Boyda v. Shaw, 2011 ABQB 572

Court of Queen ’ s Bench of Alberta Citation: Boyda v. Shaw, 2011 ABQB 572 Date: 20110922 Docket: 4801 140698 Registry: Calgary Between: Howie Preston Boyda Plaintiff - and - Marilyn Juel Shaw Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice G.C. Hawco _______________________________________________________ [ 1 ] The parties began living together in September 1991, when Mr. Boyda moved in to Ms. Shaw’s house. They were married in November 1996.

They separated on September 14, 2008. [ 2 ] There was one child of the marriage, Bonnie, who was born on February 28, 1993. Bonnie turned 18 on February 28, 2011. Since turning 18, she has worked, other than one month when she spent learning how to become a mixologist. She does plan on returning to school this fall.

[ 3 ] Mr. Boyda worked for Greyhound Lines as a mechanic for more than 20 years until he quit or was constructively dismissed on January 11, 2011. [ 4 ] There are not a lot of assets in this marriage. Mr. Boyda claims he is not earning any money other than from his pension and a meagre amount from a new company he has started. Ms. Shaw, who represented herself, is clearly unable to work, at least as of this time. The trial was, to put it mildly, acrimonious. The issues appear to be these: 1. What should be Ms. Shaw’s exemption with respect to the house.

The house has been sold and the net proceeds have been held in trust pending this decision. Efforts were made to release some of the funds earlier by consent. Mr. Boyda was not prepared to consent to the release of any of the funds. 2. How should Mr. Boyda’s pension be divided? 3. Is Bonnie still a child of the marriage? 4. Is Ms. Shaw entitled to matrimonial support? 5. How are the remaining assets of the marriage to be divided? [ 5 ] The short answers to the issues are: 1. Ms. Shaw’s exemptions is $65,000.00. She is entitled to certain costs over and above that amount. 2.

The pension has been divided but may be subject to adjustment. 3. Bonnie is not a child of the marriage under the Divorce Act , but may become one. 4. Ms. Shaw is entitled to limited matrimonial support. 5. The assets will be divided as provided for in this judgment. Exemptions [ 6 ] Ms. Shaw owned her own home when she and Mr. Boyda began living together in September 1991. The house sold in June of this year for $360,300.00.

From the sale proceeds, $102,250.99 was paid to the Bank of Montreal on a joint line of credit, $22,186.29 was paid on a MasterCard debt, the mortgage was paid out and real estate commissions and legal fees were paid. [ 7 ] The sum of approximately $148,000 remains in trust. Ms. Shaw claims an exemption of $93,569.00. She also claims various costs which she incurred to keep the house in reasonable condition pending the sale. [ 8 ] One would normally present evidence of what the fair market value of the house was as of September 1991. Neither party presented any such evidence. Ms.

Shaw is, as stated, seeking to have her exemption set at $93,569.00. That figure was arrived at by

taking a down payment which she put towards a house in 1987 of $30,000 and adding in some $48,500 which she paid over the intervening four-year period by way of mortgage payments and property taxes. In addition, she was seeking the sum of $13,000, which I assume would her be her calculation of the increase in value of the house in four years. [ 9 ] Having no evidence of the market value of the house as of September 1991, I am left with having to estimate what may have been the value as of that date.

I have calculated that value to be have been $128,000 by simply assuming the property increased by 5% each year, between 1987 and 1991. The original purchase price was $105,000. The increase in value was approximately $23,000. [ 10 ] The $48,500 which Ms. Shaw seeks to have added to her equity of $30,000 in property cannot be claimed as costs which would increase her equity and, therefore, her exemption. Most of those costs relate to payment of the interest and property taxes which cannot be taken into consideration in determining the equity.

Those are costs of living in the property and costs of owning the property. [ 11 ] What can be taken into consideration and should be taken in consideration is the increase in the market value between 1987 and 1991 of $23,000. This is what I have attempted to do in trying to ascertain what the market value was. That increase should be taken into consideration, together with the original equity of $30,000. The amount that the mortgage has been decreased is also to be taken into consideration.

I do not have a figure on that but I have estimated that it decreased by $10,000, which amount the Plaintiff has accepted as being appropriate. Ms. Shaw therefore would have had an equity of approximately $63,000 in the house. Her costs of acquisition were approximately $2,000, which would leave her with an exemption of $65,000 as of September 1991. That is the amount which I find is her exemption when cohabitation began. [ 12 ] Ms. Shaw also seeks to have deducted certain costs from the monies in trust before they are divided and distributed.

These have been set forth in Exhibits 12 and 13. [ 13 ] Exhibit 12 sets out a number of expenses which Ms. Shaw says relate to maintaining the house, plus other costs relating to her daughter’s phone and certain of her daughter’s car expenses and life insurance. The utility expenses are something which Mr. Boyda should be required to pay, given that they were incurred while the house was for sale. They do relate to the cost of maintaining the home while it was listed and until it was sold. The costs of installing an alarm and new locks appear to relate to Ms.

Shaw’s concern of what she alleged were acts of harassment by Mr. Boyda. I am not satisfied that Mr. Boyda was responsible for such costs. An alarm system and new locks would have enhanced the value of the house in any event. I have not allowed those costs. Exhibit 12 sets out the costs claimed. The costs which I have accepted from Exhibit 12 amount to $922.62. [ 14 ] Ms. Shaw has also claimed that Mr. Boyda should be responsible for the property taxes which she paid from the date of separation until the sale of the house. Upon proof of payment being presented, Ms.

Shaw is entitled to receive one-half the amount paid. [ 15 ] The expenses in Exhibit 12 which relate to Bonnie’s phone and car do not fall under

section 3 or

section 7 expenses and are not allowed. The claim for money spent on purchase of shares in the stock market by Mr. Boyda, which became worthless, are not allowed. Had they increased in value, they would have been a matrimonial asset. Because they have become worthless does not entitle Ms. Shaw to recover the money spent on them. [ 16 ] There was a large claim, some $12,000, being made with respect to monies alleged to have been spent on miscellaneous house and yard items, including a fence and yard work.

Those costs would have gone into improving the value of the home and both parties will therefore benefit equally through the sale of the home. They are not reimbursable separately. There were other items for which Ms. Shaw sought to be reimbursed. Some related to other house expenses not claimed previously. Mr. Boyda agreed to some of them. Those are set out on a page beginning with a claim of November 9, 2007 for $21.12. The amount of $2,780.08 is agreed upon by Mr. Boyda. No evidence was led with respect to any of those so the balance being claimed is not allowed. [ 17 ] Ms.

Shaw has also submitted a number of receipts with respect to items which are claimed to have been

section 7 expenses. Mr. Boyda has agreed to these. They were in a bundle with the first page headed “Recreation”. Within that package were three duplicates in a total amount of $663.00, which are not allowed. The balance, being $1,286.14 are allowed. [ 18 ] Finally, there appears to be medical expenses of $1,307 which were not covered by ManuLife and which Mr. Boyda has agreed are reimbursable. These will be reimbursed to Ms. Shaw.

[ 19 ] As a result of these calculations, Ms. Shaw shall receive from the monies being held in trust, the sum of $71,185.84. The balance shall, subject to any further deductions or calculations as set forth in this judgment be divided equally between the parties. Pension [ 20 ] At the conclusion of the presentation of evidence and argument, I ordered that Mr. Boyda’s pension, acquired or earned while he and Ms. Shaw lived together, be divided, as of the date of separation. [ 21 ] I believe that I made a mistake in that regard. Under

section 7(

c) of the Matrimonial Property Act , the Court shall distribute the matrimonial property, valued as at the time of trial. Such property is to be divided equally unless the Court considers it should not do so for any reason set forth in

section 8. I am satisfied, after taking into consideration the matters set forth in

section 8, that the property is to be divided equally and is to be valued as of the date of trial, which I set at June 30, 2011. [ 22 ] If the use of the date of September 2008 has resulted in Ms. Shaw having received a pension lower in value than it would have been had it been valued as of June 30, 2011, Mr. Boyda shall pay the difference to Ms. Shaw on an on-going basis. If it has resulted in a different lump sum being awarded, the difference in value shall be paid out of Mr. Boyda’s share of the house sale proceeds. Bonnie Boyda [ 23 ] Bonnie Boyda ceased being a child of the marriage as of February 28, 2011.

She has not been in school other than taking a mixology course at SAIT since June 2010. She does plan on going back to school this year. If she does and lives with Ms. Shaw, Ms. Shaw will be entitled to receive child support, based upon an income of $78,420.11. Ms. Shaw will continue to receive that support while Bonnie remains in school. If she attends only part-time, she will be expected to work to help defray her expenses and any monies she earns will be taken into consideration in the amount of support payable by Mr. Boyda. Spousal Support [ 24 ] Mr.

Boyda had a managerial job with Greyhound Lines which he held for over 20 years. In January of this year, he left it, claiming he had been constructively dismissed. A law suit resulted in a settlement which saw him receive $45,000 plus vacation pay of $15,000. In addition, as of trial, he had earned $9,200 for a gross salary for 2011 to date of trial of approximately $70,000. If one can assume that he can earn at least another $9,000, his annual salary for 2011 would be approximately $79,000. I do appreciate that Mr.

Boyda has left a job which paid him approximately $100,000 a year for the three years prior to 2011. I am not prepared to say he should have an income of $100,000 inputed to him because he may well have felt he had no choice but to leave his employment with Greyhound Lines. He has started a new company and has not been doing very well monetarily. He should have an opportunity of getting on his feet. However, he is a skilled mechanic and he did, or will, make at least $79,000 this year. He should be able to do the same next year. He is capable of paying support if Ms.

Shaw is eligible under our laws. [ 25 ] In considering whether Ms. Shaw is entitled to support, the Court is to take into consideration whether a spouse has been disadvantaged as a result of the marriage or as a result of the breakup of the marriage. The Court should look to the length of the relationship, circumstances of each spouse, including income, age, ability to earn an income and the health of each spouse. [ 26 ] Each party was working at the time the relationship began. Within two years, Bonnie was born. Ms.

Shaw took two years off from her work, returning in February 1995. [ 27 ] In 1999, she suffered a stroke and was off for two months. In 2000, she took a medical leave. She has not worked very much since then, earning somewhere between $20,000 and $30,000. She has worked very little this year, despite making many applications for her employment. [ 28 ] There is no doubt that Ms. Shaw is not able to work at this point in time. She is simply not very well. She may not have been disadvantaged by the marriage, but she has certainly been disadvantaged as a result of the dissolution of the marriage.

[ 29 ] I am satisfied that Ms. Shaw is entitled to support. Mr. Boyda has been paying her $2,000 a month. That amount is an appropriate amount up to this time. From this point on, the advisory guidelines suggest a range of $1,600 to $2,000, assuming an income of $107,000 to Mr. Boyda and $20,000 to Ms. Shaw. She has not been able to meet that goal for 2011. Given Mr. Boyda’s drop in income for 2011 and the uncertainties of the future, I will set spousal support at $1,800. The duration is indefinite. The support is subject to variation or review on an annual basis.

Remaining Assets [ 30 ] The most acrimonious issue between the parties has concerned two dogs which were registered in the names of Ms. Shaw, Mr. Boyda and Bonnie Boyda. Justice Mahoney ordered some time ago that, since neither Ms. Shaw nor Bonnie Boyda was able to take the dogs, Mr. Boyda could take them and be permitted to give them away. He did so. The dogs are gone. Where they have gone and to whom they were given is no longer relevant. They did, however, constitute part of the matrimonial property.

While they are difficult to replace, given the length of time they were with the family, and while no value can really be assigned to the personal feelings, I am going to value the dogs for replacement purposes at $2,000. Ms. Shaw shall therefore receive $1,000 from Mr. Boyda with respect to the disposition of the dogs. [ 31 ] The debts of the parties to the various banks and credit card companies have been paid off as the date of separation. They have been paid from the proceeds of the sale of the house.

There have been arguments made on both sides that each has been unfairly treated in so far as debts paid off are concerned. As best I can determine, the Bank of Montreal debt should have been $96,137.23 as of September 15, 1998. The Bank of Montreal was paid $102,250 on June 30, 2011. I must assume the difference was interest, which constitutes a matrimonial debt as well. I am satisfied there are no further adjustments to be made. [ 32 ] Mr. Boyda’s interest in his family farm has been held prior to his relationship with Ms. Shaw. That is exempt. [ 33 ] Ms.

Shaw’s interest in her mother’s estate is exempt property. [ 34 ] With respect to property in British Columbia, there is property which is jointly owned and is referred to in Exhibit 19. That property is to be sold as soon as possible and the net proceeds divided equally. The latest information from the B.C. Tax Assessor’s Office is that the property is worth approximately $40,000. Travel Trailer [ 35 ] This is either to be sold and the proceeds divided equally or valued and Ms. Shaw paid one-half the value. Vacation Time-Share [ 36 ] It is agreed that this shall be transferred into the name of Ms. Shaw.

Household Contents [ 37 ] These have been divided. An argument has been made on each side that there should be an adjustment. There will be no adjustment as I find the values are roughly equal. R.R.S.P.s [ 38 ] Each party has effectively cashed out their R.R.S.P.s prior to the trial and used them to pay debts. There are to be no further adjustments made. [ 39 ] This has been a very difficult trial, for all concerned. I have attempted to deal with all outstanding issues. There should be no need for any communication between the parties other than to complete the few remaining transactions to which I have referred.

[ 40 ] Although Ms. Shaw has been successful in large part, this trial has been prolonged as a result of far too many irrelevant and unnecessary applications and evidence. There will be no costs. [ 41 ] Ms. Shaw is prohibited from commencing further action or initiating any application in this action, excepting for an appeal, should she wish, without leave of the Court, on notice to Mr. Boyda to appear. Heard on the 13 th to the 16 th day and the 29 th and 30 th day of June, 2011. Dated at the City of Calgary, Alberta this 22 nd day of September, 2011. G.C. Hawco J.C.Q.B.A. Appearances: JoAnne E. Heming Heming & Associates for the Plaintiff Marilyn Juel Shaw Self-Represented