Holm v Holm, 2012 ABQB 188

Court of Queen ’ s Bench of Alberta Citation: Holm v Holm, 2012 ABQB 188 Date: 20120321 Docket: 4803 142854 Registry: Edmonton Between: Mary Louise Holm Plaintiff Defendant by Counterclaim - and - Clifford Lawrence Holm Defendant Plaintiff by Counterclaim _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C. Read _______________________________________________________ [ 1 ] Mary Louise Holm and Clifford Holm were married in Edmonton on November 7, 1981. It was a second marriage for both. They separated on April 21, 2007 and divorced on July 11, 2011.

Because they have been unable to resolve matrimonial property division, they brought this issue to trial.

[ 2 ] Just before their marriage, the parties entered into a written agreement, sometimes called a pre-nuptial agreement, dated November 6, 1981. This agreement purports to govern how the parties will deal with their property in the event of a marriage breakdown. [ 3 ] There are two major issues: a. How is the pre-nuptial agreement they entered into to be interpreted? b. How should matrimonial property be distributed in accordance with this agreement? [ 4 ] I will deal firstly with the issue of

interpretation. [ 5 ] It is Ms. Holm ’ s position that on a proper

interpretation, the parties agreed that assets held by the parties at the date of the marriage are exempt at their value at the marriage date but that any increase in value to these assets is shareable between the parties. Mr. Holm ’ s position is that they agreed that the assets each held at the date of marriage were exempt and so, also, is any increase in value of these assets to the date of trial. [ 6 ] I have reviewed the provisions of this agreement. Both parties ’

interpretations are possible; the agreement is not clear. [ 7 ] The relevant clauses of the agreement are clauses 1, 2, 3, and 4. These are reproduced in their entirety: Matrimonial Property Act 1.0 Part One of the Matrimonial Property Act of Alberta shall not apply to the distribution of all or any of the property now owned by both spouses and each of them. It is the intention of the parties to have

Section 37 of that Act apply to this classification of assets. 1.1 Part One of the Matrimonial Property Act of Alberta shall apply to those assets acquired after the marriage with income earned by either one or both spouses after the marriage. Release on Termination of Marriage 2.0 Neither party shall by virtue of the marriage or any Act of the Province of Alberta, have or acquire any right, title or claim in or to the other ’ s real or personal estate owned prior to the marriage, upon separation, dissolution of marriage.

In such event, such estate shall descend to or vest in such of the other party ’ s heirs, successors or assigns and in such manner as may be prescribed by his or her Will, or Codicil thereto and in default thereof, by law as though no marriage had ever taken place between the parties. This paragraph however shall not apply to those assets acquired after the marriage with income earned after the marriage. Separate Property 3.0 Each party shall, during his or her lifetime, keep and retain sole ownership, control and enjoyment of all property, real or

personal, now owned by him or her, free and clear from any claim by the other, except where otherwise herein provided. 3.1 It is agreed by and between the parties that any property, real or personal, hereafter acquired by him or her with income earned hereafter may be distributed in accordance with the provisions of the Matrimonial Property Act , in the event of separation or marriage dissolution. Matrimonial Chattels 4.0 The parties hereby agree that the chattels as listed in

Schedule “ A ” attached hereto and designated as to ownership shall go and belong to each party at the time after execution hereof and each may dispose of the chattel or chattels as each may think fit. It is agreed that

Schedule “ A ” is a none [sic] exhaustive list and represents only the major assets owned by each of the parties hereto. [ 8 ] One of the recitals of the agreement says this: It is the intention of the parties that Part One of the Matrimonial Property Act of Alberta shall not apply to those assets owned by each of the parties prior to their marriage and that this agreement shall be the sole determinate of the division of this classification of property now owned, used or enjoyed by either one of them, but it is the intention of the parties that the Matrimonial Property Act of Alberta shall apply to those assets acquired after the marriage and by income earned after the marriage. [ 9 ] There are a number of difficulties in

interpretation of the agreement. [ 10 ] The first results because of para 4.0 which speaks of “ chattels ” and references

Schedule “ A ” to the agreement. [ 11 ] The items in

Schedule A are handwritten under the headings “ Husband ’ s assets owned prior to marriage ” and “ Wife ’ s assets owned prior to marriage ” . A list of assets follows, which includes the two homes owned by the parties at the time of the marriage, identified by street address. Other items such as a jet boat and a number of other motor vehicles, and two savings accounts are included on the left hand side under the heading “ Husband ’ s assets.. ” . Many but not all of the items have been assigned a value.

All entries under the Husband ’ s assets column appear to indicate that the assigned value is approximate because a mathematical symbol “ ≈ ” is used. I take this symbol to mean “ approximately equal to ” . The only value in the chart which does not use this mathematical symbol is the value attached to the wife ’ s then home at 15412 - 75 Ave. Some items included on both sides of

Schedule A do not have a value attached to them. [ 12 ] The term “ chattel ” is not defined and it is unclear whether the word “ chattel ” means the same thing or something different from the more general term “ property ” used elsewhere in the agreement. At law, the word “ chattel ” is frequently used to refer only to moveable property, that is not real property. However, the homes belonging to both parties are included in these lists and obviously these are not personal or moveable property.

If the parties intended the term “ chattel ” as a term of art, why would the two houses have been included in the list? [ 13 ] The ambiguity which result from the imprecise use of the term “ chattels ” is easily resolved because the parties agreed for the purpose of this trial that they intended to exempt all of the property listed in

Schedule “ A ” of their agreement from distribution, including the value of their respective houses. I conclude based upon their agreement that the word “ chattels ” as used in paragraph 4.0 was not a term of art and was, instead, used as a synonym for “ property ” or “ assets ” , which terms are also used in the agreement. [ 14 ] A second ambiguity is not so easily resolved. Nowhere in the agreement do the parties specifically agree that any increase in value of their property as set out in

Schedule “ A ” is also to be exempt from distribution. [ 15 ] When choosing among possible constructions of an agreement, as a general rule, a Court should reject an

interpretation which

would produce an absurd or unreasonable result in favour of one which would produce a reasonable result, where both constructions arepossible: Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., (SCC), [1980] 1 S.C.R.888 at 58. While this case was decided in a commercial context there is no reason to suppose that this rule of construction is any lessapplicable to agreements reached in a family law context. [16] Indeed, Consolidated-Bathhurst, was considered by the Court in MacDougall v. MacDougall (ON CA),[2005] O.J. No. 5171, where the Ontario Court of Appeal commented upon the

interpretation of contracts in a family law setting atparagraphs 20-22: 20 ...In interpreting a contract, effect must first be given to the intention of the parties. The principles are explained inConsolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., (SCC), [1980] 1 S.C.R. 888: [T]he normal rules of construction lead a court to search for an

interpretation which, from the whole of the contract, would appear topromote or advance the true intent of the parties at the time of entry into the contract. Consequently, literal meaning should not beapplied where to do so would bring about an unrealistic result or a result which would not be contemplated in the commercialatmosphere in which the insurance was contracted. Where words may bear two constructions, the more reasonable one, that whichproduces a fair result, must certainly be taken as the

interpretation which would promote the intention of the parties. Similarly, aninterpretation which defeats the intention of the parties and their objective in entering into the commercial transaction in the first placeshould be discarded in favour of an

interpretation of a policy which promotes a sensible commercial result. (p. 901) 21 In B.G. Checo International Ltd. v. British Columbia Hydro and Power Authority, (SCC), [1993] 1 S.C.R. 12the Supreme Court provides further guidance: It is a cardinal rule of the construction of contracts that the various parts of the contract are to be interpreted in the context of theintentions of the parties as evident from the contract as a whole. (pp. 23-24) 22 Applying that principle to domestic contracts, a court must search for an

interpretation that is in accordance with the parties'intention at the time they entered into the contract. Where two

interpretations are possible, the court should reject the one that wouldproduce a result that the parties would not have reasonably expected at the time they entered into the contract. Instead, the court shouldfavour an

interpretation that promotes the reasonable expectations of the parties and that provides a sensible result in the family lawcontext. To arrive at such an

interpretation, the court must interpret the provision in the context of the entire contract, including theentirety of the

section at issue, to discern the likely intention of the parties. [17] As I have already said, nowhere in the relevant clauses of their agreement do the parties specifically say that any increase invalue of the assets owned at the date of the marriage will also be exempt. [18] However, the Husband says this must be implied because the parties agreed that

Part 1 of the Matrimonial Property Actwould not apply to these assets and s. 7 which provides that increases in value of exempt property is to be shared as matrimonial propertyis included in

Part 1. As well, he points to the provision in clause 3 that each shall keep and retain sole ownership, control and enjoymentof all property “now owned by him or her, free and clear from any claim by the other”, “during his or her lifetime”. He argues that theclear implication from this provision is that the parties intended to keep separate any increase in value of exempt assets. [19] The Wife counters that in order to preclude the division of increases in values of the property, it is necessary to say soexplicitly and this agreement does not.

She says that when one considers the recital as well as paragraph 1.1, it is clear that when theparties used the term “income”, in the agreement, they intended it to mean increases in value of property owned prior to the marriage aswell as profit from work. In support of her argument, she points to dictionary

definitions which define income as including “gain derivedfrom capital” or “interest or profit from capital”. She argues, further, that the fact the parties placed values on the assets listed inSchedule A lends credence to this

interpretation as there would be no need to establish values of the exempted property unless the partiesintended that increases in value of the property were not to be exempt. Lastly, her counsel refers to the conduct of the parties after themarriage to argue that the parties conducted themselves in respect to her home in a manner that suggested their understanding thatincreases in value of exempt property were to be shared.

[ 20 ] I will consider first the overall objective intention of the parties in entering into their agreement before their marriage. This was a second marriage for both and each had children from their first relationships. Of course, therefore, each wished to preserve for their own children and their own estates what they had managed to accumulate to date. Yet they were also embarking on a new relationship. Mr. Holm said, and I accept, that he went into this marriage as a true partnership. The parties regarded themselves as a couple and a team. The evidence was that they planned to move into Mr.

Holm ’ s house after the marriage. To this end, before the marriage, Mr. Holm and a friend worked to finish the basement in preparation for the arrival of Ms. Holm and her two then young children. Both parties lived in Ms. Holm ’ s house immediately after the marriage because they wanted her children to finish their school term and move to their new school only after the Christmas break. Both before and after their wedding, Mr. Holm and Ms. Holm worked to prepare Ms. Holm ’ s house for sale. [ 21 ] When they married, both were working full time. Neither had any RRSP or significant savings. Mr.

Holm ’ s house had a mortgage as did Ms. Holm ’ s. Ms. Holm ’ s had a second mortgage as well, related to a business debt incurred by her former husband to a business associate. This person, a Mr. Smith, had pressed Ms. Holm for payment and so she had considered increasing her first mortgage to pay off Mr. Smith. Interest rates were very high at the time, however, and she elected instead to borrow funds from her father to partially pay off Mr. Smith. Her father charged her a lower interest rate than the bank was prepared to. However, when Ms.

Holm became engaged to be married, the father began to press for payment of this debt. Mr. Holm also had the nicer house, according to Ms. Holm. From all of the foregoing, it is clear that both parties planned that after they married, Ms. Holm would sell her house and they would live in Mr. Holm ’ s house. The major asset that each had were their respective homes. It was in this context that the agreement was entered into. [ 22 ] I find, therefore, that it was clear to the parties at the time they entered into their agreement, that there would be little or no future increase in value of Ms.

Holm ’ s major asset while Mr. Holm ’ s house would continue to increase in value. Since this was the situation, I find it entirely unlikely that the parties would have agreed that only Mr. Holm ’ s major asset would continue to increase in value and that only he would, therefore, be entitled to keep any increase in its value when it was clear to them that Ms. Holm would not have the same opportunity. I conclude that the parties ’ objective intention at the time was to treat each other fairly, and the

interpretation of their agreement now urged upon me by Mr. Holm would not do so. [ 23 ] Further, their course of conduct after the agreement was entered into also favours the same

interpretation. Some months after the marriage, Ms. Holm finally sold her house. However, it was sold under the terms of an agreement for sale for a purchase price of $101,000. Twenty five thousand dollars was paid as a down payment. From these funds, Ms. Holm paid off the debt to her father and the remainder of that to Mr. Smith. [ 24 ] Thereafter, the purchaser made payments which included an amount for interest. From these payments, Ms. Holm continued to pay the first mortgage on the property, owed to Toronto- Dominion Bank.

The best evidence I have is that as of December 31, 1981, the value of this TD mortgage was $25,037.42. Ms. Holm testified, and I accept, that $75,489 was paid over time under the agreement for sale. Less than half of each monthly payment was used to pay the mortgage and the remainder was deposited by Ms. Holm into her bank account and then into her RRSP. [ 25 ] Ultimately, in October 2000, she and the purchaser of the home agreed that the purchaser would pay off the remaining amount owing on the agreement for sale, in the sum of $56,422.00. When she received this pay out amount, Ms.

Holm paid out the TD mortgage and, again, put the remainder into her RRSP. This RRSP account did not exist at the date of the marriage and thus, if the deposits were “ income ” as defined by their agreement, the RRSP account was clearly shareable on a marriage breakdown under the terms of the parties ’ agreement. [ 26 ] Neither of the parties was naive respecting money matters. Mr. Holm was a teacher of mathematics and Ms. Holm worked in an accounting capacity with a printing firm. It would be absurd to think that they would have agreed that Ms.

Holm ’ s major asset and the income earned from it would become completely shareable with Mr. Holm whereas his major asset would continue to increase in value and that value would not be shareable in the event of a marriage breakdown. [ 27 ] Further, the evidence was that during their marriage, the parties shared expenses. Ms. Holm paid for all of the utilities and for the groceries and cleaning supplies. She also paid for the nanny that worked in the home for many years while the children were young. Mr. Holm paid for the property and car insurance and paid the real property tax.

He was mechanically inclined and was able to keep their vehicles and home in good repair. However, when the parties did do redecorating or incurred major expenses such as replacement of carpet or an appliance, the parties paid for these jointly.

[28] Evidence respecting subsequent conduct of the parties is admissible for the purpose of interpreting an agreement in somecircumstances. In this regard, the Canadian approach differs from the English one. In Canadian National Railway v. Canadian PacificLtd. (BC CA), [1978] B.C.J. No. 1298 (B.C.C.

A) aff’d (SCC), [1979] 2 S.C.R. 668, Lambert, J.A.confirmed this beginning at para 82-83: 82 In Canada the rule with respect to subsequent conduct is that if, after considering the agreement itself, including the particularwords used in their immediate context and in the context of the agreement as a whole, there remain two reasonable alternativeinterpretations, then certain additional evidence may be both admitted and taken to have legal relevance if that additional evidence willhelp to determine which of the two reasonable alternative

interpretations is the correct one. It certainly makes no difference to the law inthis respect if the continuing existence of two reasonable alternative

interpretations after an examination of the agreement as a whole isdescribed as doubt or as ambiguity or as uncertainty or as difficulty of construction. 83 The types of extrinsic evidence that will be admitted, if they meet the test of relevance and are not excluded by other evidentiarytests, include evidence of the facts leading up to the making of the agreement, evidence of the circumstances as they exist at the time theagreement is made and, in Canada, evidence of subsequent conduct of the parties to the agreement. However, to say that these types ofevidence become admissible where two reasonable

interpretations exist is not to say that the evidence, if tendered, must be given weight.In the case of evidence of subsequent conduct the evidence is likely to be most cogent where the parties to the agreement are individuals,the acts considered are the acts of both parties, the acts can relate only to the agreement, the acts are intentional and the acts areconsistent only with one of the alternative

interpretations. [29] Having considered all of these principles of construction, and having construed the agreement as a whole, I have concludedthat the parties did not intend to exclude from division on marriage breakdown any increase in the value of the

Schedule “A” properties.If the

interpretation urged upon me by Mr. Holm is correct, the result would be completely unreasonable. Because Mr. Holm’s house,now worth $415,000 is still owned by him, he would be able to claim all of this value as exempt property in his hands. On the otherhand, the exempt value in Ms. Holm’s house would be completely divisible because, to the extent it still exists, it has been transferredinto her RRSP account, which both parties agree is completely divisible because it did not exist at the date of the marriage.

That cannotbe what the parties objectively intended. [30] Instead, I have concluded that what they intended is that each party would retain as exempt the value of the property they hadat the date of the marriage. By clause 1, they set out their general agreement, that assets they owned prior to the marriage were to beexempt from distribution and that those assets they acquired after marriage were divisible.

This clause says nothing about increases invalue of exempt property. [31] Because both parties had children when they married, they wished to ensure that the exempt assets would go to their estatesand to foreclose any ability of the other spouse to bring a successful application under dependents’ relief legislation. This is the effect ofclause 2 of their agreement. The first sentence of the clause is ambiguous.

It could be read to mean that neither will acquire any “right”or claim to the other’s “real or personal estate owned prior to the marriage” “upon separation [or] dissolution of marriage” but the word“or” is missing from this sentence and would have to be read in. Further the second sentence clearly speaks to what is to happen only inthe event of the death of one of the parties and makes no sense if the clause, its entirety, is intended to deal with what would happen inthe event of a dissolution of the marriage.

It is for this reason that I have concluded that this clause is meant only to deal with whatwould happen on the death of a spouse, whether or not the parties had separated or the marriage was dissolved. [32] Paragraph 3.0 is intended only to ensure that the parties could deal with their own property during their lifetime without anyinterference from the other. In my view, this clause should be interpreted as their agreement to ensure that Ms. Holm could sell her housewithout interference from Mr.

Holm and could keep the proceeds as her own property while he could maintain sole ownership of hishouse or the proceeds thereof in the event of a sale, without any claim by Ms. Holm to, for example, become a joint owner. Paragraph 3.1simply reiterates the parties agreement, in the event that they were to purchase a new house or other asset and any funds were used thatwere not exempt, to share the assets so accumulated to the extent that non-exempt funds were used. [33] Clause 4.0 was intended simply to specify the exempt assets and to place a rough value on these. [34] I conclude that the parties did agree that

Part 1 of the Matrimonial Property Act would apply to the increase in value of theirexempt assets as well as to assets acquired after they married.

[ 35 ] Having interpreted the agreement, I move now to considering how the parties ’ property should be distributed. [ 36 ] The parties disagree as to the date for valuation of their assets. Ms. Holm says that the assets should be valued at the date of separation. Mr. Holm says that the assets should be valued at the date of trial. This issue is important in this case because there is now much less in Ms. Holm ’ s RRIF and in their non-registered investment accounts than they had at the date of separation. [ 37 ] Both lost money during the major market correction which occurred at the end of 2008.

The amount each lost was not well documented. Further, Mr. Holm ’ s evidence was that he made an improvident investment in 2008 in the condominiumization of an apartment building or buildings in Saskatchewan. He said he lost all of his investment in this affair and provided some evidence to support this contention. Further, Ms. Holm used investment funds to move to her present location in Campbell River, British Columbia and to buy the condominium she now lives in there. In short, the parties ’ financial situation is now considerably different than it was at separation. [ 38 ] I disagree with Ms.

Holm ’ s position on date of valuation. I have no discretion to value the assets other than at the date of trial. In Hodgson v. Hodgson , 2005 ABCA 13 , the Court of Appeal dispelled any lingering doubts as to whether the Matrimonial Property Act , RSA 2000, c. M-8 permits valuation other than the date of trial. In paragraph 10, the Court said this: 10 The fact that this rule [that valuation is the date of trial] was not stated in absolute terms has led to the suggestion that it is only a "strong presumptive rule" that can be departed from in special circumstances. We do not agree.

In our view, other provisions in the statute, as well as the overall statutory scheme, support the view that valuation and division must take place as of the date of trial. [emphasis added] [ 39 ] The first step, then, is to determine the values as of the trial date of the assets owned by the parties. These are as follows: Edmonton House $415,000 Campbell River condominium (net of mortgage $71,779) $ 93,921 NBCN RRIF account (Ms. Holm ’ s) $154,406 NBCN Investment Account (Ms. Holm ’ s) $ 35,800 NBCN Investment Account (Mr. Holm ’ s) $186.149 Tax free savings account (Mr.

Holm ’ s) $ 24,994 [ 40 ] Two further assets are pensions or pension like vehicles and are already in pay so must be considered separately: Teacher ’ s Retirement Fund pension $2,293 per month Sun Life Annuity (Ms. Holm ’ s) $ 143 per month [ 41 ] The next step is to determine which property is exempt under s. 7(2) of the Act or can be traced into property and thus, remains exempt. [ 42 ] It was clearly the parties ’ agreement that the value of Mr. Holm ’ s house at the date of marriage would be exempt from

distribution. The parties have also agreed that this value was $135,000, as established by an historical appraisal completed for this trial.While this is not precisely the number set out in

Schedule A to the agreement, I am satisfied from the use of the mathematical symbol“≈” that the parties did not intend by

Schedule A to set out the exact value for this house. Instead the number they used was merely anestimate. I will not subtract from this the amount still owing on the mortgage registered against the property since I am satisfied on theevidence of Mr. Holm that while he still owed $10,000, he had $10,000 in the bank at that time. He intended to and did use this $10,000to pay out the mortgage. Thus, the exempt value of the house is $135,000 and there is no exemption for the bank deposit. [43] I find the exempt value of Ms. Holm’s house was $55,000. From their evidence as well as from

Schedule A to the agreement,I am satisfied this is what the parties intended. The parties did obtain an informal appraisal of Ms. Holm’s house at the time of themarriage. As well, they knew what was owed on the property by way of mortgage and other debts. I am satisfied that they did thenecessary calculations to determine that $55,000 was a fair net value to put on her property. [44] No exemptions were claimed by either party for any other asset included in

Schedule A, likely because these are no longerowned by either of the parties. [45] Ms. Holm also claims an exemption for an amount of $50,000 she inherited through her grandfather’s estate. She providedsome evidence by which it appears that she did receive funds from this estate. She was a contingent beneficiary but as her father diedbefore he could take under the estate, she became the beneficiary of the amount that would have gone to him. She provided evidence aswell to show that these funds were paid into her non-registered investment account.

However, these funds were originally received inabout 1984 and since then have been intermingled with funds from many other sources. As well, the evidence was that Ms. Holm paidfor a number of major expenses from this account, including an expensive car she purchased shortly after she received the funds from theestate. In all of the circumstances, I cannot conclude that these funds have retained their exempt status. I conclude that Ms.

Holm has losther exemption in the funds she received from her grandfather’s estate. [46] The third step is to determine what property falls under s. 7(3), which, as I have found, includes the increase in the value ofexempt property, from the date of marriage or acquisition, to the date of trial. That property is to be distributed between the parties in amanner that is just and equitable. Under s. 7(3) no statutory presumption of equality exists, and I have discretion to distribute it as Iconsider just and equitable after taking the s. 8 factors into consideration.

Over the years, jurisprudence has developed to assist judges inthe exercise of that discretion. For instance, where a gift, inheritance, or other s. 7(2) property is acquired after separation, Mazurenko v.Mazurenko (1981), 1981 ABCA 104 , 30 A.R. 34 (C.A.) provides that any increase in the value of that property is also exempt.In addition, Mazurenko suggests that where exempt property, or a portion of otherwise exempt property, is brought into the marriage itmay attract the presumption of equality. [47] I will deal firstly with the increase in value of Mr. Holm’s house.

Once the exempt value is subtracted, the increase in valuetotals $280,000. Clearly, this property was brought into the marriage. It was the parties’ home for many years. Ms. Holm’s contributionsto it are clear. Not only did she pay for redecorating and replacement of appliances but she paid for almost all of the utilities andgroceries. As a result, Mr. Holm was able to save and invest money he would not otherwise have been able to save. This was also a longmarriage of over 25 years. It is just and equitable to divide this increase in value equally between the parties. [48] Both Ms.

Holm’s RRIF and investment account accrued during the marriage. However, I find that the original amount sheobtained exempt from her home is traceable into this RRIF or into her non-registered investment account. I accept her evidence that sheput into her then RRSP both the net amount of the funds she obtained from the monthly payments on the home and the amount shereceived when the agreement for sale was ultimately paid out. The depositing body changed from time to time because of corporatemergers or acquisitions and, the fund has now had to be converted to a RRIF because of her age.

None of those changes have altered theexempt character of the funds she deposited. As well, she did use funds, particularly from her investment account, to purchase majorassets from time to time. Again, however, I conclude those transactions did not alter the fundamental character of the exemption,particularly when one considers the agreement the parties made that funds in this amount were to remain exempt. I conclude that Ms.Holm retained an exemption of $55,000. After the separation, she used funds from her investment account to purchase her condominiumin Campbell River.

In the absence of better evidence, I am prepared to conclude that her exemption is traceable into her condominium. Iconclude, therefore, that the amount held in both accounts is divisible, and having regard to the s. 8 factors, I find that the divisionshould be equal. Again, the marriage was long and the fact that Ms. Holm was able to live in Mr. Holm’s house freed up some of herincome for investment and savings. [49] However, I conclude further that because the amount in Ms. Holm’s RRIF is taxable, the remaining amount should bereduced by 20% to take into account the taxable nature of those funds.

[ 50 ] Mr. Holm ’ s investment account should be treated in the same fashion as was Ms. Holm ’ s for the same reasons and should be divided equally as well. [ 51 ] Two assets were acquired after the separation. [ 52 ] Ms. Holm purchased her condominium with funds from her investment account. The best evidence is that this property is now worth $165,700. She has a mortgage on it however, and so I conclude the net value is $93,921. As I have said, I have concluded that she retains an exemption of $55,000 from the house she owned at the date of marriage, so the net amount divisible is $28,921. Mr.

Holm has a tax free savings account now valued at $24,994. [ 53 ] Because these assets were acquired after the parties separated, there is no presumption of equal division. Mr. Holm makes no claim to Ms. Holm ’ s interest in her condominium and Ms. Holm was not even aware of the existence of Mr. Holm ’ s TFSA until trial. However, I conclude that there was no deliberate attempt by Mr. Holm to hide this asset. I have concluded that it would be just and equitable to divide all of these assets on the basis that Ms. Holm will retain 100% of the non-exempt value in her condominium and Mr.

Holm will retain 100% of the value of his TFSA. [ 54 ] I find, as Ms. Holm alleges, that Mr. Holm kept all of the funds from the parties ’ joint account after the separation and, also, that he kept all of the money repaid by his son for a loan the parties made. As well, I have noted the evidence that Ms. Holm had a credit card debt of a few thousand dollars as a direct result of the separation. However, I agree with counsel for Mr. Holm that it is not possible now to go back and deal with these debts and assets separately from the assets that now exist.

To do so would be to effectively alter the division of what now exists which I have attempted to accomplish in a manner that I consider fair and equitable. Accordingly, I ignore these transactions for the purposes of property division. [ 55 ] Finally, since both the pension and the annuity are now in pay, I order that the parties draft an order to divide Mr. Holm ’ s TRF pension at source so that Ms. Holm receives 25.03% of this pension and Mr. Holm receives the remainder. This accords to the value of the pension that accrued during the marriage. All of Ms.

Holm ’ s annuity, in the amount of $143.12 per month, was accrued during the marriage. Thus it should be divided equally. I order that the order be drafted in such a way as to set off the amount owed Mr. Holm for Ms. Holm ’ s annuity from the amount owed Ms. Holm from Mr. Holm ’ s TRF pension so that the administration of these two payments can be made as easy as possible for the parties. [ 56 ] Mr. Holm ’ s pension has been in pay since the separation and he has not shared any amount of this with Ms. Holm. She is entitled to be paid for this. Of course, she has not shared any amount of her annuity with Mr.

Holm either during this period. I accept the calculations done by Mr. Holm ’ s counsel, which, as I understand it, take into account the set off of these two amounts. I conclude that Mr. Holm owes Ms. Holm $29,899 before tax. Since he has paid tax on this amount and it will now be tax free to Ms. Holm, I have concluded that it would be fair to deduct an amount for tax from this. Mr. Holm suggested that 12% was appropriate. I agree. The net amount payable is therefore, $26,311. [ 57 ] I have not totalled the equalization payment which Mr. Holm owes to Ms.

Holm and will leave that calculation to the parties and their counsel. Mr. Holm may need some time to determine how to pay this and so I order that it be paid by no later than July 31, 2012. Interest will accrue at the judgment interest rate until it is paid. If the parties have difficulties determining the total they may approach me. [ 58 ] Costs may be spoken to if required. Heard on the 13 th day of March, 2012. Dated at the City of Edmonton, Alberta this 21 st day of March, 2012.

D.C. Read J.C.Q.B.A. Appearances: Gerhard J. Seifner McLennan Ross LLP for the Plaintiff Michael L. Pollock Pollock & Pollock for the Defendant