Holland v. Holland, 2011 ABQB 359

Court of Queen ’ s Bench of Alberta Citation: Holland v. Holland, 2011 ABQB 359 Date: 20110602 Docket: 4803 149118 Registry: Edmonton Between: Kelly Lynn Holland Plaintiff - and - Sabastian D. Holland Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] By order of this court, Ms. Holland was authorized to bring a special chambers application, with viva voce evidence, to finalize all aspects of the breakdown of her marriage: divorce, parenting, child support, permanent restraining order, and division of matrimonial property. She was also authorized to serve Mr. Holland by email; at the time of granting of the order relating to service, the court was not aware of the amount of material that Ms. Holland would be required to serve on her husband. [ 2 ] Ms. Holland has satisfied the court both that Mr. Holland is aware of her claim for divorce and that the parties have, in fact,

been separated for longer than one year: she is entitled to a divorce judgment. [3] Since the date of separation in October 2008, Mr. Holland has not seen his 5 year old daughter, at least in part because Ms.Holland refused his parenting requests until he had satisfied conditions which she imposed. The court accepts that Ms. Holland shall bethe primary parent of the parties' daughter.

However, the court is not satisfied that it is against his daughter's best interests for Mr.Holland to be prevented from parenting her; nevertheless, given the relatively young age of the daughter, and the lack of any kind ofcommunication between the father and his daughter for over 2 years, the court directs that Mr. Holland shall have no access to hisdaughter until an Alberta court determines how he can best be re-introduced to his daughter. [4] Mr. Holland will pay child support based on the income disclosure he has provided to Ms. Holland.

This amount awarded forchild support will, in the circumstances here, include an adjustment in child support obligations retroactive to the time of separation;although Mr. Holland has made all payments as required by court order, the order was itself an interlocutory order pending full financialdisclosure. Mr. Holland will, of course, be credited with all the child support payments he has made. The only s. 7 expenses proved byMs. Holland are the child care expenses; in light of the income of each of the parents, the swimming and dance lessons are notextraordinary, s. 7, expenses. Mr.

Holland will be given time to pay the retroactive portion of the award of child support. [5] Ms. Holland is entitled to a permanent restraining order; an exception is made in the order solely in relation tocommunications between the parents in relation to access to their daughter. [6] Ms. Holland is entitled to take the parties' daughter to Disneyland, and, in the future, to travel outside Canada with theparties' daughter without obtaining Mr. Holland's consent. [7] Ms.

Holland's claim for a matrimonial property exemption with respect to a GIC she owned at the date of the marriage isdenied: as our Court of Appeal held in Jackson, by gifting the proceeds of the GIC to her husband when they purchased a house in jointownership, Ms. Holland evinced a presumed intention to remove that property from the protection given to exemptions. A similaranalysis applies to the use of property owned by Ms. Holland prior to the marriage to buy a vehicle which was then placed in thecouple’s joint names.

Apart from the house, which was clearly a joint economic enterprise, the other matrimonial property will bedivided as of the date of separation: Ms. Holland will keep the increase in her RRSP since separation and Mr. Holland will keep theincrease in his pension since separation. [8] Although it seems likely that the life insurance policy which Mr. Holland currently has on Ms. Holland will be terminated byoperation of law because Mr. Holland no longer has an insurable interest in Ms. Holland, the court orders Mr. Holland to terminate thatpolicy: Ms. Holland does not feel comfortable knowing that Mr.

Holland is paying for a policy on her life. [9] Service by email, as anticipated in the New Rules, is undoubtedly a great step forward in facilitating access to justice.Nevertheless, because of the severe limitations on the receipt of information by mobile receiving units, where the intended recipient ofemail notices has only a mobile receiving unit, that information should be provided in the application to serve the litigant by email so thatthe court can take that information into account when determining if such service is acceptable, or can impose conditions with respect tothat type of service.

Cases and authority cited: [10] By Ms. Holland: D.B.S. v S.R.G., 2006 SCC 37 , [2006] 2 S.C.R. 231, [2006] S.C.J. No. 37; Jackson v Jackson,[1987] A.J. 1411 (Q.B.); Harrower v Harrower, (AB CA), [1989] A.J. 629. [11] By the court: Jackson v Jackson 1989 ABCA 197 , [1989] A.J. No. 630 (C.A.); Hartley v Del Pero, 2010 ABCA182, [2010] A.J. No. 364. 1. Background

[ 12 ] The parties were married in 2005; their daughter was born in April, 2006. Mr. Holland's son from a previous relationship lived with the parties. [ 13 ] In 2006, Mr. Holland legally changed his name from Shawn Michael Naish to Sebastian Dexter Holland. [ 14 ] The parties separated in October 2008. In November, 2008, Ms. Holland received an Emergency Protection Order which expired on November 18, 2009. Ms. Holland then received a series of orders from this court preventing Mr. Holland from having contact with her or with the parties' daughter. [ 15 ] In October, 2008, Ms.

Holland received what must be interpreted as an interlocutory order from the Provincial Court that she be the primary parent of the parties' daughter. Eventually, the Provincial Court ordered that Ms. Holland's claim for sole custody of the parties' daughter be brought in this court. [ 16 ] In December, 2008, the Provincial Court ordered Mr. Holland to pay child support in the amount of $310.00 for the months of December 2008 and January and February 2009; Mr. Holland paid those amounts. In May, 2009, this court ordered Mr.

Holland to complete his financial disclosure for child support purposes; that disclosure was never completed. In May, 2009, the court also authorized Ms. Holland to serve Mr. Holland by email at a hotmail.com email address that was the address of Mr. Holland's then girlfriend. Although no order was in place, Mr. Holland paid $310.00 for child support in March, 2009, and then paid varying amounts - between $450.00 and $600.00 - in child support for the remaining months in 2009, up to and including November, 2009. In December 2009, by way of consent order, although it was not styled as such, Ms.

Holland received an interlocutory, without prejudice, pre-disclosure child support order from this court in the amount of $380.00 per month; Mr. Holland has paid those amounts. In December, 2009, the issue of the state of Mr. Holland's financial disclosure was not addressed in the court order. [ 17 ] In 2005, Ms. Holland had a balance of $1,200.00, approximately, on one of her credit cards and of approximately $900.00 on another. At the time of separation in 2008, there was a balance of approximately $14,000.00 on one account and of approximately $8,400.00 on the other. [ 18 ] In 2009, Mr.

Holland pleaded guilty to one count of criminal harassment of Ms. Holland relating to the separation of the parties in October 2008 and its immediate aftermath, and was sentenced to pay a $1,000.00 fine and to probation for 3 years; it was a term of the probation order that he have no contact with Ms. Holland except for the purpose of arranging parenting of his daughter. [ 19 ] In February 2011, this court ordered Mr. Holland to forthwith provide a copy of his most recent pension statement in response to Ms. Holland's notice to disclose of January 12, 2010. At that time, the court also granted Ms.

Holland authority to effect the renewal of the mortgage on the matrimonial home. Ms. Holland was also given authority to serve Mr. Holland by email at an email address in his own name at yahoo.com. In preparation for the February 2011 hearing, Ms. Holland attempted to serve Mr. Holland at the address provided to her lawyer's office by Mr. Holland's then lawyer. Ms. Holland acknowledges that Mr. Holland's former lawyer indicated that Mr. Holland had returned to Ontario, where he had lived prior to the marriage, and was perhaps hospitalized.

In any event, the registered mail sent to an address in Wetaskiwin, Alberta was returned to Ms. Holland's lawyer's address with an indication that Mr. Holland no longer resided at that address. [ 20 ] Ms. Holland has provided to the court copies of a Bank of Montreal account of which she was formerly a joint owner; apparently, although Mr. Holland removed her from the joint account, Ms. Holland still has access to the information in that account. Ms. Holland down-loaded information from the account showing that, in March 2011, Mr.

Holland had made charges against that account, including a child support payment, a mobile phone payment, and a cable payment; Ms. Holland's contention is that Mr. Holland is therefore not hospitalized. [ 21 ] In 2005, after they married, the parties bought a home in their joint names. After the parties separated in October 2008, Ms. Holland did not pay occupation rent to Mr. Holland, but she did pay the mortgage and other expenses related to the property. The down payment for the home, or most of it, was contributed by Ms. Holland, but, at a minimum, Mr.

Holland contributed the credit base necessary to obtain a mortgage. Ms. Holland acknowledges that she would not have qualified, as a single owner, for the mortgage on that house. In January 2011, Ms. Holland obtained a comparative market analysis for the property, located in Wetaskiwin, Alberta. That analysis, which was not prepared by an authorized real estate appraiser and is not a real estate appraisal, indicates that a recommended

listing price for the property is $165,000.00. The mortgage owing on the property is $90,229.00. Ms. Holland therefore claims that the equity in the home is $74,771. Ms. Holland has been approved to assume the mortgage on the matrimonial home by the mortgage company which currently holds that mortgage. [ 22 ] In 2008, Mr. Holland's line 150 income was $54,032.19; the Federal Child Support Guidelines states that the s. 3 table amount payable during that year would therefore be $463.00. In 2009, Mr. Holland's line 150 income was $63,030.00; the table amount of support on that income would be $548.00 per month.

The last income information Ms. Holland has received from Mr. Holland were pay slips from February 2010 indicating a monthly salary of approximately $4,666.00, or extrapolated annual income of $59,099; the table amount of support on that income would be $511.00 monthly. [ 23 ] In 2008, Ms. Holland's line 150 income was $25,090.00. In 2009, that income was $40,942.45. In 2010, her income was $45,596.75; she expects her income to be the same for 2011. [ 24 ] In 2010, Ms. Holland paid $3,422.00 for child care. She has also provided receipts for child care in earlier years. [ 25 ] Ms.

Holland also paid for summer camp and for swimming and dance lessons for the parties' daughter. [ 26 ] At the date of the marriage, Ms. Holland had a GIC valued at $33,216.68. During the course of the marriage, she withdrew all of the money in that asset to pay for the matrimonial home, to pay for a vehicle and to pay for repairs to the matrimonial home. [ 27 ] At the date of the marriage, Ms. Holland had a RRSP valued at $8,116.31. During the course of the marriage, she withdrew $6,000.00 from that asset to pay for the matrimonial home. As at April 2011, Ms.

Holland's RRSP was worth $9,715.71. [ 28 ] At the date of the marriage, Mr. Holland had just begun working for a new employer, Schlumberger. As of December 31, 2007, Mr. Holland had $11,516.21 in his pension account and $6,512.48 in his deferred profit sharing plan with his employer. During 2008, the amount Mr. Holland paid into his pension account was $2,665.56. During 2009, the amount Mr. Holland paid into his pension account was $3,148.48. By the end of February 2010, the last period for which Mr. Holland has provided financial disclosure, Mr.

Holland had paid $367.76 into his pension account. [ 29 ] As at the end of February 2010, Mr. Holland was paying a few dollars monthly for a $200,000.00 term life insurance policy on Ms. Holland. [ 30 ] Although Ms. Holland received an order from this court authorizing her to serve Mr. Holland by e-mail, she had not, at the time of the hearing, yet filed an affidavit of service; she undertook to file such an affidavit forthwith. She indicated, through her lawyer, that the e-mail service was effected by forwarding 4 or 5 consecutive emails to Mr. Holland.

There was no evidence at the hearing on the specific issue of whether Mr. Holland, had, at the time that service was effected on him for this hearing, a computer; there was, however, evidence that Mr. Holland had, in March 2011, paid for Koodo service and it may be that Koodo is a mobile telecommunications provider. 2. Divorce [ 31 ] I am satisfied that Mr. Holland received adequate notice of Ms. Holland's application for a divorce. I was satisfied from the evidence Ms. Holland provided at the hearing that the grounds for divorce, one year separation, had been made out. At the hearing, I therefore granted Ms.

Holland a divorce. 3. Service by email

a) General concerns [ 32 ] Service by email, as anticipated in the New Rules , is undoubtedly a great step forward in facilitating access to justice.

Nevertheless, because of the severe limitations on the receipt of information by mobile receiving units, where the intended recipient of email notices has only a mobile receiving unit, that information should be provided in the application to serve the litigant by email so that the court can take that information into account when determining if such service is acceptable, or can impose conditions with respect to that type of service. [ 33 ] The size of scanned documents, whether they be attached or embedded into email, present challenges.

Most email systems have size limitations, sometimes as low as 20MB, that would prevent an email recipient from receiving anything that exceeds that limitation. Determining a safe number of scanned documents, or size of a single document, which can be transferred is also difficult because the format the document is saved in has a direct impact on how big the file will be for a given document.

In general terms, a document which is prepared, for example, in Word or WordPerfect format is likely to have a fairly small footprint - maybe even less than 1MB - but scanned documents have a fairly large footprint. [ 34 ] Also, since the server/software that services mobile devices is typically separate from the email system software/servers, there is no built-in ability to receive a status report from the mobile device back to the sender.

Not only do not all email systems send back status indications to the senders that an email has been received, some email systems may allow the receiver to determine if they want to allow such a status message to go back to the sender.

This is different from the ordinary mail system where, as we have seen in this case, a sender often receives notification that the intended receiver no longer resides at the stated address. [ 35 ] As much of this information as possible must be provided to the court on the application to serve by email so that the court can determine what safeguards, if any, should be included in the service approval.

b) Service in this case [ 36 ] In this particular case, Ms. Holland has yet to file her affidavit of service; other than the divorce judgment itself, the relief granted in this decision is dependent upon an affidavit of service being filed. [ 37 ] There is no evidence before the court, and no basis for assuming, that Mr. Holland received actual notice of this hearing, specifically, that he received all of the documents on which Ms. Holland was relying on this application. [ 38 ] Mr.

Holland cannot be cited for being in breach of any of the provisions of this decision until it has been proved that he was personally served with the form of order incorporating the court's reasons for decision. For that reason, I now terminate the previous order of the court allowing service by email and require Ms. Holland to bring a new application for service of this decision and of the resulting order on Mr. Holland; in preparation for that application, she should renew her attempts to determine Mr.

Holland's current residence and employment with a view to serving him personally or substitutionally with a hard copy of the final order in these proceedings. I note from the pleadings that the respondent was born in Peterborough, Ontario and that Ms. Holland has made at least one trip to that municipality. It may well be that the Peterborough telephone book discloses addresses for the Naish family which could be pursued in an attempt to locate Mr. Holland. 4. Parenting [ 39 ] Ms. Holland is entitled to be the primary parent of the parties' daughter. Before having any direct contact with his daughter, Mr.

Holland will not only have to apply to set aside that portion of the orders of this court issued in December 2009 and in February 2011 which prevent him from contacting his daughter, but, unless he and Ms. Holland agree on access, he will also have to apply to the court to determine what kind of access he will have. [ 40 ] Ms. Holland asks for sole custody of the parties' daughter and for an order that Mr. Holland cannot have any contact of any

kind with his daughter. Those applications are denied. [ 41 ] The best interests of the children is the basic test for determining parenting issues. In a general way, it is obviously best for children to have a good relationship with their parents. We can even take judicial notice of the fact that many, if not most, children have a strong desire to know their biological parents; even if this were only a reflection of a logical interest in knowing their genetic history, this desire is a reality.

Therefore, it is only in extreme situations that a court will prevent contact between a child and one of the child's parents. Such extreme circumstances have not been established here. [ 42 ] Mr. Holland has behaved badly, even criminally, to his wife. Ms. Holland has also established that she and her husband had very different parenting styles and she found it hard, if not impossible, to accept Mr. Holland's parenting style. She gave as an example of that style a copy of a handwritten list of "rules" Mr. Holland had apparently written. Those rules include: Play, but let them be independent. Enjoy, not invade.

Don't over emphasize menial tasks. Enjoy the children being children. Let them play and be themselves. Don't focus all of your attention on the children. [ 43 ] Other than the oddity of writing such thoughts down, there does not appear to be anything particularly distressing about these "rules". [ 44 ] Some of the other "rules" would obviously need further explanation. One, for example, states: "No feeding, changing, or comforting." The father cannot have meant that rule to be universally and literally applicable, but no context is provided. [ 45 ] Also, Ms.

Holland established that she used to work a late afternoon or evening shift. Although it was not explored, it may well be that Mr. Holland cared for his daughter while Ms. Holland was employed outside the home. [ 46 ] Among the evidence that undermines Ms. Holland’s claim that Mr. Holland should have no contact with his daughter is the fact that Mr. Holland has faithfully paid child support since the parties' separation in 2008. Moreover, Mr.

Holland, apparently by consent rather than by court order, had custody of his son from an earlier relationship; that mother, at least, appears to have been of the opinion that Mr. Holland was a capable parent. [ 47 ] Ms. Holland states that, although she asked for, and obtained, many court orders that prevented any access between Mr. Holland and his daughter, she did not intend to prevent any and all future contact between Mr. Holland and his daughter, and she insists that Mr. Holland did not make much of an attempt to have those orders set aside or modified.

She indicates that, at one time, she and her lawyer established some conditions that Mr. Holland would have to meet before he would be allowed to have contact with his daughter. I observe that her statement of claim asks for sole custody of the parties' daughter and that for an order prohibiting any access between Mr. Holland and his daughter. [ 48 ] Ms. Holland mentioned more than once while testifying that she was looking for a "clean break" from Mr. Holland.

While that may be possible in relation to certain financial matters, such as spousal support and matrimonial property, it is simply not possible in relation to the parenting and financial support of the parties' child. Specifically, there is no basis on the evidence before the court on this application to deny Mr. Holland the normal custodial rights of a parent. [ 49 ] On the other hand, Mr. Holland's daughter has not seen, or spoken with, or interacted in any way, with her father for 2 and ½ years, or, to put it another way, she has not had any contact with her father since she was less than 2 years old. Mr.

Holland is a stranger to her. It would probably be upsetting for her to be forced to spend time with her father; some re-introduction period is probably necessary. The court cannot force Mr. Holland, or any parent, to assume as active a parenting role as possible relative to their children, but it can certainly remind parents that, usually, children are better off if their parents are a real, healthy and dependable presence in their lives. However, before Mr. Holland can have any contact with his daughter, the court would have to assess what is in the daughter's best interests.

[ 50 ] As one aspect of the primary parenting order, in the circumstances here, Ms. Holland is entitled to holiday travel outside Alberta with the parties’ daughter without obtaining Mr. Holland’s consent. [ 51 ] In

summary, Ms. Holland is entitled to be the primary parent of the parties' daughter. The court does not preclude the resumption by Mr. Holland of his parental role but does suspend his right to exercise that role until further order of the court. 5. Child support [ 52 ] Mr. Holland will, of course, pay child support pursuant to the Federal Child Support Guidelines . [ 53 ] Although we do not have any current information on Mr. Holland's employment income, Mr. Holland has had a full opportunity to provide that information; indeed, on at least one occasion, he was ordered by the court to provide that information.

In those circumstances, it is appropriate for the court to infer that Mr. Holland is continuing to receive the same income from employment as he was receiving in February, 2010. [ 54 ] A calculation has been provided by Ms. Holland in ex. 3 showing the amounts that were due from Mr. Holland from the period November 1, 2008 to April 1 2011, and the amounts that Mr. Holland has paid over that period of time. I accept that calculation as representing the evidence at this hearing. The total amount due is $15,049.00, and Mr. Holland has paid a total of $11,600.00.

The court therefore makes a retroactive award of $3,449.00 to cover the period November 1, 2008 to April 1, 2011. [ 55 ] Ms. Holland asks that the retroactive award be offset against the equalization payment that Ms. Holland would otherwise have to pay to Mr. Holland. That request is denied. Mr. Holland has never failed to pay court-ordered support; in those circumstances, the court will not make a lump sum award rather than an installment award and will not deprive the creditor parent of the opportunity of paying off the retroactive portion of the award in a sensible way.

That retroactive award will be paid by Mr. Holland at the rate of $150.00 per month, from May 1, 2011 until the retroactive portion has been paid off. [ 56 ] Similarly, Ms. Holland asks for a retroactive s. 7 award for child-care expenses. She has prepared a document showing Mr. Holland's proportionate contribution to those expenses: ex. 11. The court accepts that calculation as representing the evidence on this application in relation to retroactive s. 7 expenses. Mr. Holland will pay a total of $5,169.29 in retroactive s. 7 payments. That retroactive award will be paid by Mr.

Holland at the rate of $150.00 per month from May 1, 2011 until the retroactive s. 7 award has been paid off. [ 57 ] In

summary, from May 1, 2011 until further order of this court, Mr. Holland will pay ongoing monthly child support of $511.00; he will also be liable to pay his proportionate share of s. 7 expenses for child care based on a receipt served on him by Ms. Holland. Mr. Holland's proportionate share on an ongoing basis is 56.77%, based on his deemed income of $59,099.00 and Ms. Holland's income of $45,000.00. In addition to ongoing support, Mr.

Holland will also pay $150.00 monthly towards the retroactive table amount award until the retroactive award has been paid out and a further $150.00 monthly towards the retroactive s. 7 award until the s. 7 award has been paid out. 6. Restraining order [ 58 ] Subject to communications restricted to the issue of parenting, Ms. Holland is entitled to a permanent restraining order against Mr. Holland. [ 59 ] Ms. Holland states that she does not wish to have any contact with Mr. Holland. Although there is no evidence of any unwanted contact from Mr.

Holland at least since the criminal proceedings concluded in 2009, Ms. Holland is entitled to an order preventing any future unwanted contact. However, for the reasons stated above, at this stage of the proceedings, such an order must contain an exception for written communications from Mr. Holland to Ms. Holland relating solely to the parenting of the parties' daughter.

7. Matrimonial property [ 60 ] As indicated above, one area in which there can be a clean break between spouses is the division of matrimonial property. While matrimonial property is, generally, valued and divided as at the time of the divorce judgment, in the Holland's situation, for the reasons that are set out hereunder, some of the property will be valued as of the date of separation. [ 61 ] Ms. Holland has provided evidence of her credit card obligations at the time of the marriage and at the time of separation; assuming this was an attempt to characterize the debt as Mr.

Holland's debt rather than matrimonial debt, for the purpose of giving credit to Ms. Holland for her assumption of that debt, the court concludes that Ms. Holland has not established that the credit card debt was Mr. Holland's as opposed to matrimonial debt. Therefore, the state of the credit card obligations at the date of separation has no effect on the distribution of matrimonial property.

a) Exemptions [ 62 ] Ms. Holland has not proved that she has an exemption with respect to the money which she contributed to the acquisition of matrimonial property in joint names. [ 63 ] In Jackson , our Court of Appeal compared the proper way of accounting for gifts between spouses with a way which is not correct in principle but which sometimes produces the same result: In the course of argument it was suggested that the exemption recognized by the Act was some form of absolute credit to which a spouse was entitled regardless of the ultimate disposition of the exempt property.

For the reasons given in Harrower v. Harrower I reject that argument: exempt property must be either still owned or traceable into other still owned property . I note that in many cases, the practical resolution of totalling existing property and deducting the value of exemptions is satisfactory. Indeed, that was done here: one-half the exemption was allowed the husband, the other half was apportioned. No objection is taken to that method of applying the exemptions once determined - the determination is the issue. . . . Mr.

Pollock urges that this kind of decision encourages the hoarding of exempt property, with the consequence of matrimonial disharmony. I can only say that the legislation is some encouragement to hoarding, but represents a compromise between allowing no exemption on one hand, and, on the other, an exemption provided without regard to what has happened to the exempt property. Since an object of the Act is to share the consequences of economic decisions made during marriage some accounting for the results of decisions relating to exempt property is necessary.

I cannot fault the legislature's conclusion that putting exempt properties in both names evinces a presumed intention to subject the gift to the matrimonial property regime or removing it from the protection given exempt properties. (Emphasis added) [ 64 ] Ms. Holland does not own the matrimonial home - it is jointly owned by the parties. Therefore, she has no exemption in relation to the money which she invested in the property. Not only does this result follow the law, it also follows common sense: when the parties bought the matrimonial home, Ms.

Holland had some money saved, but she did not earn enough money from her employment to qualify her for the mortgage. Mr. Holland may not have had any money saved, but he had income from employment which allowed the parties to purchase the home; this is a classic joint economic enterprise and the parties are entitled to participate equally in the financial outcome of that enterprise. [ 65 ] In

summary, therefore, Ms. Holland can only claim exemptions for that property which she owned at the time of the marriage and that was still in her sole name at the time of the divorce.

b) Matrimonial home [ 66 ] The matrimonial home is matrimonial property and, for the reasons set out above, is not subject to an exemption in Ms. Holland's favour. [ 67 ] The matrimonial home should be valued as at the date of judgment: this property is a quintessential matrimonial property, the acquisition of which depended upon the parties acting together. The value of the home today is a result of the operation of market forces, rather than of ongoing contribution by the parties. While it is true that Ms. Holland has paid the mortgage on the property since the separation in 2008, she has not paid Mr.

Holland occupation rent; those rights and obligations therefore cancel one another out. [ 68 ] In the circumstances here, the court is content to accept the comparative market analysis provided by Ms. Holland as an indicator of the value of the matrimonial home at the time of this application.

c) Mr. Holland's pension [ 69 ] Mr. Holland's pension is an item of matrimonial property in which Ms. Holland has an interest. Although the law usually requires that property be determined at the time of the divorce judgment rather than at the time of separation, the Matrimonial Property Act allows a court to take into account certain factors in determining whether that attribution of matrimonial property should apply. In the circumstances here, after the parties' separation, Ms. Holland did not contribute to the acquisition by Mr.

Holland of a greater pension asset: she no longer made the indirect contributions of a spouse to the circumstances which allow one spouse to continue to devote their energy to their employment. Indeed, it is not clear that Mr. Holland continued to work for Schlumberger beyond February 2010. I have concluded that Ms. Holland is not entitled to any interest in Mr. Holland's pension beyond the interest she acquired while the parties were living together.

d) Ms. Holland's RRSP [ 70 ] Using the same rationale in relation to Ms. Holland's RRSP as the court used in relation to Mr. Holland's pension, i.e. that, after separation, each of the parties continued to work for their own specific benefit rather than for the benefit of the economic partnership, the increases in Ms. Holland's RRSP between the date and the date of the divorce judgment are Ms. Holland's exclusive property and not matrimonial property to be divided between the spouses.

e) Ms. Holland's exempt property [ 71 ] Ms. Holland also has, at the date of this application, some clearly exempt property. For example, she owned a dirt bike prior to the marriage and continues to own the dirt bike at the date of the divorce. That property did not become matrimonial property and Mr. Holland has no claim to that property; Ms. Holland has a claim for exemption for that property.

f) Matrimonial property equalization payment [ 72 ] The matrimonial property which is available for division or distribution is the equity interest in the matrimonial home, which is in Ms. Holland's control, and the pension interest which Mr. Holland accumulated during the marriage, which is under Mr. Holland's control. There is no evidence on this application of the status of the vehicle purchased by the parties during the course of the marriage; therefore, that item of property is not considered in the property division. [ 73 ] Ms. Holland has $74,771.00 of matrimonial property under her control and Mr.

Holland has $16,847.33 (see calculation in ex. 15) of the matrimonial property under his control. The matrimonial property should be divided equally between the parties; therefore, each of the parties is entitled to $45,809.16.

[ 74 ] If Ms. Holland wants to buy-out Mr. Holland's interest in the matrimonial home, (and leave him with his interest in his pension) she would therefore have to pay him $28,961.83. If she is unwilling or unable to pay Mr. Holland out his interest in the matrimonial home, then the matrimonial home will have to be put up for sale, and the net proceeds of the sale distributed equally between the parties after taking into account Mr. Holland's retention of his pension. 8. Insurance policy on Ms. Holland's life [ 75 ] Ms. Holland is entitled to an order directing Mr. Holland to terminate the insurance policy on Ms.

Holland's life. [ 76 ] It may not be technically necessary for the court to make an order ordering Mr. Holland to terminate the life insurance policy he had taken out on his wife’s life; perhaps Mr. Holland no longer has an insurable interest in his former wife’s life, even though he does have an interest in having Ms. Holland continue to contribute to the financial support of the parties’ daughter. In any event, given the criminal history between the parties, Ms. Holland asserts that she is uncomfortable knowing that Mr. Holland is paying for an insurance policy on her life.

In all the circumstances, although the granting of this order does deprive Mr. Holland of some financial security, I will make the order as requested. 9. Costs [ 77 ] Ms. Holland has not made out a case for solicitor-client costs. [ 78 ] Ms. Holland is, of course, entitled to the costs which have so far been ordered in these proceedings. Mr. Holland has failed to pay those costs. Those costs will therefore be added to his child support obligations. [ 79 ] With respect to this application, Ms. Holland is entitled to costs because she has been substantially successful in her applications. [ 80 ] However, Ms.

Holland is not entitled to solicitor-client costs which are only granted in exceptional circumstances: Hartley . In particular, as the record of proceedings illustrates, the issue of financial disclosure appears to have been left in abeyance. Moreover, far from being put to exceptional expense to serve Mr. Holland, Ms. Holland was authorized to serve Mr. Holland in the most cost effective way. [ 81 ] In

summary on this issue, Ms. Holland is entitled to her costs of this hearing under Column 1 of

Schedule C. Ms. Holland is also entitled to have the costs ordered to date, but unpaid as of this date, to be added to Mr. Holland’s child support obligation. Heard on the 13 th day of May, 2011. Dated at the City of Edmonton, Alberta this 1 st day of June, 2011.

J.B. Veit J.C.Q.B.A. Appearances: Ifueko Sandra Badejo, Crerar Law for Ms. Holland No one appearing for Sebastian Holland