Boissonneault v. McNutt, 2011 ABQB 568

Court of Queen ’ s Bench of Alberta Citation: Boissonneault v. McNutt, 2011 ABQB 568 Date: 20110921 Docket: 4803 147463 Registry: Edmonton Between: Gilles Emile Boissonneault Plaintiff - and - Eileen Rose McNutt Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.A.

Browne _______________________________________________________ Introduction [ 1 ] The progression of the romantic relationship between the parties in this action has created a complicated set of legal issues. The husband, Gilles Emile Boissonneault, claims a portion of the assets acquired by the wife, Eileen Rose Boissonneault (McNutt),

during a period of cohabitation before their marriage and an equal distribution of assets acquired during the time of the marriage. The wife proposes that the parties keep the assets and debts registered in their respective names without any need for an equalization payment. [ 2 ] The resolution of the legal issues is further complicated because the wife represented herself during the trial.

As is sometimes the case when one of the parties to a lawsuit is not represented by counsel, the issues crystalize as the trial comes to a close, whether or not those issues were adequately explored by the unrepresented party during the course of the trial. [ 3 ] The parties each owned property before their cohabitation and marriage.

The value of the husband’s property decreased during the period of the cohabitation and marriage, and the value of the wife’s property increased during the same period. [ 4 ] A number of issues were dealt with by consent at the end of the trial: ∙ A Divorce Judgment was granted; ∙ Custody of the child of the marriage was given to the wife, with reasonable access to the husband; ∙ The husband acknowledged that he has no interest in the Registered Education Savings Plan (Heritage Plan #[...]).

The wife acknowledges that the RESP will be used solely for the son’s further and continuing education; ∙ Both parties acknowledge that the 1991 BMW located at the Skeleton Lake lake lot (the Lake properties) belongs to the son; and ∙ The husband’s moveable property including motor vehicle, tools and business assets will be removed from the Lake properties. Relationship of Parties [ 5 ] The husband is presently 62 years of age and the wife, 51 years of age. The husband and wife were neighbours in Fort McMurray living at [...]7 and [...]5 Fraser Avenue, respectively.

Their relationship became romantic in the fall of 1992 and for a time, they maintained both households. At the commencement of their romantic relationship, each had a daughter from a previous relationship living at home. [ 6 ] Eventually, the parties lived together in a common law relationship. The actual date the common law relationship began is in dispute. [ 7 ] The husband testified that they moved in together in June 1993, but he kept his belongings at his house and they cohabited in her house.

The husband testified that his house was not rented from 1993 to 1996, and his house also remained vacant from 1997 to 1999. The wife testified that they maintained their separate residences and separate lives until shortly after their son was born in December 1996, and then the husband moved into her house. [ 8 ] I prefer the wife’s evidence, and find that the common law relationship began as she said, in December 1996. [ 9 ] The parties eventually married on August 10, 2002.

Upon marriage, the wife changed her name to Boissonneault and used that name until the date of trial. [ 10 ] In the summer of 2005, the parties separated briefly and the wife moved to Skeleton Lake. The husband eventually followed and the relationship carried on until the final separation in September 2008.

[ 11 ] Although the parties separated in September 2008, the husband continued to live rent free on the Lake properties until December 2009. Child of the Marriage [ 12 ] The couple’s son was born on December 29, 1996. He is now 15 years of age, an honours student in grade 10, and a good athlete. He intends to continue his education after high school graduation. The wife has put away funds in the RESP Heritage fund for his continuing education, and the parties agree that the husband has no interest in that fund . [ 13 ] The wife indicates that she is being audited for child tax credit from 2005 to present.

This issue was raised towards the end of the trial, however, the evidence is not sufficient for me to attempt to resolve that issue. The findings of fact in this judgment regarding various dates may be of assistance to the relevant authorities. [ 14 ] The parties agreed that the wife shall have custody of the child and that the husband should have reasonable and generous access.

Child Support [ 15 ] The husband acknowledges that he is liable to pay child support, but has not paid any since the date of separation (September 2008) to the date of trial (June 2011). [ 16 ] The husband has provided some documents confirming his income: 2004: $24,171.00 2005: $21,180.00 2006: $ 3,438.00 2007: $30,617.00 No Income Tax Return documents were filed with the Court for any period after 2007. [ 17 ] The husband says that he is now unemployed due to health problems and his only income is rent and CPP payments. He has been continually renting out his home and garage on Fraser Avenue.

From September 2007 until January 2008 (before separation), the husband rented his house for $3,000.00 per month, and it is now rented for approximately $1,200.00 per month. He also receives $318.00 in Canada Pension Plan Benefits. The husband’s income is therefore set at $18,216.00 for the purposes of ongoing child support. This requires him to pay child support payments of $170.00 a month. [ 18 ] The calculation of arrears of child support should be based on 2007 income of $30,617.00 for one year (October 1, 2008 to September 30, 2009).

The guideline amount for that amount of income is $245.00 per month multiplied by 12 months, equals $2,940.00. [ 19 ] Thereafter, there is no Income Tax information from the husband, but as indicated he states he is unemployed and simply receiving money from Canada Pension Plan and the rental of the Fraser Avenue house. The amount of child support therefore from October 1, 2009 to June 1, 2011 should be $170.00 per month. Coincidentally, if we average 2007, 2006 and 2005 income, the child support guideline would also be $170.00 per month.

Therefore, child support arrears from October 1, 2009 to August 30, 2011 (23

months) will be $170.00 per month or $3,910.00 total. That amount added to the 2007 arrears of $2,940.00 gives a total arrears of $6,850.00. [ 20 ] Unfortunately, the wife has not presented receipts for s. 7 expenses, although the child is involved in sports activities and others that require s. 7 funding. I have therefore been unable to make an Order for s. 7 expense claims that should properly be paid by the husband to the wife. Significant funds should have been paid in this regard by the husband since the parties’ separation. [ 21 ] The wife’s income in 2010 was $21,754.46.

I have imputed the husband’s income at $18,216.00. Under all the circumstances, each should be responsible for 50% of s. 7 expenses. The wife will submit receipts to the husband 3 times per year. The husband shall pay these amounts within 60 days. The wife may submit s. 7 receipts for proper expenses incurred before the trial by 31 October 2011. The husband shall pay his 50% share of those expenses to the wife by 15 December 2011. Assets, Property and Income of the Wife [ 22 ] The wife was a letter carrier from 1977 until she retired in 2005 (28 years).

In 2004-2005 she took a leave of absence for health reasons before retirement. On retirement on April 5, 2007, she invested the payout of her pension of $130,500.00 with CIBC Wealth Management. The value of this fund has fluctuated as follows: April 2007 : $130,500.00 September 30, 2008: $122,455.00 March 2011 : $144,398.00 [ 23 ] The wife now drives a school bus and works as a waitress in Grassland. Additionally, she receives approximately $2,500.00 per month for the rental of her Fraser Avenue home.

Her income on her recent Income Tax Returns is as follows: 2008: $14,768.00 2009: $20,428.00 2010: $21,754.46 [ 24 ] The wife purchased her 3 bedroom home at [...]5 Fraser Avenue, Fort McMurray, in 1987 for $70,000.00, at which time a mortgage of $64,575.00 was registered. It was valued at $489,000.00 in May 2009 (date of separation) and valued at $580,000.00 in June 2011 (date of trial).

Unfortunately, there are no values of the Fraser Avenue residence near to the time the parties began to live together, nor is there a valuation at the time of the marriage. [ 25 ] The appraisals on both the wife’s property and the husband’s property on Fraser Avenue indicate that residential use is not the highest and best use for these properties and that in fact, significantly higher values would be appropriate if a developer was to purchase the properties. [ 26 ] In 2000, the wife purchased the first of the Lake properties, Lot [...]0 (mobile home) at Skeleton Lake, for $30,000.00; it was financed by a mortgage for $114,000.00 against the Fraser Avenue property.

In 2004, the wife purchased the Lot [...]1 cabin at Skeleton Lake for $43,000.00. This purchase was financed again by remortgaging the Fraser Avenue residence. [ 27 ] In November and December 2008, the wife took steps to join Lots [...]0 and [...]1 into Lot [...]A, Skeleton Lake. The appraisals filed indicate that the joining of these titles significantly reduced the appraised value of the lots if sold separately. The value of Lot [...]A in April 2009, was estimated to be $95,000.00. In June 2009, the value of Lot [...]0 was estimated to be $65,000.00. The value

of Lot [...]0 as a separate title on June 14, 2011 was $112,000.00. Lot [...]1 valued in June 2011 was $85,000.00 based on a separate title. [ 28 ] The husband argues that the titles to Lots [...]0 and [...]1 should be separated and that the valuations of the separate properties should be used to calculate his portion of the lake lot properties. Separately, the value of the two lots is: Lot [...]0 - $112,000.00; Lot [...]1 - $85,000.00; for a total of $207,000.00.

The value of Lot [...]A (the consolidated lot) is $95,000.00. [ 29 ] The wife argues that the consolidated value is the proper valuation figure. [ 30 ] The husband’s evidence was that the couple’s long-term goal was to build a dream home at the lake for their retirement. I presume from what he said that the dream home would be on the consolidated lot. That continues to be the wife’s plan; she plans to build a home on the consolidated lot and remain there for the foreseeable future. The parties’ intention is clear – the lots were purchased side by side to allow a home to be built.

There is no indication in the evidence that the properties would be sold separately to obtain as much money as possible.

It is therefore appropriate to use the valuation of the consolidated Lot [...]A at $95,000.00. [ 31 ] At the time of the trial, the wife owned the following: ∙ Investment of pension payout: $144,400.00 ∙ [...]5 Fraser Avenue: $580,000.00 ∙ Lot [...]A Skeleton Lake: $ 95,000.00 $819,400.00 [ 32 ] She also owed debts in 2011 in the amount of: ∙ Mortgage: $147,750.00 ∙ Scotia Visa: $ 31,000.00 ∙ CIBC Visa: $ 25,000.00 Total Debt: $203,750.00 Assets, Property and Income of the Husband [ 33 ] The husband worked at Syncrude as a crib mechanic from 1978 until approximately the year 2000. [ 34 ] In the late 1990's, he had $80,000.00 in RRSPs, accumulated during the time he worked at Syncrude.

Beginning in approximately 1994 or 1995, and continuing until 2006, he operated a business in Fort McMurray selling portable garages, greenhouses, shelters, water crafts and water shelter on the weekends out of his garage. There is scant information about this business provided in the evidence, but it appears that in 2006, he moved the inventory to the Lake properties. Eventually, when he left Syncrude, he was running the business on a more full-time basis. The husband estimates that the value of the inventory remaining from the business is between $5,000.00 and $10,000.00.

A portion of the RRSP was used to support and finance this business. The RRSP was totally spent, partially while the parties lived together. There is no evidence that the wife assisted with the business in any way, and there is no evidence about profits earned while the business operated. [ 35 ] For a number of years, the husband was dealing in cocaine in Fort McMurray. He indicates he was making $300.00 or $400.00 per month. I am satisfied that this amount is grossly under-reported for the 15 years he admits selling.

[ 36 ] From September 2007 to January 2008, the husband rented his house for $3,000.00 per month. Thereafter, it has been rented for $1,200.00 per month. This income was not shared with the wife. [ 37 ] The husband purchased his Fraser Avenue house in Fort McMurray in 1990 for $45,000.00. In 2010, a mortgage (which constituted the consolidation of a number of debts of the husband as of September 2010) in the sum of $185,000.00 was registered against the property.

The husband presently owes $145,579.00 on his mortgage. [ 38 ] This property at Fraser Avenue, similar to the property owned by the wife, is undervalued as a single detached residential property. It would have a significantly higher value if it could be sold to a developer. The value as a single detached residential property in 2002 (date of marriage) was $248,000.00 to $255,000.00. In May 2009, the property was valued at $444,000.00 and in June 2011, at $540,000.00.

This property is described as being in fair to poor condition and offers limited rental income of $1,200.00. [ 39 ] There are a number of vehicles accumulated by the husband. The evidence suggests that he is a collector of interesting vehicles and other moveable assets. Some of the vehicles have no value, some have some value and of course, a vehicle is only worth what someone is willing to pay for it.

The husband now owns: ∙ 2006 Chevrolet Silverado; purchased in 2006 for $54,000.00, with a present value of $10,000.00 to $15,000.00; ∙ 1982 Harley Davidson valued at $5,000.00; ∙ 1996 Chrysler (no value); and ∙ quad valued at $2,500.00 to $3,000.00. [ 40 ] He also owned and sold the following: ∙ Dodge Ram sold in 2010 for $4,500.00; ∙ boat and motor sold in the summer of 2010 for $1,400.00. [ 41 ] Total consolidated value of vehicles owned at the time of trial: $17,500.00 to $18,500.00. Adding in the value of the vehicles sold after separation, the value is about $24,000.00.

It is not clear from the evidence when each of these vehicles was acquired. [ 42 ] After the separation, the husband lived at the lake cottage rent-free from September 2008 to December 2009 (16 months). [ 43 ] At the time of trial, the husband owned the following: ∙ Inventory from business $ 10,000.00 ∙ 10017 Fraser Ave. $540,000.00 ∙ Vehicles $ 24,000.00 $574,000.00 [ 44 ] At the time of trial, the husband owed a debt of $145,579.00.

Roles of the Parties During Cohabitation [ 45 ] I have already concluded that the husband and his young daughter moved into the wife’s property in December 1996, around the time of the birth of their child. The wife cared for the husband’s daughter, made meals, did laundry, and ensured that the child went to school. The wife indicates that she raised her as her own, including discipline. The daughter left the family home in 2007. [ 46 ] The wife has always paid the mortgage, the taxes and the insurance on her Fraser Avenue property. The husband may have paid utilities.

Both parties contributed to the household in picking up and paying for groceries. [ 47 ] During the time that the husband lived in the wife’s Fraser Avenue home, and after the separation from September 2008 to 2010 when the husband lived at the cottage, he did not pay any rent. He seemed to run his business out of his garage and when the house was not rented, kept his paperwork in the house. [ 48 ] The husband argues that during the period of cohabitation, he did significant renovations to the wife’s property and should be reimbursed for those renovations.

The wife, for the most part, does not dispute the work done, but indicates that this was his role in the household, she did her share of running the household and he need not be compensated for his.

The following work was done to the wife’s house: ∙ Landscaping of the yard including cobblestone patio, above ground swimming pool and flower beds; ∙ Replacing broken picture window in the living room; ∙ Tree removal and planting; ∙ Painting house inside and out (before 2000 and perhaps twice); ∙ Finished basement by creating bedroom, bathroom including redoing floors and drywall; ∙ Removing carpet in bedrooms and installing laminate flooring; and ∙ Opened glassless window area between kitchen and livingroom; [ 49 ] When folks enter into a romantic relationship, there is an element of trust and therefore often records are not kept of the various contributions of the parties.

This is the case here. Some receipts or records, however, are essential to a proper determination of the husband’s claim for unjust enrichment. [ 50 ] The husband indicates that he did these projects with friends on the weekends. Of course, the friends are not seeking compensation and we do not know if the friends were compensated through meals and refreshments. The husband may have been compensated through meals and refreshments as well. The husband has not indicated the number of hours worked to do these projects, not even an estimate has been provided.

There are a few rough estimates of the value of the material provided - a few thousand dollars. To the husbands credit, he was often able to find material he required for these renovations at a discount or free. The dates the work was done is also not clear in the evidence. [ 51 ] The wife has also provided receipts of $4,200.00 for repaired damage from a sewage leak dated December 21, 2008. She also paid for septic and water systems and certainly paid for some labour and materials for other work done on the house.

The wife did the cooking, raised the teenage girls, and everything required to run a household as well as working full-time at her job. She also, according to her evidence, assisted with some of the renovations and gardening jobs as she was able. Discussion

[ 52 ] This case illustrates the different methodology of sharing assets upon termination of a marriage or a common law relationship. It is well known that upon the end of a marriage, property acquired during the course of the marriage is generally divided equally between the parties subject to a number of specified exemptions. [ 53 ] The Supreme Court of Canada has recently addressed the issue of property entitlement and distribution during the dissolution of common law relationships in Kerr v. Baranow , 2011 SCC 10 , [2011] 1 SCR 269. [ 54 ] The SCC concludes the following analysis should be applied: 1.

The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach. 2. Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant's contributions. 3. To be entitled to a monetary remedy of this nature, the claimant must show both (

a) that there was, in fact, a joint family venture, and (

b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth. 4. Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (

a) mutual effort, (

b) economic integration, (

c) actual intent, and (

d) priority of the family. [ 55 ] Cromwell J. in Kerr v. Baranow provided guidelines to assist in identifying if parties have been involved in a joint family venture: 87 My view is that when the parties have been engaged in a joint family venture, and the claimant's contributions to it are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant's contributions.

In order to apply this approach, it is first necessary to identify whether the parties have, in fact, been engaged in a joint family venture. [ 56 ] The circumstances of each family must be determined on the basis of their own dynamic, considering the items mentioned above (which is not a complete list). [ 57 ] Once the joint family venture is established, then the claimant must show a link between his contributions to the joint family venture and the accumulation of assets and/or wealth.

Mutual Effort [ 58 ] Cromwell J. noted: 90 One set of factors concerns whether the parties worked collaboratively towards common goals. Indicators such as the pooling of effort and team work, the decision to have and raise children together, and the length of the relationship may all point towards the extent, if any, to which the parties have formed a true partnership and jointly worked towards important mutual goals. [ 59 ] The parties lived together approximately 12 years from late 1996 until the final separation in 2008. Significantly, they married

in 2002 and Ms. McNutt changed her name to Boissonneault. This was a clear effort to bring the two families together. Each brought their own child into the home and they had a child of their own. The basement and bathroom renovations on the wife’s Fraser Avenue house were necessary to allow the families to unite under the same roof. They seemed to be working towards building a home at the Lake properties for their retirement. [ 60 ] In assessing the value of the contribution made by the husband, it is important to look at joint efforts.

In that regard, the husband indicates that they planned to build their dream home and retire together. Further, the wife’s mother lived in the husband’s property for two or three years at the beginning of 2000. The dates are unclear from the evidence, but it is clear that the mother lived in the husband’s property and paid approximately $200.00 per month to cover the taxes during the period of time she lived there. As well, carrying out the renovations to improve the wife’s property is an indication of mutual effort towards the common good.

Economic Integration and Interdependence [ 61 ] Paras. 92 and 93 of Kerr state: 92 ... the degree of economic interdependence and integration that characterized the parties' relationship (Birmingham; Pettkus; Nasser). The more extensive the integration of the couple's finances, economic interests and economic well-being, the more likely it is that they should be considered as having been engaged in a joint family venture.

For example, the existence of a joint bank account that was used as a "common purse", as well as the fact that the family farm was operated by the family unit, were key factors in Dickson J.'s analysis in Rathwell. The sharing of expenses and the amassing of a common pool of savings may also be relevant considerations (see Wilson; Panara). 93 The parties' conduct may further indicate a sense of collectivity, mutuality, and prioritization of the overall welfare of the family unit over the individual interests of the individual members (McCamus, at p. 366).

These and other factors may indicate that the economic well-being and lives of the parties are largely integrated (see, for example, Pettkus, at p. 850). [ 62 ] Despite the marriage and raising their children together, the parties did not integrate their finances or put any of their property or RRSPs in joint names. The parties did not share bank accounts. The wife worked hard as a letter carrier. She borrowed and bought a house before the relationship and she borrowed funds to purchase the Lake properties during the relationship.

There was no financial contribution from the husband in the purchase of these properties. They did share the cost of groceries and the husband sometimes paid utilities on the wife’s house. For the most part the finances and the property were kept separately and in the names of the person who acquired the property. The husband spent his RRSP on his business. There is no evidence that the business was in any way a joint venture or that the wife was involved in that business at all. [ 63 ] The husband acknowledges in his evidence that he left his job with Syncrude in 2000.

As well, for perhaps 15 years, he was dealing cocaine on a small scale. He did not report his drug income to Canada Revenue Agency, and I am satisfied that his estimated income from the sale of drugs of $300.00 or $400.00 per month is grossly underestimated. Further, the husband has made no declaration of business income. At the beginning of the common law relationship, he had an RRSP worth $80,000.00 which was invested in his business, and no information has been provided about any profits made in that regard.

The entire RRSP has been spent. [ 64 ] When the parties were cohabiting, the husband and his friends carried out a number of renovations to the wife’s house on weekends in circumstances that I would describe as recreational. The major renovation to the house involved finishing the basement. This increased the value of the house a little, but the actual increase in the value of the house relates more to the potential development of the property rather than the actual living value of the house.

Further, the renovations were necessary to make sure that the home was liveable for their blended family. [ 65 ] I conclude that there is little evidence of economic integration or interdependence.

Actual Intent, Express or Inferred [ 66 ] In Kerr , the Court said: 94 Thus, in considering whether there is a joint family venture, the actual intentions of the parties must be given considerable weight. Those intentions may have been expressed by the parties or may be inferred from their conduct. The important point, however, is that the quest is for their actual intent as expressed or inferred, not for what in the court's view "reasonable" parties ought to have intended in the same circumstances.

Courts must be vigilant not to impose their own views, under the guise of inferred intent, in order to reach a certain result. [ 67 ] It is most difficult to assess actual intent when there is little evidence presented in that regard. The husband indicates they had a dream to build a house at the lake for their ultimate retirement. The wife’s actions in putting the Lake properties in her name alone, in maintaining the Fort McMurray property in her name alone, and in making all the payments with regard to these properties, suggest a different intention.

Although she did marry the husband in 2002, even after marriage the parties continued to maintain economic independence. Priority of the Family - Financial Sacrifices Made for the Benefit of the Family [ 68 ] The Court in Kerr discussed the nature of sacrifices one finds in joint family ventures: 99 As I see it, giving priority to the family is not associated exclusively with the actions of the more financially dependent spouse.

The spouse with the higher income may also make financial sacrifices (for example, foregoing a promotion for the benefit of family life), which may be indicative that the parties saw the relationship as a domestic and financial partnership.

As Professor Parkinson puts it, the joint family venture may be identified where one party has encouraged the other to rely to her detriment by leaving the workforce or forgoing other career opportunities for the sake of the relationship, and the breakdown of the relationship leaves her in a worse position than she would otherwise have been had she not acted in this way to her economic detriment. [ 69 ] In assessing the evidence there seems to be few financial sacrifices made by either of the parties for the benefit of the family.

When the wife moved to the lake she moved as a separation from the husband / semi-retirement from work. [ 70 ] I am not satisfied that the husband moved from Fort McMurray to the lake thereby giving up his business as a family sacrifice. At that time he was not working and had the ability to maintain the business if he so chose; he chose not to. I do not infer from his actions that it was done to maintain the marriage.

Was there a family venture and is the husband entitled to compensation? [ 71 ] Many of the renovations to the wife’s Fraser Avenue house listed in the evidence are insignificant and would be a weekend’s recreation with friends. However, the landscaping of the yard and the renovations done to finish the basement of 10015 Fraser Avenue would have some value in increasing the wife’s property and in allowing the family to live together comfortably. [ 72 ] Under all the circumstances, I am satisfied that the parties were involved in a joint family venture based on the criteria set out in the case of Kerr v. Baranow .

In terms of the time that the parties lived together in a common law relationship it is now important to consider whether there is a connection between the contributions made by the husband and the accumulation of assets or wealth. Did the contributions of the husband increase the wife’s assets?

[ 73 ] The issue of renovations is somewhat complex because the renovations were done so that the husband and his daughter could comfortably move into the wife’s home, particularly the finishing of the basement. Those are significant renovations and he should be compensated in some fashion for that. However, the wife did significant work to raise his daughter and was a hard working letter carrier as well as running the household.

I am satisfied after considering the facts that the parties did maintain a joint family venture and that pursuant thereto the husband should be compensated to some extent for those renovations. As indicated previously, there are few values of material, there are few dates when work was done and hours of work on which to rely. Having regard to all of the circumstances, I am satisfied that he should be compensated for $8,500.00 for the major renovation work done on the wife’s house. Matrimonial Property Act [ 74 ] These parties were married from 2002 until their separation in September 2008.

The provisions of the Matrimonial Property Act therefore apply in terms of distribution of property that was acquired during the course of the marriage. Sections 7 and 8 are instructive in terms of the distribution of that property. Those principles are clear and I do not propose to set them out in this Judgment. [ 75 ] The onus is on the Plaintiff to establish values of property on a balance of probabilities. I have spent many hours attempting to sort out values of property at important dates including dates when the common law relationship began, date of marriage, date of separation and date of trial.

Many of the figures required for a precise calculation are elusive. [ 76 ] For the most part, the parties maintained independent properties. Neither party contributed to the expenses of the other’s property. They did not share bank accounts. The husband made no financial contribution to the purchase of the lake properties. The husband lived rent free in property owned by the wife during the relationship from 1997 to 2008. The husband lived rent free even after the relationship ended from 2008 to 2010.

While together, however, the husband did contribute a share of the groceries to the household and also paid some utilities for the wife’s home. [ 77 ] The husband spent his RRSP on his business. There is no evidence that the wife was involved in any way with the business. The husband did not rent out his home for a period of time and in fact rented to the wife’s mother. The wife’s mother lived rent free for two or three years, paying $200.00 per month towards taxes. [ 78 ] The wife took a payout of her pension, earned during her time with Canada Post. She retired from that position in December 2005.

From December 2004, her retirement, she took a year’s leave without pay and I presume that there was no pension contribution during that period of time. The marriage took place in 2002. Therefore, pursuant to the Matrimonial Property Act , the husband may be entitled to the increase in the pension or payout that occurred from August 2002 (date of the marriage) until December 2004 - a period of 29 months.

We do not have any suggestion of the value of the increase in her pension during that period of time. [ 79 ] I am however gravely concerned about the dissipation of the husband’s RRSP before the marriage and during the marriage. He spent $80,000.00 and the wife received no benefit from that RRSP. I am further concerned about the husband’s involvement with the sale of drugs.

I am therefore not prepared to give the husband any interest in the pension that was accumulated by the wife either during the period of cohabitation or during the marriage. [ 80 ] The most significant assets are the parties’ Fraser Avenue houses. The renovations done to the wife’s Fraser Avenue house certainly allowed the blended family to live more comfortably in the wife’s home. It appears from the assessment of the values of the property that the wife’s property did not significantly increase in value as a result of those renovations.

If we look at the value of the husband’s property and the wife’s property throughout the time of cohabitation and marriage, the wife’s property was always worth more than the husband’s property. The work done in renovations by the husband therefore did not significantly add to the accumulation of the wife’s assets or wealth. [ 81 ] With regard to the Lake Lot property, the title was properly consolidated as a reflection of the intention of the parties. Therefore the proper value to use for Lot 10A is $95,000.00.

The purchase price of the lots was provided by the wife and she has maintained the mortgage debt to finance the purchase. Lake Lot 10 was purchased prior to the marriage. Any increase in value of the property during the marriage is set off as the husband lived rent-free in the various properties of the wife before and after separation. Lake Lot 11 was purchased during the course of the marriage and can be valued at about ½ the value of Lake Lot 10A - $47,500.00. The husband’s share of that asset ($23,750.00) can be set off against the motor vehicles owned by the husband.

[ 82 ] I conclude that the values of the Fraser Avenue properties owned by husband and wife have increased proportionately to each other and that no monies are due and owing by the wife to the husband for the values of the Fraser Avenue property even though her property is worth more than his.

Conclusion [ 83 ] After considering all of the evidence, I make the following findings: ∙ A Divorce Judgment was granted. ∙ Custody of the child of the marriage is given to the wife, with reasonable access to the husband. ∙ Ongoing child support shall be paid by the husband at the sum of $170.00 per month commencing September 1, 2011. ∙ The husband will pay 50% of s. 7 expenses. The wife will submit receipts 3 times per year and they shall be paid within 60 days. ∙ The husband has no interest in the Registered Education Savings Plan (Heritage Plan #[...]).

The RESP will be used solely for the sons’s further and continuing education. ∙ The 1991 BMW located at the Skeleton Lake lake lot (the Lake properties) belongs to the son. ∙ The husband’s moveable property including motor vehicle, tools and business assets will be removed from the Lake properties. ∙ I am satisfied that the values of the Fraser Avenue properties owned by husband and wife have increased proportionately to the other and that no monies are due and owing by the wife to the husband for the values of the Fraser Avenue property even though her property is worth slightly more than his. ∙ The child support arrears and the wife’s share of the remaining business inventory can be offset by the amount the wife owes for the house renovations. ∙ Each party will be responsible for the debts in their respective names. [ 84 ] As I result, I conclude that neither party owes the other in terms of equalization or child support arrears. [ 85 ] Both parties have been successful in their claims to some extent, therefore there will be no costs with regard to this matter.

Heard on the 29 th and 30 th days of June, 2011. Dated at the City of Edmonton, Alberta this 21 st day of September, 2011.

B.A. Browne J.C.Q.B.A. Appearances: Katie Noel Katie Noel Law Office for the Plaintiff Eileen Rose McNutt Appeared on her own behalf for the Defendant