Beier v. Beier, 2011 ABQB 371

Court of Queen ’ s Bench of Alberta Citation: Beier v. Beier, 2011 ABQB 371 Date: 20110609 Docket: 4803 145207 Registry: Edmonton Between: Faith Islay Beier Plaintiff - and - Jimmy William Beier Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ Nature of Matter [ 1 ] Faith Islay Beier and Jimmy William Beier were married on June 12, 1982. The marriage had broken down by August, 2006 and Mr. Beier moved out of the matrimonial bedroom on August 27, 2006.

He moved out of the matrimonial home on May 9, 2007, after nearly 25 years of marriage. [ 2 ] There is one remaining child of the marriage, J.L.B., who is 15 years old. He resides with Ms. Beier and attends school on a full-time basis. The other two children are for the purposes of this trial acknowledged as being self-supporting and no longer children of the marriage (aged 28 and 25).

[ 3 ] Mr. Beier acknowledges an obligation to pay child support for J.L.B., and would like to establish a shared parenting regime. [ 4 ] A divorce judgement was granted during the trial of the matter, based on the separation of the parties for more than one year. [ 5 ] The issues to be determined are: 1. Date of separation; 2. Division of matrimonial property; 3. Shared parenting; 4. Determination of Mr. Beier’s income for child support purposes; and 5. Determination and calculation of child support arrears (if any). Background [ 6 ] Both parties worked throughout the marriage.

They cohabited for some nearly four years before they were married, so the total length of cohabitation and marriage before separation was over 28 years. [ 7 ] Ms. Beier has had a succession of stable jobs with the Alberta Government since before the marriage. Her taxable income for 2010 was $55,081.98 and is expected to be similar to that amount for 2011. [ 8 ] Mr. Beier is a journeyman carpenter, and has spent most of his working life as a finishing carpenter. Since approximately 1990, he has worked through Sure Trim Ltd., a corporation owned 51% as to himself and 49% as to Ms. Beier. Ms. Beier described Mr.

Beier as a very talented finishing carpenter. She testified that Mr. Beier had become disinterested in work, and had essentially stopped looking for work in about 2005. Sure Trim had enjoyed a good reputation and worked steadily for several home builders. Mr. Beier began to turn down work and, in her view, put in bids that were so high as to discourage his customers from using his services. His income (and the family’

s) declined. Mr. Beier spent little time working, and most of his time sitting at home. [ 9 ] There was no evidence presented as to Mr. Beier’s earnings before 2002. Mr. Beier’s T4 income from Sure Trim, as pieced together from various sources in the evidence, has been as follows: 2002 $50,300.00 2003 $36,464.00 2004 $38,000.00

2005 $24,838.00 2006 $15,819.00 2007 $18,000.00 2008 $37,000.00 2009 $25,000.00 2010 $25,000.00 [ 10 ] Sure Trim’s earnings for those years were as follows: 2002 $1,500.00 2003 $14,000.00 2004 ($4,639.00) 2005 ($10,734.00) 2006 $3,337.00 2007 $14,578.00 2008 $28,548.00 2009 ($30,610.00) 2010 (7,908.00) [ 11 ] It can be seen that Mr. Beier’s income began to decline in 2004. Mr. Beier’s evidence was that he suffered an injury in early 2005 which kept him off work for some time. When he was physically able to go back to work, he decided that he wanted to take the summer off and spend more time with his youngest son.

He and his son enjoyed a summer of fishing and activities at their lake cottage. The economy then turned sour, and work became scarce. He denied turning down work, and denied that there was any reason for him not to be looking for work. He did not want to work for others. A job at Rona had not worked out. After several months there, he was laid off due to the economy.

He felt that he had invested a lot of time and energy in building up Sure Trim, and wanted to keep doing finishing carpentry through his corporation. [ 12 ] He denied any ongoing health issues, but acknowledged that he had been getting regular counseling from a physician, including marital counseling. [ 13 ] There was no expert evidence on Mr. Beier’s health, although I allowed in evidence a letter dated February 16, 2009 from Dr. H. Jaglalsingh, an occupational and psychological medicine doctor. While the letter contained a diagnosis and opinion, the value of the letter at trial was to establish that Mr.

Beier had been attending Dr. Jaglalsingh since December, 1998 for “individual psychotherapy and medication management”, and for marital therapy with Ms. Beier on some nine occasions between January, 2002 and April, 2006. [ 14 ] Mr. Beier acknowledged that he continued to be on medications, but was not clear what the medications were for. [ 15 ] Read-ins from Mr. Beier’s examination for discovery established that Mr. Beier was being treated by Dr. Jaglalsingh for “stress”, but Mr. Beier did not consider that stress was a factor in his looking for or not looking for work at any particular time. Mr.

Beier has not been actively treated for stress since Dr. Jaglalsingh’s retirement a couple of years ago. [ 16 ] In any event, the letter, without more, did not establish that Mr. Beier was unable to work on a full time basis at any time during the marriage, or after the parties separated. It did indicate that Mr. Beier had, from July, 2006 until February, 2009, seen Dr. Jaglalsingh some 28 times for psychotherapy and medication management and from April to November, 2008, he was seeing Dr. Jaglalsingh twice a month.

[ 17 ] It is clear that Mr. Beier’s decline in income, and apparent loss of interest in working, were major contributors to the marriage breakdown. According to Ms. Beier, they separated on August 27, 2006 when she moved Mr. Beier out of the matrimonial bedroom. While he continued to live in the family home, he and Ms. Beier lived separate lives. They had no marital relations, slept in separate rooms, dined separately, and had contact only over bill payment issues. [ 18 ] Mr. Beier considered that despite his departure from the bedroom, they were still together as a couple.

He moved back into the matrimonial bedroom for a period over Christmas when they had house guests. It was not until May 9, 2007 when he moved out of the home and rented a room in a friend’s house that he considered that they had separated. [ 19 ] After living in a friend’s home for about a year, Mr. Beier moved into his parents’ home where he has resided and paid his parents rent since some time in 2008. He occupies a room, and uses the garage for storage for his tools and supplies. [ 20 ] Ms. Beier continues to occupy the matrimonial home with their son, J.L.B. Mr. Beier has unrestricted access to J.L.B.

Actual access is somewhat limited. At this stage, Mr. Beier sees J.L.B. perhaps once or twice a month, and speaks to him by telephone perhaps weekly. He considers that they have a good relationship. He would like to see his son more, but considers that his ability to develop a better relationship with J.L.B. and spend more time with him is constrained because of his poor financial circumstances and his living arrangements. [ 21 ] At the time of separation, the parties jointly owned the family home in Edmonton. They owned a lake cottage at Lake Isle, which had been purchased from one of Mr. Beier’s relatives.

They also owned an acreage property, where Ms. Beier had an extensive garden, and which was also used for storage for various chattels owned by the parties. [ 22 ] Shortly after the separation, there was a fire at the Lake Isle cottage. It was damaged to the point that the cost of repairs exceeded its insured value. Mr. Beier received a cheque from the insurance company for $26,564.16. Ms. Beier refused to contribute any funds to the repair of the cottage, and Mr. Beier retained the funds.

They were used not for the cabin, but for his living expenses, to enable him to make maintenance payments for the children, and other expenses. [ 23 ] Mr. Beier acknowledges that he withdrew $40,588.71 from his RRSP’s in 2007. Those funds were used for living expenses, to make maintenance payments for the children, and for other expenses. $12,167.62 was deducted from the cashed-in amount for taxes. Some of those funds were used for legal costs in these proceedings. [ 24 ] Some of the money from the insurance proceeds and RRSP’s went to Sure Trim as Mr.

Beier loaned Sure Trim $9,200.00 to purchase a truck in 2007. [ 25 ] A further $745.25 and $518.90 (before tax) from other RRSP accounts were cashed in and spent by Mr. Beier after the separation. [ 26 ] Mr. Beier considers that Ms. Beier should account for a $3,200.00 cheque he received in relation to an accident involving a Sure Trim vehicle, which Ms. Beier cashed in June, 2005. Issues 1. Date of separation [ 27 ] The date of separation is relevant for two purposes: possible unequal division of matrimonial property and possible date for

valuation of Ms. Beier’s Alberta Government pension. [28] It is a rare circumstance where unhappy couples can base the date of separation for divorce or matrimonial property purposeson a date other than one where one of the parties physically separates from the other with the intention of leaving the marriage, subject to permitted attempts at reconciliation under the Divorce Act, RSC 1985, c. 3 (2nd Supp). The absence of marital relations may be relevant,but is certainly not determinative. [29] From the evidence, it appears that the parties went about their lives in the same home, with no physical separation. Mr.

Beierdid not move to the basement and begin living a separate life from there. Instead, they more or less ignored each other, while continuingto jointly operate the house by way of bill payments. I am not satisfied for the purposes of either the Divorce Act or the MatrimonialProperty Act, R.S.A. 2000, Ch. M-8, that Mr. and Ms. Beier were living separate and apart until Mr. Beier actually moved out of thematrimonial home and established a new residence. [30] That occurred on May 9, 2007 and I fix that date as the date of separation. The fact that Mr.

Beier’s counterclaim uses thesame August 27, 2006 date as does Ms. Beier’s statement of claim, is of my view insufficient to establish that the parties were actuallyliving separate and apart before May 9, 2007. 2. Division of matrimonial property; [31] The law in Alberta is clear that matrimonial property is to be divided as at the date of trial, and no other date: Mazurenko v.Mazurenko, (1981), 1981 ABCA 104 , 30 A.R. 34 (C.A.), Hodgson v. Hodgson, 2005 ABCA 13. Different considerations may apply to property acquired after the date of separation: Coulthard v.

Coulthard, 2002 ABQB 695. [32] Ss. 7 and 8 of the Matrimonial Property Act provide as follows: Distribution of property 7(1) The Court may, in accordance with this section, make a distribution between the spouses of all the property owned by bothspouses and by each of them.

(2) If the property is (

a) property acquired by a spouse by gift from a third party, (

b) property acquired by a spouse by inheritance, (

c) property acquired by a spouse before the marriage, (

d) an award or settlement for damages in tort in favour of a spouse, unless the award or settlement is compensation for a loss to bothspouses, or (

e) the proceeds of an insurance policy that is not insurance in respect of property, unless the proceeds are compensation for a loss toboth spouses, the market value of that property at the time of marriage or on the date on which the property was acquired by the spouse,whichever is later, is exempted from a distribution under this section.

(3) The Court shall, after taking the matters in

section 8 into consideration, distribute the following in a manner that it considers justand equitable:

(

a) the difference between the exempted value of property described in subsection (2), referred to in this subsection as the “original property”, and the market value at the time of the trial of the original property or property acquired (

i) as a result of an exchange for the original property, or (ii) from the proceeds, whether direct or indirect, of a disposition of the original property; (

b) property acquired by a spouse with income received during the marriage from the original property or property acquired in a manner described in clause (a)(

i) or (ii); (

c) property acquired by a spouse after a decree nisi of divorce, a declaration of nullity of marriage, a judgment of judicial separation or a declaration of irreconcilability under the Family Law Act is made in respect of the spouses; (

d) property acquired by a spouse by gift from the other spouse.

(4) If the property being distributed is property acquired by a spouse during the marriage and is not property referred to in subsections (2) and (3), the Court shall distribute that property equally between the spouses unless it appears to the Court that it would not be just and equitable to do so, taking into consideration the matters in

section 8 . Matters to be considered 8 The matters to be taken into consideration in making a distribution under

section 7 are the following: (

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, conservation or improvement of the property; (

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

i) that each spouse had at the time of 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 to the detriment of the other spouse; (

m) any fact or circumstance that is relevant. [ 33 ] Ms. Beier argues that any increase in the value of the matrimonial property held by her should be divided entirely in her favour since the date of separation, because Mr. Beier has not contributed to any increase and he has dissipated matrimonial property (the RRSP accounts totaling $41,819.86 and the cottage insurance proceeds of $26,564.16). [ 34 ] She argues that Mr. Beier should be required to account fully for those amounts. [ 35 ] Mr.

Beier acknowledges that the amount taken by him from the matrimonial property should be accounted for, but submits that the court should be careful to avoid any double-counting, such as with the valuation of the Lake Isle cottage and including in matrimonial property chattels such as the truck which was purchased by him out of the proceeds of the RRSP. He notes that the only way he was able to make child support payments since the separation was by using the insurance proceeds and RRSP proceeds. He has not lead a “high life”, noting that he lives modestly and in his parents’ home.

Real Estate [ 36 ] There are various assets which need to be dealt with. The three pieces of real property have been valued professionally at various times. The current appraisals (January, 2011) from Halvorsen Fedynak & Company, are as follows: Matrimonial home: $270,000.00 Acreage property: $115,000.00 Cottage: $162,000.00 (as is) $190,000.00 (restored/repaired) $170,000.00 (bare lot) [ 37 ] Ms. Beier produced appraisals of the various properties in 2009. The matrimonial home was valued then at $255,000.00, the acreage at $95,000.00, and the cottage at $265,000.00. Mr.

Beier’s appraisal of the house in 2009 was $270,000.00. [ 38 ] None of the appraisers was called to testify; none of the appraisals were agreed to; none of the appraisals was provided as an expert report for trial purposes under the rules.

Instead, all went into evidence by consent of the parties. [ 39 ] In the absence of any expert evidence to the contrary, I feel constrained to accept the most current appraisals prepared by a qualified appraiser, and thus accept the values attributed to the various properties by Halvorsen Fedynak & Company in January, 2011. 2009 appraisals are interesting for comparison purposes, but give little assistance to the court as to current market values. [ 40 ] For the matrimonial home and the acreage, I place the value of the home at $270,000.00 and the acreage at $115,000.00.

[ 41 ] I find that the most appropriate valuation for the cottage is as a “tear down”, which was assessed in 2011 as $162,000.00. Ms. Beier argues that the cottage should be valued at its fully repaired value, or $190,000.00, because either Mr. Beier should have properly insured the cottage in the first place, or he should have used the insurance proceeds and his own skills as a carpenter to repair the cottage. Had it been properly insured, the insurance company would have paid for the repairs and the cottage would have been worth its full repaired value of $190,000.00. [ 42 ] Alternatively, Ms.

Beier claims that Mr. Beier should have been able to repair the cottage for the insurance proceeds received, and Ms. Beier should be entitled to the benefit of the full amount of its repaired value. [ 43 ] In the circumstances of this marriage and the parties’ conduct since they separated, I do not find that Mr. Beier was negligent with respect to the insurance on the cottage. While he may have dissipated the insurance proceeds, he has not dissipated or wasted the cottage itself. He owed no higher duty to Ms. Beier than he did to himself relating to the cottage insurance.

They did not separately insure properties after separation; they divided the payments between themselves. If any of the properties was uninsured, in my view it was a joint failure rather than an individual failure. [ 44 ] There was no duty on Mr. Beier to restore the cottage. Had he done so, his labours might have been a s. 8 factor to consider. But the cottage remained unrepaired, and as a result has been largely unusable. [ 45 ] In my view, the value of the cottage for matrimonial property purposes, is accurately captured by the “as is” value of $162,000.00, plus having Mr.

Beier account for the insurance proceeds he kept for his own purposes. Sure Trim Ltd. [ 46 ] There has been no expert valuation of any other assets. Mr. Beier places a value of $10,000.00 on Sure Trim, representing its retained earnings. Ms. Beier testified that she believes that Sure Trim is worth much more than that, and some of the evidence at trial involved her and Mr.

Beier estimating the values of various sheds, tools and vehicles owned by Sure Trim. [ 47 ] In the absence of independent expert evidence to the contrary, I set the value of the Sure Trim shares owned by the parties as $10,000.00 which represents the retained earnings shown on the most recent financial statements for the corporation, being those for the year ended August 31, 2010. I note that the retained earnings are calculated after deducting from the corporation’s assets the amount of $27,445.00 in shareholder’s loans. These monies are owed by Sure Trim to Mr.

Beier reflecting either wages which have been loaned back to the corporation by Mr. Beier or as monies (from the insurance proceeds or RRSP proceeds) loaned by Mr. Beier to Sure Trim. The shareholder’s loans in the amount of $27,445.00 should be added to Mr. Beier’s assets. Otherwise, the value of Sure Trim (using its “book” value) would artificially reduce the value of the corporation’s assets of $43,012.00. That being said, a review of Sure Trim’s financial statements before 2009 does not show any shareholder’s loans to Mr. Beier. Shareholder’s loans appear in 2009.

The appearance of shareholder’s loans is consistent with Mr. Beier’s evidence that he put some of the money from the RRSP’s and the insurance proceeds into the company to keep it going. Other Assets [ 48 ] The RRSP cashed in by Mr. Beier was in the gross amount of $40,588.71. The net (after tax and after fee) amount received by him was $28,391.09. The other RRSP’s cashed in for a gross amount of $1,260.85. Using the same tax rate (30%), the net amount I attribute to Mr. Beier is $882.60.

He should thus be credited with having matrimonial assets of $29,273.69 representing these RRSP’s. [ 49 ] The depreciation on the truck (owned by Sure Trim) is accounted for in the valuation of the corporation’s retained earnings; the $9,200.00 purchase price is owed to Mr. Beier as part of his shareholder’s loans, so there is no “double-counting” so long as the truck is recognized as a Sure Trim asset and not separately valued. [ 50 ] As noted above, Mr. Beier is obliged to account for the insurance proceeds of $26,564.16.

[ 51 ] However, it appears that $27,445.00 from the RRSP’s and insurance proceeds went into Sure Trim and are now reflected by the shareholder’s loan to Mr. Beier. It would be double-counting to credit him with the shareholder’s loans and then require him to account for the full amount of the matrimonial assets that were essentially used to acquire the shareholder’s loans. The amount of the shareholder’s loans ($27,445.00) should therefore be deducted from the total of the RRSP’s (after tax) and insurance proceeds ($55,837.85). [ 52 ] Ms.

Beier took the insurance cheque for $3,200.00 in 2005, before the parties separated. It is thus not relevant to the division of matrimonial property. The evidence before me was that the proceeds of the cheque were used to make payments on joint debt, so Mr. Beier got his share of the benefit of the amount taken. Ms. Beier is not obliged to account for that amount. Equal Division [ 53 ] I do not find that there has been any wilful wasting of property by either party or any misconduct such as to disentitle either party to an equal division of matrimonial property relating to any of the jointly owned assets.

From the evidence, it is clear to me that Mr. and Ms. Beier were both hard-working partners, raising their family and building their assets through their joint labours. The acquisition of the home, acreage, cottage and business could not have been accomplished without significant contributions from both of them. [ 54 ] By the time Mr. Beier’s income had begun to decline, the parties had already acquired the bulk of their assets. His income to at least 2004 was roughly equal to or somewhat greater than was Ms. Beier’s. It is unclear to me why Mr. Beier’s income declined in 2005 and onwards. Mr.

Beier did not attribute any inability to work on health issues and appeared reluctant at trial to discuss any possible mental health issues other than unspecified stress. [ 55 ] He maintained that his level of work was affected initially by the accident, then by his desire to take some time off to be with his youngest son, and then by market factors. He had obviously been a reasonable provider, along with Ms. Beier, until some time in 2005. While before then he might have worked harder and taken on more jobs, the income he was able to generate with the efforts he put in was similar or greater to that of Ms.

Beier, and provided the family unit (along with Ms. Beier’s income) a reasonable standard and the ability to acquire properties, vehicles, toys and other assets. [ 56 ] The evidence gave me no real assistance as to whether Mr. Beier’s change in attitude and work habits in 2005 was the result of some sort of burn out, a so-called “mid-life crisis”, depression or other causes, but I did not conclude from the evidence that Mr.

Beier had deliberately set out to lower his income, or avoid work. [ 57 ] His attribution of market forces and a shortage of work has no particular credibility to it, as the period from 2005 to at least late 2007 marked a robust economy and great strength in home building. While the market dropped significantly throughout 2008 and well into 2009, it is curious that Mr. Beier’s 2008 gross income (through Sure Trim) more than doubled over his gross income in 2007.

Nevertheless, I do not find that any of the factors in s. 8 of the Act apply to such an extent that it would be inequitable to divide the matrimonial property other than equally as provided in s. 7(4), as at the date of trial, other than Ms. Beier’s pension. Pension [ 58 ] The situation is, in my view, different for the period following separation. Thereafter, Mr. Beier made no contribution directly or indirectly, to Ms. Beier’s pension. It is true that Ms. Beier had the use of the matrimonial home, but it was occupied by her and at least two of the children for most of the period following separation.

The middle child only recently graduated from his training program and has become fully self supporting. No claim was advanced for use and occupation rent. [ 59 ] Mr. Beier has in my view been underemployed; not sufficiently to disentitle him to an equal distribution to the date of separation, but his lack of contribution after the separation is a relevant factor in determining how to distribute property acquired after that date, and increases in value of assets after that date.

The parties have lived separate and apart since April, 2007. Mr. Beier has not contributed to the accumulation of any of the parties’ assets since then. He has cashed in and spent RRSP investments. He has spent insurance proceeds relating to the jointly owned cottage. Sure Trim’s retained earnings have been depleted. This is not a situation where assets have been dissipated recklessly, selfishly or extravagantly. But for some reason or reasons unexplained in the evidence, Mr.

Beier has been unable to contribute in the same fashion as he had before. [ 60 ] For him to avoid some consequences of his change in contributions, he would have to have led probative admissible evidence of this change being outside his reasonable control, such as economic circumstances or ill health. His own unsupported evidence concerning economic circumstances was contrary to the robust economy that existed of which I can and do take judicial notice. A 2009 letter from his doctor, which was not made available to Ms.

Beier until the eve of trial, does not satisfy the evidentiary burden on him to establish that his change in contribution was due to ill health. I am left with the conclusion that the change was not outside Mr. Beier’s control. The evidence fell short of establishing that he changed his employment activities to avoid his responsibilities to his family, but it also fell short of establishing that it was unavoidable. Mr. Beier’s reasonable earning capacity was higher than his earnings have demonstrated since the date of separation, and for the two years or so before separation. Ms.

Beier remained a full contributor over this period. [ 61 ] As a result, I conclude that it is just and equitable for me to distribute Ms. Beier’s pension equally between the parties to the date of separation, namely May 9, 2007, but that any increase thereafter should be attributed 100% to Ms. Beier having regard to the factors in s. 8, namely (b), (

d) and (f). [ 62 ] This is not a case where the valuation of the pension is relevant, so I need not consider the issues in Best v. Best , [1999] 2 S.C.R. 898 which was cited to me by Mr. Beier. I am not persuaded that this is a case where Wilson v. Wilson , 1986 CarswellAlta 459 (C.A.) should be applied. The brief reasons do not articulate the s. 8 factors considered, and should be viewed in the context of cases where a party wants to purchase his or her spouse’s pension interest. [ 63 ] It is unnecessary for me to value Ms. Beier’s pension. It should be divided between the parties as at the date of separation.

If the parties are unable to agree on the appropriate form of order necessary to divide the pension, I will reserve jurisdiction to ensure that is accomplished. [ 64 ] There was no disproportionate contribution towards the other assets so as to have them divided other than equally as at the date of trial. Ms. Beier had the use and occupancy of the house and appears to have had more use out of the acreage. Because of the condition of the cottage, Mr. Beier received little benefit from the cottage but was able to use the property.

The taxes and utilities for the properties were shared. [ 65 ] The parties have significant numbers of chattels between them. No expert, independent valuation of them was provided. The evidence of the parties as to what they thought each of the items in their own and in the other’s possession is was of little assistance to the court. If the parties intend to dispute the value of chattels, it is necessary for them to provide a proper evidentiary foundation for the court to make a principled and evidence-based decision.

Of course in many matrimonial property actions, the cost of competing experts offsets the potential benefits to the parties of fighting over the smaller items. [ 66 ] I will deal with the chattels later in this decision. Valuations [ 67 ] With respect to the other major assets, I find the following values: Matrimonial home: $270,000.00 Acreage $115,000.00 Cottage $162,000.00 Sure Trim shares $10,000.00

Sure Trim shareholder’s loans $27,445.00 [ 68 ] There is no good reason not to require Mr. Beier to account for the insurance proceeds and the RRSP’s he cashed and spent. They were both matrimonial assets; they were disposed of without Ms. Beier’s consent, and she received no benefit from the proceeds. Mr. Beier claims that he should be entitled to retain the portion of insurance proceeds attributable to his labour in cleaning up the cottage after the fire. He testified that $500.00 of the insurance proceeds was attributed to his clean up of the property.

In my view, the values of his labour simply became matrimonial property and should not be distinguished from the other insurance proceeds. Accordingly, Mr. Beier should be credited as having those assets (with the RRSP’s reduced on account of taxes assessed against them). Those credits are: RRSP’s $29,273.69 Insurance proceeds $26,564.16 TOTAL $55,837.85 [ 69 ] As noted above, to be deducted from that amount is the amount of $27,445.00 which is now reflected in shareholder’s loans owed to Mr. Beier by Sure Trim. Thus the amount to be credited in relation to Mr.

Beier taking those funds is $28,392.85. [ 70 ] At the time of separation, the parties had a $100,000.00 line of credit charged against the matrimonial home. Mr. Beier currently has no debt. According to her affidavit of property, Ms. Beier has incurred debts of approximately $22,000.00. She has used a line of credit of $15,000.00 for various expenses, including legal fees, van repairs, income tax obligations and living expenses. $2,000.00 of that amount was a debt she incurred co-signing a loan for one of their adult children. Mr. Beier was not prepared to co-sign himself or contribute to the loan. Ms.

Beier has a Visa debt of approximately $5,000.00 which was used largely for living expenses. [ 71 ] Debts relating to legal fees resulting from the marriage breakdown are generally not matrimonial debts. Other debts may be. There was no evidence that Ms. Beier lived extravagantly, made unreasonable gifts or was wasteful. To the extent that the debts were incurred other than for payment of legal fees, they are, in my view, proper debts to be deducted from the value of the matrimonial property. The debt relating to the co-signed loan was incurred during the marriage; it was not frivolous.

Had it been incurred for a holiday, that might be another thing. I consider that debt to be a matrimonial debt. Both parties do not have to agree on an expenditure for it to be matrimonial property or a matrimonial debt. I thus consider that $17,000.00 of the debts incurred by Ms.

Beier after separation are matrimonial debt. [ 72 ] I thus value the matrimonial property to be divided as follows: Matrimonial home $270,000.00 Acreage $115,000.00 Cottage $162,000.00 Sure Trim shares $10,000.00 Sure Trim shareholder’s loans $27,445.00 RRSP’s (after tax) $29,273.69 Insurance proceeds $26,564.16 Less amounts reflected in Sure Trim loans (27,445.00) TOTAL $612,837.85

LESS DEBT ($117,000.00) NET VALUE OF PROPERTY $495,837.85 [ 73 ] This valuation entitles each party to $247,918.92. [ 74 ] Mr. Beier wishes to carry on with Sure Trim and wants all of the shares in it. Ms. Beier has no interest in keeping her Sure Trim shares and there is no ready market for them. Mr. Beier should thus be credited with $10,000.00 in regard to the shares and $27,445.00 in relation to the shareholder’s loans. Ms. Beier is to transfer her shares in Sure Trim to Mr. Beier. [ 75 ] Mr.

Beier is also to be credited with the proceeds of the RRSP’s and insurance settlement that did not find their way into Sure Trim, namely $28,392.85. [ 76 ] Ms. Beier would like to retain the acreage, so she should be credited with $115,000.00. Mr. Beier is to transfer his interest in the acreage to Ms. Beier. [ 77 ] That would leave Mr. Beier entitled to receive $182,081.07 out of the proceeds of the house and cottage (provided they sell for their appraised values). Ms. Beier would receive $132,918.92. These calculations assume that the debts are fully paid off. [ 78 ] Ms.

Beier would like the opportunity to try and purchase Mr. Beier’s interest in the matrimonial home, rather than have it sold. Mr. Beier does not have the capacity to purchase Ms. Beier’s interest in the home. Mr. Beier does not object to Ms. Beier purchasing his interest in it. [ 79 ] Mr. Beier may wish to retain the cottage rather than have it sold. Ms. Beier has no interest in purchasing the cottage. In such circumstances, Ms. Beier’s interest in the cottage could be used to reduce the equalization payment necessary for her to purchase Mr.

Beier’s interest in the home. [ 80 ] I expect that this decision will enable the parties to decide reasonably quickly as to whether the house and cottage, or either of them, are to be sold in the marketplace, or whether the parties wish to purchase the other’s interest in either of them. A decision should be made within 30 days of this decision by Ms. Beier as to whether she wants to purchase Mr. Beier’s interest in the home, and by Mr. Beier as to whether he wants to purchase Ms.

Beier’s interest in the cottage. [ 81 ] Each party is entitled to use his or her equity in the property they do not wish to purchase to partly fund the purchase of the property they want. That may require the “closing” of the matrimonial property division to be delayed until one of the properties has been sold. [ 82 ] Having regard to the values and distribution above, a possible solution, which would not involve a sale of either of the properties, is for Ms. Beier to take the house and assume the debt, and for Mr. Beier to take the lake property. That would require a balancing payment to Mr.

Beier, which might be paid out of a refinancing of the home. But that is something the parties would have to agree to. If they do not agree, the properties (or at least one of them) will have to be sold. Entitlements will change, depending on what net amounts result from property sales. [ 83 ] In the event both the house and cottage or either of them are to be sold, the parties are to use their best efforts to effect prompt sales, including cooperating with listing and showing real estate agents, and keeping the properties in neat and presentable condition.

Neither party shall impede any potential sale of the properties. If the parties are unable to agree on a listing agent, selling price or whether to accept any offer, I will reserve jurisdiction to decide any such disputes.

Chattels [ 84 ] The parties do not disagree that the matrimonial chattels should be distributed between them equally as to value. They disagree on value. There are no exemption issues other than with respect to one sewing maching. The only exception to division is that Ms. Beier argues that Mr. Beier should be credited with the value of an uninsured quad which was stolen. It was at the cottage, which was under Mr. Beier’s care and control. Absent evidence of negligence, wasting, or wilful damage, the parties are not guarantors to the other of the matrimonial property in their care.

The loss of a matrimonial asset is generally a joint loss, and not attributed to one of the parties. Here, I see no reason to attribute the missing quad to Mr. Beier or to find him liable to Ms. Beier because it was not insured. [ 85 ] With respect to individual items, some of the chattels on the parties lists belong to Sure Trim. All tools, equipment, vehicles, supplies, sheds, etc. belonging to Sure Trim are to remain its property and will go to Mr. Beier with the Sure Trim shares and shareholder’s loans. [ 86 ] Mr. Beier has expressed a wish that a cross-stitch picture made by his sister be transferred to him.

There is no independent valuation which has been placed on it. Mr. Beier may retain that picture. Ms. Beier claims that the picture is worth $3,400.00. Ms. Beier claims an exemption for a 1974 Husqvarna sewing machine that was owned by her at the date of the marriage. She is entitled to that machine. She also acquired an antique sewing machine in 2002. Ms. Beier has expressed an interest in keeping that sewing machine. I note from her statement of property that she has 3 sewing machines and a serger. She values the machines other than the Husqvarna as being worth $4,000.00.

No individual values have been placed on these machines. Ms. Beier may retain the antique sewing machine, as a rough offset for the picture cross-stitched by Mr. Beier’s sister which he may retain. [ 87 ] Ms. Beier also claims that a 1968 Chrysler Newport in the garage of the matrimonial home should be treated as matrimonial property. Her evidence is that it was purchased from Mr. Beier’s father for $1,500.00. She claims it is now worth $5,000.00. Only $300.00 of the purchase price was ever paid. Mr. Beier claims that he is merely storing the car for his father. Again, there is no independent appraisal.

If the 1968 Newport was worth more than was paid for it, the difference would be a gift from Mr. Beier’s father and exempt. Mr. Beier did not dispute that his father was given some $300.00. Absent cogent evidence as to increases in value and when those occurred, I will value the Newport at $300.00. Any higher value was gifted to Mr. Beier and is exempt from distribution. The $300.00 value is matrimonial property. Mr. Beier may purchase the Newport at that price. [ 88 ] The parties should endeavour, acting reasonably, to divide the remaining chattels between them to achieve an equal distribution of value.

There are old boats and cars, tools not owned by Sure Trim, household furniture and appliances and innumerable other items. The parties should attempt to reach agreement within 60 days from the date of this decision. If the parties are unable to agree on a distribution of the chattels, or all of them, any disputed chattels should be valued by a qualified appraiser to be agreed between the parties. Failing agreement, I will appoint a valuator. Once the valuator has completed the evaluation, the parties may elect to “purchase” any item at the appraised value.

For items selected by both parties, they will flip a coin. The winner gets first selection. The parties will alternate selections thereafter. Items not selected by either party will be sold by public auction, at which either party may bid. The proceeds of the chattels will be used firstly to pay for the costs of the appraiser and auctioneer, and then divided equally between the parties. [ 89 ] I will reserve jurisdiction to resolve any issue arising out of the valuation, sale and distribution of the chattels. 3. Shared parenting [ 90 ] Mr. Beier has been somewhat distanced from J.L.B. since the separation.

There was no evidence of any poor relationship, or any inability on Mr. Beier’s part to properly parent J.L.B. However, Mr. Beier is not presently in a financial position to establish a residence suitable for himself and J.L.B. in the event a shared parenting regime were to be established. [ 91 ] The parties agreed that Ms. Beier would have day to day care of J.L.B. with Mr. Beier to have reasonable access. While that was an interim arrangement, Mr.

Beier has not satisfied me that there has been a change in circumstances to warrant a change in the custody and access regime which has now existed for over four years. No concerns over Ms. Beier’s parenting were suggested. The status quo established over that length of time should not be lightly altered.

[ 92 ] Once the matrimonial property has been distributed, it may be that Mr. Beier will be able to establish an independent residence for himself and that may encourage J.L.B. to want to spend more time with his father. However, it is premature to consider such an arrangement, and I would not impose such an arrangement in any event without the court hearing more about the relationship between Mr.

Beier and J.L.B., including perhaps a Practice Note 7 intervention, or hearing from J.L.B. in some fashion (preferably through counsel) as to his preferences as to his residency. [ 93 ] I make no change in the present custody and access arrangements, such that Mr. Beier will continue to have reasonable and generous access, which he is encouraged to arrange. 4. Determination of Mr. Beier’s income for child support purposes [ 94 ] As noted above, Mr. Beier has been underemployed for the past seven years. His earnings do not reflect his earning capacity as a skilled finishing carpenter. Mr.

Beier’s guideline income has been set provisionally at $25,000.00 since the parties separated. That amount represented a rough averaging of his taxable income for 2004, 2005 and 2006. He earned less than that average in 2007 (apart from RRSP withdrawals) and then earned more in 2008. His 2009 and 2010 incomes have been almost exactly $25,000.00, but largely due to reductions in the retained earnings in Sure Trim and increases in shareholders loans. Such a level of earnings reflects a wage of approximately $12.50 per hour, based on full-time employment. Mr.

Beier acknowledged that a finishing carpenter should expect to earn at least $20.00 per hour. Full time employment at that rate should provide an annual income in the $40,000.00 range. [ 95 ] Ms. Beier presented statistical information as to the average earnings of carpenters of various types. The evidence was objected to by Mr. Beier as being inadmissible expert evidence, for which no proper notice had been given. The information was essentially taken from Statistics Canada website information. I allowed the evidence to be admitted as information. In the circumstances of this case, it has no probative value. Mr.

Beier’s actual earnings should be considered, not statistical averages. [ 96 ] I am satisfied that I can appropriately take judicial notice that a journeyman carpenter in a robust economy should be able to earn well in excess of $25,000.00 per year. Mr. Beier’s own earnings pattern shows that. Before the marriage breakdown, he had years where he earned in excess of $50,000.00.

Indeed, when Sure Trim’s retained earnings for 2008 are factored in, he earned well in excess of that amount in 2008. [ 97 ] But for child support purposes (and spousal support), the issue is not whether the payor could earn more than he or she actually earned; it is whether the payor is deliberately avoiding his or her obligations. [ 98 ] I am satisfied from a review of the case law that the attribution of income is appropriate only where there is evidence that the payor has deliberately under-employed him or herself to reduce or avoid maintenance obligations.

Otherwise, if the payor has decided for job satisfaction purposes or reasonable lifestyle choices to take different employment or not work overtime, those decisions should generally be respected by the courts. Those sorts of decisions can be validly made while the parties are together (even unilaterally) and there is no rule that a person owes his or her family a duty to work at the same or a better job, and the same or longer hours, after separation as was the case before separation. [ 99 ] Ms.

Beier argued that the law in Alberta has moved from the earlier position where attribution of income because of earning capacity or underemployment could only be done where the payor was deliberately attempting to avoid support obligations. In Hunt v. Smolis-Hunt , 2001 ABCA 229 , the majority in the Court of Appeal recognized that the imputation provisions in the Child Support Guidelines “permit the Court to rectify a situation where the obligor is subverting or taking advantage of the general provisions in the guidelines to the detriment of the child.

There are clearly connections between evading support obligations and the behaviour depicted in s. 19(1)(d)...” (at page 14, para. 2). [ 100 ] At page 19, para. 23, they held: Therefore, we cannot support an

interpretation of s. 19(1)(

a) which has the effect of telling a person that he or she may not engage in a

career which was undertaken, as here, with bona fide intentions, commenced prior to and not in contemplation of separation or marriagebreakdown, and with the agreement of the other spouse. [101] As noted in their decision, intention to evade support obligations can be inferred from the circumstances. For example, in VanGool v.

Van Gool, (1998), (BC CA), 166 D.L.R. (4th) 528 (B.C.C.A.), such an intent was inferred from the history ofthe relationship between the parties, including the payor’s animosity towards the other party. [102] The majority rejected the suggestion that “reasonableness” by itself might be determinative of the issue (at page 16, para. 10). [103] I do not read the decision in V.L.W. v. J.E.W., 2007 ABQB 358 (at para. 33) as holding that a payor will always have incomeimputed if an employment decision is made which the payor knows will have an adverse effect on support.

That is a factor, but only oneof a number of factors that should be considered in the context of inferring intent. In that case, the payor had chosen to embark on alengthy program of post-secondary education with no particular plan for employment at the end of the education. Kenny J. held that thefather’s underemployment did not relate to “reasonable educational needs” (at para. 39) and she thus inferred that he was intentionallyunderemployed to evade adequate child support. [104] In Mercer v.

Mercer, 2004 ABQB 551, which Kenny J. relied on in V.L.W., Watson J. (as he then was) considered the payor’slack of awareness (or concerns) about his child’s needs and expenses and his having no real explanation for his underemployment.Watson J. added those circumstance to the payor’s general unreasonableness, and concluded that the “intention” required under Smolis-Hunt could and should be inferred. [105] In Bercier v. Isaac, 2008 ABQB 377, Ross J. attempted to reconcile the “bad faith” standard in Smolis- Hunt with the approachtaken by Watson J. in Mercer.

At para. 26, she stated: Thus, the real issue is whether Ms. Bercier’s employment decisions, and the consequences flowing from them, are voluntary and, if so,whether they are due to factors referred to in s. 19(1)(

a) or other reasonable concerns. If her voluntary decisions are not reasonable, sheshould be presumed to have intended the consequence of those decisions, which is a lower level of support available for Bentley’s care,and this would amount to intentional under-employment or unemployment under s. 19(1)(a). [106] Here, Ms. Beier has not satisfied me on the evidence that Mr. Beier’s reduction in earnings has resulted from a motivation toreduce or avoid his obligations to his children. It is not clear in the evidence that Mr.

Beier had any particular awareness of his“underemployment” resulting in a lack of access by his children to proper support. It should be noted here that Ms. Beier and thechildren remained in the matrimonial home, and in addition to child support, Mr. Beier has always contributed his share of the interest onthe $100,000.00 line of credit. [107] In this regard, the case is similar to Yaremchuk v. Yaremchuk, 1998 ABQB 118. [108] It is highly significant and probative that Mr. Beier’s underemployment was not a change in circumstances after the partiesseparated. Mr.

Beier had chosen to be self employed 16 or more years before the separation. His self-employment had provided him withjob satisfaction, and he made reasonable contributions to the family finances until 2005. His change in attitude came nearly two yearsbefore the separation and was one of the causes of the marriage breakdown. Had Mr. Beier’s change in work habits occurred after theseparation, the result here might have been very different. But that is not the case. [109] On the evidence before me, however, I do not find that Mr. Beier’s underemployment since the time of the separation has beenreasonable.

He was capable in 2008 of making an income of $38,000.00 and of adding over $28,000.00 to Sure Trim’s retained earnings.No reasonable explanation has been put forward as to why his income was so low in the buoyant economic years, and continues to bewell below what one would expect a skilled finishing carpenter to earn. [110] But there is nothing in the circumstances or the evidence for me to infer the type of bad faith or intention to avoid obligations

still required by Smolis-Hunt . I therefore decline to impute any income to Mr. Beier by virtue of his underemployment or consideration of his earning capacity vs. his actual earnings. [ 111 ] Mr. Beier has shown an ability to consistently earn $25,000.00 per year. That amount is a rough average of the earnings he has taken out of Sure Trim over the period 2004 - 2010. As the sole proprietor of Sure Trim, he undoubtedly gets some personal benefit from some of the corporation’s expenses (vehicle, meals and entertainment, home office and storage, telephone, etc.).

A review of Sure Trim’s financial statements suggests that some of the “professional fees” may relate to legal fees for Mr. Beier’s matrimonial proceedings as they otherwise seem disproportionate to the nature and magnitude of his business. [ 112 ] A review of Sure Trim’s financial statements over the past 3 years suggests to me that an additional $3,000.00 should be added to Mr. Beier’s income for guideline income purposes, representing a conservative estimate of the personal benefit Mr. Beier receives from some of the corporate expenses. [ 113 ] As a result, Mr.

Beier’s guideline income for 2011 is provisionally set at $28,000.00. Child support should be based on that amount, commencing January 1, 2011. 5. Determination and calculation of child support arrears (if any). [ 114 ] Ms. Beier seeks to have child support recalculated on the basis of income she believes should be attributed to Mr. Beier from the date of separation, as well as to recover his proportionate share of some s. 7 expenses which Mr. Beier has not contributed to. [ 115 ] As noted above, I do not consider it appropriate to attribute income to Mr.

Beier on account of underemployment since the date of separation. He was underemployed for two years before the parties separated; he continued to be underemployed for all but 2008 thereafter. There is no bar to recalculation under D.B.S. v. S.R.B. , 2008 SCC 37 ; Ms. Beier has always sought attribution of a higher income and that has been a live issue between the parties since this action was commenced. [ 116 ] Retroactivity is always in the discretion of the court. Any recalculation and retroactivity would, in this case, be essentially redistributing matrimonial property. [ 117 ] Here, were I to calculate Mr.

Beier’s actual income, and attribute some portion of the Sure Trim expenses to him by way of personal benefit, and add any additions to retained earnings, I might bring his average earnings over the period to something over $25,000.00 but not as high as $30,000.00. Having regard to his actual financial circumstances and his lifestyle over the period from the date of separation, I am disinclined to make any retroactive adjustment. He has not accumulated assets or lived extravagantly while underpaying child support; A factor here is that Ms.

Beier has lived in the matrimonial home rent free for over four years and Mr. Beier has not advanced a claim for occupation rent. A further factor here is that Ms. Beier has accumulated some debt, which I have recognized as matrimonial property. Mr. Beier has accumulated no debt. It may well be that if Mr. Beier had paid more child support, Ms. Beier would have had to borrow less money. Mr.

Beier is contributing to those circumstances by having half of that debt attributed to him now. [ 118 ] In my view, the relatively small amount of arrears which might result from a recalculation based on attributing income from Sure Trim beyond Mr. Beier’s wages would be inequitable and would only result in him receiving a lesser share of matrimonial property. [ 119 ] From the evidence, it appears that Mr. Beier contributed to tuition costs for the older children while they were attending post- secondary educational programs.

It would appear that the eldest child, R.R.B., was attending an education program until May, 2008 at which time he ceased to be a child of the marriage. [ 120 ] G.D.B. was a child of the marriage from the date of separation until the end of June, 2008 when he graduated from high school. He immediately began apprenticing and has been paid during that educational process such that no s. 3 support is appropriate. I am not satisfied that, having regard to G.D.B.’s earnings while apprenticing, any further contribution towards his education is required of Mr. Beier.

[ 121 ] From the evidence, it appears that Mr. Beier paid child support for three children until June, 2008, and thereafter for one child as R.R.B. had finished his program and G.D.B. was essentially self-supporting in his.

There are thus no arrears in s. 3 child support. [ 122 ] As for the s. 7 expenses, I am satisfied that the following expenses were reasonably incurred and fall within the scope of s. 7 with these parties, on their respective incomes and in the circumstances of the family unit: 2008 education expenses for R.R.B. (Ex. 3) $449.27 2008 chiropractic expenses for R.R.B. (Ex. 4) $275.00 [ 123 ] The following expenses do not qualify as s. 7 expenses between these parties, on their respective earnings and in the circumstances of the family unit, either on the basis that they were unreasonably incurred absent agreement, or that they fall within the scope of s. 3 and are not “extraordinary”: Graduation photos (Ex. 5): $50.00 Eye exam(Ex. 6): $20.00 [ 124 ] These smaller amounts should be subsumed within the s. 3 payments and would not be considered “extraordinary”. [ 125 ] There are no receipts for other claimed s. 7 expenses.

Absent receipts, I have no sufficient or appropriate evidentiary basis to determine the amounts which might be found to be a valid s. 7 expense. [ 126 ] Mr. Beier should pay his proportionate share of the expenses I have allowed. For ease of calculation, his guideline income should be set at $25,000.00 for each of the relevant years. Ms. Beier’s guideline income should be taken from her tax returns for those years. Costs [ 127 ] Absent special circumstances such as a party bettering an offer of judgment, the parties should bear their own costs.

An award of costs in these circumstances would amount to a redistribution of the matrimonial property. On many of the various issues, Mr. Beier has been more successful than has Ms. Beier, but there has been mixed success on others. The parties may speak to me within 60 days of this decision if they are unable to agree on costs. Conclusion [ 128 ] A divorce judgment in the usual form is granted to Ms. Beier. [ 129 ] There shall be no change in custody or access for the remaining child of the marriage, J.L.B. [ 130 ] Mr. Beier’s guideline income for 2011 is provisionally set at $28,000.00; Ms.

Beier’s guideline income for 2011 is provisionally set at $55,081.98.

[ 131 ] Ms. Beier’s pension is to be divided as at the date of separation as I have found that she is entitled to 100% of the increase in its value since that date. [ 132 ] The other property is to be valued and divided as at the date of trial. [ 133 ] The major assets of the parties, and their debts, have been valued above, entitling each party to matrimonial property in the amount of $247,918.92. [ 134 ] Mr. Beier is to be credited with $28,392.85 representing the after-tax proceeds of cashing in RRSP’s and the insurance monies he kept and spent, less the amount of his Sure Trim shareholder’s loans.

He is also to be credited with $10,000.00 being the value of the Sure Trim shares and the value of his Sure Trim shareholder’s loans, being $27,445.00. Ms. Beier is to transfer her Sure Trim shares to Mr. Beier. [ 135 ] Ms. Beier is to be credited with $115,000.00 being the value of the acreage. Mr. Beier is to transfer his interest in the acreage to Ms. Beier. [ 136 ] Ms. Beier may elect to attempt to purchase Mr. Beier’s interest in the home; Mr. Beier may elect to attempt to purchase Ms. Beier’s interest in the cottage.

The mechanics for either (or both) of them to do so are set out in paragraphs 78-83 above. [ 137 ] The remaining matrimonial property, being chattels, are to be divided equally between the parties. If they are unable to agree, the mechanics for valuation, sale and division are set out in paragraph 88 above. [ 138 ] So long as Mr. Beier has made all required child support payments to December 31, 2010, there are no arrears in s. 3 child support as at December 31, 2010 as I have made no retroactive adjustment to his guideline income for any previous year.

Child support for 2011 should be calculated effective January 1, 2011 on the guideline incomes set out above. [ 139 ] S. 7 arrears are set at Mr. Beier’s proportionate share of $714.27 as set out in paragraph 122 hereof. [ 140 ] I will retain jurisdiction over the matter to finalize all of the transactions contemplated in this decision, as well as over costs. Heard on the 13 th -15 th days of April, 2011. Dated at the City of Edmonton, Alberta this 8 th day of June, 2011.

R.A. Graesser J.C.Q.B.A. Appearances: Robert J. Tropak Attia Reeves Tensfeldt Snow for the Plaintiff Peter D. Spitz Wallace & Spitz for the Defendant