B.S.G. v. T.L.G., 2011 ABQB 768

Court of Queen ’ s Bench of Alberta Citation: B.S.G. v. T.L.G., 2011 ABQB 768 Date: 20111207 Docket: 4801 147804 Registry: Calgary Between: B.S.G. Plaintiff - and - T.L.G. Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ Introduction [ 1 ] This is a Chambers Application by the Defendant, “Wife” for the following relief:

a) Interim spousal support;

b) An advance of legal fees in the amount of $10,000; and

c) Costs.

[ 2 ] In her Notice of Motion she states that she is entitled to spousal support on both a compensatory and a non-compensatory basis. Facts [ 3 ] The parties to this action first met in 1991 and began cohabitating in January of 1998. They were married on June 10, 2000 and ceased living together as man and wife on February 1, 2010. [ 4 ] There are two children. The oldest born in July of 2003 and the second child born in May of 2006.

The parties at the present time share custody of the children on a weekly rotation parenting basis and the Wife receives child support from the Husband. [ 5 ] Both parties are 36 years of age. A. Wife [ 6 ] The Wife prior to the birth of their first child was working towards a career as a medical office assistant. She graduated from the Bow Valley College Medical Office Assistant program in 2001 and received awards for her academic achievement while at Bow Valley College.

Prior to her graduation she obtained a position at the University of Calgary Sports Medicine Centre where she worked on a part-time basis. [ 7 ] In February, 2002 she began working at the Chiropractic Centre for Health Calgary as a medical office assistant in a full- time position and was employed in that position until June, 2003. [ 8 ] She also has two technical diplomas which she had earned from the Saskatchewan Institute of Applied Science and Technology each of which took two years to complete.

She also completed a diploma program for Integrated Resource Management as well as a diploma for Biological Science Technology. [ 9 ] In her affidavit, the Wife states that since the birth of their second child she has been the primary care giver for the children and has been responsible for taking care of the home and all the incidentals that go along with that task. [ 10 ] In January, 2005, she returned to work as a Clinical Assistant at the Crowfoot Village Family Practice in Calgary.

Since the birth of their second child, she states that her and her husband decided that she would remain at home to look after the children full-time. During that period of time she was employed in a part-time position with Optimum Enterprises Inc., the legal billing entity for her husband’s consulting practice. This is sometimes referred to as “income splitting”. [ 11 ] In paragraph 16 of her Affidavit filed on November 10, 2011, she states that: On a go forward basis, I would like to upgrade my education and train for a different position within the health care field.

These areas would provide better compensation than the positions that I am currently looking at as a clinical assistant, as I hope to be more financially independent on a go forward basis. Some of the positions that I am considering are: respiratory therapist, pharmacy technician, ultrasound technician, radiology technician. B. Husband

[ 12 ] The Husband in this Application states that he plays a very active role in the lives of his children and in maintaining the home and has done so during the course of the marriage. [ 13 ] He stated in paragraph 9 of his Affidavit: ... I would return home in the late afternoon, often early enough to prepare support for the Defendant and our children, and I often cleaned the house when I got home. This occurred quite regularly, not ‘occasionally’ as the Defendant suggests.

The Defendant and I also shared the task of putting the girls to bed and we rotated this duty every other night. [ 14 ] He also states in paragraph 11 of his Affidavit: ... It is true that prior to the end of her maternity leave in April 2007, the Defendant and I discussed the need for the Defendant to return to work.

Financially, the Husband and the Defendant were doing okay and we agreed that if her income wasn’t required, then we would wait for a while but that she would return to work eventually, when the costs of childcare no longer outweighed the financial benefit of the Defendant returning to work. . . . if there was no financial advantage ... it was up to the Defendant whether or not she wanted to return to work. [ 15 ] He also noted in his Affidavit that children are at daycare when they are not at school and the Wife is home unemployed.

He appears frustrated when he states as follows at paragraph 17 in his Affidavit: ... I do verily believe that the Defendant appears to have done very little in nearly two years since our separation to work towards becoming financially self-sufficient or to secure employment. Spousal Support [ 16 ] The Husband’s has steady work as an engineer and including bonuses earned $179,741.61 in 2009, and in 2010 $208,490.00.

It is expected that in 2011 he will earn $216,000.00, inclusive of bonuses. [ 17 ] The Wife further states in her Affidavit that as a result of meditation and agreement between the parties commencing in December, 2010, the Husband began to pay her $2,850.00 per month is spousal support. [ 18 ] The parties total assets are approximately $600,000.00 with total liabilities of $346,000.00 and retirement assets of $207,000.00. [ 19 ] Within the corporation of Optimum Enterprises Inc., the parties have assets in a chequing account of approximately $9,000.00 and in two investing accounts totalling approximately $108,000.00. [ 20 ] In her claim, the Wife states that her monthly expenses are just under $8,000.00 per month which include among other things

a) a mortgage payment of $1050.00;

b) childcare and babysitting fees of $550.00 per month; and

c) unfortunately, a high transportation budget of approximately $1,200.00 per month;

d) medical charges including insurance and counselling, of $824.00 per month;

e) recreation and education budget of $522.00 per month; and

f) miscellaneous fees of $1,623.00 per month. [ 21 ] The Husband has monthly expenses he states of $10,612.00 per month which include amongst other things

a) lawyer fees of $2,000.00;

b) RRSP contributions of just under $1,000.00 per month;

c) RESP contributions of $400.00 per month;

d) s.7 expenses of $400.00 per month.

[22] The Husband pays $2,089.00 per month in child support. In 2011 he has paid a total child support to December 1 of$22,979.00 and spousal support to December 1 of $18,974.00 for a total support paid of $41,953.00. In addition, the Wife removed$6,000.00 from the parties Line of Credit which the Husband characterizes as spousal support. The Law [23] In S. 15.2 of the Divorce Act states:

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration thecondition, means, needs and other circumstances of each spouse, including 1. (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

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

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration anymisconduct of a spouse in relation to the marriage.

(6) An order made under subsection (1) or an interim order made under subsection (2) that provides for the support of a spouse 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 anyobligation for the support of any child of the marriage; (

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. [24] This law was reviewed by Mr. Justice Graesser of this Court in Thomson v. Thomson, 2011 ABQB 501in paras. 17, 18, and 19as follows: 17 As noted in Shields v. Shields, 2008 ABCA 213 at paras. 19 - 21: [19] In Moge v. Moge, (SCC), [1992] 3 S.C.R. 813 at para. 77, the Supreme Court of Canada recognized the importanceof the presiding judge's discretion and the difficulty of setting down principles that would guide every case: The four objectives set out in the Act can be viewed as an attempt to achieve an equitable sharing of the economic consequences of

marriage or marriage breakdown.

At the end of the day however, courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act. [20] In Moge , the court made three general observations: the distinction between "traditional" and "modern" marriages is not very useful; the support provisions of the Divorce Act are intended to deal with the economic consequences for both parties of the marriage or its breakdown; and what the Divorce Act requires is a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown for both spouses. [21] The crucial issue is to find the right balance and then exercise discretion in making an award.

As McLachlin J. (as she then was) said in Moge at para. 107 : ...the judge's task under...the statute is to make an order which provides compensation for marital contributions and sacrifices, which takes into account financial consequences of looking after children of the marriage, which relieves against need induced by the separation, and, to the extent it may be "practicable," promotes the economic self-sufficiency of each spouse. Neither a "compensation model" nor a "self-sufficiency model" captures the full content of the section, though both may be relevant to the judge's decision.

The judge must base her decision on a number of factors: compensation, child care, post-separation need, and the goal, insofar as practicable, of promoting economic self-sufficiency. 18 The Court of Appeal continued at paras. 30 - 31: [30] The Divorce Act dictates that the amount and duration of spousal support shall be determined taking into consideration the condition, means, needs and other circumstances of each spouse.

While the recognition of any economic advantage or disadvantage arising from the marriage or its breakdown remains an overall objective to be considered by the court, that objective cannot dictate a result which guarantees that the payee spouse must support the other spouse ad infinitum. The Divorce Act does not require that spouses' incomes be equalized to alleviate economic disadvantage arising out of the roles adopted by the parties in the marriage.

Instead, the amount of support should be determined by the factors set out in the Divorce Act and interpreted in Moge . [31] According to Moge , a judge is required to consider the parties' circumstances, including the duration of the marriage, their ages, their incomes and prospective incomes, the effects of property equalization, the stages of their careers, the marital standard of living, participation in household responsibilities, childcare obligations, and the parties' reasonable standard of living expectations. 19 In that case, the Court of Appeal held at para. 29: [29] The chambers judge erred when he did not sufficiently consider the fact that the mother was only 34 years old at the time of separation, that the matrimonial property had been divided equitably, that the couple had a modest standard of living while together, that there was no longer a need for child care and that the mother had achieved a degree of self sufficiency with full time employment at a level consistent with her work skills.

Analysis [ 25 ] The Husband states, reasonably, that the Wife should be working and that $40,000.00 of income should be imputed to her in each of the years for 2009, 2010 and 2011. On this basis, pursuant to the Spousal Support Advisory Guideline in 2009 monthly spousal support would range from a low of about $2,000.00 to a high of $2,700.00 . For 2010, from a low of $2,851.00 to a high of approximately $3,500.00.

For 2011 from a low of $3,000.00 to a high of approximately $4,000.00. [ 26 ] As indicated earlier, paragraph 22 of the Wife’s Affidavit “throughout the summer and then into December, 2010, the Plaintiff and I attempted to mediate a settlement with respect to our outstanding issues and it was as result of those negotiations that the Plaintiff began paying me $2,850.00 per month”.

[ 27 ] On a review of the law in the circumstances of the parties and keeping in mind the principals set out in Moge v. Moge , I am satisfied that the agreement entered into between the parties is the appropriate amount to be awarded for interim spousal support. However, the reality is that the Wife is not employed.

The Wife makes a reasonable request with respect for support to continue with her education and enhance her employment opportunities and the increased gain from meaningful employment. [ 28 ] I therefore award on a monthly basis commencing January 1, 2012 the $2,850.00 per month plus for 18 months the additional amount of $700.00 per month to fund access to further education as contemplated by the Wife. At that time the monthly spousal support will be reduced to $2,000.00 per month for a period of two years.

In the following year support will be reduced to $1,500.00 per month and in the last year in which spousal support will be payable, it will be for the amount of $1,000.00 per month.

This provides for a total of 7.5 years of spousal support. [ 29 ] If any arrears on the above award are owing to the Wife, from the date of separation in 2010 they are due and owing, after calculation, effective immediately but as in any calculation of arrears of support, the $6,000.00 withdrawn from the parties joint chequing account by the Wife will be used in that calculation as a credit to the Husband and he will be solely responsible for paying off the Line of Credit in this amount. [ 30 ] The Wife is also asked for an interim award with respect to an advance on legal fees.

I am not prepared to make such an advance but within 21 days, there should be an interim distribution of matrimonial property by dividing the assets held by the Husband’s management company Optimum Enterprises Inc. on a 50/50 basis and dispersing to the Wife one-half of the funds held in the chequing account and both investment accounts, after any tax considerations are applied. [ 31 ] Costs may be spoken to within 30 days. Heard on the 17 th day of November, 2011. Dated at the City of Calgary, Alberta this 7th day of December, 2011. W.P. Sullivan J.C.Q.B.A. Appearances: Brett Y.

Shikaze for the Plaintiff Husband Alexandra A. Harris for the Defendant Wife