Tomkins v. Tomkins, 2011 ABQB 79

Court of Queen ’ s Bench of Alberta Citation: Tomkins v. Tomkins, 2011 ABQB 79 Date: 20110215 Docket: 4803 153870 Registry: Edmonton Between: Lana May Tomkins Plaintiff - and - Michael James Tomkins Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Background [ 1 ] The parties were married in August 1991 and ceased cohabiting in June 2010.

There are three children of the marriage currently ages 16½, 14, and 11½ . [ 2 ] The parties ceased cohabiting in June 2010 when the wife and husband had an argument and an unfortunate incident occurred. The wife left the home and proceeded to report the incident to the police. There is now an Amended Undertaking given to a Justice or Judge in place which restricts the husband from attending at the matrimonial home or contacting the wife. Criminal charges in

relation to this incident are pending in a separate criminal matter. Both parties have consented to the husband attending at the home to pick up and drop off the children. [ 3 ] The oldest child resides primarily with the husband in a two bedroom condo in Sherwood Park. The other two children reside with the mother in the matrimonial home, which is a 5,500 square foot home located on two acres of land that the husband says requires further renovations to complete, and requires significant upkeep. Both parties seek exclusive possession of the matrimonial home.

The husband is seeking exclusive possession of the matrimonial home to complete renovations, and maintain the home to prepare it for sale in the spring. The wife says that the home is fine and the interior is in showroom condition. She wishes to stay there to also provide continuity for the children, the youngest two of which she wishes to be granted primary residential care.

The husband is seeking a shared parenting arrangement with the wife given both parties have been equally active in the children’s lives. [ 4 ] The husband has a high school education and is self-employed and a Director of TNT High Pressure Waterworks Ltd. (hereinafter referred to as “TNT”), which is an industrial oil field equipment cleaning business. He also owns a holding company that he says has minor interests in several other companies which generate little or no income.

Over the past year, in an effort to grow TNT and develop some new technology, approximately 2.5 to 4.5 million dollars has been spent to make the investment in the new technology. This investment included cashing out RRSP’s, obtaining a line of credit against the matrimonial home and seeking private investment, money which is being paid back with interest to investors. At the current time the husband is essentially managing debt and the investment in the technology and trying to meet all expenses and debts. The return on the investment is unknown at this time.

Accountants for both parties are currently assessing the value of TNT and the husband’s other interests for matrimonial property purposes. [ 5 ] The husband’s recorded income from the company is $156,000 gross per year with a net of $9,290 per month. He does not believe that he should pay spousal support. The husband occasionally travels for business but has a flexible

schedule wherein he can manage his time and travel as is required. The wife believes that the husband is extravagantly spending money on his so called business travel, and that his business interests are being hidden and/or undervalued. She seeks $10,000 a month in interim spousal support and $40,000 in interim costs to make ends meet as she is entirely dependent on the husband for financial support. [ 6 ] The wife has a Business Administration Diploma from NAIT in marketing. The wife collects a gross salary of $69,600 from TNT which nets out at $4,636 per month.

The wife says that this “salary” is nothing more than tax writeoff for the husband, as she does no work for the company, and the parties always agreed that she would stay at home and look after the family. The husband says that the wife has refused to work in any capacity in the business and the parties had discussed the wife’s return to work once the children were all in school full-time. However the wife stated to the husband that she did not want to give up her social lifestyle of personal appointments, attending the gym and meeting friends for lunches and drinks.

The wife also volunteers, managing the 14 year old’s hockey team which takes up a few hours during her evenings and weekends every week and will conclude in early March. [ 7 ] The husband wants to forge a shared parenting arrangement with the children. The husband will commit to arrange his

schedule in any way to arrange time for his children half time. It is submitted that living in Sherwood Park will make this easier for the wife to manage the children, a smaller home and a new job as she will not have to drive the distances with them that she had and will not have to employ a maid, for which the husband has also been given the invoice for and has paid for. The husband will finish renovating the matrimonial property inside and out and prepare it for sale to increase value in the asset for both parties.

The husband will also do all the driving accordingly living on the acreage to accommodate the children. Conclusion [ 8 ] These parties were married in August 1991 and ceased cohabiting in June 2010, when the husband was required to leave the home at police insistence. There is currently a no contract order in place wherein the husband is not have any contact with the wife except through their respective counsel or through a third party to arrange mutual counselling. The husband is further prohibited from attending the matrimonial home.

[ 9 ] The husband has yet to finalize the criminal charges related to this matter in Court, although he alleges that the matter could have proceeded by way of Peace Bond, but for the wife’s adamant displeasure regarding such a Peace Bond. The husband also deposes that he has been offered a Conditional Discharge in this matter, but has refused it because he would have an ongoing record of it. It does appear that the husband does not have any criminal record, and that this was the first reported incident of alleged spousal abuse.

The husband is concerned that if he has any type of criminal record given his business activities, and his need to travel, that that will severely affect his ability to grow his multimillion dollar business currently in a dire state of debt, or even to earn a livelihood. Shared Parenting [ 10 ] There are three children of the marriage, the oldest which is 16½ and who lives with the husband.

Obviously that arrangement will continue as long as the oldest child desires, and any visitations or time that he spends with his mother will be up to the child. [ 11 ] As for the youngest two children currently 14 and 11½, they have been residing with their mother, who has been a stay at home parent since at least 1999.

Both parties have been very involved with the children and their activities. [ 12 ] Although the father seeks shared parenting for all three children of the marriage, I conclude that since the mother has been the primary caregiver to the children since their births, and given the present predicament that these parties find themselves both in the Courts and otherwise, that it would not be in the best interests of the children to shift them to a shared parenting situation.

Furthermore the husband is currently living in a two bedroom fully furnished condo with his oldest son, not a long term living arrangement that could easily suit himself and his three children. [ 13 ] The husband’s current demanding job requirements and travel commitments also make a shared parenting arrangement unrealistic, and not necessarily in the best interests of the children. There is also no allegation that the mother is anything but a proper parent to the children, and generally she allows access to the husband.

While denying the shared parenting arrangement, the husband will still have parenting time with all three children for three consecutive weekends from Friday after school to Sunday evening, with the remaining weekend(

s) each month being with the mother from Friday after school to Sunday evening. Exclusive Possess of the Matrimonial Home [ 14 ] Both parties’ seek to have the exclusive possession of the former matrimonial home along with its contents. [ 15 ] The Matrimonial Property Act deals with this issue as follows:– 19(1) The Court, on application by a spouse, may by order do any one or more of the following: (

a) direct that a spouse be given exclusive possession of the matrimonial home; (

b) direct that a spouse be evicted from the matrimonial home; (

c) restrain a spouse from entering or attending at or near the matrimonial home.

(2) In addition to making an order under subsection (1), the Court may, by order, give a spouse possession of as much of the property

surrounding the matrimonial home as is necessary, in the opinion of the Court, for the use and enjoyment of the matrimonial home.

(3) An order under this

section may be made subject to any conditions and for any time that the Court considers necessary.

(4) An order under this

section may be varied by the Court on application by a spouse.

(5) An order under this

section does not create a subdivision within the meaning of

Part 17 of the Municipal Government Act . 20 In exercising its powers under this Part, the Court shall have regard to (

a) the availability of other accommodation within the means of both the spouses, (

b) the needs of any children residing in the matrimonial home, (

c) the financial position of each of the spouses, and (

d) any order made by a court with respect to the property or the support or maintenance of one or both of the spouses . Underlining Added [ 16 ] The husband left the property in June 2010 in the unfortunate circumstances as previously described. He has subsequently become somewhat established in a fully furnished two bedroom condo, and has offered to rent a fully furnished $500,000 rental property in Sherwood Park for the wife.

Throughout the relationship, the husband was the financial provider, and the wife was and continues to be a stay at home parent. [ 17 ] While the husband submits that the matrimonial home is in dire need of interior and external renovations that must be undertaken before any sale, this is also the only major asset from the marriage that the wife has any control of presently. The husband on the other hand has interests in up to ten companies, and numerous chattels associated with those companies.

While most of those companies have no apparent or significant value at this time, some companies have retained earnings of up to half a million dollars and the husband’s numbered company is earning money currently through at least one profitable Boston Pizza investment. [ 18 ] The wife is also happy to live in this large and relatively new property in its present condition, and agrees that if any renovations need to be made, she is prepared to allow access to the renovator. [ 19 ] If the wife was forced to leave the matrimonial home currently, her expenses would increase substantially since the husband has always been paying for all expenses associated with the home both before and since the date of separation.

The children would also in my respectful opinion have to be relocated unnecessarily if the wife had to give up exclusive possession of the matrimonial home. The pictures of the matrimonial home certainly evidence the show home quality to the interior, and whatever work that needs to be performed would primarily be on the 2 acre grounds which can be arranged without moving the wife and children out. [ 20 ] Given that the wife has been granted exclusive possession of the matrimonial home by this Court, the household contents of necessity should remain there as well.

Child and Spousal Support [ 21 ] These parties were married for 20 years, with the wife being out of the work force for more than 11 years. Irrespective of whatever services the wife is or is not providing for the income she currently receives from TNT, this income was never guaranteed, and will be cut off by the husband after this decision is issued.

A similar situation exists with respect to the wife’s vehicle expenses which are also currently paid through TNT. [ 22 ] According to the wife’s Affidavit, her current budget of expenses already exceeds the $69,600 annual income she receives from TNT, and when she is cut off by TNT for vehicle and house expenses then her monthly budget exceeds $20,000 per month. [ 23 ] Subject to her general duty to engage in some form of gainful employment within a reasonable period of time which I conclude is not possible and academic for the moment, the wife is entitled to the lifestyle she had prior to the separation and the marriage break up.

As such the wife is entitled to monthly spousal support that would provide her with a reasonable monthly budget in accordance to a certain standard of living that she is accustomed to, if the husband has the ability to pay. [ 24 ] The husband argues that he does not have the ability to pay spousal support given the significant number of financial unknowns and difficulties that he is facing.

The husband argues that given that both sides have qualified accounting professionals currently in place engaged to assess the financial circumstances arising from his disclosure, and given his dire debt position at this point in time, he should only be required to provide the wife with enough money to cover a $6,100 net budget, which he is willing to pay for the next six months. [ 25 ] The husband argues that spousal support should only be dealt with when these circumstances can be reviewed after all of his financial disclosure and valuation on his assets have been completed.

The monthly $6,100 payments would adequately cover the wife’s expenses and child support, although she would no longer be employed by TNT, and the Range Rover vehicle would have to be returned to the company in order to assist in reducing expenses. [ 26 ] The husband submits that the wife would also be eligible for employment insurance as well during this six month period of time, for which she would receive a net amount of $1,965, for a total of over $8,000 a month in net income. [ 27 ] This proposal presupposes that the wife would move to a rental home valued at approximately $500,000 available in Sherwood Park at a rent between $1,800 to $2,100 a month, so that the cost of operating this home would be approximately $2,450 including utilities.

The matrimonial home would then be renovated, completed, and put up for sale. The husband has also agreed to borrow $20,000 from his mother to allow for the purchase of furniture for the rental home, and also agrees to get a $10,000 loan from his father to provide to the wife to assist her with legal and professional expenses. The husband requests however that both loans from the mother and the father be construed as joint matrimonial debt. [ 28 ] The wife proposes that I impute income to the husband of $400,000 annually.

This imputation of income is based on his recent spending habits and pattern, and would apply for purposes of child and spousal support notwithstanding that the husband’s actual annual income is only $156,000 a year. [ 29 ] I conclude that the better view, given that the husband will terminate the wife’s TNT salary and her vehicle subsidy and given that I have decided the wife shall remain in exclusive possession of the matrimonial home, is to require the husband to make child support payments pursuant to an imputed income of $20,000 a month, ($240,000 annually).

This $240,000 annual imputed income is based on the husband’s credit card statements and other recent monthly spending pattens, and his payments related to the matrimonial home. [ 30 ] I direct that the $240,000 a year imputed income without prejudice interim child support payments occur for a period of six months from February 1, 2011, until full valuations and assessments on the financial disclosure can be completed.

[ 31 ] Also taking into account the requirements of the wife as a result of her being allowed to remain in exclusive possession of the matrimonial home, without prejudice interim six month spousal support beginning February 1, 2011 will be set at an additional $7,500 a month. Costs [ 32 ] Pursuant to the Alberta Rules of Court , the Court has jurisdiction to award interim costs from time to time, in the course of these divorce proceedings.

I conclude that the wife is in need of interim costs to present her position to the Court, to obtain expert reports that determine the husband’s value and his numerous companies, and to complete valuations.

The wife is obviously dependent on the husband for financial support, and is not in any position to obtain any reasonable form of employment for a number of years. [ 33 ] I conclude that the $20,000 that the husband has offered to make available to the wife will be advanced by the husband as interim costs given the complexity of this case, and so as not to deplete the wife’s financial resources in order to advance her claim.

The $20,000 in interim costs shall be provided immediately and shall be construed as joint matrimonial debt. [ 34 ] The wife also seeks enhanced costs, or statement of claim costs, due to the husband’s lack of timely financial disclosure. I conclude that these financial matters herein are complicated, and that the husband has been providing extensive disclosure, particularly recently. Accordingly I will only further award party and party costs in favour of the wife for this application. Heard on the 14 th day of January, 2011. Dated at the City of Edmonton, Alberta this 14 th day of February, 2011.

Donald Lee J.C.Q.B.A. Appearances: Collista Coles Barr Picard for the Plaintiff Melanie Bowbell Pollock & Pollock

for the Defendant