Novick v. Novick, 2011 ABQB 373

Court of Queen ’ s Bench of Alberta Citation: Novick v. Novick, 2011 ABQB 373 Date: 20110614 Docket: 4801 122480 Registry: Calgary Between: Colleen Elizabeth Novick Plaintiff - and - James John Novick Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice R.E. Nation _______________________________________________________ Introduction and Issues [ 1 ] The Court was asked to decide the following issues that remained unresolved between the parties after an adjudication in 2006: 1.

Should this Court vary a previous matrimonial property order granted in 2006, and direct that Mrs. Novick pay one half of the increase in the value of her pension since that order to Mr. Novick?

2. Can Mr. Novick claim spousal support, and if so, what amount? 3. Should the Court make a direction in relation to the split of CPP credits? 4. How should any outstanding issues in relation to child support be handled? 5. Should the Court enforce the terms of a settlement, acknowledged by the parties in January, 2010? Background Facts [ 2 ] Both Mr. and Mrs. Novick testified at the trial. Various documents (including affidavits, court orders and transcripts) were marked as exhibits. The following background facts have been proven, and are relevant to this action. [ 3 ] Mr. and Mrs.

Novick married on October 8, 1983. They have two children, Diandra, born June 1, 1989 and Nathanial, born October 1, 1991. Although they may have lived separately but in the same house as early as 2003, they physically separated residences in 2005. [ 4 ] The parties signed a handwritten agreement dated January 14, 2005, setting out their intentions in relation to various matrimonial property. This document was never typed, or incorporated into a formal agreement. It was partially performed, the matrimonial house was sold and various debts paid (exhibit 27).

A dispute arose in relation to various issues of matrimonial property, as well as the details of the custody and access regime for the children, and their support. There was also a dispute as to whether Mr. Novick was entitled to spousal support. [ 5 ] These issues in dispute were set down to be decided at a special chambers application that was heard on September 8 and 11, 2006 by Justice Bensler. She made a direction in relation to the matrimonial property issues in dispute, as well as the corollary relief matters under the Divorce Act .

The transcript of the application was marked as exhibit 19 and the resulting order as exhibit 1. Each party was represented by counsel at the application. Extensive affidavits were filed and each counsel filed a written brief of argument. [ 6 ] The resulting court order outlined who was responsible for certain debts, what exemptions were allowed, and directed that a pension which Mrs. Novick had with Co-operators (the pension) was matrimonial property. Its value at December 2004 was to be divided equally and so one half of the value, $93,150.66 was specifically ordered to be transferred to Mr. Novick.

Both parties were directed to complete the documentation to effect the transfer, the costs of doing so was to be shared equally by the parties. [ 7 ] The order directed joint custody of the children, with residential care to Mrs. Novick and access to Mr. Novick every second week at times to be arranged with the children. [ 8 ] Guideline incomes were set for Mrs. Novick at $54,780 and Mr. Novick at $20,000. Mr. Novick was directed to pay $990.10 for his share of

section 7 expenses up to September 1, 2006. In addition he was directed to pay

section 3 child support in the amount of $319 monthly starting September 1,

Section 7 child expenses were to shared in proportion to the incomes of the parties. [ 9 ] Mr. Novick requested spousal support. The income information he provided to the court in his affidavit of August 22, 2006 was that his net earnings were $25,000 for 2004 and 2005. He was a realtor, with years of experience, and was working at the time of the application. It was recognized that from his gross income, he wrote off expenses allowable for income tax purposes. Some of these expenses may be considered as partly personal in terms of the assessment of guideline income.

Examples of these were the costs of a home office, his vehicle use and telephone. [ 10 ] Mr. Novick had suffered a heart attack by September 2006, and he expected to go for open heart surgery in the future. Justice

Bensler did not find that Mr. Novick could not support himself, and did not award spousal support. She had no information as to how long he might be off work in the future for surgery, or when it was actually going to happen. [ 11 ] The oral decision of Justice Bensler was incorporated into an order which was filed on October 23, 2006 (the Bensler Order). It was approved as to content by Mr. Novick's counsel. That counsel ceased to act for Mr.

Novick on November 7, 2006 and he has represented himself since that time. [ 12 ] The evidence was clear that there was a problem completing the things that needed to be done to give force to the Bensler Order, and bring about the resolution of all matrimonial issues. A statement of the reconciliation of the items decided in the Bensler Order was marked as exhibit 15. This was prepared by Mr. Pyra. Mr. Novick acknowledged receiving it at least by the pre-trial conference letter of November 13, 2009 (exhibit 28). Mrs.

Novick did not want to transfer the pension amount ordered, or sign the dower releases necessary without being provided with a dower release by Mr. Novick, and receiving the money that was owing to her by him, an equalization payment of $12,264.48.

In addition, no child support was ever paid, so she had concerns about security for that payment. [ 13 ] This stand off continued and eventually a pre-trial conference was held before Justice Hawco on December 10, 2009, where certain issues were identified as still in issue, and in need of decision so all matters could be finalized. [ 14 ] An examination for discovery was scheduled for January 11, 2010. On that day, there were discussions around settlement, however, the parties disagree on exactly what, if anything, was agreed. Only Mr. Pyra, Mrs. Novick and Mr.

Novick were in the room while the parties talked, but eventually before a court reporter, the parties put on the record a "final settlement". The terms provided that Mrs. Novick would pay Mr. Novick $5,000 (which monies were provided that day). In addition, the parties agreed that $52,500 would be transferred from the pension to Mr. Novick. Mrs. Novick agreed to waive all past child support, both

section 3 and

section 7 amounts, and agreed not to seek child support in the future. Each party waived spousal support. Each agreed to pay their own costs. The parties agreed this was a full and final settlement of all matters outstanding in this action #4801 122480. Both Mr. and Mrs. Novick agreed to the terms in a meeting for which a court reporter created a transcript. This is the agreement which Mrs. Novick applies to enforce. [ 15 ] After the January 11 meeting, Mr. Novick refused to sign further documentation.

He claimed the agreement was subject to full disclosure after which he could confirm it, or request a further pension division. Mr. Novick filed numerous applications after that point in time. [ 16 ] Justice Phillips dealt with various procedural matters so that all the outstanding issues could proceed to trial. On May 27, 2010 on a without prejudice basis, it was ordered that $52,500 (the amount agreed at the meeting) be transferred from Mrs. Novick's pension to Mr. Novick.

Other Court orders, mostly administrative in nature, to deal with getting this matter to trial were granted on October 7, 2010 and November 2, 2010 and January 31, 2011, February 4, 2011, and April 15, 2011. A second pre-trial conference was conducted November 2, 2010 by Justice Phillips, and a copy of that pre-trail report was faxed to both parties on November 10, 2010. [ 17 ] It was clear from the transcript of the hearing in 2006 and also at trial, that Mr. Novick remains estranged from his children, and has had almost no communication with them since 2006 or 2007. He blames this on Mrs. Novick.

The children are adults, and the issue of custody or access was therefore not before this court. The directions that Justice Bensler made for access, and for counseling to try and repair the fractured relationship that existed in 2006 were not successful. The extent of this alienation was evident from the fact that despite Mr. Novick being in possession of an RESP that was designed to help pay for the children's post secondary school expenses, I find that he did not communicate with them about it, and it was never accessed. 1.

Should this Court vary a previous matrimonial property order granted in 2006, and direct that Mrs. Novick pay one half of the increase in the value of her pension since that order to Mr. Novick? [ 18 ] The Bensler Order determined the matrimonial property issues in dispute between the partes. It was never appealed. In November, 2006, counsel for Mr. Novick ceased to act, and Mr. Novick had open heart surgery in January, 2007. These two factors made the reconciliation of the amounts in the order, and transferring money and the pension more complicated, as did the non-payment of child support, and Mr.

Novick's continued estranged relationship with the children. [ 19 ] Mr. Novick's position at trial was that because the pension funds were not transferred in 2006 or soon thereafter, he is entitled to open up the Bensler Order, and have the evaluation of the pension changed to the date of the settlement in January, 2010, or the date

of this trial. This would result in a further amount of the value of the pension being transferred to him. [ 20 ] The value of the pension in December, 2004 was $186,301.33, all of which is subject to taxation when the plan is collapsed or taken into income. Although the parties were agreeing to divide their property at December 31, 2005, the December 2004 valuation was the only one before the Court in 2006. The evidence at this trial was that the pension was worth $292,649 on January 1, 2010, and $266,945 on December 31, 2010, the latter number being after the deduction of the $52,500 transferred to Mr.

Novick pursuant to the May 27, 2010 court order. [ 21 ] Mr. Novick argued that the value on December 31, 2010 of $266,945 should be divided in two, so he is entitled to $133,472.50. From this the $5,000 paid to him in cash after the discussion of January 11, 2010 should be deducted and he requested that the court order that a further $128,472.50 be transferred to him from that pension. [ 22 ] Mrs.

Novick's position is that there is no legal basis to now value the pension based on today's values, the court must rather deal with the enforcement of the Bensler Order, not changing its terms, as it was never varied or appealed. [ 23 ] After oral argument, I asked Mr. Novick to provide the Court with any case law which supported his position that the date of valuation of the pension could be changed by this Court. He provided three cases: Chapman v. Chapman , 1999 ABQB 274 , Daum v. Daum , 2005 ABQB 135 and Hodgson v. Hodgson , 2005 ABCA 13 .

Chapman deals with a case where the parties agreed to a court order to equally divide their pension, with the valuation date for division being the date of the order. One party applied for rectification, arguing the meaning was to equalize the pension benefits accruing from the date of the marriage to the date of separation. Veit, J. dealt with the issue as an

interpretation of the agreement and court order, and held the date of valuation for equalization purposes was to be the date of the court order. Daum dealt at para. 34 to 60 with the

interpretation of a provision in a separation agreement that agreed to a McAllister division of the pension using the "date of Divorce Judgement (or Agreement)". An issue arose, as to the actual date to use for valuation in light of that wording. This was dealt with as a question of contractual

interpretation.

Hodgson deals with the general question of the proper date for the valuation and division of matrimonial property, and the court affirmed that it should be the date of trial. [ 24 ] None of these authorities suggest that when a court has dealt with a pension, and specifically set the valuation and the actual amount to be transferred under a court order, that a failure to do so in a timely matter means the court should re-open the valuation date, and substitute a later date, and thus a different valuation. [ 25 ] If a matrimonial property order is not appealed, there is no authority for another Queen's Bench Justice to change or interfere with the order, changing the date for the evaluation of the property.

The Bensler Order determined that the pension is matrimonial property, its valuation and the equalization amount to be paid, as well as several other issues of matrimonial property. In the event that the terms of a matrimonial property order are not carried out, the remedy is to bring enforcement proceedings. [ 26 ] It may well be that on such an application interest on outstanding funds might be assessed, or costs awarded.

There is no basis to reopen the award, and change the evaluation date used in the previous judicial determination, when that decision has not been appealed. [ 27 ] It is not appropriate to revalue the pension, that evaluation was done on the evidence before Justice Bensler, presented by the parties. The fact that the transfer was not done at that time is regrettable. However, it required a reconciliation to be done and agreed upon, and a netting out of amounts owing. I find that as a result of the Bensler Order, even after crediting the monies in trust to Mrs. Novick, Mr. Novick owed $12,264.48 in cash to Mrs.

Novick (as set out in exhibit 15). He started to be in arrears of his child support payments immediately after the Bensler Order, never paying any money for the child support ordered, either the

section 3 or

section 7 amounts. He did not have counsel, and so dealings were directly between him and Mr. Pyra, to try to determine the netting out of the award, and the appropriate transfer. [ 28 ] At trial Mr. Novick was critical of Mrs. Novick and Mr. Pyra for not moving faster; firstly to reduce the order to writing (it was entered six weeks after the hearing), and secondly to transfer pension funds. He seemed oblivious of his duty to make arrangements for the money he owed to Mrs. Novick. At trial he indicated that he was never asked to pay child support, seeming to suggest that an order was not sufficient, a demand to pay had to be sent to him.

[29] I have little evidence of what exactly transpired over the three years, before the pre-trial conference and examinations fordiscovery. When Mr. Novick refused to sign documents for the January, 2010 settlement, a court order was made on a without prejudicebasis to transfer $52,500 of the pension to Mr. Novick as per the agreement, although the agreement's validity was contested by Mr.Novick. [30] At most, in this case, the parties would be entitled to interest on funds wrongfully withheld after the Bensler Order.

Thatobligation, if imposed, would generally go both ways, interest would be owing on funds owing on the pension from Mrs. Novick andalso on those funds outstanding from Mr. Novick to Mrs. Novick, not only on the $12,264.48, but also on outstanding child support. Thatwould be the appropriate remedy for late payment of the pension amount, not a reevaluation of the property in 2010. As pointed out,Mrs. Novick has continued to work and contribute to the plan from 2006 to the present, and that is reflected in the increased value of thepension, as well as any increase due to investment return. [31] As a result, Mr.

Novick is not entitled to a readjustment of the pension amount ordered to be transferred to him in the BenslerOrder. 2. Can Mr. Novick claim spousal support, and if so, what amount? [32] Mr. Novick took the position that although Justice Bensler found he was not entitled to spousal support on the evidencebefore her, that she left it open for him to apply in the future. He asked for spousal support of $2,000 a month, from early 2007 andongoing, reviewable every six months. [33] Mrs. Novick opposed any assessment of spousal support, arguing that was finally dealt with by Justice Bensler, andfurthermore, that Mr.

Novick has not shown entitlement to a support order. Also, she argues he waived this right in the settlementagreement. 2.1 The Law [34] The relevant provision of the Divorce Act, R.S.A., 1985, c. 3 (2nd Supp.) provides in s. 15.2 that a court can make an interimorder requiring a spouse to pay support pending the determination of an application for support.

Section 15.2(4) sets out that in makingany spousal support order, the court is to take into consideration the condition, means and needs and other circumstances of each spouse,including the length of time the spouses cohabited, the functions performed by each spouse during cohabitation, and any order,agreement or arrangement relating to support.

The objectives of a spousal support order set out in s. 15.2(6) are to: recognize anyeconomic advantage or disadvantage to the spouses arising from the marriage or its breakdown; to apportion between the spouses anyfinancial consequence arising from the care of any child over and above any obligation for the support of any child; relieve any economichardship arising from the breakdown of the marriage; and in so far as practicable, promote economic self-sufficiency of each spousewithin a reasonable period of time. [35] Mr.

Novick after the trial provided a binder of authorities which included cases dealing with spousal support. These includedthe Supreme Court of Canada cases of Moge v. Moge, (SCC), [1992] 3 SCR 813 and Bracklow v. Bracklow, (SCC), [1999] 1 SCR 420, as well as several cases from the Alberta Courts where spousal support had been ordered. [36] Specific comment is relevant in relation to Bracklow, which dealt with a case where Mrs. Bracklow was found to havepsychiatric problems and a finding had been made that it was unlikely she would ever work outside the house again.

The trial judgefound no economic hardship befell her as a result of the consequence of the marriage and that her health problems were not due to themarriage. The Supreme Court of Canada dealt in some detail with what duty is owed by a healthy spouse to a sick one when the marriagecollapses. The health of a party as it effects their ability to be self sufficient and as they experience economic hardship after the breakdown of the marriage are factors to consider. In certain circumstances, marriage may give rise to an obligation for a sick or disabledspouse.

This may result in a support obligation, even in the absence of a compensatory underpinning. 2.2 Preliminary Issue

[ 37 ] Mr. Novick filed an application for interim spousal support, that was adjourned by a consent order dated August 31, 2006 to be heard at the special chambers application before Justice Bensler in September. It was based on the grounds that Mr. Novick had suffered financial hardship, and physical and emotional trauma since the demise of the marriage.

It was also alleged that his health issues, including his pending surgeries would render him unable to work for a significant period of time, so that he was economically disadvantaged by reason of the marriage and would not be self sufficient. [ 38 ] Justice Bensler heard argument in relation to spousal support and said the following (pp. 96 to 97 of exhibit 19): And with respect to spousal support, I am not convinced that Mr. Novick has convinced me that he needs spousal support at this time. There is no reason that he cannot make a living.

Maybe in the next few months he will not be able to, but I do not see how he cannot support himself and I do not think that is a reasonable expectation at this time. Again, I do not have any medical evidence as to how long he will be off work...so I am not going to award any future spousal support. [ 39 ] Although it is arguable that this may have dealt finally with the issue of spousal support, Bensler, J.’s comments are most fairly interpreted to make it clear that she was not satisfied that on the evidence of Mr.

Novick's gross income from his work as a realtor, and net taxable income at approximately $25,000, that he could not support himself at the time. She was unwilling to award future spousal support as there was no evidence of when Mr. Novick would have his surgery, or how long he may be off work as a result. [ 40 ] Mr.

Novick did not bring any further application asking for spousal support until November 4, 2009, when he filed an application asking for spousal support due to delay in the settlement and financial distress. [ 41 ] In the circumstances, I do not take the Bensler Order to be a final order in relation to Mr. Novick's right to spousal support, and he has the right to have the Court make that decision at this trial. The issue of ongoing spousal support is not res judicata due to the Bensler Order. 2.3 The Evidence [ 42 ] Mr.

Novick gave evidence about his financial situation just prior to and at the time of the Bensler Order, up until the present. He gave little evidence about his working or financial background before 2004, other than that he has been in business, and a licenced realtor for over 17 years. Nothing was said about any effect the marriage had on his earning power. There was no evidence of his income from the marriage in 1983 until 2004.

He appeared to take the same position as he had in 2006, that the breakdown of the marriage had caused him stress, and the resulting litigation meant he is unable to support himself, and his heart attack affected his ability to work. [ 43 ] He testified at trial that his 2004 return, which was the basis for Justice Bensler setting his guideline income, indicated a gross income of $53,000 and a net income of $19,369. He also testified that his return for 2005 showed an income of $21,254 but a net loss of $800.

In his cross examination, he testified that in 2005 he had a gross business income of $71,800 with a net after expenses of $21,251. Exhibit 23, his affidavit sworn August 22, 2006, states that his net income, after expenses, for the years 2004 and 2005 was approximately $25,000. [ 44 ] In 2006, Mr. Novick declared gross income of $32,093.36 and expenses of $35,777 for a net loss of $3,683.85. He testified at trial that in 2007 he earned $8,941, but after expenses he was in a loss situation.

However, the portion of his 2007 return attached to his affidavit of November 3, 2009 shows his gross income was $43,324 with net business earnings after expenses of $6,804. The tax return shows total income (including capital gains and interest income) of $8,941.27. In 2008, he declared a gross income of $34,603.75, with expenses of $54,675 for a net loss of $20,071.

He provided no documentary evidence of his 2009 and 2010 tax returns, he testified that in 2010 he had income of $1,077 and he had collapsed $26,425 of the pension transferred to him. [ 45 ] Only the complete tax returns for 2006 and 2008 were marked as exhibits. Despite Mr. Novick's evidence at trial that he had disclosed full copies of his income tax returns in affidavits previously filed with the Court, only one page of the returns for 2006, 2007 and 2008 was attached to his November, 2009 affidavit.

These clearly indicate that expenses such as a portion of rent or the mortgage was expensed for a home office, and telephone and vehicle expenses were written off as well as depreciation.

[ 46 ] Mr. Novick testified that he is currently being reassessed or under some type of investigation into his tax filings. This may explain some of the confusion about his exact earnings. Also, as there is discretion for a self employed realtor in terms of the business expenses claimed, actual taxable income is a discretionary number. [ 47 ] Mr. Novick testified that he had, previous to the hearing in 2006, suffered a heart attack and was to have open heart surgery which was postponed to January 2007.

He has continued to work as a realtor, with various companies, in Calgary and also out of Nanaimo, British Columbia. He testified that he was involved in some real estate development projects which meant he had expenses, but they did not result in any income, and that has compounded his problems. He gave no explanation why he has seemingly not earned any business income for 2010, or 2011, his evidence was that his income those years was from collapsing investments. [ 48 ] Mr. Novick testified that he is currently in dire economic circumstances.

He needs money to pay the fees to keep his realtor licence up to date in Alberta and British Columbia. His debts set out in exhibit 11 total $307,704. These include $78,000 owing to Dick Oakes, a friend, $63,254 owing to Scotia bank and another amount called "personal loans" of $65,000 which he testified are loans made to him by friends. Mr. Novick testified that he has currently made a proposal to his creditors, and does not wish to declare bankruptcy. [ 49 ] Mrs. Novick filed her tax returns as exhibits.

Her employment income for 2006 was $59,328, for 2007 was $69,994, for 2008 was $65,443, for 2009 was $66,374, and for 2010 was $65,423. Her position is that Mr. Novick's financial misfortunes are not related to the marriage. She argues that he is not entitled to continue to incur net losses working as a realtor, or incur large, unsustainable debts pursuing investment possibilities, nor can he use that as a basis to claim spousal support due to his lack of earnings. 2.4 Analysis and Decision [ 50 ] I must look at the factors set out in the Divorce Act to consider if spousal support is appropriate.

In terms of the s. 15.2(4) factors: the parties cohabited for 22 years, I have no evidence of their functions during cohabitation, other than that Mr. Novick was employed and worked as a realtor; there has been no previous order of support, a request for spousal support based on similar grounds as the current application was rejected in 2006 by Justice Bensler; and Mr. Novick was willing to give up any claim for support in the 2010 settlement agreement, in return for other consideration. Mr. Novick has clearly incurred large debts, to do with his investments and business activities.

He is able to work as a realtor. [ 51 ] The statutory objectives of a spousal support order in s. 15.2 (6) have to be examined. In terms of any economic advantage or disadvantage to the spouses arising from the marriage and its breakdown, both parties suffered a decrease in their standard of living upon the sale of the house, as it is more expensive to have two households. The matrimonial house was sold, each party invested funds in their own condominium. Mr.

Novick was working before the breakup and continued to work after it, with a brief interruption for surgery in 2007. [ 52 ] The financial consequences from care of the children do not lie with Mr. Novick, it is Mrs. Novick who has dealt with the needs of the children since 2006. Mr. Novick has essentially had no contact with the children, nor has he paid any funds for their support. [ 53 ] The economic hardship from the breakdown of the marriage is the increased living expenses for both parties. Mr. Novick did not receive any pension equalization until 2010. Mrs.

Novick has not yet received her equalization payment from Mr. Novick, nor the release of monies held in trust. Other than that, each party has been in control of their own work and destiny since their separation. [ 54 ] Mr. Novick's ability to be self sufficient relates to his ability to get his debt under control, to resist real estate investments which have expenses and no returns, and to concentrate on either increasing the revenue or decreasing the expenses of his real estate business, or searching out other employment that sustains him. [ 55 ] Mr.

Novick called no medical evidence to support his position that his earning capacity is impacted due to illness, either due to his heart condition or stress. He took the position at trial that his heart problems and the stress from the breakup of the marriage, the divorce, and dealing with the ensuing litigation, has impaired his ability to work and earn an income. He testified he had heart surgery in

early 2007. This would affect his ability to work at that time, but there was no evidence of his length of hospitalization or recovery time. No evidence was called that suggested that Mr. Novick was dependent on Mrs. Novick during the marriage, or that the marriage to the point of separation had impacted his ability to develop his career and employment. There is nothing like the kind of evidence that would be required to make a finding of fact that Mr.

Novick is disabled or medically compromised in his ability to work, to bring him under a consideration of the principles in Bracklow . [ 56 ] When I look at all of the above discussion, I do not find that Mr. Novick's lack of self sufficiency is related to the marriage, or due to an employment problem related to the marriage. Rather he has astronomical debts that he has incurred (from some bad real estate investments), and he has not taken prudent measures to seek employment that will provide him with income, if, in fact, he cannot make money as a realtor. [ 57 ] As a result, I do not find that Mr.

Novick is entitled to a spousal support order from 2006 to the current time, or in the future. 3. Should the Court make a Direction in relation to the split of CPP credits? [ 58 ] During the trial, Mr. Novick complained that Mrs. Novick had never disclosed any statement of her Canada Pension Plan (CPP) credits. This was despite the fact that he had not done so either, the first time he provided any statement was at trial, where he produced his statement of credits ending at November 2004. [ 59 ] Mr.

Novick testified that he had never written to or informed CPP that he wanted an equalization of CPP credits due to the termination of the marriage. [ 60 ] The federal legislation, Canada Pension Plan , R.S.C. 1985, C-8, s. 55.1 and the relevant regulations set out the scheme for the division of CPP credits upon the dissolution of a marriage. The method, upon divorce, to divide a couple's CPP credits is explained in easy language on the relevant federal government website. The scheme is that parties merely provide a request to the government, with the information of the divorce.

Then, the credits are automatically split. [ 61 ] This is not a matter than requires court intervention. It requires action if either party wishes to apply for equalization as provided by relevant statute. There was no evidence that either party has taken that step. [ 62 ] This issue, is to be dealt with by application to CPP. It is not necessary or appropriate that this Court be involved. 4. Are there outstanding issues in relation to Child Support [ 63 ] Mr.

Novick raised in his application filed in November, 2009, that he wanted a "Change and variance Order, on child support" on the grounds that the children were over 18 and Mrs. Novick had alienated the children from him. At trial, he took the position that both children were over the age of eighteen years, and as they did not communicate with him, he was not obliged to be involved in funding any of their post secondary education. [ 64 ] Mr. Novick's declared income is set out in paras. 43 and 44 above.

One of the difficulties with his income declaration is how to deal with gross earnings, and net earnings, where some of the expenses allowed for tax purposes, would not normally be deductions when looking at guideline income.

Justice Bensler in 2006 when setting guideline income, gave him the lowest guideline income possible on the evidence before her at that time. [ 65 ] Under the Bensler Order, arrears accruing would be $3,190 to Diandra's 18th birthday ($319 x 10 months) and on the same guideline income of $20,000, for one child at $182 a month, the arrears until Nathanial turned 18 on October 1, 2009 would be an additional $5,096. Child support arrears up to that point would be $8,286.

These would be the minimal arrears, based on the assumption the children became independent at age 18, which is not the case, and it does not take into account s. 7 expenses after 2006. Nor does it take into account any variation in Mr. Novick’s guideline income.

[ 66 ] Mrs. Novick filed as exhibits and testified at trial about the expenses she had for the children. Nathanial after grade 12 took a professional cooking course at SAIT. Through student loans and assistance by her, $16,653 had been spent for that training. In addition, Mrs. Novick provided documentation of $467 of medical expenses from 2006 to the present for Nathanial, which were amounts over and above what her insurance plan at work would pay. Diandra, took a year off from school and worked, and then went to the University of Calgary for a year. She is currently completing a radiology program at SAIT. Mrs.

Novick provided receipts for and detailed information of medical expenses above her insurance plan of $2,103 for Diandra since 2006. Also, she documented schooling costs for Diandra of $29,388 since 2006, some of which are the subject of student loan financing. [ 67 ] The evidence was that the children lived with Mrs. Novick through their schooling and she produced receipts for $1,683 for clothing from 2006 to 2008 and details of transportation costs of $8,771 for car expenses, as both children borrowed a second car she owned for their transport. [ 68 ] Mrs.

Novick had no wish to go through the time and expense of providing all the detail to assess child support, which would include the children's earnings and student loan applications or to argue over Mr. Novick's guideline income. Insisting on complete and proper disclosure from Mr. Novick, for example, getting copies of his complete tax returns and compliance with the standard notice to disclose had been problematic in the past, as indicated by exhibits 8, 9 and 11 and the court order exhibit 10. [ 69 ] Mrs.

Novick's purpose in leading the evidence of the children's expenses was to support her position that the 2010 settlement agreement should be enforced. Her position was that although the $23,386 (which would be less when the income tax implications are considered) she had agreed to accept as a lump sum for arrears and future child support and

section 7 expenses was woefully inadequate, she had no wish to incur the costs to pursue a further order, especially as Mr. Novick had not paid any support for the children under the current order. [ 70 ] Mrs. Novick in cross examination acknowledged that the two children did work in the summer and on a part time basis. Mr. Novick also argued that no details of those earnings, or of their student loans had been disclosed.

He took the position that he was not in a financial position to pay child support. [ 71 ] Because of the decision I have made in relation to the settlement agreement, I do not find it necessary to deal with a detailed assessment of child support. The evidence called on this point was helpful in assessing the fairness of the settlement which Mrs. Novick attempts to enforce. 5. Should the Court Order the Enforcement of a Settlement Agreement [ 72 ] The application of Mrs.

Novick is to enforce the settlement agreement which she takes the position was agreed to by the parties on January 10, 2010 and of which a record was made by a court reporter (exhibit 2). [ 73 ] She testified that at the examination for discovery, there were settlement discussions between herself, Mr. Pyra and Mr. Novick and an agreement was reached. The agreement was recorded by the court reporter who was present to create the transcript of any questioning. The $5,000 cash component was paid on that day, a cheque was provided to Mr. Novick from funds Mr. Pyra was holding in trust. [ 74 ] Mr.

Novick does not deny that an agreement was put on the record, or that he agreed to it, but testified at trial that it was subject to "full disclosure" being received by him. He testified that he had requested an update of the value of the pension, as he wanted to claim a share of any increase in value from 2006, and the settlement was subject to that right. He could not explain why the condition of disclosure or his right to bring future claims was not put on the record of the agreement. He suggested that Mr. Pyra must have omitted that in putting the terms of the agreement on the record. [ 75 ] Mrs.

Novick testified that she had sent disclosure information to Mr. Novick sometime around January 10, 2010. She thought it was before the examination for discovery date, but she was not sure. It was sent registered mail to an address in the Shawnessy region of Calgary, which she understood to be the address set out for service on Mr. Novick’s court documents. She did not expressly identify what was sent. Mr. Novick denies that he received any disclosure documents from Mrs. Novick before the examination for discovery

date. [ 76 ] Generally the Court will only enforce a settlement agreement, where the parties clearly agreed on terms. In relation to matrimonial property agreements, the provisions of s. 37 and s. 38 of the Matrimonial Property Act , R.S.A. 2000, c.-9 must be complied with, requiring specific certificates confirming legal advice. [ 77 ] It can be argued that as Mr.

Novick at the time of the discussions was advancing a claim for further matrimonial property (a further division of the pension), and the intention for the agreement was a final settlement of the action under which that claim was advanced, those certificates would be required. [ 78 ] However, here, the issues had been identified at a pre-trial conference, both parties were aware of the issues in dispute and an examination for discovery was set up prior to trial. A Court had already dealt with matrimonial property.

The questions remaining were: the reconciliation of those amounts; enforcement of that order; and matters of corollary relief that were outstanding, support for Mr. Novick and support for the children. The increase of the value of the pension was identified at the pre-trial conference as something that Mr. Novick wished. It is hard to believe that he would agree to a settlement in circumstances he knew the court reporter was recording and could transcribe the settlement terms, if he did not have the information he required, or wanted or if he was still maintaining a right to more money from the pension.

It is equally hard to believe that Mrs. Novick would make partial performance that day by the payment of $5,000, if there was any sense that the agreement was not final, or conditional on disclosure and a further claim on the pension. [ 79 ] When an agreement is reached and recorded between a party who is represented by counsel and a party who is not represented, a Court has to consider any legitimate issues of lack of understanding of rights or unfairness that may result when it is asked to enforce such an agreement. [ 80 ] The basis of the agreement, as articulated by Mrs.

Novick was that after the Bensler Order, Mrs. Novick was owed $12,264.48 by Mr. Novick. As this had not been paid, she felt it should be deducted from the pension equalization payment. In addition, there was consideration that there had been no variation in support for the children, and no support paid, and the $52,500 was a negotiated figure that both parties would accept in the circumstances. [ 81 ] Counsel for Mrs. Novick argued that if one takes the $93,150.66 pension equalization payment to be transferred from Mrs. Novick to Mr.

Novick under the Bensler Order, and deducts: (1) the $12,264.48 that was owed to Mrs. Novick from Mr. Novick as a result of the reconciliation of all property matters outlined in exhibit 15, (2) the $5,000 paid when the 2010 agreement was made, and (3) the $52,500 transferred in 2010 pursuant to the order of Justice Stevens, one comes to an amount of $23,386.18. Counsel argued that this amount was a notional amount for all the outstanding child support under the Bensler Order.

He pointed out the $93,150.66 carries tax implications whereas the $12,264.48 does not, so a precise accounting would reduce the $23,386 even further. He argued $23,386 was a pittance as a contribution for support of the two children, in light of the evidence about their subsequent education, and that they remained in Mrs. Novick's home, and were provided room and board while they completed their education.

The s. 3 arrears to age 18 alone were a total of $8,286. [ 82 ] When I review the evidence around the agreement, the issues in play, and the fact of part performance, I find that the agreement of the parties, clearly articulated in the transcript, should be enforced. It is a fair compromise of the parties in the legal circumstances in which they found themselves. I do not find credible the evidence of Mr. Novick that this arrangement and the payment to him on that day was conditional on more disclosure, or his right to request more of the pension.

The amount of the pension roll over was specifically agreed to on the transcript. The provisions of the Matrimonial Property Act are not required to be complied with here, as there had already been a determination of property issues, the issues here were the implementation of the Bensler Order, and matters of corollary relief under the Divorce Act . [ 83 ] In addition, any consideration of this settlement on a fairness basis, on the evidence before me, suggests that the agreement was fair. As I have found above, Mr.

Novick was not legally entitled to ask for a re-evaluation of the pension, at most his entitlement would have been to a consideration of interests and costs. He had obligations that were owed to Mrs. Novick as a result of the Bensler Order. His earning situation both in terms of his entitlement to spousal support and how child support would be viewed was uncertain. It was a fair attempt to deal with all matters, without the necessity to spend the time, effort and cost necessary to go forward to trial on the issues as they were identified. There was immediate part performance.

[ 84 ] As a result, Mrs. Novick is entitled to a declaration that the settlement reached on January 10, 2010 is enforceable. 6. Other Miscellaneous Issues [ 85 ] Other issues were raised by Mr. Novick, either in his filed notices of motion, or in his argument at trial. They should be mentioned for the sake of completeness, as this trial results in a final determination of the issues arising from the Matrimonial Property Act and the Divorce Act between these parties. [ 86 ] In numerous applications, Mr. Novick asked that Mrs. Novick and Mr.

Pyra be held in contempt of court, for not transferring monies, for not making disclosure, and for dragging matters out. Nothing in the evidence before the Court suggested that a finding of contempt was appropriate. [ 87 ] At one point in this trial, Mr. Novick suggested that he was entitled to money for value and services he put into the matrimonial home before 2006. This was clearly dealt with in the Bensler Order, in the transcript of that hearing at pp. 52 to 53 and 70 to 73. It is res judicata .

In addition, that issue was never properly brought before this court as a issue at trial, it was not raised as an issue at the pre-trial conference. It appeared to be an afterthought that Mr. Novick brought up from reviewing the transcript. The same reasoning applies to a suggestion by Mr. Novick that $10,000 was earlier dispersed from trust from the sale of the house.

There was no evidence that would support an unauthorized payment of $10,000, or payment of that amount that was not earlier accounted for in the Bensler Order. [ 88 ] It became clear during the evidence that although exhibit 15 (the reconciliation) was prepared on the basis that the $20,217.93 still held in trust in 2006 should be attributed to and paid to Mrs. Novick, that in fact was never done due to the problems in concluding the final implementation of the Bensler Order. Out of that money, the $5,000 payment on January 11, 2010 was paid to Mr. Novick.

The remaining $15,217.93 should be paid out of trust to the benefit of Mrs. Novick, as it was attributed to her in the reconciliation of funds, exhibit 15, which has been accepted by this Court. 7. Conclusion [ 89 ] The settlement agreement of January 10, 2010 is enforceable. [ 90 ] Mr. Novick is not entitled to any further payment from Mrs. Novick in relation to the pension with Co-operators. [ 91 ] There are no arrears owing by Mr. Novick for support of the children under the Bensler Order, and the paragraphs of that order which deal with child support are terminated. [ 92 ] Mr.

Novick's application for retroactive or future spousal support is dismissed. [ 93 ] Either party is at liberty to apply to equalize CPP credits, as relevant legislation allows. [ 94 ] I specifically indicated at trial that the issue of costs could only be spoken to after I had given my decision in this matter. Either party can bring an application before me to deal with the costs of this trial, if it cannot be agreed between the parties.

Heard on the 16 th day of May, 2011 to the 17 th day of May, 2011. Dated at the City of Calgary, Alberta this 14 th day of June, 2011. R.E. Nation J.C.Q.B.A. Appearances: Percy Pyra, Kelly & Kelly for the Plaintiff James John Novick not represented by counsel