EET v ANT, 2012 ABQB 298

Court of Queen ’ s Bench of Alberta Citation: EET v ANT, 2012 ABQB 298 Date: 20120508 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 ] I last dealt with this matter in written Reasons for Judgment dated March 1, 2012 now reported at 2012 ABQB 142 . At that time the application by the wife for an Order for exclusive possession of the matrimonial home was dismissed, and an Order was made for spousal support in the sum of $1,800 a month payable commencing February 1, 2012 on an interim basis until further Order of the

Court. The husband was also ordered to pay child support in the amount of $890 according to the Federal Child Support Guidelines based on an expected income for the year of $102,579. [ 2 ] In February 2012 it was known that the Applicant wife had had cancer recently, and she was about to undergo major surgery. I am advised that she must undergo at least two more rounds of radiation treatment, and that her doctor believes it will be at least a year before she is capable of working. The Wife was in a long term traditional marriage as a stay at home mother, and she has a grade 10 education.

The wife had requested $3,600 in spousal support at the time this matter was heard, and child support of approximately $900. The parties had married in August 1991, and prior to their marriage had lived common law for 6 years. There is a dispute as to the date of separation – the wife stated that she believed the date of separation was November 20, 2011. The child is presently almost 11 years of age. [ 3 ] The wife has no income currently. Her previous work was running a day home out of the matrimonial home.

The parties ’ main asset is the matrimonial home which is currently worth $350,000, with a mortgage balance of approximately $65,000. The household costs total approximately $1,800, and the parties live separate and apart in the same residence.

Counsel for the wife is currently seeking an Order that in addition to the $1,800 in spousal support and $890 in child support, that the husband be responsible for one half of the household expenses which consists of mortgage, property taxes, property insurance, utilities, home telephone, cable television and internet fees for the matrimonial home until further order of the Court.

The wife would be responsible for paying her own car expenses, food and household supplies/personal expenses from her spousal support payments. [ 4 ] Counsel for the husband argues that the $1,800 a month in spousal support ordered in February 2012 was premised upon the wife paying the household expenses as a method of splitting income and making otherwise non-deductible mortgage interest deductible, while they resided under the same roof.

The husband ’ s counsel argues that it would not be fair or equitable for the husband to pay the wife $1,800 a month in spousal support and then also have to pay one half of the household expenses on an after tax basis. Analysis [ 5 ] When I last heard this matter in morning Family Law Chambers on February 28, 2012, it was on an interim basis until all of the financial matters could be fully argued in Special Family Law Chambers, and my written Reasons were silent as to who would pay the household expenses.

The pressing circumstance at the time was in fact the wife ’ s application for an Order for exclusive possession of the matrimonial home. Counsel for the parties were to argue the full merits of this spousal support application at the Family Law Special Chambers hearing that was to be heard later.

Counsel will recall that it was conceded that the entire matter should have actually been heard in Family Law Special Chambers, but was being brought forward in morning Chambers for a required decision on the issue of exclusive possession of the matrimonial home sought at that time by the wife as a result of the husband ’ s alleged abusive interaction while she was suffering from cancer treatments, and was facing pending surgery. The interim child and spousal support application was secondary and incidental to the main application to obtain exclusive possession of the matrimonial home.

Entitlement [ 6 ] The federal government codified the objectives of spousal support in

Section 15.2 of the Divorce Act , R.A. 1985, c.3 (2 nd Supp). 1. To recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; 2. To apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; 3. To relieve any economic hardship of the spouses arising from the breakdown of the marriage;

4. To promote the economic self-sufficiency of each spouse within a reasonable period of time. [7] In order to achieve these objectives the Court should consider the following factors in awarding spousal support: 1. The length of time the spouses cohabited; 2. The functions performed by each spouse during cohabitation; 3. Any order, agreement or arrangement relating to support of either spouse; 4. The condition of each spouse; 5. The means of each spouse; 6. The needs of each spouse; 7. The other circumstances of each spouse. [8] The leading Supreme Court spousal support entitlement cases are Bracklow v.

Bracklow, [19991 (SCC),1 S.C.R. 420 and Moge v Moge, (SCC), [1992] 3 S.C.R. 813. The Court in Bracklow found three different theoriesjustifying spousal support: compensatory, non-compensatory, and contractual. (at para. 15). The Alberta Court of Appeal analyzed thesethree theories in Corbeil v. Corbeil, 2001 ABCA 220 at para. 29 as follows:– 1.

Compensatory support is based on the belief that marriage is a joint venture where both spouses intend to profit from themarriage and spousal support seeks to alleviate the economic disadvantages by taking into account all the circumstances of the parties,including the advantage conferred either spouse during the marriage. 2. Non-compensatory support may be ordered where it is “fit and just to do so,” based on the needs and means of the partiesbecause of the marriage breakup. 3.

Contractual support means that there was either an express or implied agreement. [9] Compensatory support recognizes the economic advantages or disadvantages to the spouses arising from the marriage,apportioning between spouses the financial consequences of raising a family, and promoting self-sufficiency: Sawchuk v. Sawchuk,2010 ABQB 5 at para.14.

Non-compensatory support tries to balance the economic advantages or disadvantages between the spousesarising from the marriage breakdown by relieving the economic hardship connected to the breakdown and promoting self-sufficiency. [10] The Courts have wide discretion in awarding spousal support. Entitlement is a fact driven process that relies on the uniquefacts in each case. M.S. v. J.S., 2010 ABQB 127 at para. 56. However, Moge at para. 84, found that a long- term marriage results in apresumptive claim to equal standards of living upon dissolution.

It connects the parties’ ability to support a reasonable standard of livingprovided by the ‘joint venture” of the marriage to the standard of living the parties can expect after separation: Riad v. Riad, 2002 ABCA254.

In Sawchuk, my colleague Langston J. at para. 28 held that in long-term marriages where the parties reached their at-separationstandard of living due to the steps they jointly took throughout the marriage, without substantial assistance from third parties, or withouteach party maintaining a career and considering the parties previous standards of living prior to the relationship; then the compensatoryand non-compensatory support merge to create a presumption of equalized standard of living upon separation. Unless that presumption is

rebutted the equalization of the parties’ post-separation of standards of living gives rise to an entitlement to spousal support. Sawchuk.Therefore long term marriages usually result in an entitlement claim to spousal support by the spouse most affected financially by themarriage breakdown. Duration [11] Once the Court finds an entitlement to spousal support there remains a question of what form that spousal support shouldtake. In Lauderdale v. Lauderdale (1997), 1997 ABCA 201 , 200 A.R. 198 (Alta.

C.A.) at para. 5, the Court of Appeal heldthat periodic support is preferred over lump sum because of the “difficulty of disentangling the economic lives of divorcing spouses.” [12] Although one of the objectives of spousal support is self-sufficiency, it is not always achievable. The ability to find a job thatleads to self-sufficiency can be beyond the capabilities of the recipient spouse: McEachern v.

McEachern, 2006 BCCA 508. [13] The Spousal Support Advisory Guidelines (SSAGs) recommend indefinite support subject to review for marriages over 20years and marriages that meets the rule of 65, (Spousal SupportAdvisory Guidelines c.l4.3, Ottawa, Minister of Justice and AttorneyGeneral of Canada, 2008 at s.7.5[SSAGs]). Although not law, the courts are increasingly relying on the guidelines: M.S.,supra at para.62. Quantum [14] The SSAGs provide guidance on the financial issues of spousal support.

There are two formulas provided by the SSAGs togive a range of amounts: 1) with child support formula and 2) the without child support formula. The range is 1.5 to 2 times the incomedifference between the spouses’ gross incomes times years of cohabitation, to a maximum of 50%, with the upper end of the maximumrange is capped at the amount that would result in equalization of the spouse’s income: SSAGs at s.7.4. The important factors inchoosing the appropriate amount from the range are as follows:– 1. Strength of any compensatory claim; 2. Recipient’s needs; 3.

Age, number, needs and standard of living of children; 4. Needs and ability to pay of the [sic] payor; 5. Work incentives for payor; 6. Property division and debts; and 7. Self-sufficiency incentives. (Rogerson and Thompson, supra) The Court in considering these factors should choose the appropriate range. Exceptions There are several exceptions to the SSAGs formulas that allow the Court to make a spousal support award on a case-by-case basis.Section 12 of the SSGAs lists the exceptions: 1. Compelling financial circumstances in the interim period,

2. Debt payments, 3. Prior support obligations, 4. Illness and disability*, 5. Compensatory exception in short marriages without children, 6. Property division; reapportionment of property, 7. Basic needs/hardship (for childless, short-term marriages), 8. Non-taxable income, and 9.

Small amounts; inadequate compensation under the With Child Support Formula. *The law is very divergent in illness and disability cases, but three patterns have emerged: 1) increased spousal support, extended duration, 2) no exceptions, and 3) lower amount, extended duration. (Carol Rogerson and Rollie Thompson “ The Spousal Support Advisory Guidelines: A New and Improved User ’ s Guide to the Final Version , ” Paper Presented to the Spousal Support Super Conference, Edmonton, Nov. 2010, Unpublished [Rogerson and Thompson]).

However, entitlement is normally found and spousal support is usually awarded, at the very least, in line with the guideline amounts. Application of the Law to the Present Matter [ 15 ] The parties have been married for over 20 years. Prior to marriage they were in a common-law relationship for six years. This is a long term marriage. [ 16 ] This is also a traditional marriage. The wife is a stay-at-home mother to the soon to be 11 year old daughter, while the husband works outside the home at an Engineering firm. He is the main breadwinner with a 2011 taxable income over $102,000. [ 17 ] The wife has cancer.

It is expected that she will undergo at least two more rounds of radiation treatments. It takes her at least a month before she is feeling better after each treatment, and her doctor provided her with a letter stating that she could not expect to join the workforce for at least a year. In addition she is recently recovering from major surgery, a hysterectomy and fibroid removal. [ 18 ] The wife has a grade 10 education. Even if she was capable of working, her options are limited to low skilled, low paying positions. In past few years she operated a day home from the family home.

It is not a lucrative business, only making the family just over $11,000 per year at the peak. The husband wants to remove the wife from the home as he believes that he can afford to buy her out. The wife will no longer have a home to operate a day home. The house is only worth $350,000 with a mortgage balance of approximately $65,000. $140,000 is not a huge nest egg for a 48 year old woman with no skills. [ 19 ] If the husband successfully buys out the wife, he is left with a home with a fair amount of equity and a $102,000 salary.

It will be extremely hard for the wife to enter the work force at age 48 with her limited skill set. Furthermore, it is unknown when the wife will be healthy enough to look for a job. What is a Fair Amount of Spousal Support? [ 20 ] The appropriate amount of spousal support award is closed to the high end of the SSAGs due to the wife ’ s low job skills and cancer.

[ 21 ] An amount closer to the high end of the SSAGS is in line with the goals of spousal support. It compensates the wife for the advantage given to the husband by being a traditional, stay-at-home wife. The wife is primary caregiver and it is in their soon to be 11 year old daughter ’ s best interests if she continues in this role. [ 22 ] The non-compensatory nature of a high amount of spousal support would alleviate the hardship to the wife because of her illness and lack of an education. The wife will likely continue to suffer because of her health and lack of job skills.

The husband is healthy and his income is likely to increase with time. The wife ’ s needs are far greater than the husbands. What Should Each Party Contribute to the Household Expenses? [ 23 ] I ordered $1,800 in spousal support as of February 1, 2012. The household expenses total $1,800. The husband submits that submits that I intended the $1,800 spousal support to include all the household expenses. Perhaps this would be appropriate if the wife had sole possession of the home, however, that application was not granted.

The wife ’ s original application asked for $3,600 per month in spousal support if the wife has possession of the home and if she paid all the expenses. [ 24 ] Making the wife pay all the expenses is very beneficial for the husband. He has all of his living expenses paid for and he can claim a deduction on his tax returns.

If the husband wishes to have a greater tax deduction, then he can increase his spousal support in order to have the wife pay his share of the household expenses. [ 25 ] My written Reasons for Judgment are silent about who should pay the household expenses, however I did not intend that the wife ’ s spousal support of $1,800 would be used solely for paying household expenses. This would leave the wife penniless as to her own personal needs and may provide the husband an unfair negotiation advantage in order to force her out of the house.

Rather than alleviating the disadvantages after a breakdown of a marriage through spousal support, it may confine her further. The husband does not buy food for the family. [ 26 ] Further the wife ’ s taxable income at $1,800 per month is only $20,100 ($21,600 grossed up to include $1,500 of potential income tax benefits). The husband has income of $77,496 after deducting $10,680 in child support and $13,824 in spousal support (he receives $7,776 as a tax deduction for paying the wife ’ s Court ordered spousal support of $26,100).

It is unfair to make the wife pay the husband ’ s expenses when his income is greater $57,396 than her income. Conclusion [ 27 ] The wife is entitled to spousal support as ordered of $1,800 a month from February 1, 2012. Based on the $57,369 income differential between the parties I conclude that it is also fair if the husband pays all the household expenses, and the wife pay for all of her personal and car expenses. The Order granted will read as follows: – 1. That the wife ’ s application for an order for exclusive possession of the matrimonial home is dismissed; 2.

That the husband will pay to the wife child support in the amount of $890 according to the Federal Child Support Guidelines based on an expected income of $102,579 payable on the 1st of each month commencing February 1, 2012 until further Order of the Court; 3. That the husband will pay to the wife spousal support of $1,800 per month payable on the 1st day of each month commencing February 1, 2012 until further Order of the Court;

4. That the husband will be responsible for all of the household expenses, which consists of mortgage payments; property taxes; property insurance; utilities (ie: electricity, heating, water, sewer and garbage fees); repairs and maintenance; home telephone; cable television and internet fees for the matrimonial home; until further Order of Court; 5. That the wife is responsible for paying for her own car expenses (insurance, registration gas, oil, auto servicing), food and household supplies and personal expenses from her spousal support payments until further Order of the this Court; 6.

That the amounts owing under this Order shall be paid to the Director of Maintenance Enforcement ( “ MEP ” ), 7th Floor North, 10355 - 97 Street, Edmonton, Alberta, T5J 3W7, 780-422-5555 (website: www.albertamep.gov.ab.ca ) and shall be enforced by MEP on the filing of the Order with MEP by the creditor (recipient of support) or debtor (payor of support). The amounts owing shall continue to be enforced by MEP until the party who filed this Order gives MEP notice in writing withdrawing this Order from filing in accordance with

section 9 of the Maintenance Enforcement Act ; 7. Each party shall provide the other party with a complete copy of his or her income tax return and any notice of assessment and reassessment issued to him or her by the Canada Customs and Revenue Agency on an annual basis, on or before June 30 of each year, so long as there is child or the marriage as defined by the Divorce Act (Canada).

In the event that a party has not filed an income tax return for the previous year, he or she will provide the other party with copes of his or her T4, T4A, and all other relevant tax slips and statements disclosing any and all sources of income, including self-employment income; 8. There will be no costs of this application awarded to either party; 9. The fax signature of Counsel for the husband shall not be an impediment to the filing of this Order. Heard on the 28 th day of February, 2012. Written Submissions provided the 2 nd and 4 th days of May, 2012.

Dated at the City of Edmonton, Alberta this 8 th day of May, 2012. Donald Lee J.C.Q.B.A. Appearances: Danielle M. Rowand Gaffney McGreer & Rowand for the Applicant/Plaintiff Wife

I. Thomas Colquhoun for the Respondent/Defendant Husband