Helmus v. Helmus, 2011 ABQB 779

Court of Queen ’ s Bench of Alberta Citation: Helmus v. Helmus, 2011 ABQB 779 Date: 20111209 Docket: FL04 01225 Registry: Grande Prairie Between: Karen Marie Helmus Applicant - and - Willem Abel Helmus Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Ms. Helmus, had been married to the respondent - with whom she had no children - for approximately 3 years when her husband left her in October of this year. It was the fourth time he had left her during the marriage. On this motion, Ms. Helmus asks for spousal support of $1,000.00 a month for 12 months. [ 2 ] Ms. Helmus ’ application is allowed in part: Mr. Helmus will pay the costs identified as arising directly from the break-up of the marriage to relieve Ms. Helmus of the financial hardship which the separation has caused.. However, Ms. Helmus ’ claim for periodic monthly support is denied.

[3] The mere existence of a marriage does not grant entitlement to spousal support. Case law identifies two ways to determineif there is such entitlement: the first tracks the four statutory factors in the Divorce Act and the second tracks the three approachesoutlined by the courts - compensatory, non-compensatory and contractual support. Here, because there is no agreement between theparties concerning support and because the marriage was short, Ms. Helmus is restricted to compensatory spousal support, that is to thefirst three of the four statutory factors.

The evidence available at this hearing establishes that Ms. Helmus should be compensated forfinancial hardship resulting directly from the separation of the couple. Cases and authority cited [4] By the court: Bracklow v Bracklow (SCC), [1999] 1 S.C.R. 420, [1999] S.C.J. No. 14; W. (D.L.) v W.(D.L.) 2003 ABQB 515; Tabata v Smith 2001 ABQB 776; Lebel v Lebel 2004 ABQB 802; Anilevska v Meheriuk 2001 ABQB 378;Nathoo v Nathoo 2005 ABQB 175. 1. Background [5] The parties lived together for approximately 3 years before they were married in June 2008. They had no children together,but Ms.

Helmus has 2 children from a prior relationship. [6] Ms. Helmus advised that on October 25, 2011, Mr. Helmus left the matrimonial residence, without notice to her, and hassince refused to discuss any of the issues relating to the breakdown of the relationship, including, for example, what to do with theparties’ pets, what to do with the furniture that had been in the rental apartment, etc. Ms. Helmus states that this last departure was thefourth time that Mr. Helmus had left her since they’ve been married. [7] Ms. Helmus states that she does not have a high school diploma. She states that when she met Mr.

Helmus she was earningapproximately $20,000.00 gross annually and that at this time she is earning approximately $38,000.00 gross annually. Ms. Helmusbelieves that Mr. Helmus earns approximately $120,000.00 year from his employment as a truck driver. [8] Ms. Helmus states that after he left her, Mr. Helmus did agree that he would pay the rent on the parties’ matrimonialresidence for the month of November, but that he later stopped payment on the rent cheque. Therefore, on November 3, 2011, she wasgiven notice that she had to vacate the rented town house in which the parties had been living. Ms.

Helmus has since stored thefurnishings from the town house in a storage locker and has moved into her father’s home. [9] Ms. Helmus has not provided any evidence of life style beyond referring to the rental accommodation. [10] Ms. Helmus acknowledges that she removed approximately $2,500.00 from the joint bank account after her husband left theresidence. From that amount, she states that she paid $1,800.00 towards a Mastercard bill which included 2 months of rental storage at$178.00 per month. [11] She also took $500.00 cash.

Although it is not absolutely clear from the evidence, it appears that she may have used that cashto pay a cell phone bill of $271.41, as well as a $60.00 cable bill and $140.45 in NSF fees to close the joint bank account. She asks thatMr. Helmus repay those amounts to her. 2. Entitlement to spousal support in short term marriages [12] The mere fact of marriage does not entitle a spouse to spousal support. There are two main guides to the determination ofwhether a particular spouse is entitled to spousal support: the legislative and the judicial analyses.

[ 13 ] First, courts must consider what Parliament ’ s scheme for spousal support: The Divorce Act states that, in making an order for spousal support, the court shall take into account the length of time the spouses cohabited, the functions performed by each during cohabitation and any agreement or arrangement the spouses made concerning support.

Parliament goes on to state that an order for spousal support should recognize any economic advantage or disadvantage to the spouse arising from the marriage or its breakdown, apportion any financial consequences arising out of the care of any child of the marriage, relieve against economic hardship arising from the breakdown of the marriage, and promote the reasonable economic self-sufficiency of each spouse. [ 14 ] The courts have organized the statutory terms into three types of spousal support orders, compensatory, non-compensatory and contractual.

These parties have no support agreement; therefore, there is no contractual basis for support in this case. As the Supreme Court of Canada stated at para. 49 of Bracklow , non-compensatory claims will arise only where the compensatory assessment does not fairly represent the effect of the marriage on the parties and is often more appropriate in the “ traditional ” style of marriage: Indeed, a review of cases suggests that in most circumstances compensation now serves as the main reason for support. However, contract and compensation are not the only sources of a support obligation.

The obligation may alternatively arise out of the marriage relationship itself. Where a spouse achieves economic self-sufficiency on the basis of his or her own efforts, or on an award of compensatory support, the obligation founded on the marriage relationship itself lies dormant. But where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role.

Absent negating factors, it is available, in appropriate circumstances, to provide just support. [ 15 ] Alberta case law demonstrates that non-compensatory support is rarely justified in short term marriages: see , for example, W. (D.L. ) where Lee J. stated at para. 4 In the case before me, there was a short-term marriage with no pattern of financial dependency created between the parties. Both parties worked outside of the home, and they shared the household responsibilities. There were no children of the marriage to take care of.

There is no evidence that the applicant made any career sacrifices for the benefit of the respondent. That was also a case, like this one, where the applicant ’ s income increased in each year subsequent to the marriage.

It is to be noted that, in that case, Lee J. expressed the view that the fair resolution of the matrimonial debts should be undertaken in the context of a matrimonial property claim, and not under the guise of spousal support. [ 16 ] In contemporary jurisprudence, spousal support in short term marriages is typically only made on a compensatory basis: see , for example, Anilevska and Nathoo which are sponsorship to Canada situations, or a move to this province from elsewhere in Canada which move may have a similar - although reduced - effect as that of a sponsorship move to this country such as occurred in Tabata , or in situations where the wife was totally dependent on the husband for financial support, as in Lebel . [ 17 ] Here, no evidence was presented by Ms.

Helmus that supports a claim for non-compensatory support: although Ms. Helmus explains that she believed that by marrying her Mr. Helmus accepted long term obligations to support her, Ms. Helmus was obviously aware of the ease with which spouses can end a marriage relationship. Also, Ms. Helmus did not, after marriage, behave in a way which suggested that Mr. Helmus was accepting financial responsibility for her. [ 18 ] As to the compensatory support, Ms. Helmus has not presented any evidence that the marriage has been disadvantageous to her. She has suffered no overall economic loss as a result of the marriage.

She had made a claim for money that she advanced to Mr. Helmus to replace his wedding band; with respect, I am of the view that such a transaction cannot fairly be characterized as a loan to Mr. Helmus, being of a personal rather than commercial character. Nonetheless, Ms.

Helmus has established that she has suffered a financial disadvantage as a result of the breakdown of the marriage: she has had to put her household furnishings into storage, she has had to pay certain bills for service to the matrimonial residence, and she has had to pay off credit debts that may, if unpaid, hinder her ability to establish an independent credit rating. Although Ms. Helmus has removed money from the joint bank account to make those payments, she has deprived herself of the money in that account which could otherwise have been spent by her in ways unconnected with the breakdown of the marriage.

This is not a situation where the division of matrimonial property is before the court or, indeed, where it seems likely that the parties have any substantial joint property to dispose of. For example, having given notice to Mr. Helmus that he can pick up his property from storage, Ms. Helmus is entitled to treat any of his property that Mr. Helmus does not remove from storage as her property and deal with it as she sees fit. In the result, Ms. Helmus is entitled to a one time payment of $2,500.00 from Mr. Helmus to reimburse her for the payments that she had to make because of the breakdown of the marriage.

3. Costs [ 19 ] In the circumstances here, each party will bear their own costs of this application. Heard on the 28 th day of November, 2011. Dated at the City of Grande Prairie, Alberta this 9 th day of December, 2011. J.B. Veit J.C.Q.B.A. Appearances: Ms. Helmus on her own behalf Mr. Helmus on his own behalf