Bergquist v. Bergquist, 2011 ABQB 623

Court of Queen ’ s Bench of Alberta Citation: Bergquist v. Bergquist, 2011 ABQB 623 Date: 20111013 Docket: 4812 005752 Registry: Wetaskiwin Between: Ralph Leroy Bergquist Applicant - and - Angela Bergquist Respondent _______________________________________________________ Oral Reasons for Decision of the Honourable Madam Justice D.C. Read _______________________________________________________ [ 1 ] Angela and Ralph Bergquist married on November 14, 1959 when both were 19 years of age. They separated on November 17, 2001 and divorced on February 20, 2004.

They have not managed to settle their matrimonial property and had a five day trial to divide matrimonial property. In addition, Ms. Bergquist, who was unrepresented at trial, wanted to deal with spousal support. It was Mr. Bergquist's position that the trial was with respect to matrimonial property only and that the Court had no jurisdiction to deal with Ms. Bergquist's claim for spousal support. [ 2 ] The issue of whether or not this Court has jurisdiction to deal with spousal support, must be dealt with first. The action was commenced on April 4, 2002 by Mr.

Bergquist as a joint divorce and matrimonial property action Statement of Claim. In fact, one of the claims he made in that Statement of Claim, was a claim for spousal support for himself. He has since abandoned that claim. Ms. Bergquist first filed a Demand of Notice in November of 2003 but, notwithstanding this, on March 31, 2011, filed a Counterclaim. As is

clear on the face of this document, she filed this herself. It is titled Counterclaim for Division of Matrimonial Property and the word ‘Divorce' on the form has been struck out by hand. However, in paragraph 9 of the document, she claims spousal support. Mr. Bergquist defended the Counterclaim, saying that the Court had no jurisdiction to grant support as this was only an action for division of matrimonial property. [ 3 ] The position of Mr. Bergquist is that the divorce judgment ended all of that portion of the claim that dealt with collateral relief, such as spousal support.

He points out that the judgment does not, on its face, sever collateral relief. In addition, the application for divorce proceeded after an order made by Foster, J. on February 10, 2004 which permitted Mr. Bergquist to "proceed with an application for divorce...by way of a desk application" and ordered that the "matrimonial property action be severed and determined at a later date". It is not clear from the face of this order if Ms. Bergquist was present either herself or through counsel at this application.

Nor did she or her counsel approve the form of divorce judgment. [ 4 ] The jurisdiction for a Court to award spousal support is found in the Divorce Act . In my view, this Act gives me the jurisdiction to hear and determine the application for spousal support.

Section 4(

a) provides that a court has jurisdiction to hear and determine a corollary relief provision if either former spouse is ordinarily resident in the Province at the commencement of proceedings. In this case, both parties were ordinary residents of Alberta when the Statement of Claim issued. It is trite law, of course, that relief will be granted only for that which has been plead but Ms. Bergquist has applied for spousal support so that cannot be a bar. Further, there is no limitation period in respect to an application for spousal support. Even assuming Mr. Bergquist is correct and the Divorce Judgment did end Ms.

Bergquist's ability to claim spousal support corollary to the divorce proceeding itself (and I note that the divorce judgment is silent on the issue and does not say that) if, I did not deal with Ms. Bergquist's claim today, there would be nothing to stop her from commencing a separate variation application under s. 5 of the Divorce Act and applying for spousal support in that fashion.

Thus, in all the circumstances, I have concluded that I have jurisdiction to deal with the spousal support issue and, further, that common sense and efficiency dictate that I hear the matter now. [ 5 ] Since the financial situation of each of the parties will not be clear until they know what property they will have after the property distribution, I will deal with property distribution first and then deal with the application for spousal support. [ 6 ] The matrimonial property portion of this action has a long history.

When the couple separated, they owned their matrimonial home and a farm, situated on the north west ½ of 27-48-22 W4th. For ease of reference I will refer to the land associated with the matrimonial home as the Hay Lakes farm. In addition, they owned a second parcel of land legally described as the S ½ of NW 32-45-17 W4th. I will refer to this land as the 80 Acre Parcel. They also owned a rooming house in the City of Camrose legally described as Lot 1 and the easterly 29 feet of Lot 2, Block 18, Plan 3706 ET. I will refer to this property as the Camrose Property.

There was also farm machinery and some out buildings located on the Hay Lakes farm as well as a number of vehicles. There was a farm loan on the property in the approximate amount of $30,000. Aside from that, there was various personal property. Ms. Bergquist also had a pension from the Teachers Retirement Fund. I will refer to this pension as the TRF pension. Mr. Bergquist also owned a 1/5 interest in mines and minerals under some land which he said had been given to him by his father. He claimed an exemption for this. Both parties have purchased land since the separation and, in some cases, since the divorce.

Mr. Bergquist owns a number of properties in Saskatchewan. Ms. Bergquist owns a home in Fort Saskatchewan, Alberta. [ 7 ] Some of the property owned by the parties at separation no longer exists or has been sold. There was a fire in the rooming house on the Camrose Property in 2006. The building was a total loss and the insurance company paid out $99,938 plus an added amount of $1,795 for lost rents. The Hay Lakes farm was subdivided. An acreage on which the matrimonial home is located, was carved out of this land.

I will refer to this subdivided property as the Acreage in these reasons. [ 8 ] The remainder of the Hay Lakes farm property was sold in December of 2008 for $304,000, according to the evidence of Mr. Bergquist. Unfortunately, the sale documents were not made an exhibit at the trial so I have no documentary evidence to show whether this amount is accurate, whether it was gross or net of sale expenses or whether all of the sale expenses were proper disbursements. However, I note, as well, that in her evidence, Ms. Bergquist also referenced $304,000 as the sale price for this property.

I note, further that as a part of her order made in April of 2008 permitting the sale of the Hay Lakes farm, Justice Moen set out what amounts could be paid from the sale proceeds. I will assume for the purposes of this judgment, that this order was followed and that, therefore, the amounts paid out from the gross sale proceeds were only those permitted by Justice Moen's order and that the net sale proceeds were placed in trust in accordance with Justice Moen's order. [ 9 ] A number of pieces of farm equipment and one of the trucks was sold at auction.

A net amount of $6,890.40 was obtained as a result of this sale. Other equipment was simply abandoned on the land when it was sold.

[ 10 ] Certain amounts were paid out of trust for various reasons. A total of $12,986.60 was paid for the costs of fighting the fire on the Camrose Property, a demolition permit and the cost to demolish the ruined rental property and to fill in the basement excavation. The major portion of this, $11,872, was paid out of trust. As well, the costs of subdivision of the Hay Lakes farm were agreed to be paid out. These totalled $12,843.

In addition, the parties agreed that each would receive an amount of $15,000 from the trust funds to enable them to pay income tax resulting from recapture of depreciation charged on the Camrose Property. [ 11 ] Further, on application in February of 2008, Justice Moen ordered a partial distribution of certain property. Ms. Bergquist wished to retain the Camrose Property and she was permitted to do so. The value placed on this property as a result of the Moen order was $112,000. She made a corresponding order that Mr. Bergquist receive a total of $112,000 in cash. This amount was paid to or to the account of Mr.

Bergquist once the Hay Lakes farm was sold and the funds were available to do so. Obviously I will not make a further distribution of this property and will ignore it for the purposes of my decision today. [ 12 ] Matrimonial property still available for distribution includes $234,586.38 held in trust at the offices of Mr. Bergquist's solicitor.

These funds include the balance of the funds received from the insurer for the rental property, the balance of the funds received from the sale of the Hay Lakes farm, the balance of the funds received from sale at auction of some of the farm equipment and some interest accrued while the funds were on deposit. [ 13 ] The 80 Acre Parcel has not been sold and the non-exempt portion of it must be distributed between the parties. The case law which has considered the Matrimonial Property Act , makes it clear that valuation of matrimonial property is at the date of trial.

I place the value of the 80 Acre Parcel at $135,600, on the evidence of Mr. Lawes, the appraiser, who completed a final appraisal of this property on August 22, 2011. In his opinion, the value had not changed since then. [ 14 ] The matrimonial home has also not been sold and its value must be distributed. I place its value and that of the surrounding Acreage at $346,900, also based on the expert evidence of Mr. Lawes and his last appraisal of August 15, 2011. [ 15 ] Ms. Bergquist argues that she should be able to purchase the matrimonial home for $195,000 because, she says that Mr.

Bergquist offered it to her at that price sometime during negotiations which occurred to try to settle property without going to trial. She refers to s. 8(

g) of the Matrimonial Property Act and says this provision deems the property to have been sold at the value of an oral agreement. Mr. Bergquist argues that Ms. Bergquist cannot rely on evidence of settlement discussions as these are privileged. [ 16 ] I disagree with Ms. Bergquist that s. 8(

g) of the Act deems property to be sold at a specific value. All it says is that any oral or written agreements between the parties which precede trial are to be taken into account when a trial judge divides matrimonial property. Here there is no admissible evidence of any oral agreement. Ms. Bergquist cannot reference inadmissible evidence of without prejudice settlement negotiations to argue that any agreement existed between the parties. Even, if she could, Ms. Bergquist tendered no evidence to show that she accepted Mr. Bergquist’s offer.

It is trite law that no agreement is reached until an offer is accepted. [ 17 ] Because I intend to divide Ms. Bergquist's TRF pension in specie in accordance with Ms. Bergquist's express wishes, it is not necessary for me to place a lump sum value on the pension. However, out of an abundance of caution I will do so, in case things change after the trial. I place the lump sum value of the divisible portion of Ms. Bergquist's TRF pension at $306,130, based on the evidence of Mr. Tettmar. Were I to value it for the purposes of division in a lump sum, I would discount this amount to $229,597.50.

I calculate the discounted value by subtracting 25% (being $76,532.50) of the value of divisible portion of the pension from the divisible portion to take into account the fact that a lump sum payment would be of pre tax funds and would attract income tax. I have chosen 25% rather than 11% as suggested by Mr. Tettmar or 32% as suggested by Mr. Santry. Neither of these witnesses was called as an expert to give opinion evidence respecting tax discount rates although both were prepared to offer an off the cuff opinion when asked. Eleven percent strikes me as too low and 32% strikes me as too high.

I do not know what amount is accurate and so I have elected to use 25%, a number somewhere in the middle of the amounts offered by the two experts. [ 18 ] Ms. Bergquist also asserts that Mr. Bergquist has failed to account for the income received from the Hay Lakes Farm property before it was sold and that received from the Camrose Property before the rental property burned down. Mr. Bergquist acknowledges that he owes Ms. Bergquist some money because he collected all of the rents and received all of the other income from these two properties during much of the separation period.

The parties cannot agree as to how much is owed to Ms. Bergquist.

[19] Under the terms of s. 7(4) of the Matrimonial Property Act, property acquired by the spouses during the marriage must bedivided equally between the parties unless it would be inequitable to do so after taking into account the factors set out in s. 8. For thebulk of the remaining property, there is no reason to disturb the rule of equal division. [20] Ms. Bergquist argues that there should be an unequal distribution of matrimonial property because of what she terms themismanagement and malicious intent of Mr.

Bergquist as well as what she says are the many injustices she has suffered during thecourse of the separation. I do not see any factors in this case that would take it outside of the presumptive rule of equal division. In myview, the property should be divided equally. [21] Therefore I will divide equally between the parties the following property: the amount remaining in trust, the non-exemptvalue of the 80 Acre Parcel, the amount that Mr.

Bergquist has on deposit in respect to his TRF contributions and, the value of thematrimonial home and the surrounding Acreage. [22] The funds held in trust at the office of counsel for the Plaintiff, are to be divided equally between the parties once all of theamounts I will order later in this judgment to be paid out prior to the division, have been paid. If any further interest has accrued on thesefunds during the time they have been on deposit, the interest will follow the principal. [23] I have found that the 80 Acre Parcel is now worth $135,600. Mr.

Bergquist claims an exemption in respect to this property.His evidence was that his father gave this property to him in 1978 at the same time that he gave similar property to each of his siblings.Both parties testified that the land was put into their joint names immediately. Mr. Bergquist called this a gesture of goodwill towardsMs. Bergquist because they had been trying to patch up marital difficulties at the time. Ms. Bergquist recalled that they both sat downwith Mr. Bergquist's father and he asked them whether the property should be put into both their names or into Mr. Bergquist's alone.

Itwas her evidence that Mr. Bergquist replied to the effect that "Angela's parents gave us half a house when we bought the home inCalgary. It is fair to put this land in both our names as a result". There was evidence from both parties that after the separation, Mr.Bergquist's father wrote a letter in which he indicated that he had intended the gift to be one to his son alone and not jointly to the couple.This letter was not placed in evidence. [24] Ms. Bergquist agreed at discovery that the value of the 80 Acres in 1978 was $24,000. Mr. Bergquist gave no evidence onthis issue.

The only other information I have about value is from a copy of the title included in Mr. Lawes' appraisals. It appears fromthis that the value put on the property for registration purposes in 1978 was $24,000. I find that the value of the 80 Acre Parcel in 1978was $24,000. [25] The law presumes that by putting an exempt property into joint names, a party intends to gift one half of the property to thejoint tenant. This presumption is rebuttable but I conclude that Mr. Bergquist has not rebutted it. Even on Mr. Bergquist's own evidence,it seems quite clear that he intended that Ms.

Bergquist own this property jointly with him. On the evidence of both parties, I find thatMr. Bergquist intended to gift a one half interest in this property to Ms. Bergquist in 1978 and did so. As a consequence, Mr. Bergquistlost one half of his exemption of $24,000. The remaining exemption is $12,000. The rest of the value, namely $123,600 is matrimonialproperty and divisible equally between the parties. [26] I will comment particularly with respect to the case of Jackson v. Jackson 1989 ABCA 197 , 68 Alta L.R. (2nd) 118since it was raised in argument. Mr.

West argued that the case stood for the proposition that a party lost only 1/4 of his exemption in aproperty by putting it into joint names. I disagree. I have reread the case in response to Mr. West's argument and remain firmly of theview that Jackson stands for the proposition that by putting a property into joint names, a party has lost one half of that exemption.

Iquote from the first full paragraph at page 122: The [trial] judge found that the exempted property had, as to a one-half interest, been given to the wife and I can find no error in fact orlaw in the conclusion that it thus lost its exempt status. [27] Putting a property in joint names presumptively gifts a one half interest in that property to the other joint owner. Thus, asStevenson, J.A. said in Jackson, agreeing with the disposition of the trial judge, one half of the property lost its exempt status. In otherwords, half of the exemption is gone. In this case, that means that Mr.

Bergquist's $24,000 exemption became a $12,000 exemption. Tobe sure the other $12,000 of the 1978 value remains matrimonial property and is divisible between the parties. $6000 is thereforeeffectively Mr. Bergquist's. However, that further $6000 is not exempt. It is simply his one half of matrimonial property valued at$12,000. That value has grown over the years and is now $123,600, as I have already said. Mr. Bergquist is entitled to half of $123,600

as well as his $12,000 exemption. To give him an $18,000 exemption would be to double count a portion of his one half interest in thematrimonial property and would effect an unequal division. [28] I will divide the TRF pension equally as well, but only after taking into account the calculations done by Mr. Tettmar toexclude out from the value of the pension the value that Ms. Bergquist earned before the marriage. I exclude, as well, the value that Mr.Bergquist has already received because of the election that Ms. Bergquist made at the time of her retirement. Essentially what thiselection did was to give Mr.

Bergquist the now unrevokable right to receive the entire pension for the rest of his life if Ms. Bergquistpre-deceases him. Mr. Tettmar testified that this right has a value and valued it. I agree with his analysis. Effectively, therefore, Mr.Bergquist has already received a portion of the value of the TRF pension. The election is now irrevokable because the pension is in pay.Nor will Ms. Bergquist be able to make any claim to this amount if Mr. Bergquist should predecease her although in argument, today,she seemed to suggest that she could. [29] As a consequence, I conclude that Mr.

Bergquist is entitled to only 39.8% of the monthly amount that Ms. Bergquist is nowreceiving and that amount, when considered together with the value of the pension that Mr. Bergquist has already received, constitutes anequal division. Although I am satisfied on the evidence of Mr. Tettmar that I could still divide the pension as a lump sum,notwithstanding that it is in pay, Ms. Bergquist would prefer that the pension be divided in specie and Mr. Bergquist has no preference. Iwill therefore divide the pension in specie. [30] I accept Mr. Tettmar's evidence that Ms.

Bergquist's current pension income is $2,425.11 before tax and that 39.8% of thatamount currently is $957.19. [31] As there is a cost of living benefit to this pension, the amount that both parties receive will change over time. The form oforder must be drafted carefully to ensure that the cost of living benefit will also be fairly distributed in the future. Rather than specify aspecific number, therefore, I direct that the trustees of the TRF pension divide the amount of pension payable at source and pay 39.8% ofthat amount to Mr. Bergquist, continuing to pay the remainder of the pension to Ms. Bergquist.

For ease of administration andcalculation, I direct that this division be made effective one month after the next pay date for this pension. In other words, assuming thispension is normally paid either at the end of or the beginning of each month, the next pay date would be either September 30 or October1, 2011. That is, either today or tomorrow. There certainly will not be time to put this into effect for the next pay date now. Repayment toMr. Bergquist of a retroactive amount is likely to create dissension and could create a hardship for Ms. Bergquist that I wish to avoid.

Mydirection is, therefore, that the division be effective either on October 31 or November 1, as appropriate. For ease of administration, Idirect, as well, that a separate order be drafted that deals only with the pension division and that this order be sent for review to thepension plan before it is entered. Because Ms. Bergquist is unrepresented, this task must fall to Mr. West, counsel for Mr. Bergquist andI direct that Mr. Bergquist be allocated $500 from the trust account funds before they are divided equally between the parties so that thistask can be accomplished. [32] I reject Mr.

Bergquist’s argument that he is entitled to a division of the pension amounts that Ms. Bergquist has received sincethe separation. When a pension is in pay, monthly payments are income and not matrimonial property, even though the pension, itself, ismatrimonial property. I have no idea whether the value of the pension on the date of separation differs from its value at the date of trialbecause no evidence was tendered respecting the value at the date of separation. However, that hardly matters since, as I have alreadysaid, cases such as Mazurenko v.

Mazurenko, (1981), 1981 ABCA 104 , 30 A.R. 34 (C.A.) have firmly established that the trialdate is the valuation date for purposes of division. In my view, in making this claim, Mr. Bergquist is attempting by a back door meansto obtain what is effectively retroactive spousal support. He has abandoned his claim to spousal support. I will not order that Ms.Bergquist pay to Mr. Bergquist any amounts she received from her TRF pension between the date of separation and the date of trial. [33]

Section 8(

f) of the Matrimonial Property Act dictates that a factor I must consider in a property distribution is whether theproperty was acquired by one or more of the spouses after the separation. Under s. 7(3)(c), property acquired by one of the spouses aftera divorce is also specifically mentioned. Under s. 7(3), there is no presumption that property so acquired should be divided equallybetween the parties. I am directed instead to distribute this property in a ‘just and equitable’ fashion. The five houses that Mr. Bergquistowns in Saskatchewan fall into this category as does his 1/4

section of land in Saskatchewan. The house that Ms. Bergquist owns in FortSaskatchewan Alberta also falls into this category. [34] The Saskatchewan houses were purchased by Mr. Bergquist after the separation and in some cases after the divorce. He usedhis own funds to purchase these and obtained no contribution from Ms. Bergquist, although clearly included in his own funds wasincome from both the Hay Lakes farm property and the Camrose Property. Mr. Bergquist did all of the work to improve these propertiesand that necessary as a landlord to rent them. Ms. Bergquist made no contributions to this work.

I conclude therefore that it would be justand equitable for Mr. Bergquist to retain 100% of the value of these properties and for Ms. Bergquist to receive no share in them. The

indirect contribution she made to Mr. Bergquist's cash flow, as a consequence of Mr. Bergquist's failure to account to her for the profits from the Hay Lakes Farm and the rental property is better dealt with by an award of interest on the funds owed to Ms. Bergquist in the accounting. [ 35 ] Mr. Bergquist's interest in the 1/4

section of land in Saskatchewan is also fully exempt both because it was purchased after the divorce and because it was purchased with funds already distributed by Justice Moen's order. [ 36 ] In respect to Ms. Bergquist's interest in the Fort Saskatchewan home, my decision has a similar result. On her evidence, Ms. Bergquist purchased this house with exempt funds that she inherited. There is no evidence to the contrary and I accept her evidence on this issue. From her evidence, as well, I am satisfied that it is very unlikely that the house has increased in value since purchase.

It was purchased in late 2008 when the housing market in the Edmonton area was near its peak and is encumbered by a high ratio mortgage. In any event, I conclude that since it was purchased after the parties' divorce and since Mr. Bergquist did nothing to contribute to the value of this asset, any increase in value should be distributed 100% to Ms. Bergquist and 0% to Mr. Bergquist. [ 37 ] I have not included in the equalization the amount of $1,795 paid by the insurer for lost rents when the rooming house burned because I accept Mr.

Bergquist's evidence that he divided the amount in half and paid one half into Ms. Bergquist's bank account. I see as well that Mr. Santry appears to have included it in his calculations. No further adjustment is warranted with respect to this amount. [ 38 ] Although Mr. Bergquist withdrew most of his own TRF pension during the course of the marriage, there is a small amount still remaining from relief teaching he did in about 1990, totalling $1,364.90. Mr. Bergquist may keep these funds in the equalization. Ms.

Bergquist is entitled to an equivalent amount from other assets. [ 39 ] The value of the matrimonial home is to be divided equally. I direct that it be sold and the net proceeds divided equally unless one of the parties wishes to purchase it. If either wishes to, they must indicate their intention in writing to the other party within thirty days from today, the date of my judgment. Otherwise, the home will be listed for sale at the appraised value with an accredited realtor licensed to sell real estate in the Hay Lakes area. The realtor will be chosen by lot. Each party will suggest the name of one realtor.

The two realtors' names will be placed in a hat, either literally or figuratively, and the parties will ask Mr. Santry or some other mutually agreeable person to draw a name out of the hat. The realtor whose name is drawn will be the listing realtor. Any sale at the list price or above will be accepted and both parties must sign all documents necessary to complete this sale forthwith.

If no offers are received at list price or above, within 60 days of the date of listing, then the parties will lower the price to the price suggested by the realtor acting reasonably and the home will be offered for sale at that price. If no offer is made within a further 60 days, then, if the parties cannot agree, they may approach me for further direction as to how the value in the matrimonial home is to be divided. [ 40 ] Ms. Bergquist has made considerable efforts and expended considerable funds to update and repair the matrimonial home since Mr. Bergquist and his now wife left the home in July of 2009.

She testified that she paid a carpenter, her son, and others to rebuild the pump house, re-do the deck, put stone on the front of the house, re-roof in cooperation with the insurance company after storm damage, parge the foundation and remove debris from the property. She claimed to have spent about $40,000 but provided no invoices or other documentation in support of this claim. She says she made these improvements because she thought the home was hers after she moved back in although how she could reasonably have had that thought, is not clear. [ 41 ] In argument, Mr.

Bergquist, generously in my view, agreed that if Ms. Bergquist wished to purchase the home, she could do so for one half of the appraised value less $40,000 to take account of this work. I direct therefore, that if she wishes to buy the home Ms. Bergquist may do so by offering Mr. Bergquist $40,000 less than one half of the appraised value of the matrimonial home or $133,450. No further adjustment is warranted with respect to improvements made by Ms. Bergquist. [ 42 ] Mr.

Bergquist claims a total of $26,292.06 for work he did on the Hay Lakes farm and on the Camrose Property and provided invoices detailing this work. Ms. Bergquist disagrees that Mr. Bergquist should be paid for this work and, instead, says that he should pay occupation rent for the time he and his now wife Ruth lived on the Hay Lakes property and for the time that he lived in one of the rooms on the Camrose Property. [ 43 ] I have reviewed the invoices which Mr. Bergquist provided.

Many of the jobs that he did while resident on the Hay Lakes property appear to be the normal work that someone living on a rural property has to do as part of regular life. In my view, he cannot

expect his former wife to share these costs when he was the one living on the property. In my view, his work on the property should be seen as paid for by his ability to live on the property rent free. I will not order occupation rent to be paid, just as I will not order occupation rent be paid by Ms. Bergquist for the time period she lived on the Acreage. Each obtained a benefit by being able to live in a property with no mortgage, half owned by the other party. Neither acted fairly to the other in respect to this property. Ms.

Bergquist should not have tried to rent this property to a third party with no discussion with Mr. Bergquist. Mr. Bergquist should not have moved back in without notice to Ms. Bergquist. However, the fact that both acted unreasonably does not change my view that occupation rent should not be paid. I agree with the reasoning of Slatter, J, as he then was in the decision Kazmierczak v. Kazmierczak , 2001 ABQB 610 . Particularly, I note that should occupation rent have been requested, the parties might have taken different positions with respect to spousal support.

In a family law situation, mutual obligations such as the obligation to support the other spouse should be considered at the same time as a claim for occupation rent. I risk creating a real injustice if I allow either party to make a claim for occupation rent now when both have essentially waived any right to obtain retroactive spousal support. [ 44 ] It does appear, however, that Mr. Bergquist made some few improvements by, for example, installing shelves and doing finishing in the basement. Doubtless, this work has made the home more saleable.

I propose to deal with this contribution in a fashion similar to the way I dealt with Ms. Bergquist's contribution. I direct that if Mr. Bergquist wishes to buy the home he may do so by offering Ms. Bergquist $10,000 less than one half of the appraised value of the matrimonial home or $163,450.00. This is less than I ordered in respect to Ms. Bergquist because my review of the work done by Mr. Bergquist leads me to conclude that it was of less value, both in terms of improvement to the value of the home and the out of pocket costs. No further adjustment is warranted with respect to improvements made by Mr.

Bergquist. [ 45 ] In respect to Mr. Bergquist's claim for work done on the rental property, my order is this. He lived for a number of months in the rental property. During those months, the work he did is fairly compensated for by the fact that he was able to live there rent free and the fact that in doing so, he lessened the amount of income which could be obtained from the property. Once he no longer lived in the property, he should be compensated for the work that he did since, otherwise, the partnership would have had to hire someone to do it. His claim is, however, excessive.

Rather than his claim for an hourly rate, it seems to me that a monthly fee of $100 per month would be much more reasonable. I order, therefore, that Mr. Bergquist be paid the amount of $100 per month for each of the months he managed the rental property from the first of the month after the month in which he left, until but not including the month that the building burned down. I do not know how many months that is but ask that Mr. West work it out and provide the number of months he proposes that Mr. Bergquist charge to Ms. Bergquist within thirty days of today. If Ms.

Bergquist wishes to dispute that number, she may make application on evidence to any judge of this court, within 15 days of the day she receives the number. Otherwise, she will be deemed to have accepted the number. [ 46 ] Mr. Bergquist purchased a number of pieces of the equipment taken to auction. As he bid upon these pieces at the public auction, he has purchased them at fair market value. They are now his property and not to be further divided. The items Mr.

Bergquist purchased at the auction are now his sole property. [ 47 ] Other than the property purchased at auction, no other items of any real value remain in Mr. Bergquist's hands. He has offered to allow Ms. Bergquist to keep all of the household furnishings and anything else that remains on the Acreage as her own separate property. Again, in my view, Mr. Bergquist is being generous in agreeing to this but, as he has agreed, I order that all of the household furnishings and any other piece of personal property which remain on the Acreage, are Ms. Bergquist's sole property. [ 48 ] On the evidence of Mr.

Terry Santry, the accountant for the parties for a number of years, I find that Mr. Bergquist owes Ms. Bergquist $29,720 plus interest for her portion of the income from the Hay Lakes farm property and the Camrose Property. Ms. Bergquist gave evidence, which I accept, that the parties treated the income from these two properties as part of the family income throughout the years they were together and that once they separated, they agreed to continue this practice. However, Mr.

Bergquist closed the joint account of the parties in October 2002 and after that, had the income from both properties paid into his own accounts. He used this income for his own purposes over the years. Mr. Santry continued to divide the income from these properties and to include half on each of the parties' income tax returns after the separation, just as he had before the separation. Therefore, Ms. Bergquist paid tax on one half of this income, notwithstanding that she received none of it. The parties purchased these properties together and much of Ms.

Bergquist's income as a teacher went to support the farm and to maintain and repair the rental property. In all of the circumstances, it was unfair to Ms. Bergquist to retain all of these funds. [ 49 ] However, I disagree with Ms. Bergquist that Mr. Bergquist owes her $39,184 plus interest for a total of approximately $51,000 based upon the first accounting done by Mr. Santry. In his evidence, Mr. Santry explained that the first accounting, made exhibit 34, was done with incomplete information, particularly as it related to payment for one of the loans which the partnership had.

Instead I accept his evidence as set out in exhibit 36, as more accurate – that Mr. Bergquist owes Ms. Bergquist $29,720. As Mr. Santry explained on the witness stand, in completing this calculation, he ignored 2002 because for most of that year, his information was that all of the income from the partnership and all of the expenses related to this income was dealt with in the joint account. He had no

information about what the balance of the account was at the beginning of 2002 and contradictory information from the parties as to how the expenses were paid after the account was closed, particularly a loan payment. In his opinion the numbers from 2003 to 2010 were much 'cleaner'. He therefore said that his last calculation, made exhibit 36 was the one he stood behind and thought was most accurate. I accept his opinion and agree that it is not his place to decide disputed facts. I accept his calculations in exhibit 36 rather than his calculations in either exhibit 34 or exhibit 35. [ 50 ] Mr.

Santry did not do any calculation of interest on the sums set out in exhibit 36. It is my view, however, that interest should be payable. I heard much evidence from Ms. Bergquist about her lack of money while she was attending the seminary in Saskatoon for two years in order to become a church pastor. She tried but was unable to borrow funds from lending institutions and had to borrow from her daughter. I am satisfied that she was as poor as the proverbial church mouse. Extra income would have been very welcome to her during those years.

I also heard much evidence from her about things she wanted to do over the years but was unable to because of lack of funds. While part of her problem was, undoubtedly, the fact that she was very reluctant to settle matters before trial and, in my opinion, based upon the evidence I heard, sometimes took unreasonable and illogical positions, some of her money problems could have been lessened had she continued to receive partnership income. For his part, Mr. Bergquist did have the use of both his and her portions of the income over the years. In effect, therefore, it is as if Ms.

Bergquist made an involuntary loan to Mr. Bergquist. She should not have to also make the loan interest free. I conclude that the interest rates which Mr. Santry included in his first calculation, Exhibit 34, are reasonable rates to use. He asked Ms. Bergquist to obtain the ATB fixed rate for Agri-loans for each year. I will use these. I direct that Ms. Bergquist be paid interest on amounts outstanding from Mr. Bergquist at the rate of 5.25% in 2003, 5.5% in 2004, 5% in 2005, 6.5% in both 2006 and 2007, 5.5% in 2008 and 4.75% in 2009.

As I have no evidence respecting a reasonable interest rate for either 2010 or 2011, I direct that interest be payable at 2% for each of those years. [ 51 ] Interest is to be calculated and compounded yearly. I have not done these calculations myself but direct that the parties request Mr. Santry to do these. Mr. Santry is entitled to be paid to do these calculations at his normal rates. I direct that Mr. Bergquist request this calculation be done and obtain it within 30 days of the date of this judgment.

The funds to pay for this calculation are to be paid from the trust funds before the remainder is divided. [ 52 ] Mr. Bergquist may decide to pay Ms. Bergquist what he owes from his portion of the funds held in trust but I will not direct that he do so. I will, say, however, that it is important to pay this immediately as any failure to do so will simply continue the dispute between the parties. [ 53 ] There is a further dispute between the parties about who paid a loan once the parties’ joint account was closed in October of 2002.

It is acknowledged that this loan payment was an expense of the revenue properties and that each of the parties should have been responsible to pay one half of it as a business expense and that it should have been included in determining the net income from the revenue properties. [ 54 ] The dispute is with respect only to a few months' payments. Ms. Bergquist says she made all of the payments on the loan herself after the joint account was closed in October of 2002 and that before the account was closed, all of these payments were made from the joint account. Mr. Bergquist acknowledges than Ms.

Bergquist made many of the loan payments but says that he made the payments of August, September and October of 2002 and also the one in May of 2006. I accept his evidence that he made the payment in May of 2006, because Ms. Bergquist essentially acknowledged in her evidence that Mr. Bergquist had made one payment. However, I do not accept his evidence that he made the payments in August, September and October of 2002. Instead, I find on the basis of Ms. Bergquist's evidence and a letter from ATB made evidence, that the joint account was closed on October 22, 2002.

A few of the account statements from the joint account were made an exhibit. However, these were very incomplete and comprised only a few months in 2002. They also did not include all of the pages of the statements. What I can see from these account statements is that the loan payment came out of the joint account in August of 2002. From this I conclude that Mr. Bergquist is mistaken in thinking that the August loan payment was made from his own sources.

Because of the lack of confirmatory evidence, I am unable to come to a certain conclusion as to whose funds were used to make the payments in September and October and so I will assume they were jointly made. [ 55 ] Because Mr. Bergquist acknowledges that she did so, I find that Ms. Bergquist made the loan payment for November and December of 2002. I find therefore, that ½ of each of these payments is also due to Ms. Bergquist from Mr. Bergquist for a total of $780. From this is to be subtracted ½ of the loan payment made by Mr. Bergquist in May of 2006.

The resulting amount of $390 is to be added to the total owed by Mr. Bergquist to Ms. Bergquist in respect to funds owed in the accounting of the partnership and is to attract interest in the same fashion. [ 56 ] My understanding from his evidence and from the contents of his letter to Ms. Bergquist which was made Exhibit 37, is that Mr. Santry has included the loan payments, including the amount paid on principal, in his calculations for the period 2003-2010. Thus,

although Mr. Bergquist acknowledges that Ms. Bergquist made all of the loan payments beginning in January of 2003 with the exception of the May 2006 payment, I have not made any further adjustment to the amount owed Ms. Bergquist from the partnership income to take into account the loan payments made by Ms. Bergquist or the single payment made by Mr. Bergquist after the end of 2002. If I am incorrect, and the calculations done by Mr. Santry do not take into account that loan payments were made by Ms.

Bergquist from January 2003 until the loan was paid in full with the exception of May 2006, then one half of the value of all of these payments should be credited to Ms. Bergquist. I request that Mr. Santry provide each of the parties with a letter confirming how he did his calculations. He may include his fee to write this letter in his bill and provide it to the parties for payment out of the trust funds before they are divided. [ 57 ] The mines and minerals interest is also exempt in Mr. Bergquist's hands. Ms.

Bergquist has agreed in argument, just as she did in discovery evidence made a read-in, that the interest was given to Mr. Bergquist alone. This asset has not appreciated in value since it was given to Mr. Bergquist in 1995 on the evidence I heard. [ 58 ] That brings me to Ms. Bergquist's claim that Mr. Bergquist failed to insure the rental property for its replacement cost and that he therefore owes her for a loss because of what she calls his mismanagement. This property was jointly owned by the parties and had been for many years before the separation.

On the evidence, it was never insured for replacement cost. Ms. Bergquist was not able to say she had ever requested either of the insurance agent or of Mr. Bergquist that the insured value be increased to insure for replacement cost. [ 59 ] Ms. Bergquist failed to receive three renewal letters from the insurance agent because they were forwarded from the Acreage property to Mr. Bergquist and he did not provide her with copies of these. She blames Mr. Bergquist for this failure and relies heavily on her failure to receive these letters as ‘proof’ that Mr.

Bergquist is at fault for the failure to insure at replacement cost. [ 60 ] However, in none of these letters was there any suggestion made by the insurer that the rental property be insured for replacement cost. As well, Mr. Bergquist testified that Ms. Bergquist never suggested while they were together that the insured value be increased. Ms. Bergquist felt 'locked out' of the rental property after the separation because Mr. Bergquist was 'in charge'. She seemed to think that his former lawyer had somehow engineered things to allow this and that she had no power to change it.

Nonetheless, had she asked for the advice of any of her many lawyers over the course of the years of this litigation, I am confident she would have been advised that she had as much right to the properties as did her husband. She could have telephoned the insurance agent at any time and increased the insurance had she thought about it. [ 61 ] It is tempting in hindsight and after a loss of the property as a result of an insured risk, to wish that the property had been insured for a greater amount. However, I doubt it was an error in judgment not to do so. The building was old and outdated.

Had the parties still been together when the property burned, I doubt they would have rebuilt it as is. Instead they would either have sold or rebuilt something different, just as Ms. Bergquist now intends to do. In any event, as Mr. West pointed out in argument, the parties actually got much more than its appraised value after the loss when one considers the payment from the insurer and the value of the lot. I doubt they lost anything from the failure to insure at replacement value and if they did, it was an error in judgment that is not Mr. Bergquist's sole responsibility and Ms. Bergquist must bear her share.

Mr. Bergquist owes Ms. Bergquist nothing for her claim for an insurance loss. [ 62 ] The last issue I must deal with is spousal support. This was a very long marriage. There is no doubt that both parties contributed equally to this marriage. Ms. Bergquist worked outside the home to help finance the farming operation and to bring much needed income into the family. On top of that, she doubtless did all of the work that a mother does to raise children and, even when she was working two hours away from home, came home every weekend so that she could cook, clean, and help with the farm work.

This was a partnership in every respect. On any theory of entitlement, Ms. Bergquist has an entitlement to spousal support. [ 63 ] Ms. Bergquist has made no claim for retroactive spousal support. She has, however, made a claim for ongoing support. [ 64 ] Right now, her income is very good. Notwithstanding that the breakdown of this marriage, devastated her and turned her future plans upside down, she had the fortitude and the necessary drive to re-educate herself and get back into the work force. Now at age 71, she is still working as a pastor.

Based upon their last year's income tax returns, her present income is much greater than that of Mr. Bergquist. Even after the pension division occurs, she has no present need for support and Mr. Bergquist would find it difficult to pay it. He is also 71 and continues his industrious ways. He also has the huge responsibility of caring for their granddaughter Tara who has lost her mother in tragic circumstances. As well, he has remarried.

[ 65 ] In the future, when Ms. Bergquist retires, the situation may be quite different. However, I have no crystal ball. I do not know what these parties' situations will be next week, next year or in 10 years. It seems to me that the best I can do for Ms. Bergquist today is to say that she has a clear entitlement to spousal support and when she retires, she may also have a need. If she does, then she may make an application for spousal support. A future judge will determine if Mr. Bergquist then has the ability to pay.

The form of judgment should indicate that her ability to claim spousal support on a change of circumstances is specifically reserved and may be dealt with in the future as needed. [ 66 ] For reasons given orally I order Ms. Bergquist to pay costs in the amount of $15,000. Heard from September 26 to 30, 2011. Dated at the City of Edmonton, Alberta this 12 th day of October, 2011. D.C. Read J.C.Q.B.A. Appearances: Martin West Farnham West Stolee LLP for the Plaintiff Angela Bergquist RR 1, Station Main Wetaskiwin AB T9A 1W8 appeared on own behalf