Bowmaster v. Bowmaster, 2011 ABQB 83

Court of Queen ’ s Bench of Alberta Citation: Bowmaster v. Bowmaster, 2011 ABQB 83 Date: 20110214 Docket: 4801 137149 Registry: Calgary Between: Dorothy Gail Bowmaster Plaintiff - and - Kenneth Wayne Bowmaster Defendant Corrected judgment: A corrigendum was issued on March 16, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _____________________________________________________ Reasons for Judgment of the Honourable Madam Justice B.L.

Rawlins _______________________________________________________ Introduction [ 1 ] This trial involves the division of matrimonial property and the entitlement and quantum of spousal support. The facts of this case are relatively simple and while the trial lasted five days, it could have been concluded in a day or two but for the fact that the Plaintiff after expending over $70,000 in legal fees, was compelled to represent herself. Much of my findings throughout were based on inconclusive evidence which two lawyers acting for the parties would have recognized without the necessity of a trial.

However, since the breakdown of the marriage was precipitated by an incident of abuse, the level of communication and trust between the parties was such that little if any, agreement could be reached on any item.

[ 2 ] What follows are my findings of the assets that comprise the matrimonial property, the matrimonial debt and any exemptions that apply. I will then conclude with my findings on the issue of spousal support. Decision [ 3 ] The Plaintiff owes the Defendant $133,594.17 for matrimonial property and the Defendant owes the Plaintiff $15,000 for lump sum spousal support resulting in a payment by the Plaintiff to the Defendant of $118,594.20. This amount is in addition to any proceeds received by the parties from assets not included in this payment that are ordered to be sold.

The specific details respecting the disposal of those assets are outlined below. Narrative Background Including Findings of Fact [ 4 ] The parties were married on February 18, 1972 and separated on June 2, 2008. They had two children, both of whom are over the age of eighteen years and both of whom regrettably gave evidence during the course of this trial. They were divorced on February 16, 2010 and the corollary relief was severed. Neither the Plaintiff nor the Defendant appear to have earned more than $20,000 each per year according to their most recent tax returns.

They owned and operated a farm, Baker Creek Berry Company, which produced fruit and fruit products for local markets. It was sold for approximately $400,000 some years ago and the parties appear to have split the net proceeds with the intention of setting up their retirement. After that, they were employed in other small jobs most notably cleaning a local funeral home and preparing sandwiches and lunches if there was a funeral. In addition, the Plaintiff had a paper route and also worked at Wal-Mart to make ends meet.

What is pivotal in this case, was the fact that they were able to maintain their lifestyle in large part because of the monies they saved from the sale of the farm and the Defendant’s contribution from monies he had inherited from his mother. As a result of the way in which the Defendant used his inheritance it was quite easy to trace the bulk of it to the line-of-credit on the matrimonial home. [ 5 ] Much of the evidence I heard during the trial was directed at the personal property that the parties had accumulated over decades.

They each attempted to claw back obvious gifts and items in the normal course which would normally not have been involved in a lawsuit much less in evidence in a trial. I do not intend to go through each item as painstakingly as they have done. I have reviewed all the evidence and my findings reflect how poor the evidence was for the most part and what I consider to be pertinent values. As for any item or debt which I did not specifically mention I have either determined there was not enough evidence to place a value or I have determined that its value should not be considered.

Division of Matrimonial Property [ 6 ] I have allowed an exemption to the Defendant for the monies he paid toward the matrimonial home. The law is clear that if the exemption can be traced and there is no co-mingling then the entire amount is exempt.

Here the Defendant deposited the monies into a joint account and which resulted in a reduction of that exemption to 75%. [ 7 ] Because the Plaintiff contributed very little, if any, to the Polo Park property which was an exempt property of the Defendant, her share in the increase in value from the date of marriage until the time it was sold reflects her minimal contribution. With respect to other values, I offer the following explanations. [ 8 ] The value I have placed on the personal property in the possession of the Plaintiff includes the jewellery.

The evidence on this issue was widely divergent which I attribute to the fact that much of it was purchased years ago and naturally memories fade over time. Further it was evident that the values the parties placed on their other personal effects far outweighed the type of proceeds that were realized at the auction which was the market indicator. [ 9 ] With respect to the Defendant’s life insurance policies, while I acknowledge there should be some exemption for the period he contributed prior to marriage, it was a negligible amount compared to what he contributed after marriage.

I have allowed a reduced exemption as a result. For the other policies, I have either included the actual cash value stated or made a determination with the information provided.

[ 10 ] I have allowed the Defendant to deduct his legal fees of $71,700 from his Quadrus account plus a further $25,000 exemption. The Plaintiff’s Quadrus account was depleted to zero by her legal fees and both parties should be entitled to the same benefit of legal fees paid. Regarding the matrimonial debts, I have not included all that were claimed as noted above as not being appropriately shared in each case. [ 11 ] I direct that the Kia and Chevy Ventura motor vehicles shall be delivered to the Defendant no later then 30 days after the release of this judgment.

He shall sell both and provide half of the net proceeds to the Plaintiff. The Defendant shall also have ownership of the golf share which is also to be sold and any proceeds are to be divided equally. [ 12 ] The original computer and lap top currently in the possession of the Plaintiff shall be delivered to the Defendant without alteration for a period of 90 days from the release of this judgment so that he can access any information contained thereon for his benefit or for the company of the parties.

After 90 days he is to return these items to the Plaintiff or obtain a Court Order for an extension of the time for the return. [ 13 ] The outstanding judgment against John Sullivan shall remain in the control of the Plaintiff and should she collect on this judgment, the Defendant is entitled to one-half of the judgment recovered net any legal costs expended. [ 14 ] As the Plaintiff testified she has custody of seven pieces of artwork, she shall deliver same to the Defendant as well as the other personal family items he has requested during the trial, within the same time periods as provided for the return of the motor vehicles. [ 15 ] The Royal Holiday asset is somewhat problematic because it appears neither party wishes to own it and there are ongoing expenses.

Until it is sold, I direct that the yearly cost of maintaining it, excepting any fees that may be required for trips that are taken until it is sold, shall be borne by the Defendant in uneven years and by the Plaintiff in even years. The Defendant shall be entitled to sell any of the assets referred to above without the necessity of the Plaintiff’s consent or her signature and same shall be waived to accomplish any such sale.

Any Order required to complete any sale of any asset herein shall also not require the Plaintiff’s consent to form or content and may be obtained ex-parte. [ 16 ] The following represents the matrimonial property split including the debt: Assets Plaintiff (Dorothy Bowmaster) Defendant (Kenneth Bowmaster) Condo $ 194,000.00 ( 72,963.16) ($120,632.84) ( 26,000.00) Polo Park ( 6,500.00) ( 19,500.00) UFA Equity 2,113.36 CU Equity 53.44 CU Shares 2,183.65 2,183.65 Co-Op Share 302.00

Personal Accounts 2,975.35 5,342.99 Personality 8,000.00 Auction Proceeds 2,078.59 ($50.00 to Dorothy) AMA Proceeds 1,072.00 Joint Fund 9,023.10 Guns 175.00 2,480.00 London Life Investments 50,000.00 19,478.00 Life Insurance 2,000.00 18,026.20 Quadrus 0 3,343.56 TOTAL $77,595.90 $53,234.99 Total Assets $130,830.89 excluding matrimonial home and proceeds of Polo Park Debts Dorothy Bowmaster Kenneth Bowmaster Hotel $ 146.06 Security Alarm $ 257.25 UFA Gas Bill $ 200.00 Royal Holiday $ 675.00 Appraisal $ 367.50 Ventura Repairs $ 224.00 Accountant $3,076.50 Epcor $ 119.63

Direct Energy $ 214.92 Star Choice $ 49.69 RBC Visa $1,011.20 London Life Debt $8,320.00 TOTAL DEBTS $4,946.31 $9,715.44 COMBINED TOTAL DEBTS = $14,661.75 $130,830.89 - $14,661.75 = $116,169.14 ÷ 2 = $ 58,084.57 each Equalization: $ 77,595.90 - $ 58,084.57 = $19,511.33 owed by Plaintiff to Defendant $120,632.84 - $ 6,500 = $133,644.17 - $50.00 auction items - $133,594.17 Occupation Rent [ 17 ] As I have stated above, the parties were able to maintain their matrimonial home as a result of the ongoing influx of the Defendant’s inheritance.

The split of the value of that asset indicates how that exemption affected the Plaintiff’s interest. I find that the income the parties declared would not have covered all of their living expenses so it is not surprising that after the Defendant left the matrimonial home, the Plaintiff was left with only the income that she made, which I find was insufficient to service the mortgage. The Defendant alleges that occupation rent should be payable and under the circumstance I find that these facts do not warrant such a finding and I decline to award any.

Spousal Support [ 18 ] Both parties claimed spousal support, although the Plaintiff only did so at my invitation during the course of the trial after the Defendant’s counsel requested an amendment to her pleadings to claim occupation rent. On first blush it may appear that there is no merit to either claim mainly because neither has established the evidence for entitlement, other than impecuniosity, but more importantly neither party has sufficient income or funds to provide any amount payable to the other.

Their planned retirement unfortunately, has in large part, been spent on legal fees which leaves them both in precarious pecuniary positions. While the Defendant called evidence of his inability to work because of his failing health, I note that although a great deal of it can be contributed to years of heavy smoking, it was clear that he is not completely restricted from working per se, just any kind of employment requiring lifting or physical labour. No vocational expert was called, nor was I convinced of his total inability to work.

I did not find his health or his inability to work related to the marriage or its breakdown.

He has suffered these ailments prior to the separation and although there may be some level of deterioration which would normally accompany age, he is capable I believe of providing some services to the funeral home in the same manner as he had done in the past or any sedentary job that could be accommodated for his ongoing ailments. [ 19 ] His only source of income is what remains of his investments and a greater portion of the matrimonial property as a result of his exemptions. [ 20 ] I contrast his situation with that of the Plaintiff. She has been maintaining three menial jobs to survive.

Her entitlement if any,

is stronger than his because as noted above, it is clear that while the parties were married they survived by a generous influx of the Defendant’s inheritance. Without that, her stake in life is severely economically disadvantaged by the breakdown of this marriage. Because of the Defendant’s exemption, after 36 years of marriage she will retain few assets herself with a bleak prospect of that ever changing. I find both parties contributed equally to this marriage regime for over 30 years and the couple agreed that the Defendant’s inheritance would fund their retirement rather than continue to work.

This was especially true for the Defendant who apparently decided to quit work despite the objections of the Plaintiff as to whether they could afford to retire. As a result, I find that while the parties were living together there was no economic disadvantage to the Plaintiff by virtue of the way the parties arranged their income. It could easily have been the case that the Defendant provided his inheritance monies for ongoing expenses rather than the mortgage in which case by most, if not all, of his exemption would have disappeared. As that is not the case, the breakdown severely disadvantages the Plaintiff.

As a result, I find the Plaintiff entitled to spousal support to assist her in becoming more economically self-sufficient. Since it is clear there are insufficient funds from the Defendant’s income to fund any such obligation, this is an opportunity to satisfy the payment from matrimonial property the split of which, is in large part, where the entitlement arises. This is not to say that an unequal split of matrimonial property necessarily entitles anyone to spousal support. It is on these very peculiar facts that I make this finding of spousal support.

As a result, I award a lump sum of $15,000 payable out of the Defendant’s share of the matrimonial property to the Plaintiff in full satisfaction of any spousal support currently or in the future. Additional Terms of Division [ 21 ] In addition to any directions above for the disposal of assets, the Plaintiff shall have 30 days from the release of this judgment to complete the following:

(1) Advise the Defendant in writing or e-mail that she intends to provide the equalization payment in cash without the necessity of selling the matrimonial home. If she fails to provide such notice by that date or if she does and advises that she will be selling the condo to accomplish this, then on the 31 st day or earlier, the condo shall be listed for sale at a price set by the realtor in consultation with, but not the consent of the parties. The realtor must get the consent of the Defendant’s solicitor to any price.

The sale shall be handled by the Defendant’s solicitor and she will make the final decision with respect to the acceptance of any offer after consultation with, but not the consent of, the parties and regular fees for the sale of the property shall be deducted from the proceeds of sale before any division occurs.

(2) The Plaintiff shall deliver up copies of originals of all documentation related to the Royal Holiday asset. Failure to do so will void any financial responsibility of the Defendant for this asset in uneven years. The Defendant shall use his best efforts to sell this asset and any consent of the Plaintiff to do so is waived. Any proceeds shall be split between the parties.

(3) The Plaintiff shall deliver up any documentation respecting the UFA shares or equity and the CU shares and equity to the Defendant who shall then proceed to divide whatever values there may be excluding division of the UFA equity which the Plaintiff has already received. As above, any consent or signature required of the Plaintiff is waived to accomplish any such division. Conclusion [ 22 ] This was a very unfortunate situation, the parties have unfortunately after 36 years spent so much on legal fees that neither will have a comfortable retirement. It is a hard lesson to learn and one that regrettably occurs all too often in our courts.

[ 23 ] As I have allowed each party their solicitor/client costs from matrimonial property, there shall be no order as to costs. Heard on the 31 st day of January and on the 1st, 2 nd , 3 rd and 4 th day of February, 2011. Dated at the City of Calgary, Alberta this 14 th day of February, 2011. B.L. Rawlins J.C.Q.B.A. Appearances: Dorothy Gail Bowmaster for the Plaintiff (self represented) Ruellen Forsyth-Nicholson for the Defendant _______________________________________________________ Corrigendum of the Reasons for Judgment

of The Honourable Madam Justice B.L. Rawlins _______________________________________________________ Reasons for Judgment of the Honourable “Madam” Justice B.L. Rawlins.