application to force the listing of the matrimonial home. Be that as it may, I have considered ss. 19 and 20 of the Matrimonial Property Act , and the four statutorily mandated factors which a court must take into account in deciding who has the right to exclusive possession of the matrimonial home, namely: (

a) the availability of other accommodation within the means of both spouses; (

b) the needs of any children living in the matrimonial home; (

c) the financial position of each of the spouses; and (

d) any order made with respect to the property or support of either of the spouses. [ 22 ] Counsel for Judith Priest emphasized the need for Jennifer to live at home while finishing her education. I have found of course that as matters now stand, Jennifer Priest is not a child of the marriage. As such, sub-section (

b) has no bearing on the issue of exclusive possession. The other factors are neutral: both spouses have accommodations within their means, and there is nothing about Judith Priest’s financial position that would persuade me to make the order she applies for – if anything, the apparent financial position of Tom Priest would militate against such an order.

Interim Spousal Support [ 23 ] This is a long-term marriage in which, in the almost three years since the parties separated in 2008, a total of $800 in spousal support has been paid. [ 24 ] In the same almost three years however there have been significant other financial changes. Around the time the parties separated, Tom Priest was earning more than $60,000/annum. At the time of this application, owing to a number of factors, he was or was expecting to earn roughly $41,500/annum. His earnings in 2009 and 2010 were comparable to the current figure. In answer to Judith

Priest's interim application, Tom Priest argues he is now financially strapped and cannot afford to pay spousal support. He argues as wellthat Judith Priest is living rent-free in the matrimonial home, half of the value of which should be paid to him as soon as the house can besold. He argues there should be at least notional "occupation rent" assessed against Judith Priest which would net out any obligation topay spousal support. In all of those circumstances he denies any obligation to pay spousal support. [25] Since 2002 Judith Priest has worked as a teachers' aid.

She works 10 months each year, presumably with summers off. In2010 she earned roughly $29,000. There is little evidence in Judith Priest's two affidavits touching on pre-separation standard of livingand the extent of any financial shortfall at present, as compared to before the 2008 separation. She deposes that "With my salary andchild support I believe I can make ends meet." I am mindful of Mrs.

Priest's reference to "child support" but of course given my findingwith regard to Jennifer Priest, child support is no longer a relevant consideration, at least as matters now stand. [26] Judith Priest argues that, on the parties' respective 2011 earnings, monthly advisory guideline spousal support would fall into arange of $293 to $391, the midpoint being $342. [27] On this interim application, s. 15.2 of the Divorce Act requires that I consider the condition, means, needs and othercircumstances of each spouse, mindful as well of the factors set out in ss. 15.2(4), and the principles articulated in Moge v.

Moge (SCC), [1992] SCJ 107 amongst other cases. Particularly relevant to Tom Priest's "means" is the evidence that after expenseshe has roughly $275/month for groceries, toiletries and other such items. He spends $995/month on rent. Much of his take-home payappears to be spent on debt servicing. His share of the equity in the matrimonial home is not available to him but is being used, in amanner of speaking, to support Judith Priest’s rent-free status. As to Judith Priest's condition, means and needs, the most relevantevidence is again the rent-free accommodations.

Granted, she pays taxes, utilities and related occupancy expenses which she estimates at$900/month. Tom Priest's comparable expenses are still higher, though, estimated at just under $1,200/month. As was noted by counselat the application before me, the roughly $300/month differential - which of course favours Judith Priest - is close to the mid-point$350/month spousal support as set out in the advisory guidelines.

At the end of the day, Judith Priest says she is ‘making ends meet’ andagain, I have little evidence of how that compares to her pre-separation status. [28] On all the evidence and having considered the submissions of counsel, I am not persuaded that Judith Priest has made a casefor interim spousal support. [29] I note divided success on the applications/cross applications before me. If it is necessary to do so, the parties may speak tocosts within the next 45 days. Heard on the 22nd day of March, 2011. Dated at the City of Edmonton, Alberta this 29th day of April, 2011. P.B. Michalyshyn J.C.Q.B.A.

Appearances: Lydia J. Bubel

Family Law Office for the Applicant Jordan Bienert Merchant Law Group for the Respondent