Rands v. Rands, 2011 ABQB 605

Court of Queen ’ s Bench of Alberta Citation: Rands v. Rands, 2011 ABQB 605 Date: 20111005 Docket: 4803 121957 Registry: Edmonton Between: Debbie Lee Rands Plaintiff - and - Gary Wade Rands Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R. J. Hall _______________________________________________________ [ 1 ] In this matter the parties seek a division of matrimonial property.

An Agreed Statement of Facts was marked as an exhibit. However, amendments had to be made to that Agreed Statement of Facts, such that an Amended Agreed Statement of Facts has now been provided to the court. The facts set out therein are as follows:

1. The Plaintiff was born on [...], 1959, in Regina, Saskatchewan and is fifty two years of age. The Defendant was born on [...], 1961, in Orillia, Ontario and is fifty years of age. 2. The parties were married on January 7, 1984, in Chilliwack, British Columbia, at the time of the marriage both parties were single. 3. There were two children born of the marriage, Jamie Lee Rands, born[...], 1991, and Cory Wade Rands, born [...], 1985. Pursuant to the Divorce Act neither of the children is considered to be a child of the marriage for the purpose of the divorce action. 4. The parties separated on April 3, 2001. 5.

There is no claim for spousal support by either party. 6. The parties have agreed on a retroactive adjustment to child support to the credit of the Defendant in the sum of $3,114.03. 7. The Plaintiff has been employed with the Canadian Armed Forces since May 27, 1984, to the present. The Defendant had been employed with the Canadian Armed Forces until 1997. From 1997 to 2004, he was employed at the Edmonton Maximum Institute with Corrections Canada. In 2005, the Defendant was employed as a civilian at CFB Cold Lake, Alberta. In 2008, the Defendant began receiving long-term disability benefits. 8.

The Plaintiff has a pension with the Canadian Armed Forces Pensions. The amount that would be paid to Mr. Rands as a result of the equal division of Ms. Rand’s pension entitlement under the Canadian Forces Superannuation Act for the period from the date of marriage being January 7, 1984, to December 21, 2010, would be approximately $280,246.70. The amount that would be paid to Mr. Rands based on the period of cohabitation from January 7, 1984, to April 1, 2010, would be approximately $155,652.31. 9. The Defendant has a pension with Public Works and Government Services Canada. The amount that would be paid to Ms.

Rands as a result of the equal division of Mr. Rand’s pension entitlement during the same would be approximately $45,678.73. [ 2 ] The matrimonial property in issue involves a recreational cottage in Saskatchewan (the “cottage”), a boat that was purchased at the same time (the “boat”) with an agreed value of $2,000.00, RRSPs that were registered in the name of Mr.

Rands and which had a value, as of December 31, 2001 of $14,627.95, and the pensions of both parties, referenced in paragraphs 8 and 9 of the Amended Agreed Statement of Facts, set out above. [ 3 ] The parties have been separated since April 3, 2001, i.e. more than 10 years. [ 4 ] When the parties separated, the husband moved out.

He attended at the rented premises where the parties were living, and took some furniture, a television, a stereo, and a painting with him, leaving the rest of the furnishing and a second painting by the same artist with the wife. [ 5 ] He cashed in the RRSPs, and says that he used the amount received, net of taxes, for his new household expenses. He kept the replacement boat, and continued to make the payments on that boat until those payments were retired.

Each party kept their own vehicle, and each made payments on loans taken out for their respective vehicles. [ 6 ] While there was no written agreement reached with respect to the household furnishings and the vehicles, the parties are satisfied with the arrangements which they made, and no further claim is put forward in respect of those assets.

THE COTTAGE [ 7 ] The cottage had been purchased in the name of both parties during the course of the marriage, for $39,000.00. After the separation the parties attended the law firm of Hansma & Bristow, with a view to settling the division of matrimonial property. Hansma & Bristow prepared a transfer of land whereby the husband transferred his interest in the cottage to the wife.

The transfer was executed by the parties, but was left with the law firm, and each party signed a handwritten note on June 7, 2001 that specified “transfer is not to be released until separation fully signed or both parties instruct to release in writing”.

It is clear that, while the parties intended that the wife would receive the cottage as part of an eventual settlement, the division of the rest of the matrimonial property was not agreed upon at that time, and accordingly the law firm held the executed transfer in trust, awaiting further instructions. [ 8 ] In August of 2001 the parties returned to the law firm again for the purpose of further discussing the transfer of matrimonial assets.

Again, however, no agreement was reached on that occasion. [ 9 ] On March 20, 2002 Hansma & Bristow sent a letter to the wife referencing the meeting of August 2, 2001 and stating: After that meeting, it was my understanding that you and Gary were going to discuss the two unresolved issues (division of pensions versus a mutual waiver and the disposition of Gary’s back pay) and advise me how you wanted to proceed. It has now been over eight months, and I have not been contacted by you regarding this. I remind you that I still have the transfer of land related to the property in Saskatchewan.

Pursuant to the instructions from both you and Gary, the transfer cannot be released to either one of you without written instructions from both of you or a Signed Separation Agreement. Please advise me if you require any further assistance from my office. Yours truly, Hansma & Bristow per: Tracey L. Bristow [ 10 ] The wife gave evidence that she received this letter and arranged with her estranged husband to attend at the lawyers’ office for the purposes of retrieving the transfer of land.

It is noteworthy, by this time that each party had their own counsel in respect to their divorce and matrimonial proceedings. Issues existed not only with respect to matrimonial property, but also with respect to custody, access and child support for the children. However, neither party engaged their lawyers in the process of retrieving the transfer of land from Hansma & Bristow. [ 11 ] On April 25, 2002 the parties attended at Hansma & Bristow and recovered the transfer of land. In evidence is a receipt dated April 25, 2002, signed by Mr.

Rands, noting that Gary Rands and Debbie Rands received the transfer of land from Hansma & Bristow. [ 12 ] The evidence of Mr. Rands is that Ms. Rands persuaded him to leave the transfer of land with her, for safe keeping, as she was afraid that Mr. Rands would lose it. [ 13 ] Ms. Rands states that it was her understanding that the office of Hansma & Bristow was going to register the transfer of land in Saskatchewan in her name. She acknowledges that she made no arrangements for that to occur, that she paid no fee for that to occur,

nor did she arrange to cover disbursements for that to occur. She gives not evidence that the matters referred to in Ms. Bristow’s letterwere resolved. [14] I find Ms. Rands’ evidence in this regard to be wholly unreliable. I accept Mr. Rands’ version of what took place. [15] No written agreement was ever entered into between the parties, nor was there independent legal advice given to the parties inrespect of any such agreement. The alleged oral agreement does not comply with

Section 37 and 38 of the Matrimonial Property Act.Failing such a signed written agreement in compliance with those sections, the law is clear that no enforceable agreement has beenreached. See Corbeil v. Bebris (1993), (AB CA), 105 D.L.R. (4th) 759; Voll v. Voll, [2008] ABQB 89 and the casescited therein. [16] Ms. Rands kept the transfer of land until December, 2003. At that time she says she was scheduled to be assigned to serve inAfghanistan, and she was concerned that she might not be coming back. She arranged for the filing of the transfer of land, transferringthe property into her name.

She then executed another transfer of land, transferring the cottage to her mother. Her mother paid hernothing in return at the time of transfer. [17] While Ms. Rands’ original evidence was that she gifted the property to her mother, in cross examination she admitted that theproperty was placed in her mother’s name for “safe keeping”, so she could look after it, if something happened to Ms. Rands. [18] Clearly, in such circumstances, Ms. Rands’ mother became a trustee of the cottage. [19] Ms. Rands performed repairs to the property in June of 2003.

While she had been quoted some $4,500.00 for the repair, in factthe bills came to approximately $10,000.00. She says, at that time, she contacted Mr. Rands to see if he would lend her some money topay for those repairs. She says that Mr. Rands refused, saying that it was her cottage and it was her problem. [20] Mr. Rands denies that any such discussion ever took place. I am not persuaded that Mr. Rands has made the admissionsattributed to him. [21] Ms.

Rands indicates that, in 2005 her mother forwarded to her the sum of $21,000.00 to allow her to purchase a property inComox, BC, and then a further $18,000.00 which she used to pay off debts, lawyers fees, and some repairs to her Comox property. Shenotes that the amount paid to her by her mother was $39,000.00 in total. She then maintains that that $39,000.00 represented payment toher of the value of the cottage, such that her mother became the beneficial owner of the cottage at that time. [22] Ms. Rands and her mother may indeed have felt that the payment of $39,000.00 to Mrs.

Rands might be seen as having thiseffect. However, I do not accept that to be the actual effect of these transactions. I consider Ms. Rands and her mother have agreed toproceed in this fashion as if to evidence a sale of the cottage to the mother when, in fact, no such sale ever took place. [23] It is to be noted that, in September of 2001 Ms. Rands issued a Statement of Claim for divorce and division of property. It isclear that division of property had not been settled between the parties at that time, nor in December of 2003 at the time Ms.

Randstransferred legal title to the cottage to her mother. [24] For these reasons I determine that the cottage remained matrimonial property owned beneficially by the two parties to thisaction and that no enforceable agreement with respect to its disposition had been reached between the parties. [25] On August 29, 2008 Ms. Rands’ mother sold the property to an arms-length purchaser for $230,000.00. Ms. Rands maintainsthat there is no agreement between her and her mother that Ms. Rands will receive any of those funds.

[ 26 ] Regardless of whether I accept that to be the case, in law, Ms. Rands’ mother has received those funds as trustee, and she would be required to pay those funds to the beneficiaries. [ 27 ] Ms. Rands’ mother is not before the Court, and I am in no position to compel such a return of funds in this action. [ 28 ] Nevertheless, I am able to determine that, as of August 2008 the cottage was sold and $230,000.00 was realized from that sale. The parties are entitled to distribution of that property pursuant to the Matrimonial Property Act . I will return to that distribution later in these Reasons.

THE PENSIONS [ 29 ] During the marriage both parties were members of the Canadian Armed Forces. In 1997 Mr. Rands left the employ of the Canadian Armed Forces. His pension had not vested. Accordingly, he was repaid his contributions made to the pension plan, in the amount of $31,000.00. Mr.

Rands gave evidence that some of that money was used for family expenses, and some was used to retire the debt that had been taken out on the purchase of the cottage. [ 30 ] I am satisfied that the family got the benefit of that payout of pension contributions, and the funds were dealt with in accordance with both parties’ wishes. [ 31 ] In 1997 Mr. Rands became employed with the Edmonton Maximum Institute with Corrections Canada and again started pension contributions.

In 2005 he became employed as a civilian at CFB Cold Lake, Alberta, and his pension contributions were carried over into that employment. [ 32 ] From shortly after the commencement of the marriage to today’s date Ms. Rands has been continuously employed with the Canadian Armed Forces. [ 33 ] The parties seek a determination as to the proper division of the two pensions aforesaid. Ms. Rands maintains that the pension division be made effective the date of separation, while Mr. Rands argues that the division should be made effective the date of trial. [ 34 ] Ms.

Rands notes that the division of these pensions is governed by the Pension Benefits Division Act SC 1992 c. 46

Schedule II, which applies to pension plans provided by the Public Service Superannuation Act , Canadian Forces Superannuation Act , and the Defence Services Pension Continuation Act . That Act contemplates that the Minister in charge of that Act will divide the pension benefits between a spouse and former spouse and will do so for the period during which the member of the pension plan and the spouse cohabited (section 8(s)).

That is the case if the Court is not involved. [ 35 ] However if the Court is involved, then the Minister shall divide the pension during the period specified in the Court Order (section 8(3)). I am satisfied that the Court, therefore has normal jurisdiction with respect to the division of the pensions, and where the Court makes an order, the Minister shall follow that order. [ 36 ] The Alberta Court of Appeal in the decision of Hodgson v.

Hodgson , 2005 Caswell Alta. 29 clarified the law as to division of matrimonial property, stating that the value of matrimonial property should be determined as of the date of trial, and that the date for division of matrimonial property is the date of trial. [ 37 ] However, the Court then noted that the Court is required to apply the provisions of

section 7 and 8 of the Matrimonial Property Act , and then, having done so, distribute the asset in a manner that the court considers just and equitable.

[ 38 ] Pensions differ considerably from other matrimonial property assets, particularly where the parties have been separated for a lengthy period of time. During that period of time, the pensioner has continued to be employed and to make contributions to the pension while the former spouse is making no such contributions. It is because of the pensioner’s efforts alone that the pension increases in value. Accordingly, except in some unusual circumstances, which do not exist here, the factors set out in

section 8(a), (b), (

c) and (

f) are important considerations for the Court, and lead to the conclusion that neither party should share in the appreciation of the other party’s pension for the period of time for which the parties were separated. PERCENTAGE DISTRIBUTION [ 39 ] Accordingly, this Court determines that the respective pensions of the parties are to be distributed between the parties as at the time of separation, rather than at the time of trial. [ 40 ] As to the percentage distribution of all of the matrimonial property in issue herein, there is no reason to depart from the normal 50/50 distribution.

Both parties have been employed throughout the course of the marriage. Both parties earn approximately the same amount of income. Since separation, each party has been the primary care giver for one of the two children of the marriage. Mr. Rands is presently off work and being paid a disability pension. Mrs. Rands also receives a disability pension, although smaller.

She remains employed at this time, but has expressed some concern that she will not pass the physical to continue to be employed when next she is required to do so. [ 41 ] I do not find that there is a substantial enough inequity between the two parties respective positions to merit an award other than on an equal distribution basis, for the assets being distributed herein. CONCLUSION [ 42 ] In the result, I find that Ms. Rands must pay one-half of the net proceeds from the cottage to Mr. Rands. Those proceeds are to be calculated by subtracting from the $230,000.00 sale price the amounts which Ms.

Rands has contributed to the maintenance, insurance, taxes and utilities for the cottage during the time of separation. The remainder is to be split on an equal basis; and Mr. Rands shall have judgment against Ms. Rands for that amount. [ 43 ] Mr. Rands traded in the family boat and received credit of $2,000.00 towards the purchase of his new boat. One-half of that $2,000.00 is to be paid by Mr. Rands to Ms. Rands. [ 44 ] Mr. Rands is to pay Ms.

Rands one-half of the $14,627.65 value of the RRSPs. [ 45 ] The payments ordered herein are to be set off. [ 46 ] Each party shall be entitled to their own disability pensions without any payment being made to the other. The Government of Canada employment pensions are to be divided equally between the parties as at the time of separation. [ 47 ] Each party has borne the expense of having counsel represent them in sorting out the matrimonial property division, and each party has had some success in this trial.

In the result, I award no costs to either party. [ 48 ] Should issues arise regarding the calculations made hereunder, counsel may return to me for a ruling and that regard I shall not be functus officio .

Heard on the 19th and 20th day of September, 2011. Dated at the City of Calgary, Alberta this 30th day of September, 2011 R. J. Hall J.C.Q.B.A. Appearances: Dennis E. Bayrak for the Plaintiff Chris McKay of McGee Richard for the Defendant