Simmons v. Van Alstyne, 2011 ABQB 713

Court of Queen ’ s Bench of Alberta Citation: Simmons v. Van Alstyne, 2011 ABQB 713 Date: 20111118 Docket: 4812 007749 Registry: Wetaskiwin Between: Jaime Lynn Simmons Plaintiff - and - Kelly Napolean Van Alstyne Defendant Corrected judgment: A corrigendum was issued on January 9, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment.

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 J.H. Goss _______________________________________________________

I. Introduction [ 1 ] The Plaintiff and Defendant were married on May 2, 1992. They have one son, Zachery, born in 1994. The parties separated on July 1, 2009. The parties have shared the parenting of Zack for much of their separation. Zack is now 17. [ 2 ] The issues for determination at trial are granting of a Divorce Judgement, division of property including responsibility for post separation expenses and a determination of whether certain property is matrimonial property, child support, including both s. 3 and s. 7 support and spousal support. I will deal with each of the issues in that order. II.

Divorce Judgement [ 3 ] A photocopy of the Marriage Certificate was entered as an exhibit. The parties have resided separate and apart for more than one year. Divorce Judgement is hereby granted. III. Property Division Assets [ 4 ] The date of division under the Matrimonial Property Act is the date of trial. [ 5 ] There will be an equal division of property. The specifics of the division of property are outlined in the attached schedules to this decision. [ 6 ] The parties purchased a number of properties during their years of marriage. The properties were rented out. I will deal with each of then separately.

Carroll Court Property [ 7 ] This property was purchased by the parties in 1998 for $113,000. The parties have agreed that the current value of this property is $280,000 with the principle outstanding on the mortgage of $42,181.84. The Home Equity Line of Credit #[...]100, with a balance outstanding of $124,400.00 is secured against this property. Ms. Simmons is living in this residence. Camelot Avenue Property [ 8 ] This property was also purchased by the parties during their marriage and has also been renovated.

The parties have agreed that the current value of this property is $280,000 with the principle outstanding on the mortgage of $151,541.05. Another Home Equity Line of Credit (account number ending in 800)is secured against this property with a balance outstanding of $60,000. [ 9 ] Mr. Van Alstyne lived in this property during the separation until April 2011 when he moved into his current home in Leduc. Once Mr. Van Alstyne moved out, the house was rented. Mr. Van Alstyne collected the rent and Ms. Simmons paid the mortgage

from the joint Home Equity Line of Credit from that point forward. Douglas Lane Property [ 10 ] This property was purchased by the parties in 2007. The parties have agreed that the current value of the property is $255,000 with the principle outstanding on the mortgage of $245,950.27. The property has had numerous repairs and is being rented out. Mr. Van Alstyne has collected the rent from which the mortgage payments were made until March 2011 after which date the mortgage payments were made by Ms. Simmons from the joint HELOC. Leduc House Mr Van Alstyne purchased [ 11 ] In April of this year Mr.

Van Alstyne purchased a home for himself in Leduc where he now resides. He was only able to approximate the purchase price of the home and the amount of the down payment. He recalls that he paid approx $325,000 for it with a down payment of approx $42,000 . Mr. Van Alstyne also cashed in most of his RRSPs this spring with some evidence before me that the RRSP money was used for the down payment. Accordingly, I will use the RRSP values as they were in the spring of 2011 to determine the value of his investment in this property. It is the best evidence available to me.

Bretton land [ 12 ] This property of 151 acres was purchased and entirely paid for by Jim Simmons, Ms. Simmons’ father, in May 2001 for $116,095. The land was registered in Ms. Simmons’ name because, as Mr. Simmons put it, he was retired and had some health concerns. He stated that he bought the property to help his daughter and her husband with resources if their son Zack went to university. He wished to control the property until he died and intended that it be used for Zack’s education. Mr. Simmons did not ask his daughter to hold this land in trust for him or use other words to this effect. [ 13 ] Ms.

Simmons gave evidence that it was her vague understanding that her father wanted to put the land in her name to hide it from her mother and understood she would get it when her father died. She gave evidence that another vague understanding she had as to why the land was put in her name was that her Dad was sick, thought he was dying, and wanted to leave some money for Zack for school. She stated that she never wanted to use the property for her own gain and that Mr. Van Alstyne, Zack and she had all been out to the land only 2 - 3 times. [ 14 ] In Jan 2004 Agreement was signed between Ms.

Simmons and her father confirming that the property registered in her name is for the recreational use of Ms. Simmons, her father and their families and friends. The property was not to be sold, leased, or encumbered in any way by Ms. Simmons. Mr. Simmons testified that he was afraid that the land may try to be used as collateral in that his daughter and her husband were buying houses to rent. The agreement provided that all costs, responsibilities, liabilities and revenues were her father’s and upon his death all of the responsibilities associated with the land and property “shall pass to Jamie.” [ 15 ] Mr.

Van Alstyne did not say anything at all in his evidence about the Bretton property, his use thereof, the documents or his understanding of Mr. Simmons’ intentions with transferring the land into his daughter’s name. [ 16 ] There was an oil lease on the land which paid $2,300 yearly. This money was paid to Ms. Simmons who paid it all to her father each year, except the last two years, when she kept the money and used it for a trip and family expenses. [ 17 ] In 2008 the Bretton property was transferred from Ms. Simmons to her father for consideration of $1.00, which sum was never paid..

The reason for the transfer was fear that the property would somehow be encumbered and would not be available when

needed for Zack’s education costs. Ms. Simmons incurred capital gains on the transfer in the amount of $14-$16,000, which sum was paid entirely by her father. [ 18 ] This transfer to Mr. Simmons occurred prior to the parties’ separation. Mr. Van Alstyne argued in argument that the property was transferred in anticipation of the parties’ separation. The property is now worth an agreed value of $180,000. [ 19 ] Ms. Simmons argues that this property is and was always intended to be her father’s regardless of the words her father used in asking her to hold the land for him before it was transferred back to him.

Counsel for Ms. Simmons referred me to Jensen v. Jensen 2009 ABCA 272 . Mr. Van Alstyne argues that this is a matrimonial asset. [ 20 ] Where a person transfers his property into another’s name gratuitously, a resulting trust in favor of the grantor is created or presumed in law. This is called a resulting trust. This is because the party holding the property gave no value for it and the law of equity assumes bargains, not gifts. The presumption created by this principle is rebuttable if there is proof that a gift of the beneficial interest was intended by the transferor (by Mr. Simmons).

There must be sufficient evidence to displace the presumption. [ 21 ] The evidence at the time of transfer of the property to Ms. Simmons in 2001 is that it was gratuitous (she did not pay anything for the land) and that it was intended that it ultimately be used for Zack’s education, with Mr. Simmons to control the property until Mr. Simmons dies. Ms. Simmons and her family did not use the property more than 2-3 times over the 8 years that she held it and she did not perceive the property as being for her own gain or as matrimonial property but only ultimately for Zack’s educational costs.

On the basis of this uncontested evidence I am satisfied that the interest of Ms. Simmons was limited with the control of the property still with Mr. Simmons and with the intention that proceeds would ultimately be gifted by Mr. Simmons to Zack to the extent necessary to cover his educational costs. There was a further expressed intention that the property would be gifted to Ms. Simmons on his death. I am not satisfied on the evidence that the beneficial interest in the property was intended to be transferred to Ms. Simmons in 2001.

The presumption of resulting trust is not rebutted by the evidence before me. [ 22 ] The January 2004 Agreement confirms that the property registered in Ms. Simmons’ name is for the recreational use of Ms. Simmons, her father and their families and friends and that it was not to be sold, leased, or encumbered in any way by Ms. Simmons. This is consistent with the actions of the family over the years in that the lands was visited by them 2-3 times. This documentary evidence confirms that the interest of Ms. Simmons was limited, with the control of the property still with Mr. Simmons.

Again, I am satisfied on the evidence that the beneficial interest in the property was not intended to be transferred to Ms. Simmons on transfer of title to her. [ 23 ] In 2008 the Bretton property was transferred from Ms. Simmons to her father out of her father’s fear that the property would be encumbered in some way and would not be available in the future when needed for Zack’s education costs. Ms. Simmons incurred capital gains on the transfer in the amount of $14-$16,000, which sum was paid for by her father. Again, this evidence is consistent with the control intended and exerted by Mr.

Simmons over the land at all times and the intended retention by him of the beneficial interest in the land. The presumption of resulting trust is not rebutted. This property is not matrimonial property. Vehicles [ 24 ] The parties have a number of vehicles between them. Ms. Simons drives a Sebring with an agreed value of $5,000. Mr. Van Alstyne has two skidoos, a Yamaha Phazer with an agreed value of $3,600 and a Yamaha Nitro with an agreed value of $5,100. Mr. Van Alstyne also traded in a ½ ton Chev Truck and a 2007 Chrysler 300 (net trade in value of $4,000) to purchase a Dodge Challenger in 2010. Mr.

Van Alstyne testified that the Challenger has a current value of $21,000 and financing of $30,259.79. Furniture [ 25 ] The original (2008) purchase value of the furniture left at Carroll Court on separation is $14,147. The value used will be something less. This furniture remained in Ms. Simmons’ possession. Other furniture was taken by Mr. Van Alstyne and some furniture from the marriage remained at Douglas Lane. On the evidence before me, I find that the furniture has been divided between the parties and no further equalization need occur.

Savings Accounts [ 26 ] Mr. Van Alstyne has a savings account at the Royal Bank with approximately $10,000 in the account including rental monies collected. Pensions [ 27 ] Both parties have pension plans but the values of those plans are in evidence in differing manners making a comparison or consistent valuation difficult. Ms. Simmons’ Public Service Pension Plan has a commuted value of $70,881.61 to the present and contributions of $29,790.15 to 2009. Mr.

Van Alstyne has a pension plan through the Boilermakers National Benefit Funds (Canada) with a pre-retirement death benefit of $20,347.18 as of Sept 21, 2011. His contributions commenced in 1998 until 2004. Mr. Van Alstyne also has a pension plan with his current employer where he commenced work in May 2011. [ 28 ] The pensions shall each be divided, to the date of trial, equally, at source if possible, or otherwise divided and paid out if and when it is received, utilizing the McAlister method and formula.

In this case, the pension member is constituted a trustee for the spouse’s share and the pension is divided if and when it is received. RESP [ 29 ] The parties hold this RESP jointly for Zack’s education. In that communication is difficult between the parties I am ordering that this RESP account be held by Mr. Van Alstyne for Zack’s educational costs. The cost of Zack’s registration for school, already paid for by Ms. Simmons, should be paid from the RESP. This sum is to be repaid to Ms. Simmons once accessed from the RESP. Safety Deposit Box [ 30 ] Ms.

Simmons gave evidence that she removed $10,000 cash, of her father’s money, from her safety deposit box at some point and provided it to her father. Mr. Van Alstyne disputes that this was her father’s money on the basis that Ms. Simmons had previously, in 2007, held $23,000 cash of the parties’ money in her safety deposit box and that the $10,000 was part of that money. However, he then testified and confirmed on further questioning by myself, that the $23,000 cash held in the safety deposit box by Ms.

Simmons was all used as a down payment on the Douglas Lane property when the parties purchased that property in 2007. Accordingly, the only evidence before me regarding the $10,000 is that of Ms. Simmons that this was her father’s money. Accordingly, I so find. Time Share [ 31 ] The parties purchased a time share in Mexico a few years ago. The value of the time share is unknown as the yearly payments for the time share have not been made. The parties have agreed that the time share will be sold and the net proceeds of sale will be split.

Canwest Energy Management Limited [ 32 ] The parties incorporated this company during their marriage.

[ 33 ] Mr. Van Alstyne also gave evidence that he lent Canwest $184,000 through shareholders loans funded through the Home Equity Lines of Credit registered against two of the parties’ properties. All but $64,000 was repaid by Canwest to himself as shareholder. [ 34 ] The company purchased 2 hydrovac trucks, worth approx $500,000 each at purchase, which Mr. Van Alstyne operated for a period. The trucks were sold by Canwest on March 30, 2010 for $270,000 (net, excluding GST, to Canwest of $40,326.98) and $325,000 (net, excluding GST, to Canwest of $34,293.95). Mr.

Van Alstyne gave evidence that from this money Canwest paid $25,000 to HELOC #[...]800 in April 2010, $15,000 toward an American Express bill (the card is in his name personally but he gave evidence that he used this card for Canwest expenses), and $40,000 toward an RBC LOC. [ 35 ] The Canwest bank statements from Dec 4, 2009 through to June 4, 2010 reflect a series of payments from Canwest to Mr. Van Alstyne. Mr. Van Alstyne was asked on cross-examination about a number of the cheques. He gave evidence that some were expense claims, some were shareholders loan payments and some were pay cheques.

Some of the shareholders loan payments were subsequently deposited as payments on the HELOC accounts. Some were not and Mr. Van Alstyne was unable to say where those shareholders loan payments to him had gone. He then requested an adjournment of the trial to determine where he had deposited those monies or what he had used the monies for. The adjournment request was denied. This issue had arisen at examinations for discovery with an undertaking that Mr. Van Alstyne provide the Canwest business accounts which he did and some of which were entered as an exhibit in this trial..

Liabilities Home Equity Lines of Credit (HELOC) [ 36 ] Mr. Van Alstyne gave evidence that at the date of separation the parties owed $100,000 on HELOC #[...]100 & $0 on the other, HELOC #[...]800. The lines of credit have increased by $84,400.00 since the date of separation. [ 37 ] Of the $100,000 owing on the one HELOC, $64,620.00 represents amounts owing by Canwest in shareholders loans advanced. Further sums were withdrawn by Mr. Van Alstyne from the HELOC to maintain Canwest and pay bills.

This included another American Express payment of $12,000 on January 13, 2010, for hotels, gas, etc re trucks. [ 38 ] On Jan 15, 2010 Mr. Van Alstyne withdrew $10,000 from one HELOC and deposited it back on Feb 2, 2010. He could not recall why this was done. On Feb 9, 2010 he withdrew $39,000 from that same HELOC but could not recall why or what it was used for other than to suggest that it may have been for Canwest truck expenses. Then on April 1, 2010 he deposited $23,200 into that HELOC and another $2,000 on April 15, 2010. This appears to be the same $25,000 Mr.

Van Alstyne stated in his evidence that Canwest paid out of the proceeds of sale of the trucks. He also stated that Ms. Simons had taken money from the HELOC to pay for some cosmetic surgery but Ms. Simons disputes this. Her evidence was that she had no involvement with the HELOC until Dec 2010 when she withdrew the balance available. [ 39 ] A further $22,844.18 was taken out of the HELOC by Mr Van Alstyne to cover the cost of renovations to Camelot Avenue property. Ms.

Simmons gave evidence that she also owes money for renovations to the property in which she is residing in the amount of $2,614.00 to Kitchen Craft. [ 40 ] A further withdrawal from the HELOC by Mr. Van Alstyne was $10,556.97 to cover his personal legal fees. [ 41 ] Mr. Van Alstyne made the interest payments on the HELOCs for 4 months after they were maxed out, until approximately April 2011. After that date he agreed to pay the interest payments only on the HELCO secured against Camelot Avenue property. [ 42 ] In December 2010 Ms.

Simmons withdrew the balance available from HELOC #[...]800, in the amount of $46,974.60. She gave evidence that she withdrew the money as she was concerned with the withdrawals being made from the HELOC accounts by. Mr Van Alstyne. Mr. Van Alstyne acknowledged that he had control of this account and did make withdrawals.

[ 43 ] Ms. Simmons deposited the money into an ING account. Commencing approximately April 2011 she made the mortgage and tax payments on two of the rental properties owned by the parties as well as the interest payments on the HELOC from that account. $1,200 was used to pay off the RBC joint account of the parties, which account is now closed. Ms. Simmons also used these monies to purchase her Sebring vehicle. She deposited $3,931.00 back into the account. The balance in the account today is $24,866.00. The net change over the period that the monies were held by Ms.

Simmons is $22,108.60. [ 44 ] It was argued that the total payments from Canwest to Mr. Van Alstyne from Dec 4, 2009 to June 4, 2010 were $72,145.46, inclusive of shareholder loans, pay cheques and expense claims. The total payments made into the HELOCs over this period is $84,702.40. The total withdrawals by Mr. Van Alstyne from the HELOC accounts from August 1, 2009 to May 2010 are $113,404.39. The difference is $28,701.99 net withdrawals from the HELOC by Mr. Van Alstyne. Again, $10,556.97 of this Mr.

Van Alstyne acknowledges was a personal expenditure. [ 45 ] Based on the evidence before me, I find that both Ms. Simmons and Mr. Van Alstyne had access to joint funds over the period of separation and both parties made various withdrawals from and some deposits into these accounts . Both parties alluded to numerous improper, arbitrary, unaccounted for or purely personal withdrawals by the other. At least one of the withdrawals clearly related to a purely personal expenditure. Some withdrawals related to operating expenses for Canwest.

Some of the withdrawals related to maintenance and repairs to the properties owned by the parties, which expenditure is captured in the current value of the property. Some of the withdrawals related to servicing the lines of credit and mortgages on the properties, which is captured in the equity the parties have in these properties and other assets. Other than for the clearly personal expenditure established in the evidence, I am satisfied that the parties are jointly responsible for the existing matrimonial debt. [ 46 ] It was argued by Mr. Van Alstyne that Ms.

Simmons should be responsible for the additional interest costs on the HELOCs as they were at a maximum after she withdrew the balance available on HELOC #[...]800. As stated, I am satisfied that both parties withdrew monies from the HELOC accounts for a variety of purposes, and accordingly find both responsible for the additional interest costs that resulted. [ 47 ] It was also argued by Mr. Van Alstyne that Ms. Simmons be responsible for the increased cost of mortgage financing (higher interest rates) for the period October 2010 to May 2011 because she refused to sign the mortgage renewal documents. Ms.

Simmons argues that she did not wish to sign the mortgage renewal documents as she wished the rental property sold. Mr. Van Alstyne argues that he agreed to sell the property on conditions which Ms. Simmons would not accept. Ms. Simmons agrees that she would not accept the conditions as some were unreasonable. [ 48 ] I find that some of the conditions Ms. Simmons was asked to accept if the property were to be listed were unreasonable, including the demand that she deposit in trust ½ of any fees Mr. Van Alstyne has paid since the date of separation. The desire to sell the property was reasonable.

Refusal to accept this condition is reasonable. The additional mortgage costs are not attributable to one party over the other and are shared. IV. Child Support [ 49 ] The parties have one son, Zachery. He is 17 and will turn 18 in February, 2012. Zack has been working full time as a welder in Nisku since he graduated from high school in June 2011. He is registered to continue with further technical schooling this spring. Parenting has been shared and s.3 child support has been paid on a shared parenting basis. [ 50 ] Ms.

Simmons is not seeking child support and argues that neither parent should be responsible for further child support payments as Zack is working full time and can pay for his own expenses. Mr. Van Alstyne argues that Zack is still a child of the marriage at least until he turns 18 and that the parents are still obligated to pay child support. [ 51 ] Mr. Van Alstyne gave evidence that Zack does not pay rent or room & board at his home and many of his clothes are still purchased for him.

He stated that Zack has “a lot of disposable income” and that if his son starts saving $300 per month from his income he will not charge him rent in the future but if not, he will start charging him rent. [ 52 ] Under s.2(1)(

b) of the Divorce Act “child of the marriage” means “a child of two spouses or former spouses who, at the

[ 52 ] Under s.2(1)(

b) of the Divorce Act “child of the marriage” means “a child of two spouses or former spouses who, at the material time is the age of majority [18 in Alberta] or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.” The judicial consideration of this

section has made it clear that the decision to remove oneself from their parent’s charge before the age of majority is that of the child, not his parents. Need, ability and the financial capacity to withdraw from parental care , as well as unwillingness to do so, are not significant considerations when we deal with a minor.

Accordingly, if Zack is still living at home having his room, board, clothing and other necessaries paid by his parents then he continues to be a child of the marriage and child support must continue to be paid by the parents until he turns 18, unless he is then not able to withdraw from his parent’s charge. If parenting is shared over the next few months until Zack turns 18 then child support shall continue to be shared as was done previously. If Zack resides only with one parent then the other parent shall pay child support. [ 53 ] Mr.

Van Alstyne also seeks retroactive recalculation of child support on the basis that his spousal support payments were not included in the calculation of Ms. Simmons income for the purposes of calculating the set off. [ 54 ] Mr. Van Alstyne argues that Ms. Simmons’ income of $49,695 upon which past s 3 child support was calculated does not include spousal support paid to her resulting in an overpayment of child support by Mr. Van Alstyne under their past shared parenting arrangement. [ 55 ] Under s.3(1) of

Schedule III of the Federal Child Support Guidelines it is clearly stated that spousal support received from the other spouse is not to be included in the recipient’s GI when calculating s 3 child support payable. The case law has followed and confirmed this. Accordingly, Mr Van Alstyne argument for a retroactive adjustment to s.3 child support fails. [ 56 ] Mr. Van Alstyne also seeks retroactive s.7 expenses.

Section 7(1)of the CSG provides that the court may, on either spouses’ request, provide for an amount to cover all or any portion of these expenses which may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses, the means of the child and the family’s spending pattern prior to the separation The types of expenses included are listed in that section. [ 57 ] The expenses for which Mr.

Van Alstyne has provided receipts and claims s.7 child support over include: -Zack’s cell phone $1,723.46 - this is not a proper s. 7 expense -2009 school fees of $205.00 - I an not satisfied on the evidence that these are extraordinary educational expenses under s7(1)(d) -Dental work of $47.75 - there is no evidence before me that this expense exceeds Zack’s insurance coverage by at least $100 pursuant to s. 7(1)(c) -Hockey registration of $650.00/yr, hockey tryout fee of $150, ball registration and boxing registration of $490/yr - I am not satisfied that these are extraordinary expenses for extracurricular activities pursuant to s.7(1)(f).

It is not clear that these expenses exceed what can be reasonably paid for within the income range of the parties and is not in relation to any special needs or talents of the child (such as Rep Hockey). Child support levels were designed with the average family in mind and include health, school and ordinary extra curricular expenses such as those claimed. -High school trip $1,792.00 - this may be a s 7 expense however the only receipt provided for this expenditure is $150 (Exhibit 11, Tab 10). The evidence was that Zack paid for approximately $100 plus spending money for this trip.

This expense is denied under s.7. V. Spousal Support [ 58 ] Ms. Simmons is claiming spousal support. Mr. Van Alstyne opposes her claim.

[ 59 ] The parties were married for 17 years. They are both in their 40s. [ 60 ] Ms. Simmons graduated from Mount Royal College in 1989. She was employed full time as a Probation Officer in 1989 in Fort Mcmurray and continued to be so employed after she married and after Zack was born, until November 1, 1997 (8 years) when the parties moved to Edmonton and Mr. Van Alstyne found work as a boilermaker. Zack was then 3 ½ . Then, about 6 months later, Ms. Simmons obtained work as a Contract Parole Officer. She worked very part time from home in this job.

She continued with this position until about 2000/01, for a total of approximately 3 years. [ 61 ] Ms. Simmons also started a painting/decorating job with a friend. They worked around their children’s school

schedule about 3 days/week on average. This lasted until 2008. In that same year Ms. Simmons worked for 3 months with Westjet and obtained some employment with a store in Edmonton. [ 62 ] Both parents are now working full time. Ms. Simmons is currently working with Legal Aid, a position which she started on March 16, 2009. Ms. Simmons earned $49,695 in 2010 and will earn $51,444.00 this year with Legal Aid. Mr. Van Alstyne is working with Cassio Fabricating Engineering and he will earn $101,000 this year. [ 63 ] After approximately 14 years away from full time work as a parole/probation officer, Ms.

Simmons has applied for and been accepted for a position as a Parole Officer. She is now awaiting an actual position to open up. In this position she has the potential to earn as much as $75,000/yr over time. Her acceptance will expire in May 2012. [ 64 ] Ms. Simmons has been receiving spousal support pursuant to a court order at the rate of $1,000/mo since Nov 2010. This money is being paid through the Maintenance Enforcement Program. A further $1,000 was paid into court pursuant to a garnishment, which sum can be repaid to Mr. Van Alstyne according to both parties.

So ordered. [ 65 ] Section15.2(6) of the Divorce Act states that a spousal support order made should: (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown (

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

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 66 ] Section15.2(4) states that the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including: (

a) the length of time spouses cohabited (

b) the functions performed by each during cohabitation and (

c) any order, agreement or arrangement relating to support of either spouse

[ 67 ] I find that Ms. Simmons’ role in the family from 1997 forward, which role took her out of her full time position as a parole/probation officer, limited her choices for work in her field in the latter years, when she returned to work full time. This is a disadvantaged position economically compared to not playing that role in the family and not having the resultant limitations and restrictions on work. In that regard, Mr. Van Alstyne was advantaged economically by Ms. Simmons playing that role with respect to Zack and their household as he did not then have that responsibility or those restrictions.

Accordingly, I find entitlement to spousal support made out. [ 68 ] The Alberta Court of Appeal has stated the Alberta trial courts must consider the Spousal Support Advisory Guidelines in considering spousal support but they are not mandatory. The SSAG assist the court in applying the factors and objectives in the legislation. [ 69 ] Childview calculations were provided based on the parties 2010 and 2011 incomes. Based on their 2010 incomes the calculations provide for spousal support payments of $398, $1,036 or $1,675 per year with child support payments. Spousal support was set at $1,000/mo in Nov 2010.

This represented a 55-45% split of monthly cash between the parties. Further Childview calculations were provided base on their approximate 2011 incomes without child support providing for a range of monthly spousal support payments of $990, $1,155 and $1,320 with the recipient receiving a projected % of cash of 43.6%, 44.85% and 46.10%. [ 70 ] I am satisfied that spousal support should be set on a diminishing basis to allow Ms. Simmons to transition back into her career as a Parole/Probation Officer. Ms. Simmons is accepted and is awaiting the opportunity to return to full time work in this area.

The date this may happen, if at all, is uncertain. If successful, she has the opportunity to increase her monthly income significantly over time. [ 71 ] I also find that spousal support should be set with a view to equalizing to a large extent the net cash available to each of the parties on a monthly basis. Ths is a way to recognize and address the economic advantages and disadvantages to the spouses arising from the decisions taken by the parties during the marriage and to promote the economic self-sufficiency of each spouse within a reasonable period of time.

Furthermore, matrimonial property has been equally divided between the parties, including the assets and liabilities. Mr. Van Alstyne has asked for and been awarded the rental properties but also the debt associated with those rental properties. Each party is assuming part of the lines of credit. Each party lives in a home with mortgage payments. [ 72 ] Spousal support shall be set at $1,300/month for 3 years. Payments at this level will commence after Zack’s 18 th birthday. Until then the spousal support payments will remain at $1,000/month.

Spousal support will be reduced to $700/month for a further period of 2 years, commencing November 2014. [ 73 ] This will mean that spousal support is paid for a total of 6 years or a little less than half of the period that Ms. Simmons has been away from this line of work on a full time basis. Given that she has applied for and been successful in her application for such a position again, I am satisfied that the duration and amount of child support on a diminishing basis is adequate. VI. Costs [ 74 ] The parties may speak to costs within 60 days of this decision.

Heard on the 7 th , 8 th , 9 th and 10 th days of November, 2011. Dated at the City of Wetaskiwin, Alberta this 17 th day of November, 2011.

J.H. Goss J.C.Q.B.A. Appearances: G. Lintz Tarrabain & Company for the Plaintiff Kelly Napolean Van Alstyne for the Defendant _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice J.H. Goss _______________________________________________________ Please note identifying information has been removed Schedules

SCHEDULE I ASSETS & LIABILITIES ASSETS: Homes

[...] Carroll Court $280,000.00 [...] Camelot Ave $280,000.00 [...] Douglas Lane $255,000.00 Vehicles: Black Challenger $21,000.00 Sebring $5,000.00 Yamaha Phazer $3,600.00 Yamaha Nitro $5,100.00 Royal Bank Savings Account $10,000.00 RRSPs RRSP account #[...]90 as of Sept 3, 2011 $10,190.87 RRSP account # [...]89 as of Sept 3, 2011 $13,711.92 RRSP (TD Mutual Funds) account # [...]96 as of March 31, 2011 $7,697.09 -started when W started with Legal Aid month before separation RRSP account # [...]29 $16,050.02 -was cashed out in March 2011 RRSP account # [...]88 $41,838.11 -was cashed out in March 2011 RRSP (Trimark) account # 1 [...]28 as of June 30, 2011 $871.86 RESP $7,300.00 GICs -GIC #[...]87 $707.71 -GIC #[...]23 $619.12 SAVINGS ACCOUNTS Royal Bank of Canada -savings account $10,000.00 ING Account $24,866.00 _____________________________________________________________________ TOTAL MATRIMONIAL ASSETS $993,552.70

LIABILITIES: Mortgage on [...] Carroll Court $42,181.84 Mortgage on [...] Camelot Ave $151,541.05 Mortgage on [...] Douglas Lane $245,950.27 Financing on the Challenger $30,259.79 Kitchen Craft Debt $2,614.00 Home Equity Lines Of Credit #[...]100 -secured against [...] Carroll Court $124,400.00 #[...]800 -secured against [...] Camelot Ave. $60,000.00 -non matrimonial debt: -H’s legal fees $10,556.97 $49,443.03 _____________________________________________________________________ TOTAL MATRIMONIAL LIABILITIES $646,389.98 NET MATRIMONIAL PROPERTY FOR DIVISION $347,162.72 (ASSETS MINUS LIABILITIES) EQUAL DIVISION: $173,581.36 each

SCHEDULE II DIVISION OF ASSETS & LIABILITIES ASSETS: WIFE HUSBAND Homes [...] Carroll Court $280,000.00

[...] Camelot Ave $280,000.00 [...] Douglas Lane $255,000.00 Vehicles: Black Challenger $21,000.00 Sebring $5,000.00 Yamaha Phazer $3,600.00 Yamaha Nitro $5,100.00 Royal Bank Savings Account $10,000.00 RRSPs RRSP account #[...]90 as of Sept 3, 2011 $10,190.87 RRSP account # [...]89 as of Sept 3, 2011 $13,711.92 RRSP (TD Mutual Funds) account # [...]96 $7,697.09 RRSP account # [...]29 $16,050.02 -was cashed out in March 2011 RRSP account # [...]88 $41,838.11 -was cashed out in March 2011 RRSP (Trimark) account # [...]28 $871.86 RESP $7,300.00 GICs -GIC #[...]87 $707.71 -GIC #[...]23 $619.12 SAVINGS ACCOUNTS Royal Bank of Canada $10,000.00 -savings account ING Account $24,866.00 ________________________________________________________________________ TOTALS: $342,792.71 $650,759.99

LIABILITIES: WIFE HUSBAND Mortgage on [...] Carroll Court $42,181.84 Mortgage on [...] Camelot Ave $151,541.05 Mortgage on [...] Douglas Lane $245,950.27 Financing on the Challenger $30,259.79 Kitchen Craft Debt $2,614.00 Home Equity Lines Of Credit #897-[...]100 $124,400.00 -secured against [...] Carroll Court #897-[...]800 $49,443.03 -secured against [...] Camelot Ave. _______________________________________________________________________ TOTALS $169,195.84 $477,194.14 NET DIVISION: $173,596.87 $173,565.85 EQUALIZATION PAYMENT: W to pay H $15.51 NET: $173,581.36 each