Thomson v. Thomson, 2011 ABQB 501

Court of Queen ’ s Bench of Alberta Citation: Thomson v. Thomson, 2011 ABQB 501 Date: 20110809 Docket: 4803 150043 Registry: Edmonton Between: Trevor Alan Thomson Respondent (Plaintiff) - and - Jeannie Marie Thomson (Pearman) Applicant (Defendant) _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ Introduction [ 1 ] In this special chambers application, Ms. Thomson cross-applied for interim spousal support. Mr.

Thomson’s application was dealt with orally at the hearing, but I reserved on the spousal support issue and we did not resolve outstanding s. 7 issues. Is Ms. Thomson entitled to interim spousal support? If so, in what amount? And is Mr. Thomson obliged to pay further s. 7 payments on account of disputed items? Background

[ 2 ] The parties were married on September 4, 2004. Ms. Thomson deposes that they lived together for approximately two years before they were married. There are two children of the marriage, the first born in May, 2005 and the second in September, 2006. [ 3 ] At the time of the marriage, Ms. Thomson had achieved her high school diploma and had worked in the childcare field as a caregiver and nanny. She continued that occupation until the first child was born. She then became primarily a caregiver for the children and a homemaker.

After their second child arrived, she started, and continues to run, a small day home operation out of the residence. [ 4 ] Since the parties separated in May, 2009, Ms. Thomson had primary care of the children. That was confirmed for the time being at the special chambers application, although Mr. Thomson was granted more access and details of exchanges and holidays were worked out. Mr. Thomson’s s. 3 payment was set at $875.00 per month. [ 5 ] Mr. Thomson was, at the time of the marriage, a journeyman machinist. He agrees that Ms.

Thomson stayed home by agreement and says that the start of the dayhome after the second child was born was to help with the family income. [ 6 ] Mr. Thomson’s employment changed shortly after the separation. He had made approximately $78,000.00 in 2008, but his 2009 income was slightly less. The parties adjusted child support accordingly, and agreed that it would be further adjusted in 2011 when his 2010 income was known. His 2010 income was $60,582.53. He is now paying child support based on that amount, to be adjusted when his 2011 income is known. [ 7 ] Ms.

Thomson’s 2009 income was $10,353.00 and her 2010 income was $23,610. She deposes that when the children were born she put her career plans on hold. She would like to pursue further education in the field of Early Learning and Child Care, and deposes that the course can be taken full or part time, and that the cost for the first year is estimated to be $7,517.00 and for the second year $7,070.00. Positions of Parties [ 8 ] Mr. Mawani on her behalf argues that Ms. Thomson is entitled to spousal support on the basis of s. 15.2(6) of the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp.).

The ChildView calculations for the Spousal Support Advisory Guidelines with Dependent Children Calculations, using the parties’ 2010 incomes, gives a range of $0 - $126 per month for spousal support. The budget provided by Ms. Thomson shows monthly expenses of approximately $3,500.00. At the hearing, Mr. Mawani suggested that Ms. Thomson required approximately $1,270.00 per month to meet her budget. After taking into account child support, she is some $400.00 per month “short”. [ 9 ] Ms.

Thomson argues that her entitlement is both compensatory, based on her putting her own career aspirations on hold to raise the children and allow Mr. Thomson to pursue his career, and non-compensatory, based on the economic disadvantages to her arising out of the breakdown of the marriage, namely the loss of Mr. Thomson’s support. [ 10 ] Mr. Thomson argues that there is no entitlement on either basis, as there was no agreement that Ms. Thomson would not work, be educated, or pursue a career after the children were borne.

She started the dayhome because they needed the additional income, and he would have encouraged Ms. Thomson to pursue other activities had she wanted to do so. [ 11 ] On the breakdown of the marriage, he argues that he assumed greater debt than did Ms. Thomson. The home was sold for less than was owed against it and he covered the shortfall, as well as assuming matrimonial debt owed to his parents. [ 12 ] From information provided after the hearing, it appears that the home was sold in October, 2009. Mr. Thomson made the mortgage payments from May to August, 2009 while Ms.

Thomson and the children continued to reside there. There is a dispute as to who made the utility payments. Child support by Mr. Thomson commenced on July 1, 2009.

[ 13 ] The parties really only had debt after the home sold. There was a shortfall on the sale price, because of a large mortgage pre- payment penalty. There was a shortfall on the sale of a holiday trailer. I do not see that it is appropriate to treat mortgage and utility payments made by Mr. Thomson as assumption of debt, as he claims. Some of those payments should be treated as de facto child support, as he did not start paying until July; the balance should be treated as payments in lieu of spousal support.

So the inequality in assumption of debt is closer to $7,500.00 rather than the $15,000.00 claimed. [ 14 ] It is certainly appropriate to consider the division in matrimonial property in the context of spousal support, as assets or debt feature in the needs of the parties and their ability to pay. Law [ 15 ] S. 15.2 of the Divorce Act states:

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including 1. (

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.

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6) An order made under subsection (1) or an interim order made under subsection (2) 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; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (

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. [ 16 ] There is no dispute on the law in this area. [ 17 ] As noted in Shields v. Shields , 2008 ABCA 213 at paras. 19 - 21 :

[19] In Moge v. Moge, (SCC), [1992] 3 S.C.R. 813 at para. 77, the Supreme Court of Canada recognized the importanceof the presiding judge’s discretion and the difficulty of setting down principles that would guide every case: The four objectives set out in the Act can be viewed as an attempt to achieve an equitable sharing of the economic consequences ofmarriage or marriage breakdown.

At the end of the day however, courts have an overriding discretion and the exercise of such discretionwill depend on the particular facts of each case, having regard to the factors and objectives designated in the Act. [20] In Moge, the court made three general observations: the distinction between “traditional” and “modern” marriages is not veryuseful; the support provisions of the Divorce Act are intended to deal with the economic consequences for both parties of the marriage orits breakdown; and what the Divorce Act requires is a fair and equitable distribution of resources to alleviate the economic consequencesof marriage or marriage breakdown for both spouses. [21] The crucial issue is to find the right balance and then exercise discretion in making an award.

As McLachlin J. (as she then was)said in Moge at para. 107: ...the judge’s task under...the statute is to make an order which provides compensation for marital contributions and sacrifices, whichtakes into account financial consequences of looking after children of the marriage, which relieves against need induced by theseparation, and, to the extent it may be “practicable,” promotes the economic self-sufficiency of each spouse. Neither a “compensationmodel” nor a “self-sufficiency model” captures the full content of the section, though both may be relevant to the judge’s decision.

Thejudge must base her decision on a number of factors: compensation, child care, post-separation need, and the goal, insofar as practicable,of promoting economic self-sufficiency. [18] The Court of Appeal continued at paras. 30 - 31: [30] The Divorce Act dictates that the amount and duration of spousal support shall be determined taking into consideration thecondition, means, needs and other circumstances of each spouse.

While the recognition of any economic advantage or disadvantagearising from the marriage or its breakdown remains an overall objective to be considered by the court, that objective cannot dictate aresult which guarantees that the payee spouse must support the other spouse ad infinitum. The Divorce Act does not require that spouses’incomes be equalized to alleviate economic disadvantage arising out of the roles adopted by the parties in the marriage.

Instead, theamount of support should be determined by the factors set out in the Divorce Act and interpreted in Moge. [31] According to Moge, a judge is required to consider the parties’ circumstances, including the duration of the marriage, their ages,their incomes and prospective incomes, the effects of property equalization, the stages of their careers, the marital standard of living,participation in household responsibilities, childcare obligations, and the parties’ reasonable standard of living expectations. [19] In that case, the Court of Appeal held at para. 29: [29] The chambers judge erred when he did not sufficiently consider the fact that the mother was only 34 years old at the time ofseparation, that the matrimonial property had been divided equitably, that the couple had a modest standard of living while together, thatthere was no longer a need for child care and that the mother had achieved a degree of self sufficiency with full time employment at alevel consistent with her work skills Analysis [20] The parties lived a lifestyle together that ultimately resulted in more debt than assets.

Following separation, Mr. Thomson lost

his better-paying job, and has new employment paying about 80% of what he earned in the last few years of the marriage. [ 21 ] I am satisfied that Ms. Thomson is entitled to spousal support on the basis of Moge , on both compensatory and non- compensatory principles. Ms. Thomson put continuing education on hold during the child-raising period of their marriage. She did, however, develop some entrepreneurial skills in starting and running a dayhome.

That operation appears to be consistent with her interests, and the skills she had at the time of the marriage and before the decision was made that she would stay at home. More importantly, however, the evidence falls short of establishing that she is able to quickly become self-sufficient. Whether she will be able to earn a better living with the further education she is interested in pursuing than from continuing with and expanding the dayhome is unclear. But the breakdown of the marriage has left her at an economic disadvantage as she no longer has the benefit of Mr.

Thomson’s larger income. [ 22 ] I conclude that Mr. Thomson’s assumption of a higher debt load arising from the marriage satisfies his spousal support obligations to date. [ 23 ] Having determined entitlement at least on an interim basis, a review of the Spousal Support Guidelines and the numbers generated by that system is of assistance. When considering the difference between the parties’ incomes, after taking child support and taxes into account, the Guidelines suggest a range of between 0 - $126 per month.

The Guidelines would have spousal support payable from between 3 ½ to 7 years in these circumstances. [ 24 ] The parties are young. Ms. Thomson is 32. The children are of an age where both will be in school in September. Ms. Thomson’s current employment, running a dayhome, has benefits to both parties in that she is not incurring child care expenses. She may be able to pursue the education she is interested in on a part time basis. Mr. Thomson is not obliged to pay the costs of her education. However, he may end up paying some of the costs indirectly if Ms. Thomson’s income goes down and his share of

section 7 expenses goes up, or if Ms. Thomson is required to use child care to manage her educational pursuits. [ 25 ] But those are future contingencies that need not be addressed now, and on an interim basis. [ 26 ] For the present, Ms. Thomson has shown an entitlement to spousal support. Her budget is not an unreasonable one. Mr. Thomson is already paying some $948.00 being the basic $875.00 for s. 3 support and $73.00 for

section 7 expenses. He also has debts of over $25,000.00 arising out of the marriage. He has little ability (if any) to pay more than he is already, and he may well struggle to pay the child support arrears which accumulated over the period before the special application in June. In any event, the advisory guidelines suggest very modest payments (if any) in the parties’ current financial situation. [ 27 ] On the basis of the parties’ present circumstances, I do not see that it is appropriate to order that Mr. Thomson pay interim spousal support. It is unclear when Ms.

Thomson wishes to start the education program. It is also unclear whether that will affect her income or the need for child care. If and when she begins a program, the issue of spousal support might be revisited, as it might also be revisited on a material change of circumstances of the parties. Mr. Thomson may obtain better paying employment; Ms. Thomson might expand her dayhome and earn greater income, or may have fewer children in her care and suffer a loss of income. [ 28 ] But for the present, with the child support Mr. Thomson is paying, event though there is a modest need on Ms.

Thomson’s part, there is no present ability on the part of Mr. Thomson to make any meaningful difference in her budgetary shortfall. [ 29 ] That is not to say that Mr. Thomson has no spousal support obligation. If Ms. Thomson’s circumstances change, and in particular if she starts attending school, this issue may be revisited in conjunction with the potential consequences of such changes on Mr. Thomson’s s. 7 expense obligations. This is an interim decision only, and will be reviewed as to amount and duration when circumstances change, or at trial. [ 30 ] As a result, Ms.

Thomson’s application for interim spousal support is dismissed.

S. 7 Expenses [ 31 ] There are no previous court orders in this matter. After the parties separated, Ms. Thomson had day to day care of the children; Mr. Thomson exercised access. Part of the present application was to deal with Mr. Thomson’s request for joint custody and shared parenting. [ 32 ] Unless otherwise ordered, the parents of children have equal parenting rights. Neither should make important decisions without the other’s agreement or consent. Schooling is one of the important issues.

Where the parents actively disagree, there is a risk that important decisions will not be made in a timely fashion. [ 33 ] The main issue as to s. 7 expenses is the cost of pre-school tuition fees. Ms. Thomson enrolled the children in the Trinity Baptist Church Pre-School and incurred expenses of $460.00. There was no evidence that this was an unreasonable cost, although Mr. Thomson believes that pre-school may have been available elsewhere at no cost. In my view, the monies were expended.

They were expended at a time when the parties were not communicating effectively, and the amount involved does not seem excessive. Mr. Thomson is responsible for his proportionate share. [ 34 ] In future, however, if there is a decision as to education, health, religion or extracurricular activities that requires a contribution from the other party, there should be consultation and agreement. If there is no agreement, there should be a mechanism developed to resolve any issue.

The parties should not be making important decisions without input, agreement or consent from the other, especially when it involves financial expenditures for which contribution from the other may be sought. These are parties with limited means. I hope the parties will be able to come to agreement as to how to resolve such issues in the future, so that court applications need not be brought. [ 35 ] As for recreational expenses, again, these are parties of limited means. Not all recreational expenses are “extraordinary” and are within s. 7.

Having regard to the means of these parties, I would characterize anything beyond $40.00 as extraordinary. Amounts for activities less than that should ordinarily be within s. 3 payments. Amounts beyond $40 may be extraordinary, but should be discussed and agreed if contribution from the other is sought. [ 36 ] It is not unreasonable for Mr. Thomson to require original receipts so that he can be appropriately reimbursed for any health expenses that are recoverable from his benefit plan.

S. 7 expenses are intended to reflect non-reimbursed costs, so both parties get the benefit of insurance that is there for the children’s benefit. Once Ms. Thomson provides Mr. Thomson with original receipts, Mr. Thomson should submit them. Ms. Thomson is then entitled to receive the reimbursed portion, plus Mr. Thomson’s proportionate share of any non-reimbursed portion. [ 37 ] If the benefit program can be arranged so that Ms.

Thomson can submit receipts directly to it, that would be preferable, as it would avoid a step in the process and eliminate a possible friction point between the parties. [ 38 ] I trust this will give sufficient guidance to the parties so that they can resolve their s. 7 issues. Heard on the 22 nd day of June, 2011. Dated at the City of Edmonton, Alberta this 8 th day of August, 2011.

R.A. Graesser J.C.Q.B.A. Appearances: Ronald E. Kampitsch Merchant Law Group LLP for the Plaintiff K. Mawani for the Defendant