GB v. TB, 2011 ABQB 500

Court of Queen ’ s Bench of Alberta Citation: GB v. TB, 2011 ABQB 500 Date: 20110808 Docket: 4810 019088 Registry: Red Deer Between: G.B. Plaintiff - and - T.B. Defendant Corrected judgment: A corrigendum was issued on August 12 th , 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Kirk Sisson _______________________________________________________ Background: [ 1 ] Mr. GB, the plaintiff and Ms.

TB, the defendant were married May 3, 1997, separated July 28, 2007 and, after application for severance by the plaintiff as he wished to remarry, divorced on November 23, 2010. This was a second marriage for each.

[ 2 ] When the parties married, Ms. TB had four children: age 14, (Adult Child T), age 12, (Adult Child L), age 8 and age 6. Mr. GB had three children, with the youngest residing with him. At the time the parties were married, they and the 5 young children lived in a crowded, hectic mobile home on a on a quarter

section of land owned by Mr. GB (hereafter called the Farm). [ 3 ] During the marriage, the parties had four children. KM born in 1997, died of SIDS. MB was born February 8, 2000, and the twins, GB and HB, were born June 8, 2004. [ 4 ] Mr. GB has worked in the oil and gas service industry for most of his life. In 2004 he incorporated ACT Inc. (the company) with the help of some investors. The other major asset is the family’s home in Red Deer, Alberta. Other matrimonial possessions include an RRSP worth about $12,000 and household goods. Issues : [ 5 ] The issues are: 1.

Custody and access for the three children of the marriage, MB age 11, HB age 7 and GB age 7. 2. Matrimonial property division Preliminary Matter – Adjournment Application [ 6 ] At the start of this trial, Ms. TB applied for an adjournment as she wanted to hire a lawyer. She said she was in no position to represent herself and she deserves a fair trial. The defendant indicated she had contacted a specific lawyer who had agreed to represent her. [ 7 ] The plaintiff opposed the application.

Plaintiff’s counsel indicated that one of the lawyers who had represented the defendant in the past had contacted her office and advised that the lawyer the defendant said would represent her had not agreed to this. [ 8 ] Plaintiff’s counsel set out a history of delay and non-cooperation attributable to the defendant since 2007. Reference was made to orders that were required to have the defendant respond to move the matter along.

Specific reference was made to the pretrial order of November 23, 2010 which set the matter for trial for four days commencing June 7, 2011 and the order of March 15, 2011, which provided further direction respecting the trial. On May 6, 2011, the last pretrial conference was held and further direction was provided respecting trial preparation. [ 9 ] One of the major issues in this trial is custody and access. A review of the previous orders provides clear information about the difficulty in coming to grips with this issue.

For example, when the plaintiff obtained day to day care of the children in September, 2007, the matter was to be back in court in two weeks. As the matter progressed, there were times when the defendant would not show up. The defendant changed lawyers several times. This situation has not been moved forward by the defendant in almost four years. [ 10 ] To the defendant’s credit, when asked if she would pay the costs of the adjournment she said she would; however, she was not able to provide any credible submission that delaying the trial would change her situation.

After considering the submissions and the information provided, the application to adjourn this trial was denied. 1. Custody and access for the three current children of the marriage, MB age 11, HB age 7 and GB age 7. Introduction

[ 11 ] The issue of custody and access is one of the most difficult types of matter the courts deal with. [ 12 ] It is also one of the most important because we are dealing with children. [ 13 ] It is especially difficult because any decision will impact the parents – but they have to take second place to what is in the best interests of the children, MB, HB and GB. The best interest of the children is the primary goal of this inquiry. [ 14 ] Here, the evidence overwhelmingly indicates that it is in the best interests of the children to grant sole custody and day-to-day care to Mr. GB and access to Ms.

TB. [ 15 ] The history of the parties’ dispute over custody and access abounds with accusations, counter charges, an emergency protection application and order, police involvement, court applications, court orders and peace bonds. Pleadings [ 16 ] In Mr. GB’s Statement of Claim for Divorce and Division of Matrimonial Property, he claimed sole custody of the children with generous and reasonable access to be provided to the defendant upon reasonable notice. [ 17 ] Ms. TB counterclaimed. She proposed joint custody with primary residential and day-to-day care to be with her and reasonable and generous access to Mr.

GB. [ 18 ] Mr. GB refined his claim during the trial. [ 19 ] He requested sole custody be granted to him, with access to be provided to Ms. TB every second weekend from Friday at 7:00 p.m. to Sunday at 7:00 p.m., such access to be cancelled at the discretion of Mr. GB should Ms. TB, in his sole opinion, not be in a position to care for the children during any particular access weekend. [ 20 ] Mr. GB recognizes that Ms. TB should be permitted access to all important information respecting the children. [ 21 ] Other restrictions requested by Mr.

GB are that he shall be the person to transport the children to and from access. The children should be dropped off in front of Ms. TB’s residence and Ms. TB should be required to stay in her residence during pickup and drop-off. Mr. GB requests a direction that Ms. TB not drive a motor vehicle with the children as passengers nor shall she administer any medications unless specifically authorized in writing to do so by Mr. GB. [ 22 ] Ms. TB’s submissions were consistent with her pleadings. She submitted joint custody was in the best interests of the children.

She offered open and unscheduled access to the father, given his work schedule. She objects to any restriction on her driving the children or allowing him the ability to cancel visits. Summer vacations should be split. The Law [ 23 ] The “best interests of the child” test is the applicable test in custody matters. The relevant sections of the Divorce Act are sections 16 and 17 .

[24] In general,

section 16 recognizes that divorce should not undermine the family bonds that a child develops, maximum contactwith both parents is desirable and the

section gives the court broad discretion to tailor an arrangement that works for the best interests ofeach child. [25] The best interests of the child is an all-embracing concept that involves consideration of physical, emotional, intellectual, andmoral well-being of the child, both day-to-day and in the long-term.

Past conduct of the parents is relevant only to the extent it impactson the ability of someone to act as a parent to a child. [26] Section 16(5) provides that an access parent has the right to receive information about the health, education and welfare of thechild unless otherwise ordered and section 16(6) allows for the imposition of terms and the making of unlimited or specific durationorders. [27] The Supreme Court of Canada case of Van de Perre v. Edwards 2001 SCC 60 , 2001 S.C.C. 60 at para. 13 providesgeneral guidance. Custody and access decisions are inherently exercises in discretion.

Case-by-case consideration of the unique circumstances of eachchild is the hallmark of the process.

This discretion vested in the trial judge enables a balanced evaluation of the best interests of thechild and permits courts to respond to the spectrum of factors which can both positively and negatively affect the child. [28] The court must: (1) go through a process of ascertaining this particular child's needs - physical and emotional; and (2) thenanalyze the capacity of each parent to satisfy those needs. [29] I note at this point no-one provided evidence or raised an issue that indicates that any of the children should be treateddifferently from the rest. [30] Another Supreme Court of Canada case, Gordon v.

Goertz (SCC), [1996] 2 S.C.R. 27 provides moredetailed guidance regarding the best interests of the child. The points made include: - Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances ofthe case. - The focus is on the best interests of the child, not the interests and rights of the parents. - The judge should specifically consider, amongst other things: (

a) The existing custody arrangement and relationship between the child and the custodial parent. This status quo – that is, thecurrent situation - implies stability, which has value, but must be considered in light of the long term best interest. (

b) The existing access arrangement and the relationship between the child and the access parent. (

c) The desirability of maximizing contact between the child and both parents. (

d) The views of the child. (

e) Disruption to the child of a change in custody. (

f) Disruption to the child consequent on removal from family, schools, and the community the child has come to know. Day to Day Care [31] For the last four years, the children have been in the care of their father with their mother exercising access every secondweekend.

[ 32 ] The evidence supports the conclusion that the children should continue under the day to day care of Mr. GB for so long as Ms. TB continues to rely on prescription medication for the treatment of pain or anxiety and depression, or so long as she continues to make poor choices about what she shares with the children respecting her relationship with their father and his family and continues having outbursts of anger. [ 33 ] The evidence is very clear in this case. Notwithstanding Ms. TB’s many good qualities and her undeniable good intentions, it is in the best interests of the children to reside with Mr.

GB. [ 34 ] At this point I need to say that in the trial of a legal issue, the emphasis is often placed on negative aspects and facts that can be properly raised against the opposition. Consequently, the discussion leading to a decision of a legal issue may focus on damaging and hurtful aspects. In this case, neither party is a bad person. Likewise, neither party is perfect. I believe the people involved in this case are doing the best they can and in some aspects, both parties do better than most. However, this decision cannot be based on what people think they would do or how things should be.

This decision must be based on the best interests of the children. [ 35 ] Two daughters from Ms. TB's first marriage, Adult Child L, now 26 and raising two children on her own and Adult Child T, 28 and recently married, spoke about their mother’s ability to raise children. Their testimony addressed both their personal experiences when they were growing up and their observations of Ms. TB’s current ability to look after young children. [ 36 ] Adult Child L and Adult Child T both testified to events that each had observed since the birth of the child MB to as recently as Adult Child T's observations of Ms.

TB's interaction with the child MB at a family funeral that was held the week before this trial commenced. [ 37 ] Adult Children T and L testified that they could not rely on their mother for emotional stability and the defendant relies on her children to comfort her. Adult Child T and Adult Child L spoke of occasions when growing up that they assumed the caregiver’s role for their mother. Adult Child L said she had witnessed occasions where the children HB and GB were taking the same role.

Adult Child T spoke of her belief that this adversely affected her childhood. [ 38 ] Both Adult Children found it very difficult to testify at this trial. They both love their mother. It is apparent they both have come to accept her as she is.

It is also apparent that Adult Child T is still angry with her mother but I find this did not affect her intent to provide a full and honest picture. [ 39 ] The sisters said that the children, MB, HB and GB looked forward to and were excited about being with the mother they loved and it was clear the defendant loves her children. [ 40 ] Even so, based on their observations, they believe their stepfather, the plaintiff, is better able to provide day to day care for the children, MB, HB and GB than their mother. [ 41 ] Adult Child L believes that for short periods their mother could be relied upon to look after children, as long as she was not driving.

Adult Child L testified that she felt comfortable leaving her own children with the defendant for short periods of time, and even overnight, however this depended on her observations of her mother’s health and ability as this varied from time to time. [ 42 ] The comment with respect to driving requires some explanation. The plaintiff testified to six vehicle accidents that he suggested were likely caused by the defendant’s impairment by prescription drugs. The last accident occurred the December before the parties separated.

The defendant explained several of the accidents as truly accidents caused by road conditions or circumstances of the time. [ 43 ] The plaintiff and Adult Child L testified to events where the defendant’s driving while impaired by prescription drugs

attracted police attention and traffic tickets. Both Adult Children testified to incidents where they believed their safety was in danger because of their mother’s inability to drive. [ 44 ] These incidents are the root of Mr. GB's request that the defendant be prevented from driving the children when they are in her care. [ 45 ] Adult Child L swore an affidavit dated August 19, 2007, which indicated her support for Ms. TB to have day-to-day care and control of the children.

Exhibits 30 and 31 are two pieces of correspondence from Adult Child T, one dated September 13, 2007, the other dated September 18, 2007, both of which support the defendant’s ability to look after the children and indicating that the plaintiff was not fit to look after children. [ 46 ] This correspondence was the subject of cross examination by a mother of her daughters and was very emotional. However, I am satisfied that, at the time these letters were written, both Adult Child L and Adult Child T were focussed on supporting their mother.

Adult Child T provided what I believe is the true explanation for these letters. They were written at a time of high conflict by daughters intending to look after their mother without consideration of what was in the best interests of the children MB, GB and HB. [ 47 ] I watched Adult Child L and Adult Child T testify. I believe, based on their answers, the way in which they answered and their demeanor that they were doing their best to be fair to both their mother and their stepfather.

I find them to be both credible and reliable. [ 48 ] Moving to the condition, means, needs, and other circumstances of the children GB, HB and MB, the existing custody arrangement is that the children live with their father together with his wife and her three young children. They occupy the matrimonial home and have comfortable accommodations. In January 2011, Mr. GB re-married, and his new wife brought three young children into the relationship. [ 49 ] It is apparent that Ms. TB does not get along with Mr. GB’s new wife.

Common-law peace bonds commencing February 18, 2011, and expiring February 17, 2013 were entered into by Ms. TB in favour of Mr. GB and his new wife. The restrictions are entered as exhibits in this trial. [ 50 ] The children stay with their mother every second weekend. Ms. TB has partnered for the last four years with someone whose occupation requires travel throughout North America for often extensive business trips. The evidence of those who testified about Ms. TB’s new partner shows that he is well-liked by everyone. [ 51 ] Ms. TB’s current accommodations are also excellent.

She has rented a half duplex with a bedroom for the children MB, GB and HB. It is nicely furnished with a large fenced yard. Pictures of both residences were entered into evidence. [ 52 ] The evidence with respect to the children’s routine, access to recreation and the level of care they receive at their father’s house raises no concerns. Mr. GB has not enrolled the children in any extracurricular activities this year but said they went swimming a lot. [ 53 ] Ms. TB testified to her plans to have the child MB continue his guitar lessons. She said he was talented and had previously taken lessens for two years.

She noted that GB and HB, although twins, were different personalities. She would encourage HB to get involved in music and other arts and GB’s personality was well suited to acting. [ 54 ] No adverse implications with respect to education were raised and I have no information on any long-term plans.

[ 55 ] There is evidence that Ms. TB’s dependence on and reaction to prescribed drugs is a relevant concern. [ 56 ] Ms. TB testified to her dependence on various pain medication including narcotics commencing in 1995, the two admissions to Alberta Hospital in the summer of 2006 to treat her dependency, and her situation since then. [ 57 ] I find Ms. TB is not as dependent upon prescription drugs as she has been in the past, but there is still cause for concern. [ 58 ] This problem has existed for 20 years.

For large periods of time, she was unable to provide for her children’s needs because of her illness and her dependence upon prescription medication. Frequently, her children were left to fend for themselves and the other children. In 2006, the issue reached a crescendo and the defendant was hospitalized on two occasions to treat her dependency. Hospital records show treatment failed to end the problem but it was reduced. [ 59 ] Correspondence from Dr. Geates dated March 15, 2007, indicates Ms. TB has suffered from chronic pain syndrome predominantly in the form of migraine headaches since the age of 18 years.

The letter goes on to say that "she had succumbed to the side effects of treatment of the same in 2006 and subsequently was treated in the hospital for an extended period of time." [ 60 ] I accept that prescription drugs affect her ability to parent and they impair her ability to drive a vehicle. I also accept Ms.

TB’s evidence that she is not as dependant on prescription drugs as was the case in the past and, as verified by her family doctor on September 21, 2010, has remained free of “daily oral narcotic consumption for some years now.” However she testified that she continues to take narcotics as prescribed by her doctor and as recently as January 1, 2011 obtained a narcotic injection. Ms. TB testified she has not had narcotics since then. She continues to take what she described as “large doses of clonazepam” to treat anxiety and testified to her high tolerance level.

Anxiety is obviously related to this dispute, but the evidence shows Ms. TB has gone to some lengths to obtain anti- anxiety drugs such as Xanax over the course of many years. [ 61 ] Changing the topic, the evidence of the parties and both Adult Children show that the children have a loving relationship with both of their parents.

In contemplating the relationship between the mother and the children it is likely there are periods of time when she is unable to provide consistent and supportive care to the children and there is clear indication that the children are attuned to comforting their mother, which is admirable but can cause long-term problems as was highlighted by the evidence of the two Adult Children. [ 62 ] There are also clear indications that Ms. TB does not get along with Mr. GB’s new wife and evidence of Ms. TB’s inappropriate conduct towards the children of Mr. GB’s new wife is on the record.

The evidence also indicates that MB, HB and GB get along well with their new stepmother and her children. [ 63 ] With respect to factual elements, concerns were raised by each party over the ability of the other to attend to the health of the children. The father, noting that the mother had provided adult medication to treat a urinary tract infection, said the mother could not be trusted to provide proper medical care.

The mother, noting that the father had not done anything that would address and treat a child’s discomfort from a urinary tract infection, said the father could not be trusted to provide proper medical care. In this same vein, the mother provided a picture of one of the daughters who had fallen off her bicycle. [ 64 ] These incidents, like others that were brought up by the parties provide examples where things might have been done better.

However, these types of incidents are not evidence that these parents do any better or any worse than anyone else. [ 65 ] There is evidence that does show there is reason to be concerned about the children’s safety when being driven by their mother. The testimony of Adult Child T and Adult Child L together with the frequency of car accidents leads to the conclusion that Ms. TB is not a safe driver while medicated and should not be doing so. [ 66 ] With respect to the moral environment the children are exposed to, the evidence leads me to conclude that there is little concern with either parent.

Faith and church appear to play roles in both parties’ lives, more so in the case of Ms. TB.

[ 67 ] It is in the best interest of the children to have access to both parents. There is reliable evidence that indicates that the father is more cooperative when it comes to the practical realities of access. [ 68 ] Over the last four years, Mr. GB provided access to Ms. TB every second weekend and for a period of time on Wednesdays. Given the lack of court ordered access this was reasonable with litigation clouding the situation. [ 69 ] Recently, Mr. GB refused to continue with the Wednesday access.

He testified as to the difficulties this caused including the mother’s failure to cooperate by sending the children outside when it was time to go home, her using Wednesday access as an opportunity to make demands and her failure to meet requests such as restraining from driving with the children in the vehicle. [ 70 ] I must also consider the evidence of Ms. TB’s numerous complaints to the police, her applying for and obtaining an emergency protection order for which the evidence suggests there was no basis and the charges she had laid against the plaintiff for sexual assault that were stayed.

I find that these actions show Ms. TB in a very poor light when it comes to cooperating with the other parent in the best interests of the children. This sort of activity, unless there is some reasonable basis for it, is contemptible and condemnable. [ 71 ] I was not provided information on the children’s views and preferences. [ 72 ] In considering the issue of custody and access, the conduct of the parents is not to be considered, unless the conduct has a bearing on the parent’s ability to parent ( s.16(9) of the Divorce Act ). [ 73 ] Four elements need comment. First, Ms.

TB’s use of the police and the criminal justice system is relevant. False criminal allegations against a father is absolutely not in their children’s best interests and will be taken into account as past conduct relevant to Ms. TB’s ability to parent the children. [ 74 ] The same applies to the evidence of Ms. TB’s adult daughters. This indicates she should not be operating a vehicle when medicated and there are periods when she is unable to properly meet the requirements of child care. [ 75 ] Third, Ms. TB testified she did not speak to her children about this dispute. This is untrue.

The evidence is that she inappropriately communicates with the children both directly and indirectly. Exhibit 86 is an e-mail from 2009 to the child MB blaming Mr. GB in a totally improper manner for a failure to meet, which goes on to ask MB to secretively inform the twins. Exhibit 87 is a copy of an

article on Ms. TB's face book page accessible to the child MB which contains an abundance of material which is detrimental to her children. [ 76 ] Fourth, the evidence, including Ms. TB's own testimony, contains several examples of her inability to control her anger leading to actions which are counterproductive and, in one case involving Mr. GB, leading to criminal charges. These outbursts are worrisome and require remedial action. [ 77 ] I must also endorse the “maximum contact” principle.

It is presumed to be in the childrens’ best interest to have maximum contact with both parents and in this case the presumption is a reality. [ 78 ] So long as the children are with their mother for limited periods or, for more extended periods someone else is able to check on the situation from time to time, Ms. TB should have generous access.

With the exception of the safety concerns resulting from driving while medicated, as the children get older, these concerns will be reduced, likely in coordination with the children’s increasing capacity to determine for themselves what they want to do. [ 79 ] The evidence at trial indicates that Ms. TB is conscious of the benefit to the children of grounding and instruction in their

heritage and culture.

Her attention to ensuring that their activities and recreation are stimulating and worthwhile is also impressive. [ 80 ] After considering all that is in front of me, it appears to me that the greatest possible protection of the children’s physical, psychological and emotional development, their safety and other needs and circumstances, their existing relationships together with the recent history of care for the children and their overall well being, the current situation appears to be the best situation. [ 81 ] There should be generous contact with the mother and the father is willing to facilitate this; however, the mother has to cooperate as well.

Ms. TB provided indications in her testimony that she is aware of the need to cooperate. At one point, when discussing her wish for a co-parenting regime she indicated that in future, if her headaches required narcotics relief, she would call the plaintiff for aid and that she would let him know when she is unable to care for the children. Notwithstanding these submissions, the evidence in this case indicates a pattern of non-cooperation and a police enforcement clause imposed on Ms. TB is necessary. There is no indication that Mr. GB’s actions require similar enforcement provisions.

Joint or Sole Custody [ 82 ] Given the evidence, sole custody is granted to Mr. GB to allow him the authority to make major and minor decisions on behalf of the children without interference from Ms. TB. [ 83 ] This is necessary because Ms. TB has historically had a significant prescription drug problem that resulted in neglect and safety concerns for the children. Further, it is difficult for joint custody to be effective if the parents’ communications are conflict ridden as has proven to be the case here. Joint custody in this case would increase the incidents of unhealthy conflict. [ 84 ] Ms.

TB has disabilities that hinder her ability to consistently look after the children’s physical and emotional well being. This concern is threefold. With respect to physical safety, the evidence indicates Ms. TB fails to understand that driving the children when taking the prescription medicine she has come to rely on imperils their safety. It is apparent from her testimony that she understands that it is wrong to malign Mr. GB or his family and make inappropriate comments to the children because this harms them psychologically, but she does it anyway.

The evidence also indicates that she has a propensity to rely on her children for support and the roles of parent and child dependency are reversed. Ms. TB seeks comfort from them and despite the examples of her older children, and the harm this tendency did to them, continues the pattern. [ 85 ] At this point, given Ms. TB’s long-standing problems, Mr. GB will have the final word in the event of a dispute. Access [ 86 ] Following are the directions with respect to custody and access.

These directions shall remain in place until such time as the Court directs otherwise, the parties otherwise agree in writing or there is no longer a “child of the marriage”. 1 Sole custody is granted to Mr. GB, subject to review as indicated below. 2 Ms. TB is entitled to receive any health, educational and other information that affects the children directly from the source. Mr. GB will provide whatever authorization may be necessary to give effect to this direction.

3 Mr. GB will seek Ms. TB's opinion on significant matters with respect to the children's education, healthcare and extra curricular pursuits. This communication will be by email so that a record is available, not only of Mr. GB’s cooperation in keeping Ms. TB informed, but also of the reasonableness of Ms. TB’s opinion and ability to cooperate in the best interests of the children. 4 In the event an emergency health or safety situation arises while Ms. TB is exercising access, Ms. TB may act on behalf of Mr.

GB to deal with that situation in a reasonable fashion that is in the best interests of the child or children affected. 5 The children’s place of residence will remain in Red Deer unless the relocation is preceded by the written consent of Ms. TB or a court order. In the event the children’s place of residence changes by consent or court order, further changes will also require consent or court order. 6 Mr. GB shall have residential care of MB, HB and GB. Ms. TB shall have reasonable and generous access as specified, all of which is subject to review as indicated later.

a) Mr. GB shall consult with Ms. TB on all major and non-emergency healthcare matters, extra curricular activities and educational matters.

b) Ms. TB shall be entitled to attend all school concerts, parent-teacher interviews and other school events.

c) Ms. TB shall have the first right to care for the children in the event help is needed for their care, at any time.

d) Unless both Mr. GB and Ms. TB agree otherwise, Ms. TB shall have parenting time with the children as follows: (

i) On alternative weekends from Friday after school to Sunday at 7 p.m. Mr. GB shall be responsible for transportation. Ms. TB shall not drive the children when not in the company of an adult until such time as a physician certifies the medication prescribed to her has no adverse affect on her ability to operate a motor vehicle. Re-verification shall be required every six months until otherwise ordered.

(ii) Should Ms. TB's parenting time fall on a long weekend, or be adjacent to a school closure (like teacher education days) her parenting time will be extended to include the extra day of the weekend. (iii) Ms. TB shall have the children every Mother's Day, regardless of whose weekend it is, from 9 a.m. to 8 p.m. (iv) Mr. GB shall have the children every Father's Day, regardless of whose weekend it is from 9 a.m. to 8 p.m. (

v) Spring break shall be shared equally between the parties. (vi) Summers shall be shared between the parties in periods of one week unless the parties agree in writing to two-week periods. Ms. TB shall have the children for the first week of summer vacation starting after school on the last day of school. Thereafter, the exchange will occur at 5:30 p.m. Fridays. Mr. GB shall have the children from the last Friday of the summer vacation every year. (vii) Christmas vacation shall be shared equally between the parties and special times shall alternate as follows: - Ms.

TB shall have the children on Christmas Eve at 10 a.m. to Christmas day at 2 p.m. in even years and Mr. GB shall have the same in odd years. - Mr. GB shall have the children New Year's Eve at 10 a.m. to New Year's Day at 2 p.m. in even years and Ms. TB shall have the same in odd years. - Weekend access following New Year's shall be to the parent who did not have the children on New Year's and the parents shall alternate weekends thereafter.

(viii) either party may take the children on multi-day vacations outside of Red Deer provided they give the other full itinerary and contact phone numbers.

e) If there is something that prevents an access visit, the cause must be documented in writing and emailed to the other party. In the event a scheduled access visit does not occur for a reason that a reasonable, objective third party would find unacceptable, the aggrieved party has leave to make application to appear before me to seek a remedy.

f) The parties will make their best efforts to respect and comply with exchange times and locations and will make every effort to ensure the exchanges are conducted in a civil and non-confrontational manner. Ms. TB shall ensure that the children are ready to leave her residence at the time set for the exchange and shall remain in her residence during pick up and drop off. In the event there are continued problems with confrontations during exchanges, either party has leave to make application to appear before me to seek a remedy.

g) The parties may attend extra curricular activities involving the children irrespective of who has care at a given time, provided that the party not caring for the children shall not interfere with the party caring for the children.

h) Neither party shall malign the other party or members of the other party's family in the presence of the children and both shall foster love and respect in the children for the other party. 7 Ms. TB will pay child support pursuant to the Federal Child Support Guidelines and her pro rata share of

section 7 expenses, commencing the first day of the third month following the date she obtains employment. The child support shall be adjusted annually effective the first day of July each year. In the event Ms. TB is not employed and paying child support on or before July 1, 2012, Mr. GB shall have the option to apply to the Court to seek child support. The parties will exchange the information contemplated in

section 25 of the Federal Child Support Guidelines on or before July 1 of each year. 8 The evidence indicates that there has been a significant history of noncompliance with access orders by Ms. TB. I understand that having the police enforce an access order can be frightening to children. It is intrusive and the police find this a difficult and unwelcome part of their job. In this case however, I am satisfied that there should be a police enforcement clause.

If either of the parties or any other person on their behalf is in breach of any terms of this with respect to access to the children, then a peace officer in the Province of Alberta shall assist in obtaining time with or return of the children in accordance with s. 44 of the Family Law Act .

If the Peace Officer decides that compliance with the Order is not in the best interest of the children, the Officer must prepare a report. The Officer’s report must include a statement describing the events and circumstances of the assistance provided and the reason for any non-enforcement of this order. The parties each have the right to request, in writing, a copy of the report from the Peace Officer’s administration. On receiving a written request, the law enforcement agency must provide a copy of the report to the parties.

Privileged information must be removed from the report before it is released to the parties. Before enforcing the terms of this Order, a Peace Officer must first ensure that the party has been served with a copy of the Order, or if not served, the party must be shown a copy of the Order by the Peace Officer and be given reasonable time to comply with its terms.

If the party does not obey the Order, the Peace Officer shall do such lawful acts as may be necessary to give effect to its terms, including, if necessary, arrest, detain and bring the party at the earliest possible time before a Justice of the Court of Queen’s Bench to show cause why the party should not be cited for civil contempt. 9. Ms. TB shall enroll and attend the Parenting after Separation course within 60 days of this judgment. 10. Ms.

TB shall be permitted to have the issues of custody and access reviewed at any time after July 1, 2012, in the event that she can show a material change in circumstances and it is in the best interests of the children to have the issues of custody and access reviewed. I direct that the following four conditions have to be satisfied before Ms. TB can apply to the court for a review of the issues of custody and access.

First, she provides satisfactory evidence that she is no longer dependent upon prescription or other drugs for anxiety, depression or pain that, in the opinion of a physician, adversely affect her ability to safely look after the children. Second, she has successfully completed an anger management course and the Parenting After Separation for High Conflict Families course. Third, that at Ms. TB’s sole cost, she provide a Bi-lateral Custody Assessment that indicates that a change in the parenting arrangements is in the best interest of the children.

Fourth, that the Court determines it is in the best interests of the children to amend the terms of custody and access. [ 87 ] As a last point on this topic, I want to indicate that I found Mr. GB very credible and reliable on the issue of access and custody. He was fair and reasonable in his comments and responses. He readily admitted to his deficiencies as a father and to incidents that he was obviously not proud of. However, his failures are the failures of every parent and the evidence convinced me that he is a good parent.

This is at the heart of my determination of the best interest of HB, GB and MB. [ 88 ] On the topic of matrimonial property I did not find Mr. GB as credible or reliable. This does not mean he was dishonest. He frankly and openly discussed the perquisites he received when company money was spent for personal benefit. However, in the area of company assets and potential, he dwelt on the negative aspects of his business, did not give a realistic assessment and was not forthcoming with relevant information unless specifically asked. 2. Matrimonial Property Division

[ 89 ] There are two major assets, the matrimonial home in Red Deer and the company ACT Inc. There is also an RRSP in the amount of $13,130 to consider. The division of most of the other matrimonial property was agreed upon by the parties during the trial and is the subject of a separate order. Date of Valuation [ 90 ] The Matrimonial Property Act , R.S.A.2000, c.M-8 (“MPA”) creates 3 categories of property: (

a) s .7(2) exempt property; (b) s. 7(4) presumptively 50/50 shared property; and s.7(3) property distributed in a “just and equitable” manner. [ 91 ] Section 7(3) is property that is not exempt from sharing nor subject to a presumption that it shall be distributed equally. This

section says “the Court shall, after taking the matters in s.8 into consideration, distribute the following in a manner that it considers just and equitable”. Pursuant to section 7(3)(

c) this includes “property acquired by a spouse after a decree nisi of divorce”. [ 92 ] The leading Alberta case on date of valuation is Hodgson v. Hodgson 2005 ABCA 13 , 361 A.R. 190. Unlike the case at bar, Hodgson does not involve parties that are already divorced. In Hodgson , eleven years passed between the date of separation, various assets increased significantly in value and the parties were leading completely separate lives. The trial judge divided the property in accordance with what the parties had at the date of separation.

The Alberta Court of Appeal overturned this, ruling that the value of matrimonial property must be determined as of the date of trial. The trial judge should then have dealt with the issues of concern by exercising his discretion having regard to the factors in s. 8. [ 93 ] During argument, the plaintiff said that the matrimonial property should be divided as of January 1, 2011, as all appraisals were ordered to be completed prior to January 31, 2011.

Further, I should consider that the appraisals are relatively recent, having been completed just prior to the New Year. [ 94 ] As to the first argument, an Order to complete an appraisal by a certain time is not an Order to establish the valuation date. Further, it is common that updates to appraisals be provided at the time of trial.

This was not done in this case. [ 95 ] As to the second argument, the discussion below indicates the large and rapid changes to the value of the assets to be dealt with in this case and it would be unfair and unjust to use December 31, 2010, as the valuation date, just as it would be unjust to use the date of separation when values were much higher.

Request by Plaintiff for Unequal Division of Matrimonial Property [ 96 ] In final address, the plaintiff acknowledged that something was owing to the defendant and calculated that amount to be $36,550 based on the acceptance of the plaintiff’s calculation of values, liabilities and exemptions. An aid to the argument was entered as exhibit 93 and explains the rationale.

This aid did not suggest an unequal division; however the plaintiff did propose the matrimonial property should be divided unevenly for several reasons. [ 97 ] First, the defendant’s minimal contribution to the business and the family must be taken into account pursuant to

section 8 (a), (b), (

c) and (

l) of the MPA and her share reduced accordingly. Of note, no specific suggestion was made as to what that reduction should be. This aspect will be discussed under the heading of Matrimonial Property Act . Second, a $15,000 exemption applied to the Farm owned by the plaintiff. Third, there is a $4,000 exemption with respect to the RRSP held by Mr. GB prior to the marriage. RRSP

[ 98 ] To deal with these matters in reverse order, I accept the plaintiff does have a $4,000 exemption to account for the value of the RRSP at the time of marriage. Mr. GB’s RRSP is worth $13,130 at March 23, 2011. Mr. GB testified that it was probably worth $4,000 or $5,000 at the time he married Ms. TB. This is close to the figure of $4,000 used by the plaintiff in argument. Subtracting $4,000 from $13,130 results in $9,130 worth of matrimonial property. I will agree to the Plaintiff’s position and this shall be distributed equally by a transfer of $4,565 into an RRSP account in the name of Ms. TB. Farm [ 99 ] As background, the plaintiff owned a quarter

section of land with a mobile home on it at the time the parties married. [ 100 ] Mr. GB was unable to say what the property was worth when he married the defendant or what it was worth just prior to moving a house onto the property in May 1997. It was around this time that title was transferred to the parties as joint tenants. [ 101 ] Mr. GB testified it cost up to $60,000 to install the home and make it livable. Prior to the house being moved onto the land the mortgage was worth $60,000. The mortgage was increased to $95,000 to pay for the new house. [ 102 ] Between May 1997 and spring 2004 when the quarter

section was sold, a line of credit secured by the property in the amount of $6,000 to $9,000 was used for living expenses and a second mortgage was taken out in the amount of $15,000 to $25,000 to pay for Mr. GB's income taxes. [ 103 ] Just before selling the quarter, a four-acre parcel including the house was subdivided off. Mr. GB said both he and the defendant helped with the subdivision; however, based on the testimony, I find Ms. TB did the majority of this work.

Her recollection of the process and organizations involved support this. [ 104 ] The two properties were sold for a total of $230,000 in spring 2004 and, although specific details were not provided, it was Mr. GB's memory that they netted about $100,000 after all costs were paid. [ 105 ] At first blush, the plaintiff has an exemption of $15,000 for the quarter

section of land pursuant to section 7(2) of the MPA. [ 106 ] Mr. GB testified that he purchased the Farm in 1988 for $65,000. The mortgage was at $60,000, he borrowed $5,000 from his mother and a mobile home worth $15,000 was moved onto the quarter. There is no evidence what the property was worth when the parties married. At that time, the property’s net worth would have been the difference between what he owed to the bank and his mother and the total of land value and mobile home value or $15,000. [ 107 ] One complication is section 7(2) of the MPA which says property acquired by a spouse before the marriage is exempted from a distribution under

section 7. Section 36(1) says:

(1) In making a division under this Act, the Court shall not apply the doctrine of presumption of advancement to a transaction between the spouses in respect of property acquired by one or both spouses before or after the marriage.” However section (2) says:

(2) Notwithstanding subsection (1), (

a) the fact that property is placed or taken in the name of both spouses as joint owners is proof, in the absence of evidence to the contrary, that a joint ownership of the beneficial interest in the property is intended . . .

[108] The Court of Appeal decisions in Jackson v. Jackson (1989), 1989 ABCA 197 , 97 A.R. 153 (C.A.) and Harrower v.Harrower (1989), 97 A.R.141 (C.A.) dealt with the issue of the presumption of advancement. In Jackson, $60,000 given to the husbandby a parent was used to purchase the matrimonial home. The effect of transferring the matrimonial property into joint names was a giftby the husband of half of the funds to his wife; consequently, $30,000 was divisible as matrimonial property.

The legal effect of section36(2) sets up a rebuttable presumption that an exempt asset loses half of its value as exempt property once it is placed in joint ownership.This leaves the question of whether or not the presumption has been rebutted. [109] Ms. TB testified that the transfer of title was intended as a gift to her. In rebuttal, Mr. GB testified that the title was transferred toallow for Ms. TB’s income from support payments to be added to his income, so that the total could be used to underpin the amount ofmoney that could be borrowed.

He said the bank manager took it on herself to transfer the property so that the combined incomes of theparties could be used and enough funds advanced to cover costs. [110] Having observed the parties give evidence, Ms. TB was more credible on this point and I find that Mr. GB has not rebutted thepresumption. Consequently, in line with authorities, the effect of transferring the property into joint-tenancy is the $15,000 exemption isreduced to $7,500, which will be taken into account when dealing with the shareholder’s loan to the company. [111] A second complication is a tracing problem.

What property owned by the parties at the date of trial is affected by thisexemption? In most cases, the exemption would be connected to the existing matrimonial home. In this case, the exemption isconnected to ACT Inc. Both parties testified that the net proceeds of the sale of the quarter were used as a shareholder loan to start up thecompany. Matrimonial Property Act [112] The plaintiff raised elements of the relationship between the parties to suggest that the proper resolution would involve anunequal distribution of the matrimonial property.

In addition, the majority of the cases provided by the plaintiff dealt with unequaldistribution. [113] On the other hand, the plaintiff’s proposed distribution set out in Exhibit 93 indicated an equal division of the matrimonialproperty. [114] Under the circumstances, there is a need to discuss whether or not it would be unjust and inequitable to evenly divide thematrimonial property. [115] The leading decision with respect to section 7(4) of the MPA is Mazurenko v. Mazurenko, (1981) 1981 ABCA 104 ,30 A.R. 34, 15 Alta.

L.R. (2d) 357 (ABCA) leave to appeal to S.C.C. dismissed [1981] 2 S.C.R. ix, 32 A.R. 612 (note). The AlbertaCourt of Appeal stated (at paragraph 18) that the court shall distribute that property equally between the spouses unless it appears to thecourt that it would not be just and equitable to do so, taking into consideration the matters in

section 8. At paragraph 20, the followingwas stated: ...the court must, in my view, look at the relevant facts under

section 8 and then ask itself if it would be unjust or inequitable to divide theproperty equally. That conclusion would not be lightly reached. There must be some real imbalance in the contribution having regard towhat was expected of each or attributable to the other factors in

section 8. In establishing the presumption I take the Legislature to havedecided that in ordinary cases equality is the rule. [116] The 50-50 presumption was strongly reaffirmed by the Court of Appeal in the 2009 case of Jensen v. Jensen (sub nom. J. (D.)v. J. (M.) 2009 ABCA 272, 464 A.R. 16 which antedates all of the cases provided by the defendant on this topic. The Court of Appealsaid, at para. 20: ....The presumption of equal distribution is the rule and unequal distribution of the exception. . . . The respective contributions of the

parties will rarely be identical or measure equally. Partners allocate expectations and responsibilities in a manner satisfactory to them. Those responsibilities may change and evolve over time. Put simply, it is not a requirement (nor is it a realistic view of marriage) that the contributions of each party be equal for there to be an equal division. See Cox v. Cox 1998 ABQB 987 , 233 A.R. 258; Hulleman v. Hulleman 1999 ABCA 366 , 2 R.F.L. (5 th ) 406 and Crosby v. Crosby 2007 ABQB 31 . [ 117 ] Turning to the factors that must be considered in accordance with the MPA,

section 8 says: 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. [ 118 ] Hodgson at para. 18 - 21 describes a 4-step process: (

i) determine all property owned at the date of trial; (ii) discern what property is exempt from distribution under s. 7(2) or is traceable to s. 7(2) property (these assets are generally not connected to the marriage). The exempt property under s. 7(2) is valued at the date of acquisition or date of marriage; (iii) determine what property falls under s. 7(3), which is then distributed between the parties in a manner that is just and equitable taking into account the factors set out in

section 8; (iv) divide the balance of the remaining property valued at the date of trial equally unless it would be unjust and inequitable to do so considering the factors set out in s. 8. [ 119 ] The plaintiff led evidence to indicate that Ms. TB did not provide adequate help either within the home or with the children during the marriage. In 2006, the people who cared for Ms. TB, including her husband and daughter, attempted to arrange for aid with respect to her dependence on prescription drugs. After she left treatment, a nanny was hired on a full-time basis to provide help with the home.

These attempts did not succeed and, for approximately a year, Ms. TB did not contribute meaningfully to the welfare of the family. [ 120 ] However, it would not be appropriate to limit consideration to a single year of the time the parties were together. The defendant gave evidence, which I believe, respecting her contributions to the mixed farming operation, her contributions to raising a large combined family and her activities with respect to the children’s extracurricular activities. This does not minimize the plaintiff’s contribution in this area; however, by his own testimony, Mr.

GB was away for long periods making a living for the family. I find on the evidence that a review of

section 8(

a) does not indicate an unequal distribution of property is appropriate. [ 121 ] With respect to

section 8(b), clearly Mr. GB made the higher financial contributions to the marriage. There is some evidence

[ 121 ] With respect to

section 8(b), clearly Mr. GB made the higher financial contributions to the marriage. There is some evidence Ms. TB used child-support paid by her first husband for family matters however, she also said a large amount of this income paid for her medication and the funds were never deposited into a joint account. There is evidence that Ms. TB did not spend grocery money on groceries and Mr. GB testified that her poor handling of money was one of the reasons the matrimonial home in Red Deer was not placed in her name. There is also evidence that Ms.

TB contributed to the improvement of the Farm such as taking the lead position on the subdivision before sale, helping with animals, producing an annual garden and so on. Again, and keeping in mind Mazurenko and Jensen , this factor would not make it unjust and inequitable to evenly divide the property. [ 122 ]

Section 8(

c) deals with the contribution, whether financial or in some other form, made directly or indirectly to the acquisition, conservation or improvement of the property, and, in this case the investment of the proceeds from the sale of the Farm, some of which belongs to the defendant, must be considered in addition to the standard contributions that a housewife makes to her family. The fact that Ms. TB, who has a limited education, was a stay-at-home mother by mutual consent and the fact that Mr.

GB, experienced in the oil and gas industry was the breadwinner and rarely involved himself in housekeeping matters indicates a marriage of the traditional type. This does not lead to an uneven division of matrimonial property. [ 123 ] None of the balance of

section 8 of the MPA has much relevance to this case, other than subsections (

k) and (

l) dealing with tax consequences and property dissipation. The tax consequences will be handled elsewhere. The dissipation of property arises because of the money Mr. GB expended defending the unjustified sexual assault charges. One half of the legal fees of $16,500 will be deducted from any award granted Ms. TB to account for this. [ 124 ] Otherwise, I find that it is just and equitable to distribute the property to divide the balance of the remaining property equally between the parties.

The cases on this topic provided by the plaintiff are distinguished on the basis of different facts and circumstances. [ 125 ] I now move on to the task of dividing the balance of the remaining property valued as at the date of trial. The RRSP has already been dealt with. ACT Inc. [ 126 ] This company was incorporated on August 4, 2004 and is expected to continue to operate for the foreseeable future. [ 127 ] The plaintiff owns 100 Class A voting participation shares in the company. The defendant holds 100 Class C non-participating non-voting shares.

Two corporations are investors and each holds 50 Class B voting participating shares. [ 128 ] Dividends, the purchase and sale of shares, the remuneration of Mr. GB, repayment of shareholders loans and the purchase and sale of corporate shares are governed by a Unanimous Shareholders Agreement. [ 129 ] Notwithstanding the several shareholders and the Unanimous Shareholders Agreement, the company is basically a one person operation. That person is Mr. GB. Mr. GB conceded that his half interest in the company is matrimonial property. Valuation of the Company [ 130 ] Mr.

Hollett, who has 11 years experience in appraising oilfield equipment and several more years of related experience, gave testimony as an expert qualified to give an opinion on the value of oilfield equipment. This was his first appearance as an expert witness in the Court of Queen’s Bench of Alberta. Mr. Hollett had prepared two reports on behalf of his corporation, Aestimo Services Ltd. [ 131 ] One was dated as at September 25, 2007 (Exhibit 8) and said the fair market value of the company assets was $1,135,000.

This report indicated it included a covering letter; however, none was provided and this was not explained. [ 132 ] The second report was dated as at December 20, 2010 (Exhibit 7) and it indicated the company had a total fair market asset value of $453,000. No update information was provided for the period between December 20, 2010 and the date of trial.

[ 133 ] Between the dates of the reports, the major assets of the company had not changed. Rig #1 was appraised at $490,000 in 2007. The same Rig was appraised at $200,000 in 2010. [ 134 ] Rig #2 was appraised at $545,000 in 2007. Its value was $240,000 in 2010. [ 135 ] The support equipment was valued at $100,000 in 2007 and $13,000 in 2010. In 2010 the support equipment consisted of two trailers worth a total of $13,000. The same two trailers were worth $18,500 in 2007.

In addition, in 2007, there was $81,500 worth of miscellaneous vehicles not mentioned in the 2010 report. [ 136 ] There are indications that the weight given Mr. Hollett’s appraisals and opinion should be tempered with common sense. He testified in a forthright, confident manner; however the 2007 support equipment value was in his opinion worth exactly $100,000.

He did not put any value to coil tubing owned by the company at either date nor would he give an opinion on what the value of coil tubing would be, indicating there were too many variables in size and he could not remember what coil tubing may have been present even though his own pictures showed tubing on each of the trailers. The absence of a substantial amount of support equipment was not explained. [ 137 ] Mr. Hollett testified that this industry was very volatile. A unit, by which he meant the sort of rig being appraised, could be worth $50,000 one day and $500,000 another. [ 138 ] Brenda G.

Pisko of Pisko Valuation Services Inc. was qualified as an expert to give opinion evidence on business valuation with particular experience in matrimonial matters. A curriculum vitae setting out her education, qualifications and experience was appended to her expert’s report entered as Exhibit 5. [ 139 ] It was Ms. Pisko’s opinion that the fair market value of the issued and outstanding shares of the company, as at December 31, 2010, would be somewhere between zero and $2,000. Given Mr. GB’s 50% interest, the value of his shares would be somewhere between zero and $1,000.

The midpoint value of his shares is $500. [ 140 ] Ms. Pisko calculated the value in two ways, the going concern or income approach and the asset or liquidation approach. She determined the going concern or income approach provided the highest value for the company. The asset or liquidation approach resulted in the company being worth less than nothing, mainly due to the company’s debt. [ 141 ] Ms.

Pisko also considered the valuation approach that was contained within the Unanimous Shareholders Agreement; however, this too resulted in the company being valued at less than nothing. [ 142 ] Pursuant to the pretrial order dated November 23, 2010, appraisals were completed prior to January 31, 2011. There was no updated valuation as at the date of trial. [ 143 ] Ms.

Pisko relied on several sources to perform her valuation including the unaudited financial statements for the corporate year ends of July 31, 2006 to 2009 inclusive, prepared by chartered accountants, the appraisals of the corporate equipment prepared by Aestimo Services Ltd. and discussions with the plaintiff regarding “general corporate operations, capital asset values, etc.” [ 144 ] There are a few elements that make it difficult to rely confidently on Ms. Pisko’s report. [ 145 ] One element to consider is that the asset value relied on by Ms. Pisko was partly based on information provided by Mr. Hollett.

This included the fact, as mentioned, that none of the coil tubing used by the company was valued by him, nor could he say how much inventory there was. Further, the financial statements do not contain any line item for inventory.

[ 146 ] It is noteworthy that in the first valuation prepared by Mr. Hollett in 2007, approximately $81,500 worth of miscellaneous vehicles was included as equipment owned by the company. No such assets were dealt with in his 2010 report. Ms. TB asked questions about this variation and the vehicles used by company employees. [ 147 ] A review of Ms. Pisko’s report indicates she took the value of automotive assets into account, using net book value as at July 31, 2010.

This detail is mentioned to comfort the parties that vehicles were taken into account and do not form a basis to be concerned about the report. [ 148 ] Another element that makes reliance on the valuation reports difficult is that it is clear that the value of this sort of equipment is extremely variable and goes up and down. [ 149 ] As at September 25, 2007, the equipment owned by the company had a total value of $1,135,000 whereas in the evaluation as at December 20, 2010, the same number was $453,000.

Of course, the units are older and circumstances have changed in the industry; however, a great deal of this equipment’s value depends on the need for it from time to time as the gas and oil field industry cycle changes. [ 150 ] During his testimony, Mr. Hollett stated that the equipment he valued for the December 20, 2010, report may be worth 10% more at the date of trial. As noted in the final address by the defendant, this estimate was “off the cuff”.

Further, it did not contemplate the improvements (covered below) made by the company subsequent to the appraisal. [ 151 ] Adding 10% to just the value of the equipment in Mr. Hollett’s December 20, 2010 appraisal adds a further $45,300 to the total value set out by Ms. Pisko in

Schedule 4 of her report ($545,354) and results in a total value as at the trial date of $590,654, not the $545,354 contained in Ms. Pisko’s

Schedule 4 which she carried forward into

Schedule 3 to calculate the asset value which was the basis of her opinion. [ 152 ] This $45,300 increase in value would increase Mr. GB’s half interest in the company by $22,650. [ 153 ] In addition, the company’s inventory such as coil tubing was not given any value in the company’s books or in Mr. Hollett’s report. Ms. TB asked questions about the worth of the inventory. It was my impression that Mr. GB was minimizing the company’s value. Originally, Mr. GB testified that he had purchased three reels of coil tubing for $9,000. [ 154 ] He indicated this was a good deal.

Later, he advised that currently at the company's shop there was a 2,000 meter spool of 1 ½" coiled tubing and another 1 1/4" string of approximately 1,700 m. He advised that one of the coils was only worth its scrap metal value of about $30 per ton for a value of $30-$60. On another occasion, Mr. GB testified that Rig #1 had 2,000 meters of 1 1/4" coiled tubing on it worth six dollars per meter and Rig #2 had 3,600 meters of 1 1/2" tubing on it worth $10 per meter. If the latter estimate is the correct one, there would be $48,000 worth of inventory.

Given the deficiencies in the evidence, and partly to compensate for value that cannot be calculated, the inventory value will be set at $48,000, $24,000 of which will be considered matrimonial property. [ 155 ] Another element that raises concern is Ms. Pisko relied on the plaintiff for operations information. [ 156 ] Subsequent to Mr. Hollett’s valuation report and before the trial, the more valuable of the company’s two rigs had been refurbished, with a new doghouse, equipment and paint, for use in the oil business. An additional truck with a “picker” attached had been acquired/fabricated to provide support.

This picker truck was paid for from cash flow. The value of the improvements to the Rig and the picker truck were not taken into account when determining the asset value of the company. It is noteworthy that Mr. GB testified that in his opinion the picker truck does not add value to the company. I find that it does and will consider the $35,000 Mr. GB said he paid for the components of the picker truck as an increase to the value of the company of which one half is matrimonial property. [ 157 ] During cross-examination, Mr.

GB was asked what purchases, other than relating to the refurbishing of Rig #2, were made by the company since the last appraisal. The answer given did not address the question. On another occasion, Mr. GB testified that the

company has not acquired any vehicles other than the picker truck since July 31, 2010; although, I note that other evidence indicates one of the trucks owned by the business is a 2010 model. This could have been purchased in 2009. [ 158 ] At trial Ms. Pisko, for good reasons, depended upon the adjusted book value method to value the company. Nothing was said about the potential of future prospects of the company based on the acquisition of new equipment and refurbishment of existing equipment.

Much was said about the dismal prospects of the gas business and the change in focus of the gas business for which the company equipment was ill-suited. [ 159 ] For example, the Plaintiff testified that the rig that has been modified for use in the oilfield had one standby job. In contrast, Ms. Pisko’s report indicated that she was aware equipment was being converted to be compatible with the oil drilling sector to increase operations and further indicated that the “company’s gross revenues have reflected an increase in revenues for the first five months of the July 31, 2011 fiscal year.

This is partially as a result of converting from gas production to oil production, although the operating costs of the company have also increased significantly . . .” [ 160 ] Two variables are indicated by this. First, the company is currently into its 11 th month of the fiscal year but little information has been provided for operations in 2011. [ 161 ] Second, there is evidence that the conversion is improving the company’s fortunes. [ 162 ] Obviously, part of the company’s value is its potential to earn an income. This is difficult to calculate because of the inherent risk in predicting future income.

The defendant asked the plaintiff several questions as to the company’s prospects and the answer was the prospects were unknown. This is fair under the circumstances; however, the company would not be taking these actions unless it was believed they would improve the company’s fortune. There is evidence that these actions have already improved the company’s situation (although in the long run the actions might prove to be improvident). In addition, Mr.

GB testified that he had recently hired a part-time salesman to operate on behalf of the company in Calgary. [ 163 ] It is fair to take this positive indication into account when valuing matrimonial property although it is not possible to assign a specific dollar value. [ 164 ] Another indication that the company may be worth more than indicated is the evidence that some of Mr. GB’s personal expenses are paid for by the company. Examples include lunches, a houseboat trip and personal living expenses.

The evidence indicates regular use of company credit cards for personal benefits; however, this is not definable in any meaningful sense. It is another reason to give the company value. [ 165 ] What can be done with the information available is to use it as an indication that the company is not as valueless as the plaintiff submits. [ 166 ] $22,650 should be added to Mr. GB’s interest for the 10% increase in value at the trial date plus 50% of the worth of the inventory, or $24,000, plus $17,500 (one half of $35,000) for the picker truck. Finally, Ms.

Pisko’s midpoint estimate of $1,000 as the company value adds another $500. [ 167 ] Mr. GB's interest in the company increases by $64,650, of which Ms. TB will get half. Given the improvements made to the equipment out of cash flow and the improved prospects of the company between the valuation date and the date of trial that cannot be quantified, Ms. TB will receive the benefit of other consideration when dealing with other matrimonial property and matrimonial debt. Shareholder ’s Loan [ 168 ] Ms. Pisko reported in Exhibit 5 as follows:

We note that the shareholder loan balance reflected on the July 31, 2010 financial statements is $259,866 as being due to the three shareholders. Of this amount, we understand that $119,866 is due to Mr. GB as at July 31, 2010, which should be included as an asset on the statement of matrimonial property. [ 169 ] Mrs. Pisko testified that the shareholders loan would be paid out tax-free, that is, the asset is not subject to tax discounting. Mr.

GB’s comment on the topic of shareholders loans was that there was no money in the company to pay it out and he thought the shareholders loan value had been incorporated into the company value in Ms. Pisko’s report. [ 170 ] In any event, the money obtained from the sale of the Farm was invested in the company. There is little doubt that the majority of this money was matrimonial assets and the portion of the matrimonial property that is exempt will be accounted for here. $119,866 less $7,500 equals $112,366, half of which, that is $56,183, should go to Ms. TB.

Summary - Company [ 171 ] Ms. TB is entitled to a payment of $86,633, calculated as follows: One half interest in $64,650, the increased value of company: $32,325 One half interest in adjusted Shareholder’s Loan: $56,183 Total: $88,508 This amount will be reduced to account for legal fees incurred by Mr. GB in defending criminal charges for sexual assault that were not justified. Matrimonial Home [ 172 ] ACT Inc. is one major asset owned by the parties. The other asset is the residence located in North Red Deer, (the Disputed Red Deer residence).

Again, two appraisals were prepared, this time by Braemar Valuation Service. Mr. Mark Osske testified he prepared these reports. He was qualified as an expert able to give his opinion on the value of residential property in Red Deer. [ 173 ] The first report, entered as Exhibit 10 appraised the fair market value of the residence as $360,000 as at June 11, 2008, using the direct comparison approach. His second appraisal as at December 15, 2010 (Exhibit 9) values the property at $310,000. [ 174 ] Mr.

Osske explained the drop in value was a result of an increased need for maintenance between the two viewings and market conditions. When the first appraisal was done the residential market was doing well; however the economy slowed and by August, 2010, the number of houses listed for sale were the highest ever in Red Deer. The supply was higher than the demand. He also said this did not soften prices too much but few homes were selling. [ 175 ] Elements that Mr.

Osske considered that reduced the value of the house on the appraisal date included: it was just before Christmas, it was the winter and in his words, “nothing was moving.” He testified that residential sales have picked up in the latter part of March and April of this year. Surprisingly, Mr. Osske indicated that, in his opinion, comparable # 3 of the December, 2010 appraisal “seems to have sold high” without any reason why he thought this. [ 176 ] Even so, the value indicated by this property does not provide a basis to say the matrimonial home has any equity.

[ 177 ] When asked how much of the drop in value could be attributed to the need for repairs, Mr. Osske said that this would be a $5,000 reduction. [ 178 ] The defendant questioned Mr. Osske about a recent listing for a property in the same area with an asking price of $460,000. Mr. Osske could not comment knowledgeably but did note that the price was the asking price, the property appeared to be in better condition with more upgrades and that the listing had been cancelled. [ 179 ] The defendant entered two City of Red Deer assessments for the property.

The assessed value was $371,800 in 2009 and $362,700 in 2011. [ 180 ] When questioned about current conditions, it was Mr. Osske’s opinion that the value of this property today would have increased in the range of $5,000 to $10,000. [ 181 ] The mortgage on the property is currently worth approximately $340,000. [ 182 ] Overall, the evidence on the current value of the house is unsatisfactory. It is unfair to use the valuation of the property given the elements that reduced the value of the house when appraised in December 2010.

It would be equally unfair to use the City of Red Deer assessment for 2011 as no evidence was provided to indicate the date the assessment value refers to or what the assessment value represents. [ 183 ] In result, the evidence on which I must base this decision indicates that the matrimonial home currently has minimal value for the purposes of the division of property. Although I find the appraisal undervalues the house, the house at the time of trial is most likely worth the same amount as the mortgage. [ 184 ] Moving on, the evidence indicates Mr.

GB has incurred a lot of costs due to the breakdown of this marriage, which could be taken into account as a liability pursuant to

section 8(d)(ii) of the MPA. These expenses include a $7,000 loan from the company, legal fees of $16,500 incurred defending against sexual assault charges and a recent line of credit increase of $23,000 to help with expenses. [ 185 ] Pursuant to

section 8(m), I believe a circumstance that is relevant to this dispute is the undervaluation of the company discussed above. Several of the factors considered do not lend themselves to value calculations due to lack of information or consideration during the valuation process. I believe, based on the evidence in front of me, that it would be just and equitable that Mr. GB be solely responsible for the debt referred to above, except for the legal fees required to defend the sexual assault action already noted.

To be clear this is intended to equally distribute the matrimonial property between the parties. [ 186 ] As a final note, the parties acquired and sold a half duplex in Innisfail between the time they lived on the Farm and Red Deer. The evidence was that the $35,000 netted from the sale of this duplex was put into the Red Deer property, which at the present time, has little or no equity. [ 187 ] In result, there is no value in the Red Deer home to distribute as matrimonial property.

Summary of Property Division [ 188 ] This

summary is provided with reference to section 9(3) of the MPA. RRSP

[ 189 ] The plaintiff shall transfer $4,565 into an RRSP account in the defendant’s name. In the event the transfer can not be accomplished on a tax free basis, the defendant shall bear the cost of tax. ACT Inc. Shareholder ’s Loan [ 190 ] The plaintiff shall pay the defendant $56,183 on or before September 1, 2011. Interest at the rate of 12% calculated annually shall be payable on any amount outstanding after September 1, 2011 until paid in full. Other Company Value [ 191 ] Other company value owed the defendant is $32,325.

From this will be deducted $8,250, the share of the legal costs to be borne by the defendant with respect to criminal charges brought against the plaintiff. [ 192 ] The plaintiff shall pay the defendant $24,075 by way of 60 payments due on the 15 th of each month commencing July 15 th , 2011. The payments shall be in the amount of $405 with the final payment to be in the amount of $180.

The plaintiff may pay any amount outstanding at any time, at which time the monthly payments shall cease. [ 193 ] Upon payment of the amount owing to the defendant, the defendant shall transfer any shares or other interest she may have in ACT Inc. to the defendant or his nominee. At the plaintiff’s discretion, this may be accomplished by a corporate redemption of shares.

In the event the defendant fails to execute the transfer or redemption documents provided by the plaintiff when required, a Court Order shall issue to transfer or redeem the shares, the cost of which shall be paid by the defendant on a solicitor and her own client basis. Other Property Matrimonial Home [ 194 ] The defendant shall execute a release of dower rights under the Dower Act with respect to the disputed Red Deer residence. [ 195 ] It is declared that Ms. TB has no interest in the disputed Red Deer residence.

Household Goods ( as the words are defined in the MPA) [ 196 ] Household goods have been dealt with by way of a separate Consent Order. [ 197 ] Two specific items, family photographs and keepsakes respecting KM, were raised at trial. In the event these items are not dealt with specifically in the Consent Order, I direct that whichever party has photographs of members of the family duplicate them and provide a copy to the other. It would be satisfactory at this time if the photographs were scanned onto a disk.

[ 198 ] With respect to KM’s relics, I direct

[…]