Adams v. Adams, 2011 ABQB 306

Court of Queen ’ s Bench of Alberta Citation: Adams v. Adams, 2011 ABQB 306 Date: 20110606 Docket: 4801 119740 Registry: Calgary Between: Fatin Hassan Adams Plaintiff - and - Gareth Mark Adams Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice M.C. Erb _______________________________________________________ [ 1 ] After meeting through the auspices of a matching agency, the parties ended a few months of dating by getting married on August 16, 1997, in Anapolis Royal, Nova Scotia.

Within a year they were parents of a daughter, Nicole and within another two years, their son, Ryan arrived completing the family circle. Nine years after they married, they divorced. [ 2 ] The parties now seek to end years of protracted litigation with the resolution of the following outstanding issues arising from their marriage: i. Date of Separation;

ii. Division of matrimonial property; iii. Spousal support, entitlement and duration; iv. Parenting, access and support; [ 3 ] The Plaintiff is a medical specialist; the Defendant is a pilot with Air Canada Jazz. Both parties now reside in Calgary. They were divorced in September 2006, and the Defendant was remarried the following summer to a woman he was seeing during the marriage. The duration of the party’s cohabitation was between 4 ½ and 6 years depending on whether the view of the Plaintiff or Defendant is accepted. The Plaintiff was 35 years old and the Defendant was 37 at the time of the marriage.

They are presently 49 and 51 years old respectively. [ 4 ] Twelve witnesses testified in these proceedings including the parties, a financial expert, Brenda Pask and the author of a court-ordered bilateral report, Dr. Larry Fong. A letter in which a Halifax nanny responded to questions was entered by agreement as evidence. All of the evidence heard and read has been considered. However, in these reasons the mountain of minutiae admitted will not be specifically referenced. Evidence referred to in the following narrative under the headings to which it relates is specifically accepted.

Personal and Professional background of the Plaintiff [ 5 ] The Plaintiff was born and raised in Iraq and after completing a medical degree, she quietly left the country during the Iraq- Iran conflict of the1980s. Other family members had already left the war-torn country and the Plaintiff joined them in Jordan in 1985.

The Plaintiff then moved on to the United Kingdom where she completed a degree in obstetrics and gynaecology at the University of London and a masters degree in pharmacology at the University of Liverpool while waiting for the government of Iraq to release her university transcripts which took until late 1990. In January 1991, she followed her parents to Montreal where she worked and studied until being accepted into Dalhousie University medical school in Halifax in 1993. By 1995, she had requalified and had commenced a residency program in internal medicine.

She met and married the Defendant in 1997 during the final year of her three-year residency program. The Plaintiff then enrolled in a sub specialty in gastroenterology which she completed in 2000. This capped a long progression of medical studies and internships. She financed her education through part time work and internship remuneration in the range of between $28,000 and $43,000 per year prior to and during the marriage. [ 6 ] The Plaintiff comes from a family of academics and high achievers. Her father was a surgeon in Iraq and in Canada before retiring.

Her mother, an obstetrician, died under mysterious circumstances during a trip to Egypt in 2001. The Plaintiff has a sister who is an obstetrician, another is a dentist and her brother, is a software engineer. [ 7 ] The Plaintiff joined the medical staff at Moncton Hospital in 2000 and opened an office nearby. The Defendant assisted her during the first three months of her practice by setting up her billing and computer systems and assisting in booking patients until she hired office staff.

She operated her practice through a New Brunswick professional corporation. [ 8 ] In 2002, the Plaintiff joined the staff of Rockyview Hospital in Calgary as a specialist in gastroenterology. Her New Brunswick practice was wound up and she established a new professional corporation in Alberta to run her practice here. She is presently a specialist in gastroenterology and remains affiliated with the Rockyview Hospital. Personal and Professional background of the Defendant [ 9 ] The Defendant grew up in British Columbia. His father, a Second World War paratrooper met and married his mother in England.

They settled in Powell River. He has an older sister and brother and one younger brother. He completed his grade 12 in 1977 and attended Malaspina College in Nanaimo but left before graduating. He took up recreational flying and earned his private pilot’s licence in 1983 followed by his commercial licence in 1984. He worked as a flight instructor in Victoria that year and also piloted charter flights. He then worked for one year flying turbo props with Bearskin Airlines in Ontario then joined Air Atlantic, an Air Canada regional carrier, in November 1988. Four months, later he was upgraded to captain.

In 1998, Air Atlantic went out of business but Inter Canadian Air picked up the routes and some of the pilots including the Defendant. He had a choice whether to serve as a captain on one type of air craft or become a First Officer on an F-28 jet. He chose the first officer position to acquire jet experience to enhance his qualifications. In late 1999, Inter Canadian also ceased operations and the Defendant found himself unemployed. He drew Employment

Insurance benefits while searching for a new opportunity. He considered an Air Transat posting out of Vancouver but concerned about the impact of the long commute on the marriage and his family life, he did not pursue it. He commenced work with Air Nova, an Air Canada affiliate shortly thereafter. In 2000, the Defendant moved with the Plaintiff to Moncton where she had acquired a position at the local hospital.

He continued to fly with Air Nova although his remuneration had been drastically reduced. [ 10 ] When the Plaintiff acquired her position with Rockyview Hospital, the Defendant had an opportunity with WestJet which is based in Calgary. However, the Defendant elected not to pursue opportunities there and continued on at Air Nova Halifax which had by this time morphed into Air Canada Jazz. Some time in 2005, he moved to Calgary having earned sufficient seniority to support the move with Jazz.

He still holds the position of first officer. [ 11 ] Prior to his marriage to the Plaintiff in 1997, the Defendant had been involved in a relationship with Sandy Verasamy of Miramichi, N.B. The two became reacquainted in late 1999 and they were married in July 2007 after the parties were divorced. [ 12 ] The Defendant has a son from a prior marriage presently 20 years of age who is apparently on his own and self sufficient since the Defendant no longer has any support obligations for him. Date of Separation [ 13 ] The parties dispute the date of their separation.

It is relevant in these proceedings with respect to the division of Matrimonial property and it is one of the factors to be taken into account pursuant to the provisions of the Matrimonial Property Act , RSA 2000, chap. M-8. [ 14 ] It is the Plaintiff’s position that the parties separated on April 12, 2002, when the Defendant acquired an ex parte order for care and control of the children in Moncton when she was in Alberta making arrangements for the family’s move to Calgary.

The Order was set aside a few weeks later and the Plaintiff’s move to Calgary with the children was approved by the New Brunswick Court of Queen’s Bench. [ 15 ] The Defendant agrees that the parties separated in April 2002 but claims that they reconciled in September and remained together until April 2004 when they finally separated.

He points to the following evidence in support of his position: They took trips together as a family; occasionally resumed conjugal relations; the Plaintiff sent him endearing cards for his birthday and their anniversary; he received mail at the Point Mackay home initially rented in Calgary and subsequently at the Garrison Woods home which the Plaintiff purchased in 2003. [ 16 ] It was the evidence of the former Calgary live-in nanny Ms. Beltran that the Defendant was not regularly in the home at Point Mackay or at Garrison Woods; he kept a few clothes in a drawer in the children’s room during his access visits.

When he was in Calgary he slept in the children’s room and she was not aware of any occasion in which the parties shared the Plaintiff’s bedroom although she agreed that this might have occurred without her knowledge. I accept Ms. Beltran’s evidence that the Defendant’s presence amounted to “two or three days every two or three weeks or more” and when he arrived at the home, he rang the door bell and she let him in. The Defendant’s own evidence on whether he even had a house key was ambiguous. In addition to the mail directed to the Plaintiff’s address in Calgary, the Defendant was also receiving mail at Ms.

Verasamy’s residence in Miramichi; at the Plaintiff’s father’s home in Halifax; at his mother’s address in Powell River and at his post office box in Calgary. [ 17 ] While Counsel for the parties at trial spent considerable time on the interactions between the parties between April 2002 and April 2004, the pleadings and documents marked as trial exhibits disclose perhaps better than anything else, the Defendant’s own view about the status of his marriage at the time.

The Statement of Claim filed by the Plaintiff and the Defendant’s Statement of Defence and Counterclaim for Divorce and Division of Matrimonial Property both state that the “parties ceased cohabiting on April 12, 2002.” The Divorce Judgement was granted in 2006 on the basis of that same date of separation. The Defendant in his tax returns filed for the years 2002, 2003 and 2004 stated that his marital status was “separated”.

In his Department of Transport Security Clearance application required for national security purposes signed on February 6, 2004, the Defendant stated that his marital status was “separated” and the date of this event was May 6, 2002. He had also increased his financial ties to Ms. Verasamy in 2003, having established a joint credit card and joint bank account with her.

[ 18 ] I find that the date of separation for the purposes of these proceedings was April 12, 2002, a date the parties reported in their respective tax returns, pleadings and other documents exhibited at trial.

Spousal Support, Entitlement and Duration [ 19 ] The Defendant seeks spousal support both retroactively and prospectively which he claims is due because of his contribution to the Plaintiff’s completion of her education qualifying her as a gastroenterologist which presently commands a substantial income; a claim that he was a homemaker during the marriage to a higher income earning spouse; and a claim that his career was stalled for reasons associated with the marriage. [ 20 ] At the time of the marriage, the Plaintiff was completing a residency at Dalhousie University in internal medicine.

The Defendant was a pilot with Air Nova. His income plummeted when the two airlines with whom he worked back-to-back collapsed early in the marriage but for no reason associated with it. [ 21 ] The Defendant’s claim that he contributed to the Plaintiff’s career is that he gave her emotional support and encouragement without which she may not have completed her qualifications. I do not accept that the Defendant contributed in any way to the Plaintiff’s career which was well on its way long before the parties met.

There is no question given the academic milestones the Plaintiff had already achieved that she would have earned her credentials with or without the Defendant in her life. [ 22 ] The Defendant further submits that he was a homemaker during the marriage with a spouse who had earned a far greater income and that because of his gender he should not be treated any differently than a female homemaker in a like position. However, there is a difference. The Defendant was never a homemaker by any stretch of the evidence.

Nannies were engaged at all times and the Defendant had very little responsibility not already covered by a nanny or the Plaintiff. He had no more involvement than any parent returning home after work in the ordinary course except for the fact that he may have had even less given the relatively low number of days he worked each month and the fact there were still full time nannies. I accept the evidence of the nannies about his lack of hands on involvement and his use of most of his down time from work for his own purposes. One incident which Mrs. Landry described is telling.

She arrived at the house to begin her work and baby Ryan was lying in a soiled diaper apparently for some time as the odour was obvious as soon as she came it the house. The Defendant was busying himself on either his computer or the phone. He appears to have left this task up to the nanny. [ 23 ] It was this Court’s impression that the Defendant was more similar to that of someone in semi retirement than a homemaker. [ 24 ] The Defendant’s claim that his career was stalled by the marriage is based in his decision to pass up an opportunity as a pilot with Air Transat based in Vancouver.

He would have had to commute between Moncton and Vancouver and this would have had a negative impact on his family life. I accept that he did not accept the position. However, he did not present any evidence other than his own assertions what he might have been paid or how quickly he might have risen to captain. He left the impression that it would have been a rapid rise. Yet, he did not pursue that option even when the Plaintiff and the children arrived in Calgary and the parties had separated.

An Air Transat position at that time would have based him in Vancouver far closer to his family than Air Canada Jazz based in Halifax. His position that he did not pursue the Air Transat position for family reasons lacks credibility to some degree. Rather, he accepted a position as a first officer with Air Canada Jazz in 2000. [ 25 ] It was the evidence of WestJet executive Kevin Hollands that the Defendant would have been hired and he would have made captain in about four years.

He admitted however that this is hindsight because at the time, WestJet was a new venture and its viability had not yet been tested. [ 26 ] In any event, the Defendant would have had to work his way up at Air Transat just as he would have had to do so with WestJet and Air Canada Jazz, the latter airline where he is presently employed. His decision then followed its ordinary course thereafter. No evidence was submitted about what he would have earned or how long it would have taken him to become a pilot at Air Transat which obviously would have commanded a greater income.

He testified that it will take him another five years yet to become a pilot with Air Canada Jazz but no explanation was offered about why this period of time is required given the fact that he has already had employment with Air Canada Jazz for more than a decade and he has had commendations from his employer. Further, Mr. Hollands testified that the Defendant is a well-regarded pilot. The Court has been left with the impression that the Defendant has simply not actively pursued advancement.

Whatever the cause, his employment advancement issues more recently are not a consequence of any decision related to his marriage to the Plaintiff.

[ 27 ] It is clear from the evidence at trial that the parties’ incomes have little connection to the marriage.The parties since the sale of their home in Halifax in 2000 have not co-mingled any of their finances. The Plaintiff has carried the larger share of the family financial responsibilities and the years during which the Defendant had very low income he was responsible only for his own expenses. This lack of co-mingling is disclosed by the way the parties dealt with the proceeds of sale of the Halifax home before the move to Moncton.

The Defendant received two thirds of the proceeds despite the fact that each party contributed $5,000 to the down payment.

However, he appears to have carried the higher share of the mortgage payments on that home. [ 28 ] Although the claim for recognition of an interruption in the Defendant’s career advancement should have been better supported by independent evidence and has an air of remoteness to it, this Court exercises the standard of proof on a balance of probabilities in the Defendant’s favour and recognition for this will be part of any equalization adjustment due to him in the matrimonial property division. [ 29 ] However, the Defendant’s claim for spousal support beyond this has not been established to this Court’s satisfaction.

He has remained employed since the date of separation of the parties and has made no appreciable financial contribution to the family unit. Any spousal support claim beyond what has been addressed here would be unfair and is dismissed. [ 30 ] I find that the Defendant has not been disadvantaged in his career other than by his own lack of initiative and his own choices except for a relatively short period of time. Parenting the Children [ 31 ] The Defendant seeks equal parenting time on a seven-day rotation stating that he has always provided care to the children.

The Plaintiff seeks day-to-day care and control of the children with regular access to the Defendant on alternating weekends; a mid week evening with them; and an equal share of all school and family holidays; with such occasions to be specified to avoid what she sees as constant tinkering with agreements made. Dr. Fong has recommended that the Plaintiff have decision-making authority for the children and that parenting be shared on the basis of a 14 day rotation with the Plaintiff having the larger share of parenting time with the parties sharing equally holidays and school breaks.

The parties have parented the children as Dr. Fong recommended but neither content with the arrangement. [ 32 ] Dr. Fong also notes in his bilateral report that the parents have very different parenting styles. The Plaintiff is focussed on education and structuring productive time for the children in their activities. The Defendant and his present spouse have a more casual style with focus on social activities and sports.

Both styles bring something desirable to the children’s lives and they are not incompatible. [ 33 ] A great deal of time was devoted in these proceedings to the quality and quantity of parenting by each party. It is abundantly clear that both parents love their children and the children love them in return. However, the evidence clearly discloses that it has been the Plaintiff who has shouldered the lion’s share of responsibility for meeting the ongoing needs of the children.

The Defendant has been content with leaving the financial burden with the Plaintiff and has not contributed financially except in a nominal way largely through costs of the time he has spent with the children occasionally buying groceries and paying a utility bill, facilitating travel through employment perks. [ 34 ] I accept the evidence of the two nannies, Ms. Landry (in Moncton) and Ms.

Beltran (in Calgary) that despite having substantial time when he was not working, the Defendant used the time more for his own purposes than spending time with his children leaving the nanny to sort out the children and their needs occasionally helping out, driving them home when the Plaintiff arrived after work or allowing them to go home early. [ 35 ] The fact that a full-time nanny was retained throughout the time he was not working is telling. I do not accept the Defendant’s claims that the Plaintiff refused to allow him to take the responsibility on his own.

It would appear that the nannies were engaged initially because both parents had busy work schedules and later because the Plaintiff was not confident that the Defendant could handle the children on his own. While there were many occasions when he was solely in charge of the children particularly when the Plaintiff was out of town, he was not providing on going care himself. In almost every situation when he had the children on his own, even his

son by his previous marriage, he recruited assistance. [ 36 ] While he insisted in his testimony that he was with the children every day that he was not engaged in his work as a pilot, as much as 15 or 16 days a month, there is no evidence that he actually used that time to care for the children. There was a full time nanny present even during the period Mr.

Adams took paternity leave after his son was born. [ 37 ] The Defendant attempted to enlarge his role on day-to-day care and to diminish or discredit that of the nannies by stating that the nannies were always hired by and paid by the Plaintiff therefore their evidence was less credible. [ 38 ] However, it was the Defendant’s evidence of the time he spent with his children which lacked credibility. He did have a fatherly role but it was not to the extent he claimed. This was confirmed by Dr.

Fong’s bilateral report, his conclusion gleaned from his discussions with the parties including friends of the Defendant and Plaintiff and the nannies who gave evidence at the trial as well. The Defendant attempted to discredit Dr. Fong’s report.

However, this Court finds the report to be a full disclosure of events and the conclusions drawn were professional and objective. [ 39 ] In any event, this Court has great concern about the Defendant’s demonstrated exercise of poor judgement; his lack of insight and his high potential for vindictiveness towards the children’s mother. [ 40 ] The most glaring incident occurred in the face of a court order carefully prescribing a protocol for interviewing the children. Dr. Fong was engaged to acquire input from the children on the parenting arrangements.

The case management justice had endorsed a thoughtful and careful approach. [ 41 ] However, the Defendant took the children to his lawyer’s office, admittedly untrained in interviewing children, prior to their attendance at Dr. Fong’s office. His counsel, Mr. Ruff, provided his typed notes of the interview to Dr. Fong. Dr. Fong was asked to record his interview with the children but he prudently asked the children whether they wanted to be recorded and both declined. [ 42 ] The Plaintiff only discovered that the children had been interviewed by Mr. Ruff and also coached into secrecy about it when Dr.

Fong referenced it in his report. In his Report, Dr. Fong suggested that the expression of the children’s wishes could not be relied upon given the tainting which had occurred. Despite this, Dr. Fong advised the Court that in his opinion the children were reasonably content with their present parenting arrangement and considered their home to be with their mother. [ 43 ] The potential harm to the children was not acknowledged and in cross examination, the Defendant disclosed little insight into the fact that this was the very thing the protocol sought to avoid.

In this Court’s view, this is a clear example of parental alienation assisted by the Defendant’s counsel. [ 44 ] When cross examined about the clandestine interview with the children, the Defendant brushed it off as his lawyer’s decision.

Although this may have been the case, the Defendant complied all too eagerly without thought to possible harm to the children. [ 45 ] Further, when he was questioned about bringing an ex parte application in Moncton for custody of the children while the Plaintiff was in Alberta making arrangements for the family’s move, he simply said he didn’t know his lawyer was bringing the application. This, despite the fact that he had to swear the affidavit in support.

In seeking information to use in his application, he attended at the Plaintiff’s medical office in her absence and rifled through her correspondence retrieving job inquiries which had been made a year earlier before she had settled on the Rockyview Hospital position. He appears to have justified his application for custody on some sort of claim that the Plaintiff was planning imminently to move the children out of the country when he knew she had committed to the Calgary position.

He also inexplicably removed a number of her patient files from her office turning them over to his Moncton lawyer who ultimately returned them. When cross examined about this behaviour, the Defendant simply dismissed it by stating he was neither a doctor nor a lawyer so he didn’t know anything about privacy. Why he took the files to start with was never explained. [ 46 ] During the approximate three weeks it took the Plaintiff to have the file returned to the court to have the ex parte custody order reviewed and ultimately set aside, the Defendant permitted her only one visit with the children.

I accept the nanny, Sharon Landry’s evidence that the Defendant “taunted” the Plaintiff when he picked up the children after the visit. There appears to have been

no consideration at all about the impact on these young children of denying their mother regular access. Rather, he drove the children to Miramichi to visit his friend and now wife, Ms. Verasamy, about 240 kilometres return, rather than accommodating a visit with their mother. [ 47 ] Further questionable judgement was disclosed when the Defendant took his daughter then a toddler to Disneyland along with his older son, then about 10 years old. The Plaintiff was visiting her sister in California and had baby Ryan with her. He then contacted Ms.

Verasamy to assist him with Nicole, purportedly because no one else was available to do so, all the while assuring the Plaintiff he would have no trouble handling the two children on his own. Knowing he had the option of taking his son alone and leaving the toddler with the child’s mother, he elected to summon Ms. Verasamy. [ 48 ] More recently, in a lengthy parenting plan prepared at Dr. Fong’s request, the Defendant suggested that his son Ryan be registered in the same private school as his sister, Nicole who attends there because of her particular education requirements.

He appears to have the expectation that the Plaintiff should pay for this as well. His reasons for this suggestion as indicated in his cross examination at trial were more to do with the “convenience” of collecting the children for his parenting time from the same school despite the fact that his son wanted to continue in public school and is doing well there. He was clearly not thinking about the children’s best interests. [ 49 ] Nevertheless, the Defendant is a positive figure in the children’s lives despite his tendency to affect their views on the respective parents access time with them.

The children are happy with him in their lives and they love and respect both him and their step mother who is able assist the Defendant in their care. The evidence was clear that while Mrs. Adams has been active in the children’s care in a positive way, she has some negative tendencies too.

She has been critical, for example, of the way the children are dressed but fails to acknowledge that the children’s father has contributed nothing to their support. [ 50 ] Neither the Defendant nor his wife are as well equipped through their own backgrounds or inclination to assist the children with their education in the manner the Plaintiff has in the past and will continue to do so. Dr. Fong notes this fact in his report.

It is important that more of the school days are spent in her household. [ 51 ] In assessing the best interests of the children through a careful consideration of the evidence in these proceedings, I find that the most appropriate parenting arrangement for the children should be based on a 14 day rotation with the Plaintiff having the first nine nights and the Defendant having the next five nights with the children. The Plaintiff is the parent best equipped to guide the children as she has in the past and the Defendant spending quality time with them.

This is also the regime the children are presently accustomed to; they consider their home to be with the Plaintiff as they disclosed to Dr. Fong. Further, this arrangement is consistent with the objectives of section 16(10) of the Divorce Act that contact with the parents should be maximized in so far as it is in the best interests of the children to do so. [ 52 ] Having said that, I remain concerned about the Defendant’s past exercise of poor judgement regarding the children and his attempts to influence their views on access.

Interfering with the parenting regime or attempting to alienate the children against the other parent is not in their best interests. Any such continued behaviour will be grounds for a variation of parenting time by reducing the Defendant’s time with the children. [ 53 ] The parties inability to work together to parent the children has been considered in the crafting of this parenting regime. It has also been arranged to limit as much as possible opportunities for argument between the parties and tinkering with allocated time. General parenting of the Children a).

Parenting of the children shall be shared with the children spending nine consecutive overnights out of every 14 with the Plaintiff and five with the Defendant. Specifically, the Defendants five overnights commence on Thursday when the children are collected after school and end on the following Tuesday morning when they are delivered to school. His next access time follows the Plaintiff’s nine overnights which commence the Tuesday after school until the Thursday morning of the following week. b).

Because the parties are unable to share decision making and because of this Court’s concern about the Defendant’s poor judgement skills, all decisions regarding the education, health, religion, activities and general well being of the children shall repose with

the Plaintiff. The Plaintiff may consider the Defendant’s reasonable suggestions but he shall not badger or bully the Plaintiff into acceptance in any manner whatsoever. Both parents shall take into account the wishes of the children where appropriate given their ages and stages of development; c). The Defendant shall be entitled to information about the children’s health, welfare, education and religious training directly from any educator, health care provider, or other professionals attending upon the children.

He may attend at the children’s schools for appropriately designated volunteer days and such time shall not be formally considered parenting time by either parent. d). Communication between the parties shall be limited to Email or Text messaging except during emergencies. All communication shall be in a respectful, business-like manner. e).

Either parent is at liberty to attend any public function involving the children without any interference by the other parent directly or indirectly whatsoever, and at all times shall conduct themselves in a dignified, adult manner respectful of the children’s right to be comfortable whether in the presence of one or both of them. The parent on whose parenting time any such public event may occur, shall be permitted to be with the child after the event to the exclusion of the other parent.

The other parent may greet the child/children at a distance but shall remain respectful of the other parents time with the child/children unless specifically invited by the other parent. Neither shall take advantage of such invitation and shall accept or decline graciously.

Neither parent shall convey messages to the other parent through a child or in any manner insult or interfere in the activities of the other during that time Neither parent or their spouses or friends shall make the other parent uncomfortable during any such event and shall focus their attention on the child’s activities and not on what the other parent may or may not be doing. f). Both parties shall refrain from making derogatory comments about the other of any kind whatsoever within the hearing of either child whether they are in their respective care or otherwise.

They shall instruct any spouse or partner to honour this directive. Both parents by being courteous and respectful to each other, demonstrate respect for their children. g). Should either party decide to move outside the City of Calgary, they shall provide to the other, 90 days advance notice in writing of such intention. Other parenting times h). The Plaintiff and the Defendant shall share all school holidays and special occasions equally. There shall be no special accommodation for statutory holidays other than referenced herein.

Christmas holidays: The Plaintiff shall have the first half of the holidays which includes Christmas day on even numbered years and the Defendant shall have the first half of the holidays on odd numbered years. If the employment obligations of either party is a factor, the parties shall work together to ensure that the time is spent with one or other parent as a first option. If there are an uneven number of days available to be divided the extra day shall be rotated annually with it comprising part of the second half of the holiday period.

Spring Break: The Plaintiff shall have the first half of the annual spring break in even numbered years and the Defendant shall have the first half of annual spring break on odd numbered years. If there are an uneven number of days available it shall be shared in the same manner as the Christmas holidays. Summer Holidays: The Plaintiff shall have the month of July on even numbered years and the month of August on odd numbered years.

The Defendant shall have the month of July on odd numbered years and the month of August on even numbered years; The children shall be at liberty to contact the other parent every three days without interference from the other parent. i). All parenting time will accommodate the children’s activities and it is the respective parents responsibility to transport the children to and from their activities without exception or alternatively make appropriate arrangements. The Plaintiff shall not enrol the children in summer camps during the Defendant’s summer holiday time without his consent in writing.

j). No special accommodation will be made for birthdays of the children or the parents. k). The Plaintiff and the Defendant shall have Mother’s Day and Father’s Day respectively whether or not it falls on their parenting time for a period of four hours commencing at 1 p.m. and concluding at 5 p.m., the parent whose day it is shall pick up and deliver the children promptly and without exception. The parent in whose home the children are on those days shall ensure that the children are ready to be picked up without delay and returned without delay. l).

Either parent shall be at liberty to travel nationally or internationally with a child or both children and the other parent’s consent for travel shall not be unreasonably withheld provided that the travel itinerary including travel dates, accommodation and general description of the reason for travel is provided to the other parent within 30 days of the date of intended travel. Such travel will be on non school sitting days.

The Plaintiff shall hold the children’s passports and shall produce them for the purpose of accommodating travel and they shall be returned to her at the end of the trip within 7 days, failure of which the non complying parent shall pay per diem costs to the other at $25 per day unless an acceptable explanation is provided. m). If, because of inability to care for the children themselves through work or other commitments out of the City of Calgary, the other parent has the right of first refusal over child care services for the children.

Such additional time shall not affect the time the children are in the care of a parent for child support purposes. If a parent declines to exercise the right of first refusal, the decision shall be graciously accepted without derogatory or other comment. Requests for Accommodations n). The parties are at liberty to make accommodations respecting time with the children. It may be increased or decreased to accommodate special events in the lives of either parent or their extended families, it being acknowledged that such events are in the best interests of the children.

The parent seeking an accommodation shall in no way badger or bully the other parent or attempt to wear down the parent by unreasonable persistence. The requesting parent shall put the request in writing to the other parent in a business like fashion but always in writing stating the reasons clearly and fully, the extent of the time sought, the time, date and all arrangements regarding travel. There shall be no misleading of the parent to whom the request is made either directly or indirectly.

An accommodation shall be viewed by both parties as a privilege not a right and the parents shall be gracious to the other parent at all times. All requests shall be reasonable in nature and special in that they are infrequent, educational or family oriented. Accommodations shall be subject to a day-for- day crediting back of the time to be reclaimed as soon as possible or during school holiday blocks of time. Child Support [ 54 ] To say that parents have a joint financial obligation to support their children to the best of their respective abilities is to state the obvious.

That this obligation is independent of any court order of legislation is well established ( D.B.S. v. S.R.G. (2006), SCC 37). [ 55 ] The Plaintiff has supported the children financially with negligible assistance from the Defendant. She asks this Court to order the Defendant to pay his share of retroactive support,

section 7 expenses and has told the court she is willing to forego ongoing child support if the Defendant would simply spend what would otherwise be his obligation on the children. It would appear that this latter position is rooted in simple frustration. The Defendant has been content with the Plaintiff paying because “she makes more money”. He has not fulfilled his obligation and has not satisfied this Court that there are principled reasons for it such a hardship or other cause.

His attitude that the Plaintiff should pay has been so ingrained in his attitudes that even when he attended at his daughter’s classroom on a parent day and the child reported to him that she owed a $7.50 fee, rather than simply paying it for her and removing her name from the blackboard where her debt was posted, he told the child to get it from her mother. [ 56 ] Jurisdiction to award retroactive child support where there has been no prior court order, agreement, hardship or special circumstances as in the case here, is established by the Divorce Act

section 15.1, which empowers courts to grant orders for the support of children of a marriage without any restriction as to commencement date. Here there is no issue that the children are entitled to support given their young ages. [ 57 ] The factors to be considered whether retroactive support should be ordered in the circumstances of this family include:

whether the children would have a “discernible benefit”; whether a retroactive order would cause hardship to a payor parent in ways a prospective award would not, whether delay in failing to seek support earlier was reasonable; was the reason no child support was forthcoming was based on hardship at the time. I find that there was no hardship facing the Defendant after the parties separated not faced by any parent in like circumstances. He has chosen to work 12 to 15 days a month when he had options to do more.

He simply developed the attitude that the Plaintiff should pay, something neither party disputes occurred throughout the marriage between two financially disconnected spouses. While that was a condition of the marriage, the Defendant has a duty post marriage to contribute. His evidence at trial was that he did not pay support because the Plaintiff “did not require it”.

He said that he helped out at school by volunteering and that helped lower the school fees by about $300 per year. [ 58 ] Despite the Defendant’s failed obligation, I find that there would be a hardship to him were he required to now come up with 9 years of child support. The Plaintiff’s delay in seeking support by court order was not well explained at trial.

It appears she simply continued the historic pattern of the marriage and paid everything, declining to take on the Defendant until trial. [ 59 ] While it is repugnant to this Court that the only voluntary child support the Defendant has ever paid was because a previous lawyer told him to do it and even then it was only for three months, a balancing of factors is necessary in determining what is appropriate here.

I find that an order for retroactive support is appropriate but limited to about three years and this is arrived at with some reluctance given the Defendant’s self-created situation of electing not to contribute and then blaming the Plaintiff for “not letting him”, a position this Court does not accept. [ 60 ] The Plaintiff for reasons not clearly explained at trial did not pursue any contribution from the Defendant for his proportionate share. While she may have elected to continue paying out of frustration or lack of energy to fight over it, she had able counsel and could and should have done so.

In any event, this Court finds that the effect of accumulating a large account with the expectation that it will or can be paid without hardship is unrealistic. As for the future, it is not for the Plaintiff to decide to simply not collect support duly ordered either. It is the children’s right to have it and the Defendant’s duty to pay it. It is clear that the Defendant has shirked his responsibility to his children in the past and should not be permitted to do so for the future. [ 61 ]

Section 7 expenses for the children paid by the Plaintiff since the parties separated in 2002 have been substantial. The expenses were placed in evidence through a

schedule setting out the expenses per year between 2002 and 2010. The schedule, which I accept as evidence, references the following categories: health care, the largest component of which occurred in 2006 because of psychologist fees, dental and eye care and Alberta health fees until that cost ceased to be an expense in 2009; School expenses, the largest component of which is the private school which Nicole attends because of her learning disability’; extracurricular activities such as music, dance baseball, swimming, skating hockey and ringette; child care costs of nannies over the years and day camps. The

Section 7 expenses for 2010 amount to $16,369.00. It may be assumed that the costs for 2011 will be similar to what was incurred in 2010. The lessening costs appear to be affected by a lesser need for child care as the children grow older. [ 62 ] The children’s ongoing

section 7 expenses will be based on the list of items which the mother has paid on their behalf in the past. [ 63 ] The Defendant shall pay retroactive guideline

section 3 child support from January 1, 2008 together with his proportionate share of

Section 7 expenses. He shall pay ongoing child support and

section 7 expenses on the same basis. [ 64 ] The Defendant claims

section 7 expenses between 2004 and 2009 in the amount of $7,560.00, however most of this is comprised of costs related to his parenting time with the children such as restaurants, haircuts for the children, entertainments including hockey tickets and an out-of-town ringette tournament which the Defendant, his wife and the children attended. These expenditures most of which are not properly

Section 7 expenses are so out weighted by the Plaintiff’s contribution since the children were born that it would be exceedingly unfair to allow them at all. This Court exercises its discretion in all the circumstances. Those expenses which are otherwise proper are also denied. [ 65 ] For the financial protection of the children in the longer term, Counsel for the Plaintiff has asked this Court to order that each party establish a life insurance policy naming the children as beneficiaries. I agree that this is a prudent arrangement.

The policy of insurance shall be in the amount of $250,000 with the parties naming a suitable trustee. The policy shall remain in place until the children are both no longer children of the marriage. They shall provide proof that the policy is in good standing along with a copy of their annual tax return and CCRA assessment on or before June 30 each year.

Matrimonial Property [ 66 ] The Defendant claims an interest in the property acquired both before and after the date of separation of the parties. The Plaintiff seeks a “substantial unequal division” based on the Defendant’s lack of contribution to any of the assets accumulated upon the parties’ arrival in Moncton. Further, the Plaintiff argues that when she left Moncton, some assets had accumulated but they were limited because she had only been working for about 18 months having had an intern’s remuneration to rely on prior to joining the staff at Moncton Hospital and through her own fiscal prudence.

The Defendant had depleted most of his modest asset base which included his share of the proceeds of sale of the Halifax home and his RRSPs. It was his evidence that he used some of his RRSPs largely accumulated prior to the marriage to “support the family”. However, he admitted using part of his RRSPs to finance his trip to Cuba in 2000 with his present wife, Ms. Verasamy, unknown to the Plaintiff at the time.

At the same time, however, he claims that he had no help from the Plaintiff to pay family bills when the evidence is that she covered almost all of them except the Defendant’s own personal expenses. [ 67 ] The property at issue is primarily what was acquired by the Plaintiff since the Defendant continues to rent a home in Calgary and there was no evidence of any substantial property. The property may be divided into two categories: A. Pre-Separation Property : RRSP s The Moncton duplex Bank accounts and investments The Plaintiff’s N.B. Professional Corporation B.

Post-Separation Property The Garrison Woods home in Calgary The Plaintiff’s Alberta Professional Corporation Bank accounts, RRSPs and investments [ 68 ] The Matrimonial Property Act in s 7(4) prescribes the approach to be taken in dividing matrimonial property acquired during a marriage which is not otherwise subject to exemptions permitted under the Act or affected by the statutory considerations set out in

Section 8. [ 69 ]

Section 7 provides for an equal distribution unless “it would not be just and equitable to do so taking into

section 8 of the Ac t,” which include: (

a) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent; (

b) The contribution, whether financial or in some other form, made by a spouse directly or indirectly to the acquisition, conservation, improvement, operation or management of a business, farm, enterprise or undertaking owned or operated by one or both spouses or by one or both spouses and any other person; (

c) The contribution, whether financial or in some other form, made directly or indirectly by or on behalf of a spouse to the acquisition or improvement of the property; (

d) the income, earnings capacity, liabilities, obligations, property and other financial resources

i. That each spouse had at the time of the marriage, and ii. That each spouse has at the time of the trial; (

e) the duration of the marriage; (

f) whether the property was acquired when the spouses were living separate and apart: (

g) the terms of an oral or written agreement between the spouses; (

h) that a spouse has made i. A substantial gift of property to a third party, or ii. A transfer of property to a third party other than a bona fide purchaser for value; (

i) a previous distribution of property between the spouses by gift, agreement or matrimonial property order; (

j) a prior order made by a court; (

k) a tax liability that may be incurred by a spouse as a result of the transfer or sale of property; (

l) that a spouse has dissipated property tot he detriment of the other spouse; (

m) any fact or circumstance that is relevant. [ 70 ] The provisions of

Section 8 are considered here in the context of all of the facts and circumstances of the marriage (see Hodgson v. Hodgson, 2005 ABCA 13 at paras. 18-21 ). Subsection (a) - Spousal contribution to the marriage and family [ 71 ] The contribution made by each spouse to the marriage and to the welfare of the family including as a homemaker or parent in the circumstances of this marriage is heavily lopsided. The Plaintiff clearly bore the lion’s share if not all of the financial responsibility of the family. The Defendant‘s contribution to the family expenses has been negligible.

He states that he bought groceries and paid for expenses of the children. Yet most of the costs he raised relate to social activities with the children for which he sought credit as a

section 7 expense. The Defendant presented himself at trial as akin to a stay-at-home parent despite the fact that the children have always had a full time nanny. There is no dispute that the Defendant made no contribution towards the cost of the full time nanny for the children in Halifax, Moncton or Calgary. There was also evidence by the nannies that the Defendant’s layovers could not be counted on because he often arrived home after the children were asleep. [ 72 ] Despite the fact that he often had up to half a month of non flight time at his disposal, he did not devote significant time to his family.

I accept that there were occasions when he pitched in and helped out around the home by picking up groceries, doing some

laundry and taking the children to visit the Plaintiff at her office and arranging occasional travel through his employment. However, this is a far cry from shouldering the ongoing responsibility for child care which this

section contemplates as the contribution of a “homemaker”. [ 73 ] Whenever an occasion arose in which he had the children on his own such as when the Plaintiff worked or had an out of town conference, the nannies were relied on by him or he otherwise recruited the assistance of his mother, the Plaintiff’s mother, Ms. Verasamy. He did not carry out tasks independently to any appreciable extent other than the period after the birth of Nicole. His idea of parenting was more being physically in the house than doing hands-on care. The nannies were infrequently sent home early because of his presence.

As the Moncton nanny, Ms. Landry, reported, when she was present, the Defendant was either on the telephone for lengthy periods or attended to his own requirements there or elsewhere. While the Defendant attempted to discredit Ms. Landry who was hired and paid by the Plaintiff as not being objective, I find that her evidence was credible and had a strong ring of reality.

Further it was not controverted in cross examination to any significant extent. [ 74 ] The Defendant spent much time claiming that he did many tasks which the nanny had to have done and his lack of hands-on capability was evident by the recruitment of others to assist him. The Defendant used his off time far more for his own purposes. That was the evidence of the nannies and I accept it. [ 75 ] At the present time his role as a father is rather different, quite possibly because his present wife is able to assist him on an ongoing basis.

More recently he has volunteered at the children’s schools and this has been well received. Subsections (

b) and (c) - Contribution to Acquisition or Improvement of the Property [ 76 ] The Defendant agreed that he did not contribute to the down payment, mortgage or expenses on any property after the Halifax home was sold and the parties received their share of the proceeds.

The Defendant does not dispute that he received a larger portion of the Halifax sale proceeds because he had “contributed more” than the Plaintiff to the acquisition of it. [ 77 ] The Defendant admits that he made no direct financial contribution to the acquisition, conservation, improvement to the Moncton property, a duplex, in which one unit served as the matrimonial home, by down payment, payment of the mortgage, taxes or upkeep including the renovation undertaken around the time the property was purchased expect for the payment of a few month’s of utility bills after the parties separated and he lived there on his own. [ 78 ] Both parties agree that the Defendant did assist the Plaintiff during the first three months of the commencement of her work at the Moncton Hospital by setting up her billing and accounting systems and assisting with booking patients until she hired staff. [ 79 ] He readily admitted that he made no financial contribution to the acquisition of the Garrison Woods home in Calgary but states that he did do some minor repairs such as fixing a door and changing light bulbs during the time he was there visiting the children.

The Defendant’s contribution to the Garrison Woods property is negligible if it exists at all but in any event, does not represent a contribution to the property in the manner contemplated by the Matrimonial Property Act . He agrees that he made no contribution to the Plaintiff’s Alberta professional corporation. Subsection (d) - Income and Earning Capacity of the Parties [ 80 ] At the time of the marriage, the Plaintiff was earning income as a third year intern in internal medicine. The Defendant was earning twice her salary as a captain with Air Atlantic at that time.

Her income tax returns from that period show income between about $28,000 to $43,000 during her internship in internal medicine followed by a residency in gastroenterology. When she took the position as a qualified gastroenterologist in Moncton in 2001, her income dramatically rose. She earned her highest level of income prior to the separation during the 18 months she was employed as a gastroenterologist in Moncton. [ 81 ] The Defendant was a captain with Air Atlantic when the parties married. His income that year was in the $80,000 a year range.

However, his income plummeted when the airline went out of business along with Inter Canadian the following year. He spent a short time drawing Employment Insurance benefits. His income remained low until about 2002 when it reached the $50,000 mark. The

parties separated that spring. The loss of employment with Air Atlantic and Inter Canadian was not caused by the marriage and would have occurred in any event. However, the Defendant did not pursue an opportunity in Vancouver with Air Transat for family reasons which may have meant his income would have accelerated quickly. However, he also passed up on an opportunity with WestJet in 2002 which would have had a similar effect on his income.

His reasons for declining to that position which would have had him working and living in the same city as his family for the first time since the parties were married, were rather frivolous – he didn’t like the uniform or WestJet’s corporate culture.

Further, he did not pursue any new opportunity with Air Transat which would have had him based in Vancouver, much closer to Calgary where his family was living by this time, than the commute from Halifax. [ 82 ] Further, it was the evidence of Kevin Hollands, who has held senior positions with WestJet throughout the relevant period that it is customary for pilots to take on extra routes or even sideline jobs to round out their incomes.

At no time did the Defendant do this to any significant extent, in fact he admits to taking on no additional jobs and taking extra routes less than a handful of occasions each year. [ 83 ] In addition, the Defendant’s reasons for not yet achieving captain status with Air Canada despite working with the airline for more than a decade was only vaguely explained at trial. He submits that he cannot achieve captain status with Air Canada Jazz for another five years. [ 84 ] This Court is not satisfied with the Defendant’s evidence regarding his employment progression.

He is apparently still well regarded as the letter of commendation he produced suggests. It is this Court’s conclusion that the Defendant has not actively pursued captain status and that he is, at least for the present, content with where is he professionally.

There is nothing in the evidence that I accept as credible which would suggest that his career path with Air Canada has been stymied because of his marriage to the Plaintiff or that he was called upon to make his career secondary to hers with an attendant significant loss of opportunity. [ 85 ] Line 150 on the parties personal tax returns for the years including and following the date of separation discloses the following income: Tax year Mark Adams Fatin Adams 2002 50,088.00 184,349.66 2003 46,165.00 173,214.85 2004 46,497.00 190,994.84 2005 54,104.38 228,479.01 2006 54,119.00 192,769.56 2007 59,622.58 287,332.60 2008 65,393.00 222,876.53 2009 64,810.00 219,312.03 [ 86 ] The 2010 tax returns had not yet been filed at the time of the trial.

Subsection (e) - Duration of the Marriage [ 87 ] The parties were married in 1997, separated in 2002 and were divorced in 2006. They were together for four and one half years of the nine-year marriage. Subsection (f) - When Property Acquired

[ 88 ] The most substantial property was acquired after the parties’ separated and after the Plaintiff moved to Calgary. All of the property was acquire through her initiative. Subsections (g), (h) (i) (j) (l) - Agreements, Gifts, Distributions, Orders, Asset Dissipation [ 89 ] Neither party has alleged the existence of any specific oral or written agreements, gifts of property to any third party, previous distributions between them of property after them moved from Halifax and dealt with their home. There are no prior court orders respecting the distribution fo their property.

Subsection (k) - Tax Consequences [ 90 ] The Plaintiff submits that should she be required to pay a sizeable equalization payment to the Defendant for his share of any property, there will be tax consequences for removing the funds from her professional corporation which would be the source of funds for such a payout. There may also be tax consequences for transfer of real property. Division of Property Based on

Section 8 Discretion [ 91 ] At the time of the marriage the parties each had RRSPs but little else. They were both renters and earned income. They bought a home in Halifax once the children started to arrive but sold it and distributed the proceeds between them before moving to Moncton. By this time the Plaintiff had completed her education and the parties had severed their financial links. [ 92 ] The Defendants employment with Air Atlantic had dissolved and InterCanadian followed suit. He had a period of unemployment then joined Air Nova at a modest salary.

At the time of the marriage in 1997, the Plaintiff had an RRSP account of $12,255 and registered investments of $48,000. By the date of separation in the spring of 2002, her RRSP account was $3,919 and her registered investments wee $75,597.00. The Defendant had an RRSP account at the time of the marriage but appears to have all but depleted by the date of separation. He cashed in RRSPs during his period of unemployment and while he claims to have used it for family purposes admits that he used some of it to fund a trip to Cuba in 2000 with his present wife, Ms.

Verasamey unknown to the Plaintiff until after the fact. [ 93 ] At the time of separation the matrimonial home was one of the two units of the duplex which the Plaintiff purchased. She paid out the mortgage of the duplex of about $100,000 after the date of separation, however, this was largely covered by the rents from the duplex throughout. Both units remain rented.

Ongoing rents would have defrayed the duplexes expenses on a continuing basis as well. [ 94 ] The Defendant contributed to the Plaintiff’s New Brunswick Professional Corporation by helping her set us accounting and computer systems and helping with booking for the first three months until she hired staff. However, the professional corporation until the date of separation had not accumulated assets since the Plaintiff had only been in place for 18 months.

It received her income which was used for payment of the mortgage and family expenses. [ 95 ] The Defendant submits that he sacrificed a position with Air Transat although the fall out from this was not specifically proved at trial. No evidence was called about what he would have earned other than from his own vague speculation. Nevertheless, this Court is willing to acknowledge there was some loss to him. [ 96 ] The Defendant made no contribution to the property which the Plaintiff acquired in Calgary. He made no rental payments before the Garrison Woods home was purchased.

He made no down payment, he made no mortgage payments, he did not contribute to the renovations or the upkeep in any significant way. He did not reside in the Garrison Woods home although he visited his children there from time to time and was permitted to stay there overnight from time to time. He did not contribute in any manner whatsoever to

the Plaintiff’s Alberta Professional Corporation through which she earns her income. During the entire period the parties were separated the Defendant made three child support payments and then only because he was directed to do so by his then legal counsel. He did not contribute to the children’s

section 7 expenses except to a minuscule extent. He was content to have the Plaintiff foot the bills of most if not all of them because “she made more money” than he did. Pre-Separation Property [ 97 ] With respect to the assets accumulated prior to the separation of the parties, the parties are entitled to one half each of the property acquired prior to the date of Separation as I have found it to be.

For clarity, they are entitled to one half of the present value of the Moncton duplex; one half of the Plaintiff’s Bank account, unregistered investments and RRSP as it stood at the date of separation less its value at the date of the marriage brought forward to a present value. For clarity, the Defendant is not entitled to any share of the contributions the Plaintiff made to the RRSP account after the date of separation because of the application of the

Section 8 factors, specifically the fact he contributed nothing to the account and made no contribution of any kind to the income the Plaintiff earned to do so, after that date. They shall also share one half of the Defendant’s RRSP account at the date of separation in present value expecting post separation contributions and value at the time of the marriage. From the evidence at trial, it would appear that the Defendant had no substantial assets at the time of separation except for the travel trailer he purchased with Ms.

Verasamey. [ 98 ] I find that the Plaintiff’s New Brunswick Professional Corporation had no independent value other than being the entity which facilitated her income. [ 99 ] Although the Court has expressed reservations about the Defendant’s loss of opportunity with Air Transat, there is some evidence of this which based on a balance of probabilities supports some recognition. Accordingly, he is entitled to recover for the approximately two- year- period between the time the Air Transat opportunity arose and his acceptance of his position with Air Nova (now Air Canada Jazz).

The lump sum will be based on two years compensatory support and is an aggregate sum of $24,000. [ 100 ] Set off from the Defendant’s share of property will be

Section 3 Guideline income and his proportionate share of the

Section 7 expenses of the children based on income from Line 150 of the parties annual tax returns. For clarity, the Defendant’s

section 3 and

section 7 child support obligations from 2008 forward are based on the Plaintiff having parenting time amounting to day to day care and control and the Defendant having parenting time in the nature of access. Post-Separation Property [ 101 ] The Plaintiff shall have as her own separate property the following: Her Alberta Professional Corporation; the Garrison Woods home, her present investment portfolio and RRSPs, bank and all other accounts since arriving in Calgary together with all household effects and motor vehicles.

The Defendant shall have no share of the post-separation property accumulated by the Plaintiff after the date of separation of the parties. The Plaintiff shall have no share of the post-separation property accumulated by the Defendant. I apply

Section 8 factors of the Matrimonial Property Act based on lack of contribution to any of that property. [ 102 ] The parties shall retain all other real estate, investments, chattels held by them. Other Matters [ 103 ] Each party is entitled to their own Canada Pension Plan contributions past, present and future. Costs and Clarifications [ 104 ] If the parties are unable to agree, costs may be spoken to within a reasonable period of time. Any clarification required by any finding of this Court may be spoken to also within a reasonable time.

Heard on the 14 th to 18 th days of March, 2011, the 21 st to 25 th days of March, 2011, the 28 th and 29 th days of March, 2011 and the 8 th day of April, 2011. Dated at the City of Calgary, Alberta this 6th day of June, 2011. M.C. Erb J.C.Q.B.A. Appearances: William T. Aaron, Q.C. Spier Harben for the Plaintiff Charles Ruff McLean Ruff for the Defendant