Gibb v. Gibb, 2011 ABQB 436

Court of Queen ’ s Bench of Alberta Citation: Gibb v. Gibb, 2011 ABQB 436 Date: 20110708 Docket: 4806 018103 Registry: Lethbridge Between: Monica Gibb Plaintiff - and - Dennis Devere Gibb Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W.V. Hembroff _______________________________________________________ [ 1 ] This is an application by the former wife (Monica) for spousal support from the former husband (Dennis). [ 2 ] The parties married in 1973 and separated in 2002.

There were six children of the marriage all of whom are now and have been since the divorce over the age of 18. There is no dependency involved in the case of the children. [ 3 ] At the time of the separation and thereafter, the parties were each virtually impecunious. Dennis had inherited some agricultural land valued at about $900,000.00. In an Affidavit of February 4, 2011, Dennis swears:

4(

d) That I can advise that during our marriage, I did inherit a farm from my father, and at one point, our farm was held, clear title, and had a value of approximately $900,000.00.

Unfortunately, our spending habits during the marriage, and our inability to succeed in business eventually resulted in a complete loss of virtually all of our assets, and shortly after our separation, I went through bankruptcy and all of our assets were lost. [ 4 ] These facts are not disputed by Monica. [ 5 ] So far as other assets, Monica suggests that no matrimonial assets were left with her, that the Defendant took a truck, a horse trailer and some horses, two trophy saddles and tack. She says that the Defendant left her with the household furnishings. [ 6 ] In his Response, at paragraph 2(

b) of his Affidavit of March 11, 2011, he states as follows: That neither of us were left with significant assets at the time of our divorce, although I can state that the horse trailer I took was 22 years old, and was given to our son, who later scrapped it, the trophy saddles I took were very old and were worth very little, maybe $300 or $400 at most, the only horse I had was an old mare that our son took and which I later purchased back from him.

The reality is that we had very little, and other that (sic) the minor things she referred to, the belongings of our marriage were kept by the Plaintiff; [ 7 ] Regardless of this dispute over minor items as between the parties, it seems quite clear that there were no assets of any real value and that indeed, the parties walked away from the marriage each, with nothing.

There is no allegation other than that of Dennis as to the reason for the loss of the very large asset except that both of them were responsible. [ 8 ] I am satisfied at the time of the separation there was no income to split and no assets to split. I find both parties left the marriage at that time equally impoverished and equally responsible for their impoverished condition. [ 9 ] In February of 2004 Monica filed for divorce, alleging she was then employed and making a gross annual income of $17,280.00. She alleged Dennis was employed and making a gross income of $41,600.00.

Dennis filed a Defence and Counterclaim to her Statement of Claim. [ 10 ] Monica did nothing further at this time, and for some numbers of years relative to their separation. Dennis finally applied to sever the corollary relief. He obtained a divorce in January of 2005. After that, no further proceedings were taken by Monica until January of 2011, at which time she brought this application for spousal support. [ 11 ] At the time of the separation, each of the parties effectively had to start over.

Neither had a particular advantage over the other although Dennis had a very dated University degree which was of little use to him. Each started employment in the insurance industry. Dennis has succeeded modestly. Monica apparently did not nor did she succeed or persevere at other occupations. Presently Dennis makes about $50,000.00 a year. He has remarried. His wife earns a modest income, about $15,000.00 annually. She has two dependent children from another relationship. Dennis considers that he has some responsibility for these children.

When he remarried no claim of any description had been made by Monica nor was it for sometime after the marriage. Dennis might have reasonaby expected none would be made. [ 12 ] Monica was not as fortunate in securing employment. She worked at various jobs and presently earns $1,600.00 tax free on a monthly basis as a companion for a high needs person. This is expected to last until early 2012. There is no information as to what other ability she might have or whether she can continue this same kind of service. [ 13 ] Recently, Monica has had health problems which made it impossible for her to work.

She has attached to her Affidavit an undated letter from Dr. Taylor, her attending physician. She says she received it on February 17, 2011. It says simply:

My patient, Monica Gibb, is totally disabled by her autoimmune hemolytic anemia and her lupus. She has also recently been diagnosedwith COPD by Dr. Wilde. She will never be able to work again. If you have any questions please contact my office. [14] As well, Monica attaches to one of her Affidavits as Exhibit “O” the Medical Assessment completed by Dr. Taylor. Hedescribed the primary health problem as anemia with a secondary health problem “SLE”. He states that the onset of these illnesses werein May and October respectively.

As is pointed out in the Respondent’s Concise Letter, the condition was diagnosed some eight yearsafter the date of separation. As I would find, there is no evidence that any of her health problems are even remotely connected to hermarriage or its breakup. [15] Prior to the illnesses, there is no reference as to why she should not work although it is clear she tried a number ofoccupations, and was offered some re-training in one of those occupations which she didn’t take.

Issue [16] After nine years post-separation without claiming or receiving any maintenance, except for a few payments immediately afterthe separation, is the Applicant entitled to spousal maintenance? Discussion [17] The applicable law is set out in the Brief of the Respondent. Prior to the Divorce Act and Moge v. Moge, (SCC), [1992] 3 SCR 813, it is unlikely the Appellant would have succeeded.

The relative provisions of the Act are as follows: Spousal support order 15.2(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure orpay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for thesupport of the other spouse. Factors

(4) In making an order under subsection (1) ..., the court shall take into consideration the condition, means, needs and othercirucmstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. Spousal misconduct

(5) In making an order under subsection (1) ..., the court shall not take into consideration any misconduct of a spouse in relation to themarriage.

Objectives of spousal support order

(6) An order made under subsection (1) ... that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; ... (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 18 ] As stated in Moge v. Moge , all four objects as set out in the Act are to be considered equally before making an Order for spousal support. As well the objectives of the Act as contained in sub-paragraph (6) must also be considered. [ 19 ] In examining the particular circumstances in this Application and in examining the objectives, I must recognize the economic advantages or disadvantages to the spouses arising from the marriage or its breakdown.

I find there certainly were no advantages to either and the disadvantages were equal to both.

Both came out of the marriage with nothing and so far as the evidence before me is concerned, I can’t find that either of the parties was responsible for the loss of the major asset which was in fact the husband’s asset by virtue of a bequest. [ 20 ] In considering the factors, the length of time here certainly was a long-term marriage which would normally weigh very heavily in determining what amount if any should be paid by way of spousal support. [ 21 ] Similarly, the functions performed by each spouse during the cohabitation would appear to have been about equal.

Certainly the major obligation of raising six children fell almost entirely upon Monica but at the same time the obligation of providing for them fell entirely upon Dennis. As I would find, each performed their function on an equal basis. [ 22 ] Certainly there is no agreement as found in the material although the husband made a very few payments initially, even when he could not afford to do so. Further, there is no misconduct suggested by either of the parties. [ 23 ] In referring again to the objectives, I have already commented on the economic advantages or disadvantages.

So far as the economic hardship of the spouses arising from the breakdown of the marriage, again for those years after the marriage, I would simply find the economic hardship on each was equal. Neither of them came out of the marriage with any money. Neither of them came out of the marriage with any particular skills. Both of them tried to find some work and one was more successful than the other. [ 24 ] Concerning the objective of providing economic self sufficiency, each needed to start again to become self sufficient. He did. She did only partially.

Neither failed or succeeded as a result of any skills obtained during the marriage. [ 25 ] In looking at the circumstances of the parties, there is absolutely no evidence that the apparently declining health of Monica after eight years post-separation had anything at all to do with the marriage. The Doctor’s Report, while certainly serious so far as Monica is concerned, states clearly the onset of the problem only occurred in 2010.

I find there is no evidence at all to suggest that the present poor health of Monica has anything at all to do with the breakdown of the marriage. [ 26 ] This application has been brought much later than it should have been. In these particular circumstances, it would not be fit and just to make any Order with regard to any payments of maintenance. Thus the application is dismissed.

[ 27 ] Whether it is appropriate or not to do so, but keeping in mind the difficult financial circumstances the Applicant finds herself in, there will be no award for costs, each party should bear their own. Heard on the 13 th day of June, 2011. Dated at Lethbridge, Alberta this 6 th day of July, 2011. W.V. Hembroff J.C.Q.B.A. Appearances: Mary Ann Gerhart Family Law Office for the Plaintiff Robert G. Harvie Huckvale Wilde Harvie MacLennan for the Defendant