EET v ANT, 2012 ABQB 142

Court of Queen ’ s Bench of Alberta Citation: EET v ANT, 2012 ABQB 142 Date: 20120301 Docket: 4803 159463 Registry: Edmonton Between: EET Applicant/Plaintiff - and - ANT Respondent/Defendant Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] This is a long term marriage in which the parties married in August 1991, having lived common-law for six years prior to that. The parties separated on November 20, 2011, and there is one child of the marriage currently 10 ½ years of age.

[ 2 ] Although this matter should have been heard in Special Chambers, given the serious time constraints the Applicant wife faces, she applied in regular Chambers for an Order for child and spousal support plus immediate exclusive possession of the matrimonial home. The wife submits that the parties living separate and apart within the same residence is intolerable for her given that she is still undergoing cancer radiation treatment after the complete removal of her thyroid in 2011, and given that she is now scheduled to have a non-related hysterectomy and thyroid removal operation two days hence.

The wife deposes that she requires a significant period of time to rest following her upcoming hysterectomy, and thyroid radiation treatments.

Her previous 2011 radiation treatments left her feeling nauseous, weak and tired with a compromised immune system so significant that she has to be isolated after the treatments for a period of time. [ 3 ] The Applicant deposes that after she received her first round of radiation treatments around end of October 2011 while she was isolated in the matrimonial home alone for a week, the Respondent took care of their daughter at his parents, and the result of the care that was provided for the daughter while under his supervision was very problematic and lacking.

She now will have her sister stay with her and look after the 10 ½ year old daughter in the matrimonial home. [ 4 ] The wife also deposes that she has been subjected to extreme financial restrictions given that she has no income, and has been dependent on the husband as the sole source of family support throughout this long term marriage. She has always been a stay at home mother to the child and has been responsible for her primary care.

As an example of the severe financial constraints that she faces from the husband, she deposes that on the weekend of February 4, 2012 she asked the husband if he would pay her $50 parking ticket from the Cross Cancer Clinic. The husband is alleged to have sworn at her, “ what do you think I am, a f--king bank ” . The wife also deposes that she has had to borrow money from her friends, and has only a grade 10 education.

She believes that needs $3,500 a month to support herself and to pay the mortgage and taxes on the property, and there are no support orders currently in place. [ 5 ] The husband made over $100,000 in 2010 working for an Engineering company as a project manager, where he has been employed for approximately 25 years. [ 6 ] The husband argues that he cannot afford to immediately move out of the matrimonial home, and furthermore that his presence in the matrimonial home is required while the wife undergoes her health treatments if for no other reason then to look after the daughter.

He denies that he has been abusive or unnecessarily financially constraining to the wife. He believes that the parties have co- existed since their separation on November 20, 2011, and that they can continue to live separate and apart within the same matrimonial home. [ 7 ] In response to the husband ’ s assertion that he cannot afford move out of the former matrimonial home, the wife deposes that the husband is now in a new relationship with another woman, and has made a number of trips in the last few months out of town with her and/or other friends to Las Vegas, and to other venues.

She alleges that the husband plans making two more trips in the very near future. He allegedly on January 25, 2012 asked her to reschedule her upcoming March 1, 2012 operation so that it did not interfere with a planned holiday. [ 8 ] In his Affidavit in response, the husband essentially denies most of these allegations being made against him. He plans to purchase the only significant asset these parties have which is the former matrimonial home worth approximately $300,000, that has a $64,000 mortgage because the wife cannot afford to live there alone.

The husband submits that the buyout occur at the end of April 2012. Conclusion [ 9 ] The Applicant wife is clearly in a difficult health situation at this time, and undoubtedly the stress level is much higher for her having to undergo these significant health issues while living separate and apart in the same house with her estranged husband. In Grunenwald v Grunenwald , 2006 ABQB 186 Watson J, as he then was, dealt with a somewhat similar application as follows at paras. 16 to 43: –

16 From her point of view, the stress level is much higher. I can understand from her subjective point of view why the stress level would be higher because she suffers very serious physical concerns. One is that she has been treated for cancer, resulting in surgeries of a significantly invasive manner and also, that she is suffering from ulcerative colitis. That fact of colitis was not disputed by the evidence given on behalf of Mr. Grunenwald. 17 Nonetheless, it does appear that she is capable of functioning at least, if not working.

She is at least capable of carrying on involvement with the business activities because she has, in fact, involved herself with the Orbit '88 business recently by taking on secretarial duties due to the resignation or dismissal of their latest secretary in that job. 18 From the point of view, though, of her physical condition, it seems to me that that is a factor which strongly militates in favour of separating these two individuals. 19 There is no reason why either one of them should actually be disabled from their ability to exercise the autonomy that mature adults have in this modern era - or why either should have to suffer physically as a result of difficulties that they have as between one another. 20 From that point of view, though, I would say on behalf of Mr.

Grunenwald as well that it is not unreasonable to assume that a man of some stature and some business skill, and obviously some acumen, who has risen up to a certain point, could feel stigmatized by the process that is taking place here. 21 He might also feel, perhaps, that the law is unfair to him on the basis that he is conceivably to be removed from his house and perhaps without compensation that he considers to be reasonable - at least until settled at some later stage. 22 From that point of view, I would not wish to motivate on his part any resentments or feelings of unfairness on the way the Court is treating him.

So, I have to say this, that I will not, in any way, in my disposition of this matter, take into consideration allegations of wrong-doing on his part4. 23 This is not only because the statute does not encourage it but because also I want him to understand that, to my mind, it does not make any difference what exactly the relationship is between these two parties except to say that the two parties of the marriage have reached a point where they cannot get along any more and their living together is not a desirable situation. 24 Whether or not one would consider that this would actually, if maintained as a situation, break out into some serious physical harm to somebody, is an open question.

I do not make that assumption. However, I do agree that at this point, adults that do not get along in this manner should stay away from one another. 25 Consequently, from that point of view, I am motivated to act at least in part on the Cross Notice of Motion brought by Mr. Grunenwald as well. 4. Analysis 26 Going then to the subject matter at hand, firstly,

Section 20 of the Matrimonial Property Act provides that in exercising his powers under the part, the Court shall have regard to the availability of other accommodation within the means of both spouses, the needs of any children - which is not a situation here - the financial position of each of the spouses, and any order made by a Court. 27 The two provisions that are important here are numbers (

a) and (

c) in that Section. Certainly, the financial position of each of the spouses is one which militates in favour of separating them because they are both capable of affording to live separately - separate and apart from one another - it seems to me.

28 While that is not something which either one of them would necessarily consider desirable, it is something which they are both capable of doing without undue hardship, it seems to me. Although, they are going to have to get time in order to get separated from one another in a physical sense. 29 As far as the availability of other accommodation within the means of both spouses, it goes without saying that I agree that they should be able to - in their life position, both of them - be able to find a suitable accommodation for themselves having regard to their financial resources.

These, in her case, may be supplemented ultimately by a spousal support order made by the Court - although, I am not specifically asked to make a decision on that point today. 30 I am motivated also - in assessing the philosophy under the Matrimonial Property Act and the principles of statutory construction which necessarily engage in relation of an analysis of this sort5 - by the decision of Verburg6. 31 It does seem to me that the manner in which she approached that particular case - which has comparable facts - is persuasive to me in terms of the approach that I have to consider in this particular regard. 5.

Conclusion 32 So, having regard to the facts that have been described to me - her disability situation, her financial situation - the circumstances are that she is somewhat more needy than he is at the present stage of affairs, both financial and physically.

It seems to me that the best and fairest way to handle this would be to give her the use and possession of the matrimonial home. 33 I do not grant her application entirely relative to interim use and possession of all of the furniture and chattels because it seems to me that he should have the opportunity to come back to court, if necessary, if they cannot agree on what furniture and chattels he should be able to remove from the matrimonial home in order to find accommodation elsewhere. 34 Furthermore, the order for exclusive possession, which I am granting in her favour in this instance, will not take effect for a period of at least 30 days.

I will clarify that by saying that it seems to me that his opportunity to have vacated the premises should be extended to Wednesday, the 1st of March, which is almost a month and a half - or actually, a month and a week away from now - to give him a fair opportunity to find alternative accommodation.

I would imagine that in the interim, he would probably select accommodation which will be of a rental nature. 35 I should say as well, that insofar as granting her exclusive possession is concerned, I will declare for the purposes of this ruling that in fact, this is without prejudice to the ability of the parties to resolve all of the factual disputes they have relative to the value of the matrimonial property.

This is simply a physical relocation situation. 36 Should, in fact, there be a situation where occupation rent has to be calculated or something of that sort, the parties can obviously work that out in due course. 37 I would say this, though, as part of the conditions which I am proposing relative to exclusive possession of the matrimonial home, that I would grant to Mr. Grunenwald, as Respondent, as in effect a compensatory mechanism, the opportunity within six months from today's date, to offer a shotgun arrangement relative to the disposition of this particular property. 38 In other words, Mr.

Grunenwald will be given permission to offer to Mrs. Grunenwald a valuation of the property, which he will fix for its value, on the condition of which that within two weeks she will have the right to either buy the property at that valuation from him or sell the property at that valuation to him. 39 In other words, it is the typical type of shotgun clause which might be specified in the corporate security business. I am not

suggesting that that is therefore a condition of my order. I am suggesting it is a right which I am granting to him to make an election about on or before the, let us see, 1st of July of 2006. 40 If there is a matrimonial property hearing set by Special Chambers prior to that date, of course, the Court has full jurisdiction to revoke that clause and to make any other direction that it chooses to do so in connection with the point. 41 However, I just wish to give some information to Mr.

Grunenwald so that he does not feel entirely aggrieved by the fact that he is being asked to vacate the premises and that his request that the matrimonial home be listed for sale on terms agreed to by the parties has not been entirely rejected under the terms of his Notice of Motion. 42 I am not at this point acceding to his application to have it listed for sale on terms agreed to but I am, in this instance, giving him an opportunity to make an offer along that line and that is part of the exclusive possession order which I have made. 43 In order to make that exclusive possession order condition effective as against Mrs.

Grunenwald, the exclusive possession order will expire as of July 1st of 2006, if in fact, she refuses to accede to the shotgun offer that Mr. Grunenwald makes, if any. If he does not make one, of course, there is no such problem. [ 10 ] However there are some differences in the present matter when compared to Grunenwald . It appears that the wife cannot afford to purchase the home given the great disparity in incomes. The evidence before me largely consists of Ms. Takats ’ own Affidavits, or evidence provided through her medical doctors which simply restate her position.

There is no truly independent evidence that the husband ’ s continuing presence in the former matrimonial home would be directly damaging to the wife ’ s health. Furthermore the husband has had a history of assisting with the care of the 10 ½ year old child of the marriage in the past while the wife was undergoing previous medical treatment.

I accept that there is a dispute as to how these parties interact with each other within the matrimonial home, but there is also a dispute as to the facts as to how these events have arisen in that the husband seems to blame the wife for inciting some of the problems. [ 11 ] Lord Justice Denning Master of the Rolls in Hall v Hall , [1971] 1 All ER 762 at 764 described how an order to exclude one spouse over another from the matrimonial home is such a drastic order that it should not generally be granted unless the situation is impossible: – But I would like to say that an order to exclude one spouse or the other from the matrimonial home is a drastic order.

It ought not to be made unless it is proved to be impossible for them to live together in the same house. It is difficult to draw the line, as is shown by a case which came before this court in 1964, Akingbehin v Akingbehin . There was a difference of opinion in the court. The majority of the court thought that unpleasantness and inconvenience was not a sufficient ground for ordering one spouse out. I agree. Such an order ought not to be made unless the situation is impossible. I would add that it is important as well to have regard to the interests of the children.

In the ordinary way, the longer they can be brought up together in one house with their parents, the better for them. In the present case the situation is not at all impossible. It is quite tolerable. The husband goes off early in the morning and comes back late in the evening. The children go off to school. The wife is there when the children come back. Over the weekend they behave sensibly as a family; the wife prepares the meals, the husband plays games with the children; and son. This is a civilised married couple who do not break out into violence.

No doubt, with the divorce proceedings pending, there is tension and unhappiness between the husband and the wife. But this is a large house, quite sufficiently large for the parties to continue living there in a civilised manner as they have done in the past. This court should not order the husband out of his own home and remove him from the children. He is devoted to them, just the same as she is. [ 12 ] I conclude that Lord Justice Denning ’ s remarks are applicable in the present case in that the husband is away working during the day, and helps out after work caring for the child.

The evidence as to the problems he creates in the home generally is disputed. [ 13 ] I will however order the immediate payment of child support for the one child of the marriage using an annual Guideline income of $102,000 for the husband and a Guideline income of zero for the wife, which should result in a monthly payment for child support for the one child of approximately $900. Additionally I will order the payment of a further $1,800 in spousal support also

commencing immediately as of February 1, 2012. Both amounts of interim child support and interim spousal support will continue until further Order of this Court. [ 14 ] Regrettably however I must decline the wife ’ s application for an Order for immediate exclusive possession of the former matrimonial home on the present evidence before me. Heard on the 28 th day of February, 2012. Dated at the City of Edmonton, Alberta this 1 st day of March, 2012. Donald Lee J.C.Q.B.A. Appearances: Danielle M. Rowand Thomas A. Rowand Professional Corp. for the Applicant/Plaintiff Thomas Colquhoun for the Respondent/Defendant