Bartlett v. Bartlett, 2012 ABQB 122

Court of Queen ’ s Bench of Alberta Citation: Bartlett v. Bartlett, 2012 ABQB 122 Date: 20120227 Docket: 4803 116021 Registry: Edmonton Between: Gail Leona Bartlett Applicant/Plaintiff - and - Vernon John Bartlett Respondent/Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ Introduction [ 1 ] Gail Leona Bartlett sued Vernon John Bartlett for divorce and corollary relief, as well as for a division of matrimonial property. The action proceeded to trial in September, 2011.

Final argument was heard on January 20, 2012. The issues to be determined are whether rural property acquired by Mr. Bartlett on behalf of the Weiser family, foreign nationals, should be included in the matrimonial property of the parties, and whether Mrs. Bartlett is entitled to spousal support from Mr. Bartlett. Background

[ 2 ] Vernon Bartlett and Gail Bartlett were married on September 25, 1962. They separated on January 8, 2000. There are 3 independent adult children. Mr. Bartlett worked throughout the marriage. He had a number of different jobs. At the time of the separation, Mr. Bartlett was working as a realtor. Since separation, he has worked on his new partner’s farm property, and has had little by way of earnings. He did not file any tax returns for 1990 to 2003. He testified that his best year by way of gross income from real estate commissions was $79,000.00 but expenses brought that down to a net of $30,000.00.

He testified that his net had always been less than $30,000.00 per year and usually between $25,000.00 and $30,000.00 per year. He explained his failure to file tax returns for that extended period as “he thought he could get away with it.” He has, since 2004, filed tax returns. [ 3 ] His tax returns for 2004 - 2006 showed no income. His incomes for the following years have been: 2007 $8,005.00 2008 $10,520.00 2009 $20,400.00 2010 $20416.00 2011 $20,000.00 (est.) [ 4 ] Mr.

Bartlett’s income now is derived from Government pensions - Old Age Security and Canada Pension Plan - and he now receives a total of $1,725.00 per month, plus the GST credit. [ 5 ] Mrs. Bartlett was a hairdresser after the parties married. She worked for about 6 months before their oldest child was born. She then stayed home and was out of the workforce from 1965 to 1979. Thereafter, she worked on a part time basis. [ 6 ] Mrs. Bartlett testified that Mr. Bartlett did not want her to work in the early part of their marriage and while the children were young.

She returned to work in 1979, working initially as a hairdresser and then in the floral industry for about 10 years. She then worked part time as a caterer until she and Mr. Bartlett separated in 2000. She then began a new career in real estate sales, and has out- earned Mr. Bartlett since the separation. Her net earnings have been as follows: 2003 $51,518.00 2004 $49,735.00 2005 $40,789.00 2006 $71,135.00 2007 $109,229.00 2008 $70,143.00 2009 $29,345.01 to September 30 [ 7 ] The major asset of the parties was the jointly owned matrimonial home, located in Drayton Valley. After separation, Mr.

Bartlett transferred his interest in the matrimonial home to Ms. Bartlett, as well as an 8 year old car. He alleges that the home and the car constituted most of the matrimonial property. [ 8 ] With the exception of the property Mr. Bartlett acquired for the Weiser family, all other matrimonial property has been divided. [ 9 ] The major issue at the trial was the acquisition of two parcels of land by Mr. Bartlett’s company in 1998. Mr. Bartlett was an active realtor at the time of the acquisition. He had been introduced to Marianne Weiser, who had been directed to his office by the

town’s tourist bureau. Ms. Weiser was on her way through the Yellowhead highway from Vancouver, and was looking for rural property. She and her family were German nationals, but had been living in Bali, Indonesia, for some time. Her husband was in Germany working in a family business, and Ms. Weiser was looking to relocate to Western Canada because the political environment in Bali had become difficult. She and her husband had decided to sell their assets in Bali and move to Canada. [ 10 ] Ms. Weiser became very interested in a two-parcel property comprising some 427 acres which Mr.

Bartlett had showed her, and she made an offer to purchase the property for some $365,000.00. The offer was accepted. Ms. Weiser was aware that there were difficulties with foreign nationals acquiring rural land in Alberta, but she testified that she was not concerned about that, as she had been able to get around such restrictions when she and her husband purchased land in Bali . She assumed that there would be ways of getting around the restrictions in Canada too. [ 11 ] Ms. Weiser was introduced to a lawyer in Drayton Valley to do the conveyancing for her. The lawyer advised Ms.

Weiser that she and her husband could not acquire the property because of the Foreign Ownership of Land Regulations , Alta Reg160/79 passed under the Immigration Act (Canada) , and the Agricultural and Recreational Ownership of Land Act (Alberta) . [ 12 ] S. 4 of the Regulations provides:

(1) Subject to these Regulations, no ineligible person or foreign controlled corporation shall take or acquire, directly or indirectly, an interest in controlled land.

(2) Nothing in subsection (1) affects the succession by any person to an interest in controlled land arising out of the death of a person. [ 13 ] “Ineligible person” is defined in s. 2 as: “ineligible person” means (

a) an individual who is not a Canadian citizen or a permanent resident [ 14 ] S. 7 of the Regulations deals with options to purchase as follows: An ineligible person or foreign controlled corporation may take or acquire an option to purchase an interest in controlled land if (

a) the option to purchase is exercisable within a period of one year from its effective date and not afterwards, and (

b) the option to purchase contains a condition that it may be exercised only in favour of the ineligible person or foreign controlled corporation when the ineligible person or foreign controlled corporation becomes eligible to acquire the interest under these Regulations. [ 15 ] S. 20 deals with remedies:

(1) If (

a) an ineligible person, foreign controlled corporation, trustee, general partner of a foreign controlled limited partnership or any other person takes or acquires an interest in controlled land contrary to these Regulations, or

(

b) under these Regulations an ineligible person, foreign controlled corporation, trustee, general partner of a foreign controlled limited partnership or any other person is required to divest himself or itself of an interest in controlled land and does not do so within the time limited by these regulations, the Supreme Court of Alberta or the District Court of Alberta may, on the application of the Attorney General of Alberta by way of originating notice, order the judicial sale of the interest in controlled land so required to be divested.

(2) The proceeds of a judicial sale made under subsection (1) shall be applied first to pay the costs of the judicial sale including the costs of the Attorney General in bringing the application for the judicial sale and secondly to pay to the ineligible person, foreign controlled corporation, trustee, general partner of a foreign controlled limited partnership or other person the amount paid by him or it for the interest in controlled land, and the amount, if any, remaining shall be paid into the General Revenue Fund of Alberta.

(3) Nothing in this

section restricts, limits or derogates from any remedy at common law or under statute. [ 16 ] Part of the conveyancing of rural or recreational properties greater than 20 acres in size requires the purchaser or his or her agent to provide a statutory declaration that the purchaser is a Canadian citizen or permanent resident of Canada (Form 1) or not a foreign controlled corporation (Form 2) and the purchaser is not holding the property in trust for anyone who is not a Canadian Citizen or a permanent resident of Canada, or which is a foreign controlled corporation. [ 17 ] Form 2 under the Regulations , applicable to purchases of controlled land by Canadian-controlled corporations, requires the corporation’s agent to declare: I (We) of (full address including street, municipality and country.) SOLEMNLY DECLARE THAT: (name of corporation(s)) of (mailing address) is (are) the transferee(s), transmittee(s), caveator(

s) or lessee(

s) named in the above described instrument; will hold the interest in the land beneficially and not as a trustee(

s) and not on behalf of any person; and is (are) not a “foreign controlled corporation(s)” as defined in the Foreign Ownership of Land Regulations . I am a person authorized under section 22(2) of the Foreign Ownership of Land Regulations to sign on behalf of the transferee(s), transmittee(s), caveator(

s) or lessee(

s) named in the above described instrument. [ 18 ] Ms. Weiser’s lawyer advised that the transaction could be structured in a way to get around the Regulations if the named purchaser was a Canadian citizen or Canadian-controlled corporation. The purchase could be funded by the foreign national, and the foreign national or foreign corporation (either by virtue of incorporation other than in Canada, or by being controlled by foreigners) could loan the purchase monies to the Canadian citizen or a Canadian-controlled corporation.

The loan would not be secured by way of a registered mortgage, as a mortgage in favour of a non-Canadian or foreign corporation could not be registered because of the Regulations . [ 19 ] The Canadian citizen or Canadian-controlled corporation would sign a promissory note in favour of the foreign national, grant an unregistered mortgage collateral to the promissory note, and enter into an option with the foreign national to sell the property to the foreign national at the original purchase price, conditional upon the foreign national obtaining an exemption under the Regulations , or becoming a permanent resident of Canada.

The option would be valid so long as it was for a period of less than a year under s. 7. [ 20 ] The property in the meantime could be rented to the foreign national with the foreign national being responsible for all costs associated with the property. [ 21 ] Nothing would appear on title with respect to the transaction, other than perhaps the option.

[ 21 ] Nothing would appear on title with respect to the transaction, other than perhaps the option. [ 22 ] The key, according to the legal advice given, was to find a Canadian citizen willing to participate in the transaction who was honest and trustworthy. [ 23 ] Ms. Weiser asked Mr. Bartlett if he would be the Canadian citizen in the transaction for her and her husband, and he agreed. It was intended that a newly incorporated company 802070 Alberta Ltd. would be owned by Mr. Bartlett. It would be the transferee. [ 24 ] Ms. Weiser testified that all closing funds were provided by the Weiser family. While Mrs.

Bartlett disputed that, there was no evidence presented by her to suggest that Mr. Bartlett had provided any of the closing funds or ever contributed towards the purchase of the property. [ 25 ] The purchase was completed in Mr. Bartlett’s company’s name. Mr. Bartlett’s company, 80270, signed a loan agreement in favour of a new company owned by the Weisers, 791751 Alberta Ltd., acknowledging indebtedness to it for the full amount of the purchase price. Mr.

Bartlett, on behalf of his company, also granted an option in favour of the Weisers’ company, entitling it to acquire the property for the amount of the indebtedness when it ceased to be an ineligible purchaser (presumably when the Weisers became permanent residents of Canada). [ 26 ] Mr. Bartlett paid nothing for the conveyancing or the incorporation of the new company, although he presumably received a commission on the purchase. [ 27 ] To facilitate the conveyancing and closing, Mr.

Bartlett provided a statutory declaration in Form 2 declaring that his company was purchasing the property in its own right, and that it was not holding the property in trust for any ineligible person under the Foreign Ownership of Land Regulations . [ 28 ] Following the closing, Ms. Weiser and her family moved onto the property and she has resided there ever since. Mr. Bartlett continued to live with Mrs. Bartlett in their family home until their separation in 2000. Mrs. Bartlett believes that Mr. Bartlett began to live with Ms.

Weiser on the property some time before the beginning of January, 2000. [ 29 ] At some stage, Ms. Weiser’s marriage to her husband broke down. She and Mr. Bartlett began a romantic relationship in January, 2000, and he eventually moved in with her on the property. [ 30 ] After the separation, Mrs. Bartlett filed a certificate of lis pendens against the property, claiming that it was subject to her matrimonial property claim against Mr. Bartlett. At some later stage, Ms.

Weiser became a permanent resident of Canada, entitling her to own rural and recreational property in Alberta, and allowing corporations controlled by her to own rural or recreational property in Alberta. Mr. Bartlett transferred the property to a new company of hers, 847509 Alberta Ltd., in satisfaction of the remaining debt owed by his company to 791751 Alberta Ltd. Mrs. Bartlett’s certificate of lis pendens remains against the title to the property. [ 31 ] There is no evidence before me of the value of the property at any time other than when it was acquired in 1998. [ 32 ] In 2000, Ms.

Weiser’s company 791751 Alberta Ltd. acquired a parcel of something less than 20 acres, carved out of the property. Her company, while still ineligible to purchase farmland or recreational property because her immigration status had not yet changed, was able to acquire the smaller parcel (less than 20 acres) once it was subdivided out of the larger property. No monies were paid to Mr. Bartlett’s company; instead, the indebtedness from his company to 791751 was reduced by the value of the subdivided parcel. Mrs. Bartlett has withdrawn any claim relating to that parcel, and discharged her lis pendens against it.

Position of Parties

Mrs. Bartlett [ 33 ] Mrs. Bartlett claims that because the property was in Mr. Bartlett’s name at the time the parties separated, it is matrimonial property. She does not consider the fact that the property was always held by Mr. Bartlett’s company to be an impediment to her claim. She does not recognize any debt owed by Mr. Bartlett offsetting the value of the property, as she argues that Mr. Bartlett has not proven conclusively that he did not contribute to the purchase price. Alternatively she argues that any debt should attributed to Mr.

Bartlett’s interest in the property, and not her presumptive half interest. She argues that the entire transaction involving Ms. Weiser and her family should be treated as being tainted by breaches of the Foreign Ownership of Land Regulations , and the principles of ex turpi causa should be applied. [ 34 ] The application of that principle, according to Mrs. Bartlett, would be to treat the property as Mr. Bartlett’s property, free and clear of any debts or encumbrances in favour of Ms.

Weiser and her family, at least to the extent of her half interest under the Matrimonial Property Act . [ 35 ] By way of remedy, the property should be sold, and Mrs. Bartlett given half of the net proceeds. It would be up to Mr. Bartlett to deal with Ms. Weiser as he was part of the tainted transaction. [ 36 ] She also seeks spousal support in the amount of $1,000.00 per month from the time of separation, on an indefinite basis. Mr. Bartlett [ 37 ] Mr. Bartlett denies any breach of the Foreign Ownership of Land Regulations .

He argues that the transaction was suggested and concluded by a respected, experienced lawyer, and he participated as an accommodation party only. He provided no funds, and never had any expectation of gain from the transaction. He always considered himself bound by the obligation to transfer the property back to the Weiser family at no cost to them. He honoured that obligation even though the option agreement had expired. He made no payments on the “loan” to him from the Weiser family who financed the transaction. [ 38 ] As to spousal support, he argues that he has no significant income at the present time.

He was 67 years old at the date of the trial, and is happy in his new life with Ms. Weiser. He works on her property in exchange for room and board and a pleasant lifestyle provided by Ms. Weiser, He has no present expectation of working at anything off the property. He also notes that Mrs. Bartlett has made significantly more money than he since the separation, as she has become a successful realtor in her own right. He denies that there is any need on her part for spousal support, and states that he has no ability to pay spousal support at this stage.

Analysis [ 39 ] I am troubled by the transaction that led to the property being registered in Mr. Bartlett’s company’s name. The circumstances of the transaction, and his evidence at trial, leave me in some considerable doubt as to the truth of the statutory declaration provided by him on closing.

It is difficult to reconcile his role as purchaser, owing the full purchase price to a foreigner or foreign controlled corporation, obliged to convey the property to the foreigner on the foreigner becoming a Canadian citizen or permanent resident of Canada, and giving the foreigner complete and unrestricted use of the property (with the foreigner paying all of the necessary expenses), and his declaration that he was not a trustee of the property for the foreigner. [ 40 ] However, that is a matter for the Attorney General, and not for me. Mr.

Bartlett may well be at some jeopardy in that regard, as he appears to acknowledge that the effect of the transaction was that his company held the lands in trust for the Weisers or their company. [ 41 ] It is also difficult to reconcile the transaction with the Foreign Ownership of Land Regulations . The transaction was

structured in a clandestine way, hiding from the Land Titles Office the true nature of the transaction. That of course was necessary,because neither the Weisers nor their corporation could be registered on title as mortgagees. Their corporation could not have anyinterest in the property as mortgagee or otherwise. A caveat protecting the option could have valid, but only for a potential purchasewithin 1 year from the date of the option. [42] There is, in my view, a strong argument that the transaction was illegal.

It certainly violated the spirit of the Regulations, ifnot the Regulations themselves. [43] If the transaction was illegal, however, what would the result of that be? Would the false declarant/trustee get to keep theproperty? Would the debt incurred in the course of the illegal transaction be unenforceable? And would the option to acquire theproperty also be void? That might have the effect of having the property vested in the name of the false declarant/trustee.

Or would theproperty somehow be forfeited to the Crown? [44] The former seems to be an undesirable result - allowing the false declarant/trustee to keep the benefits of the transaction.Those would be ill-gotten and unearned gains. Forfeiture to the Crown seems much more attractive in the circumstances.

But theForeign Ownership of Land Regulations do not provide that draconian remedy. [45] If the transaction had come to the attention of the Attorney General or Solicitor General, the remedy under s. 20 of theRegulations might have come into play, requiring that the property be sold by judicial sale, with any profit (after repaying the purchaseprice to the ineligible purchaser) going to the Crown.

The evidence before me does not establish that any profit was made, having regardto the purchase price of the lands in 1978, and the time the transaction might have been unwound at the instance of the Attorney General,presumably before Ms. Weiser became an eligible purchaser in 2004. The property may have increased in value during those periods, butthe evidence before me does not establish that. So any potential jeopardy to the Crown for surplus value at any particular point in time isunclear. [46] Since the transaction was completed in 1998, Ms.

Weiser became a permanent resident and entitled to own rural real estate inAlberta. At the time of the transfer to a new company from Mr. Bartlett’s company, she was no longer an ineligible person. [47] It is arguable that any wrong under the Regulations has been cured by the passage of time and Ms. Weiser acquiringpermanent residency status. That is not clear and need not be decided here. [48] Mrs. Bartlett submits that the court should find the transactions between Mr. Bartlett and the Weisers illegal. [49] She relies on the principle of ex turpi causa, or, “out of fraud no action arises”.

She specifically cites Hall v. Hebert, (SCC), [1993] 2 S.C.R. 159, and J.T.L. v. R.G.L.. 2010 BCSC 1233. [50] Another leading case in this area is McDonald v. Fellows, (1979), 1979 ABCA 224 , 105 D.L.R. (3d) 434(Alta.C.A.). [51] In McDonald, the Court was considering whether a contract offended the Lord's Day Act and was therefore illegal, andexpressed this principle at para. 20: The first result which flows from this illegality is that neither party has any obligation to perform the purported agreement. The contract,void at its inception, is considered in law never to have been made at all.

The principle is stated in Cheshire & Fifoot's Law of Contract(8th Ed.) at page 339: "The general principle, founded on public policy, is that any transaction that is tainted by illegality in which both parties are equally

involved is beyond the pale of the law. No person can claim any right or remedy whatsoever under an illegal transaction in which he hasparticipated. Ex turpi causa nonoritur actio. The court is bound to veto the enforcement of a contract once it knows that it is illegal,whether the knowledge comes from the statement of the guilty party or from outside sources.

Even the defendant can successfully pleadthe turpis causa ..." Subject to some exceptions, to which I shall make reference, neither party may recover from the other anything paid or transferred if inorder to succeed he must base his claim upon the illegality or necessarily be bound to disclose the illegality in proving it. [emphasisadded] [52] The scope of ex turpi causa in a tort action has been set out by the Supreme Court of Canada in Hall v. Hebert. In that case,McLachlin, J. (as she then was) for the majority of the Court made it clear that ex turpi causa is a defence.

She concluded at para. 25 thatex turpi causa has a narrow application to cases in which it is appropriate to deny recovery to a plaintiff on the ground that to dootherwise would undermine the integrity of the justice system, either by permitting the plaintiff to profit by an illegal act or to evade acriminal penalty. [53] That approach was confirmed by the Supreme Court of Canada in British Columbia v. Zastowny, 208 SCC 4. [54] J.T.L. v. R.G.L. involves the principle in the context of a matrimonial property claim. There, the husband was, by allaccounts, a major drug dealer.

He had purchased valuable real estate using the profits from his marijuana grow operation, however theproperty had been put in the name of an associate. The wife sued the associate as well as the husband for half of the value of theproperty as being part of the matrimonial property.

The associate defended the claim against him on the basis of ex turpi causa -acknowledging that his ownership of the property was to assist J.T.L. elude the police and the Canada Revenue Agency, relying on thedoctrine of ex turpi causa to deprive both the spouses from any interest in the properties. [55] Beginning at para. 115, Harvey J. considered the doctrine in the context of the case before him: [115] The purpose of the ex turpi causa rule is to defend the integrity of the legal system and the repute in which the courts ought to beheld by law-abiding members of the community.

One way to ask the question is whether it be manifestly unacceptable to fair-minded orright-thinking people that a court should lend assistance to the plaintiff who has defied the law: Mandzuk v. Vieira, [1983] B.C.J. No.1476 at para. 17 (S.C.). [116] The power expressed in the maxim ex turpi causa non oritur actio finds its roots in the insistence of the courts that the judicialprocess not be used for abusive, illegal transactions.

Its use is justified where allowing the plaintiff’s claim would introduceinconsistency into the fabric of the law either by permitting the plaintiff to profit from an illegal or wrongful act or evade the penaltyprescribed by criminal law: Hall v. Hebert, (SCC), [1993] 2 S.C.R. 159; British Columbia v. Zastowny, 2008 SCC 4. [56] After reviewing several recent British Columbia cases involving the doctrine, Harvey J. concluded at paras. 123 and 124: [123] As noted in G.H.L.

Fridman, The Law of Contract in Canada (Toronto: Thomson Carswell, 2006) at 414-415, there has been amove toward allowing the enforcement of illegal contracts in certain situations: In recent years there has been a recognition of the desirability of balancing the need to preserve public policy by not enforcing illegalagreements and the need to avoid unjust enrichment.

The striking of this balance may depend in each case on the extent of the illegalityand the unjust enrichment. [124] While I have found a different contract from the one described in evidence by the plaintiff and G.G., the ill which the doctrine of exturpi causa seeks to prevent would be wholly undermined in this case if the plaintiff was provided with the fruits of his illegaltransaction at the expense of the defendant. Also, while it is likely that there may have been an illicit intent behind the use of G.G.’sname on the ownership of the Langley Properties, the agreement itself is not illegal.

In this case, I consider that the extent of the

illegality is not nearly as severe as the unjust enrichment that would be faced by the defendant. In the result, I decline to apply the doctrine of ex turpi causa to the case at bar. [ 57 ] It is clear from the cases that the application of the doctrine is a discretionary exercise by the Court. [ 58 ] A major difficulty with Mrs. Bartlett’s claim is that there is no evidence that Mr. Bartlett benefited from the transaction with the Weiser family. He likely made a commission on the transaction as a result of his being the effective cause of the sale.

But that would have been received by him in 1998 when the transaction closed. At the time, he and Mrs. Bartlett were still together and the commission formed part of his income at the time. The only beneficiaries of the transaction were presumably the vendor, who was able to sell the property, and the Weisers, who were able to purchase property that they were legally unable to purchase. [ 59 ] As suggested by Fridman in the passage above, unjust enrichment is a factor now considered in the application of the doctrine.

The reality of this case is that any benefit to anyone in the Bartlett family would be an unjust enrichment of them, and would have them benefit from participation in a highly questionable transaction. [ 60 ] The Regulations provide a remedy for transactions violating them, and the remedy is divestiture. That did not happen, and Ms. Weiser has been an eligible purchaser since 2004. Some of the lands (less than 20 acres) were legitimately transferred to her company when subdivision approval was obtained, and the remaining lands are now lawfully owned by her. [ 61 ] Further, Mrs.

Bartlett is not seeking to have the Court refuse to intervene in allegedly illegal transactions. She is essentially trying to undo the transfer of the property from Mr. Bartlett’s company to Ms. Weiser’s new company in 2004. While her certificate of lis pendens was on title at that time, to have any effect at all, the lis pendens must protect some sort of interest Mrs. Bartlett had in the lands. [ 62 ] What Mrs. Bartlett is seeking is to have the property essentially vest in Mr.

Bartlett’s company, have the property, and not the shares in the company, treated as matrimonial property, and to have the property to be sold and half of the net proceeds (ignoring any debt to Ms. Weiser or her companies). This would be a complete windfall for her, and would allow her to use ex turpi causa as a way of creating a remedy, rather than as a defence to a claim against her or her interest in any matrimonial property. [ 63 ] Creating windfalls is not the intent of the doctrine; as described most recently by McLaughlin J.; it is to be used to avoid undermining the justice system. [ 64 ] Here, Mr.

Bartlett has not profited by an illegal act, nor is he seeking to evade a criminal penalty. He may have committed an illegal act by participating in a transaction in contravention of the Regulations, and he may have made a false declaration. But that does not give Mrs. Bartlett a claim against him, nor does it create a property interest that she has any claim to. Mr. Bartlett never had a legal or equitable interest in the property. He owned shares in a company that had legal title to the property, but that company owed the entire purchase price to Ms.

Weiser or her company. [ 65 ] There is no general law prohibiting an Albertan or an Alberta company from borrowing monies from a foreign national or a foreign corporation. The foreign national or corporation may not be able to get security on rural or recreational lands, but the underlying debt is nonetheless valid. I am doubtful that applying ex turpi causa could have gone so far as to hold that Mr.

Bartlett had no obligation to repay the debt to the Weisers or their company, but that issue is not before me. [ 66 ] The justice system has not been asked to intervene in the transaction by any of the parties to it or by the Crown. The Crown might, at some stage, have forced divestiture under the Regulations . If Mr. Bartlett or his company had reneged on any of their obligations to the Weisers or their companies, the justice system might well have had to deal with ex turpi causa issues between Mr. Bartlett and the Weisers.

But intervention here is sought by a stranger to the transaction in order to create a windfall for her.

Conclusion [67] The short (and essentially full) answer to Mrs. Bartlett’s claim is that Mr. Bartlett never had an interest in the property, thusher certificate of lis pendens was and is invalid. She cannot have a matrimonial property claim to property that neither she nor herhusband ever had an interest in. [68] If she had any claim, it was in relation to the shares in Mr. Bartlett’s company. There are occasions where the corporate veilcan be pierced, but this is not a case where it is appropriate to do so.

It would be extraordinary and require vastly different circumstancesfor a court to conclude that corporate property, always owned by the corporation and not transferred from anyone connected to themarriage, could be subject to a claim to an interest in it by the spouse of the company’s shareholder and director. There may becircumstances warranting the piercing of the veil, but they do not exist in this case. [69] There is no evidence that the shares in Mr. Bartlett’s company ever had any value. The company owned the lands, but owedthe Weisers’ company the full value of the purchase price.

There was no evidence that the value of the lands increased beyond thepurchase price before it was transferred to the Ms. Weiser’s company. [70] Secondly, Mrs. Bartlett’s arguments are based on ex turpi causa. That is a defence, not a cause of action. It cannot be used toassist Mrs. Bartlett here. [71] Thirdly, to fashion a remedy in favour of Mrs. Bartlett would be to give her a windfall. The windfall would not be at theexpense of her husband, but a stranger.

While the stranger later became her husband’s new partner, the evidence was that the impugnedtransaction took place before there was any relationship between Mr. Bartlett and Ms. Weiser other than realtor - client. Their subsequentpersonal relationship is irrelevant to the matrimonial property claim and any remedies Mrs. Bartlett is entitled to. [72] Fourthly, Mrs. Bartlett has not established that Mr. Bartlett had any assets at the time of the separation or at the time of trial ofany value, or which were not accounted for when Mr. Bartlett transferred the matrimonial home to Mrs. Bartlett.

Any equity in thecompany was offset by the debt obligation to the Weisers or their company. In any event, there is no evidence that Mr. Bartlett benefitedin any way from the transaction. [73] As a result, Mrs. Bartlett’s claim relating to the Weiser property fails. Her certificate of lis pendens should be dischargedforthwith. She has not established a claim to any further division or distribution of matrimonial property, and her matrimonial propertyclaim is dismissed. Spousal Support [74] The parties had a long-term, traditional marriage. They were together for more than 37 years. Mrs.

Bartlett had a lengthyabsence from the workplace. [75] Mr. Bartlett relies on Corbeil v. Corbeil, 2001 ABCA 220, and McGuire v. McGuire, 2007 ABCA 271, arguing that Mrs.Bartlett has not shown that she was disadvantaged by the marriage itself or the breakdown of the marriage, and there is no basis for non-compensatory support (based on need or other circumstances). [76] I do not doubt that Mrs. Bartlett has a theoretical claim for compensatory support under the principles in Moge v. Moge, (SCC), [1992] 3 S.C.R. 813. Mrs.

Bartlett was out of the workforce for a lengthy period of time, and her return to theworkforce after the children were somewhat grown was on a part-time basis, and not really in the pursuit of a career. She pursued acareer in real estate after the parties separated, largely out of necessity as a reasonable level of support from Mr. Bartlett was unlikely.

[77] The evidence is, however, that Mrs. Bartlett has earned a greater income than has Mr. Bartlett since they separated. It tookher almost no time at all to become fully self-supporting. There was no evidence that her quality of life has suffered since the separation. She has not provided any evidence of need (by way of budget deficiencies). She seeks a level of support that would require Mr. Bartlettto pay her nearly 60% of his income and which would result in her having an income of more than five times his. [78] Mr.

Bartlett has not distinguished himself since separation with his earnings, but he has not had to. In some circumstances, anincome might be imputed to him, but there is no basis to do so here, as Mrs. Bartlett was able to earn, shortly after she commenced hercareer in real estate sales, more than Mr. Bartlett had has ever admitted to earning in the last 20 years. [79] Thus, while there is entitlement to spousal support in favour of Mrs. Bartlett, there has been no practical basis for any supportsince the parties separated.

Entitlement may be shown under Moge, but there is no principled basis for support to be quantified andordered paid under the principles in Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420 at least to the time of trial. [80] Mr. Bartlett is now only receiving pension income; it may be at some stage (depending on whether the pension entitlementshave already been split between the parties or not) that there will be a material change in the parties’ circumstances entitling Mrs. Bartlettto an award of spousal support, but that time has not come. [81] Mrs.

Bartlett’s claim for spousal support, retroactive and ongoing, is dismissed. She may reapply at some stage if there hasbeen a material change in her or Mr. Bartlett’s circumstances. Costs [82] Mrs. Bartlett has been unsuccessful in all of her claims against Mr. Bartlett. Unless there are issues arising out of the exchangeof offers of settlement or judgment, Mr. Bartlett should have costs of the proceedings. If the parties are unable to resolve costs betweenthemselves, they may apply to me for directions. Heard on the 20th day of January, 2012.

Dated at the City of Edmonton, Alberta this 24th day of February, 2012. R.A. Graesser J.C.Q.B.A. Appearances: Michael W. Jones

McConnell Law Office for the Plaintiff Jeffrey Klassen Klassen Law Office for the Defendant