NC v UC, 2012 ABQB 326

Court of Queen ’ s Bench of Alberta Citation: NC v UC, 2012 ABQB 326 Date: 20120601 Docket: 4803 131026 Registry: Edmonton Between: NC Plaintiff - and - UC Defendant Corrected judgment: A corrigendum was issued on June 21, 2012; the correction has been made to the text and the corrigendum is appended to this judgment. Editorial Notice: On behalf of the Government of Alberta identifying information and personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction

[ 1 ] The Plaintiff, NC, filed a Statement of Claim for Divorce and Division of Matrimonial Property on April 7, 2004. Ms. NC seeks the following relief:

a) a divorce judgment;

b) sole custody of PC (now almost 19 years old), CC (17 years old); BC (14 years old) and HC (11 years old);

c) child support in an amount consistent with the Federal Child Support Guidelines , SOR/97-175 ( FCSG );

d) spousal support;

e) costs. [ 2 ] Ms. NC made an additional claim under the Matrimonial Property Act , RSA 2000, c M-8. [ 3 ] A Statement of Defence was filed by the Defendant on March 9, 2009. [ 4 ] An Amended Statement of Claim for Divorce and Division of Matrimonial Property was filed on August 12, 2011, to add a request for an order for occupation rent in relation to the matrimonial home. While no Amended Statement of Defence was filed in response to this new relief sought, the Plaintiff concedes that this relief is contested. Facts [ 5 ] The Plaintiff is 48 years old. She was born on [...], 1963 in Turkey.

She completed Grade 11, the highest level of high school in that country. The Defendant is 61 years old, having been born on [...], 1950. The Defendant came to Canada from Turkey in 1974 when he was 24 years old. [ 6 ] The parties were married on October 21, 1989, in Izmir, Turkey. Both were single at the time of marriage. The Defendant sponsored the Plaintiff ’ s emigration from Turkey to Canada in March, 1990. They resided together at the Defendant ’ s Edmonton residence on 163 rd Street.

The Defendant owned the house prior to the marriage and paid all of the expenses relating to the residence until the time of separation. [ 7 ] Prior to separation, the Plaintiff did not make any monetary contribution to the cost of maintaining the family. However, she was responsible for the four daughters born to the parties between 1993 and 2000. She also maintained the home in terms of the cooking, cleaning and general upkeep. According to the Plaintiff, the Defendant kept her at home for 13 years and would not allow her to work outside of the home.

The Defendant did not want to spend money for repairs and renovations to the matrimonial home, so the Plaintiff undertook many of these tasks on her own. She tiled the kitchen walls and installed drywall in the basement. She also painted the entire house twice during the period of cohabitation and assisted in the installation of wood flooring in the living room and dining room. She installed a new fan in the kitchen, including the wiring. She also assisted the Defendant in re-shingling the roof of the house on one occasion. She shovelled the snow and cut the grass on an ongoing basis.

The couple shared the gardening responsibilities. [ 8 ] The Plaintiff ’ s evidence was that there was violence in the relationship from the beginning, generally associated with the Defendant ’ s heavy drinking. The police were called on numerous occasions. She described the Defendant kicking her with cowboy boots within 15 days of arriving in Canada, causing significant bruising to her person. He had been drinking at the time. The Defendant ’ s brother convinced the Plaintiff not to call the police and promised to speak to the Defendant about his drinking.

She also described another incident when the Defendant, again while drinking, beat up the Plaintiff causing bruises to her head and body. PC, the eldest daughter, was only two weeks old at the time. While obtaining medical treatment at the hospital, the Plaintiff was provided with advice

on services available to battered women. The Plaintiff wanted to leave the relationship at that point, but the Defendant begged her to stay. At the time, her Turkish friends in Edmonton told her she should respect the Defendant as he was her husband and had brought her to Canada. [ 9 ] According to the Plaintiff, the Defendant beat her up in front of the children on occasion. He called her a “ bitch ” and a “ whore ” in front of the children.

The Plaintiff described an incident in which the Defendant chased her with a knife, causing their second daughter, CC, to tell her to “ run, Mummy, run, ” at which point the Plaintiff went and hid in the car. The third child, BC, is reported to still be afraid of the Defendant as a result of these incidents. [ 10 ] Both the Plaintiff ’ s Statement of Claim for Divorce and Division of Matrimonial Property, filed on April 7, 2004, and her Amended Statement of Claim, filed on August 12, 2011 indicate that the parties ceased cohabiting in November 1997.

However, in the Plaintiff ’ s affidavit of July 12, 2006, she stated that the Defendant ’ s allegations about them being separated prior to 2003 were false and misleading. She deposed that for a period of time in 1993 there were two residences. She spent one month with the children in a shelter, and then the shelter and social services helped her to find an apartment, but she eventually returned to the Defendant. She deposed that she spent most of her time in his house, but when he was drinking and became abusive, the apartment (which she held in her name alone) became her refuge from him.

She gave up her apartment after about eight months. She again tried to leave by going to a shelter in 1997 and got another apartment, but the cycle repeated itself and she went back to him. She further stated that the Defendant worked out of town and came home on the weekends. There was no understanding that they were separated, and they continued to have sexual relations and behave as a couple in every way. [ 11 ] The Plaintiff testified that she finally left the marriage in September, 2004 when the Defendant punched her in the face and head.

In her affidavit of March 28, 2006 she indicated this occurred in September, 2003. The Defendant was sentenced to six months in jail as a result of this incident. He had previously been charged with assault and placed on probation on three separate occasions. At the time of the last assault, the police told the Plaintiff that she should leave, failing which the Defendant would eventually kill her.

She also deposed in the 2006 affidavit that their last, final separation was on September 23, 2003. [ 12 ] In the Defendant ’ s affidavit of June 30, 2006, he deposed that the parties separated in 1993 and the Plaintiff obtained her own apartment and had lived there since that date. Between 1993 and 2003 they would see each other on weekends, but they both understood that they were separated. From at least 1997 onward, the Plaintiff was living in her own apartment. When they separated in 2003, the Plaintiff obtained her own apartment and then decided that she wished to resume cohabitation.

In 2004, she advised him that she was seeking a divorce. The Defendant testified at trial that he believed they separated in 2004 when he was served with divorce papers. [ 13 ] As mentioned above, the Plaintiff ’ s initial Statement of Claim was filed on April 4, 2004 and substitutionally served on August 26, 2004. [ 14 ] The oldest of the four children was conceived in 1992, but is not the Defendant ’ s biological daughter. The three other children of the marriage were conceived in 1994, 1997 and 2000.

The Plaintiff had a baby on July 7, 2006; the Defendant is not the biological father. [ 15 ] While it is challenging to piece together the parties ’ history, I conclude from the record and testimony at trial that their union was fraught with problems and marked by periods of separation starting at least in 1997 as reflected in the Plaintiff ’ s initial pleading. When they were cohabiting, the Defendant spent much of the time working outside of the city, and the parties would see each other on weekends. They resumed cohabitation during significant periods until September 2003.

The Plaintiff filed for divorce in April 2004. She is seeking support from September 1, 2004. [ 16 ] During the course of the marriage, the Defendant was the sole source of financial support to the family, though the Plaintiff ’ s evidence was that a great deal of his income went to pay for alcohol and cigarettes. He was unwilling to pay for extracurricular activities for the children and the Plaintiff relied on periodic cheques from an aunt in the Netherlands to help support the children.

Although the evidence was limited on this point, it appears that the Defendant, a welder by profession, was employed out of town in Fort McMurray on a consistent basis, spending 14 or more days away followed by three days at home.

He testified that he would stock the fridge with food while at home and leave $800 in cash for the Plaintiff to cover family expenses for the upcoming two weeks. [ 17 ] The Defendant was highly critical of the Plaintiff ’ s housekeeping skills, describing her as a “ terrible housekeeper, ” who was never home and who spent a great deal of money on fortune-tellers accessed over the telephone. He repeatedly referred to this as “ hocus-

pocus. ” He expressed concern over the number of times that the home phone number was changed by the Plaintiff. However, I am satisfied on all of the evidence that the change in phone numbers was the result of the Defendant ’ s failure to pay the telephone bills on a timely basis resulting in the termination of telephone service to the family residence. [ 18 ] Since the final separation, all of the children of the marriage have resided with Ms. NC on an uninterrupted basis. After leaving the family home for the last time, the Plaintiff and the four children lived in a shelter for the first month.

Over the course of the next two years, they lived in approximately five different locations, without support from the Defendant. The Plaintiff lived in subsidized housing and relied on the support of social services. The first Court support order was made by Macklin J. on July 26, 2006. [ 19 ] The Plaintiff obtained part-time employment with Sears as a cashier in September, 2004. Her income in 2004 was $12,778, consisting of $3,124 in employment income (Sears) and $9,652 from social assistance. Since August 5, 2008, she has been employed as a packer/swamper with Mid-Arctic Transportation Co.

Ltd/Matco Transportation Systems. Her employment with this moving company is somewhat seasonal in nature in that the bulk of the work arises in the spring, summer and early fall. For example, the Plaintiff was on temporary lay-off from November 3, 2010 until April 29, 2011. She was initially paid $18 per hour, but this was increased to $20 per hour on account of her personal circumstances. [ 20 ] The Defendant testified that he ceased working and retired in September, 2010. He also stated that he had cataract surgery for both eyes and surgery for a detached retina.

His evidence was that he was not able to work any longer because of problems with his eyes, which he attributed to exposure to bright light over the many years he worked as a welder. However, he had not applied for workers compensation as he was retired. When pressed on cross-examination, the Defendant stated that he was going to get his eye “ fixed ” before he returned to work, and that at the time of trial he was waiting to see his doctor.

He acknowledged (again in cross-examination) that his eye was injured two to three years ago, it was surgically repaired, and he resumed working until deciding to retire in September, 2010. [ 21 ] The Plaintiff testified that the Defendant did have periods of unemployment throughout the marriage, but work was typically very plentiful. According to the Plaintiff, the Defendant picked the jobs he wanted and probably could have earned additional income if he had not chosen to go on employment insurance from time to time.

Following the separation, the Plaintiff believed that the Defendant preferred to receive employment insurance to avoid paying higher child and spousal support. [ 22 ] In September, 1997, the Plaintiff was diagnosed as having mild bilateral enlargement of the heart. This diagnosis is confirmed by her physician, Dr. Chew, in a letter dated September 23, 1997 (Tab 5, Exhibit 1). She testified that she was examined by a cardiologist in the first few months of 2011 and was diagnosed as having a hole in her heart, likely since birth.

The walls of her heart are reported to “ leak ” and she will require surgery if there is no improvement. She continues to suffer from this condition since the time of diagnosis. She reported chest pains and palpitations from heavy lifting. She attempts to regulate her activity in an effort to slow down her heart. She reported attending at the Misericordia Hospital a couple of times to deal with these symptoms.

The cardiologist told her not to lift heavy things, but she nevertheless has continued her employment with the moving company. [ 23 ] According to the Plaintiff, she has not told her employer of her heart condition for fear of losing her job. While she acknowledged that her current line of work is for “ young, strong people, ” she testified that she could not survive on employment in the retail sector.

The Plaintiff candidly acknowledged that continuing her current employment places her health in danger, but stated that her children are important to her and she is willing to assume the risk. [ 24 ] In addition to her heart problems, the Plaintiff also experiences lower back problems impacting on her neck and shoulders. She has been told that she should not lift heavy items or bend over. An ultra sound report dated March 7, 2003 (Tab 5, Exhibit 1), provides details of this condition. The Plaintiff reported that her lower back pain is getting worse.

It is painful for her to lift heavy items at work, and she cannot sleep at night. She testified that she attends a medicentre for the back pain and receives Tylenol 3. She also finds Advil and Motrin to be helpful. Her children provide some relief to her by massaging her back and by helping around the house. She experiences pain when standing. As with her heart condition, the Plaintiff has not reported her back pain to her employer as she does not want them to “ get rid ” of her. [ 25 ] The Plaintiff reported a workplace injury at Mid-Arctic, when she broke her elbow as a result of boxes falling on her.

She was unable to work for two months and then was placed on light duty while attending physiotherapy. Her wrist still hurts when carrying boxes, but she does not report the pain so as to retain her job.

[ 26 ] The Plaintiff reported that she had no medical problems (presumably referring to diagnosed medical problems or symptoms) when she came to Canada. She attributed many of her problems relating to heart palpitations and breathing problems to the stress she suffered throughout the marriage. She described panic attacks and inability to sleep at night during the course of the marriage. She testified that she was afraid of the Defendant throughout the marriage and blamed him for the medical problems created as a result of stress.

She stayed with him for 13 years because of her parents ’ teaching that a woman should stay with her partner after deciding to marry him. [ 27 ] The trial of this matter took place from September 6 to 10, 2011. It was continued on October 11 and 12, 2011. At the conclusion of the trial, judgment was reserved and the Plaintiff was directed to file any additional materials sought to be considered by the Court by November 4, 2011.

Additional material was received from the Defendant through Plaintiff ’ s counsel on November 4, 2011, consisting of a letter from the Edmonton Pipe Industry dated October 20, 2011, dealing with the Defendant ’ s pension, as well as 32 periodic statements of account relating to the Defendant ’ s RRSP account with CIBC covering the period December 31, 2003 to February 28, 2011 (marked as Exhibits 18 and 19, respectively, in this proceeding).

The Defendant also provided the Plaintiff ’ s counsel with his Maintenance Enforcement Records from June 25, 2007 through June 1, 2011, and July 1, 2011 through October 14, 2011, collectively marked as Exhibit 20. Affidavit material proving the marriage in Turkey was filed on March 5, 2012. A further hearing took place on April 20, 2012 at which time the Defendant was requested to provide additional evidence relative to his union pension.

He was also given leave to file, by April 30, 2012, additional medical evidence by way of a doctor ’ s report regarding his fitness for work. [ 28 ] Both the Plaintiff and the Defendant testified at the trial of this matter. The Defendant, unrepresented throughout this stage of the proceedings, had some difficulty with the English language. Generally, his recollection of events seemed muddled and confused. He had a poor sense of the sequence of events and, in my view, a somewhat selective memory of the events of the marriage. Generally, his evidence was of a poor quality.

The Defendant acknowledged that the Plaintiff did not work prior to separation, that he held the only bank account in the family, that he was responsible for the payment of all of the household bills, and that the Plaintiff did not have access to his bank account nor to his credit card. However, he alleged that without his knowledge someone tried to withdraw funds from his RRSP account, and the Plaintiff purchased a computer using his credit card. [ 29 ] The Plaintiff's evidence was, for the most part, clear, complete and compelling.

I am satisfied that her life with the Defendant was very difficult and that she has struggled, financially and otherwise, for many years to provide a good home for all of the children. I am also satisfied that she has provided most if not all of the emotional and financial stability to the children as the Defendant has been a largely absent parent. I accept the Plaintiff's evidence without reservation and, where there are differences between her evidence and that of the Defendant, I prefer her evidence.

History of Interim Proceedings [ 30 ] On July 26, 2006, Macklin J. granted the Plaintiff interim sole custody of the four children. Having found that the Defendant and Plaintiff had guideline incomes of $58,516 and $13,032 respectively, Macklin J. ordered the Defendant to pay monthly child support for CC in the amount of $505 plus $21 in s. 7 expenses, commencing August 1, 2006. During the hearing, the Defendant questioned the paternity of PC, BC and HC.

Macklin J. ordered DNA testing and adjourned the issues of retroactive support for those three children and ongoing support pending receipt of the results. [ 31 ] Macklin J. also ordered monthly interim spousal support of $600 commencing August 1, 2006. Finally, Macklin J. directed that the Defendant should have reasonable and generous access to CC, but no access to the other three children pending the DNA testing.

He severed the divorce from the corollary relief to allow the divorce to proceed as a desk divorce. [ 32 ] DNA testing in August 2006 established that PC is not the Defendant ’ s biological child. [ 33 ] On February 24, 2009, Smith J. varied child support. Smith J. made an interim finding that the Defendant stood in loco parentis with regard to PC, a finding which she stated the trial judge was free to reverse. [ 34 ] She found that the Defendant and the Plaintiff had guideline incomes as follows: Dates Defendant Plaintiff

June 1, 2007 - May 31, 2008 $53,275 $15,325 June 1, 2008 - May 31, 2009 $92,656 $15,653 June 1, 2009 - May 31, 2010 $75,000 $15,000 Smith J. directed the Defendant to pay child support based on these income levels for the four children retroactive to August 1, 2006, with credit for child support paid for one child of the marriage pursuant to the order of Macklin J.

She set differential arrears at $31,006 up to the end of February, 2009, and directed the Defendant to pay the Plaintiff $2,600 by February 24, 2009 and $2,100 by February 26, 2009 toward those arrears. [ 35 ] Smith J. further ordered the Defendant to pay child support in the amount of $2,071 per month commencing March 1, 2009 through May 1, 2009. The Defendant was directed to pay monthly child support of $1,699 commencing on June 1,

Section 7 expenses were to be divided proportionately between the parties upon receipts or invoices being provided by the party incurring the expense. All other issues were adjourned sine die . [ 36 ] In March 2009, Smith J. granted a stay on enforcement of arrears until further order or trial. That stay on enforcement is vacated as of the date of this judgment. Divorce [ 37 ] The parties were married on October 20, 1989 at Izmir, Republic of Turkey. A copy of the marriage license was attached to the Plaintiff ’ s affidavit filed on March 5, 2012.

In her affidavit, the Plaintiff deposed to the fact that the marriage was performed by a government official, the Turkish equivalent of a Justice of the Peace, who had authority to perform the marriage. There were two witnesses to the marriage. During the ceremony, the Plaintiff and Defendant promised to live together as husband and wife and were pronounced as such at the conclusion of the ceremony. After the ceremony, they lived together as husband and wife; held themselves out to the community as legally married; and considered themselves to be married.

On the basis of this evidence, I am satisfied that a valid foreign marriage has been established. [ 38 ] I am also satisfied that the Plaintiff and Defendant finally separated by September 1, 2004 and have been living separate and apart since that date. The Plaintiff has been ordinarily resident in the Province of Alberta for a period of at least one year preceding the filing of the Statement of Claim herein. An Amended Statement of Claim for Divorce and Division of Matrimonial Property was filed on August 12, 2011 and personally served on the Defendant on March 5, 2012.

All of the other requirements of the Divorce Act have been satisfied. [ 39 ] The Court grants a Judgement of Divorce between the Plaintiff and the Defendant who were married on October 20, 1989 at Izmir, Turkey, the divorce to be effective on the 31st day after the day this Judgment is made, unless this Judgment is appealed before that 31st day. Remaining Issues [ 40 ] This Court must determine: 1. Child support quantum 2. Matrimonial Property division

3. Spousal support entitlement and quantum 1. Child Support a. Children of the Marriage [41] The determination of whether a person is a “child of the marriage” flows from the application of the words “stand in the placeof a parent” as set forth in s. 2(2) of the Divorce Act, RSC 1985, c 3. The term “child of the marriage” is defined in s. 2(1) as follows: 2(1) “child of the marriage” means a child of two spouses or former spouses who, at the material time (

a) is under the age of majority and who has not withdrawn from their charge, or (

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from theircharge or to obtain the necessaries of life. [42] Section 2(2) provides clarification on who is a child of the marriage: 2(2) For the purposes of the definition child of the marriage in subsection (1), a child of two spouses or former spouses includes ... (

b) any child of whom one is the parent and for whom the other stands in the place of a parent. [43] In Chartier v Chartier, (SCC), [1999] 1 SCR 242, [1998] SCJ No 79 (QL), the leading case on s. 2(2)(b), the Supreme Court focussed on the “nature of the relationship” between the child and the person: 39 Whether a person stands in the place of a parent must take into account all factors relevant to that determinations, viewedobjectively. What must be determined is the nature of the relationship...The court must determine the nature of the relationship bylooking at a number of factors, among which is intention.

Intention will not only be expressed formally.

The court must also inferintention from actions, and take into consideration that even expressed intentions may sometimes change....The relevant factors indefining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way aswould a biological child; whether the person provides financially for the child (depending on ability to pay); whether the persondisciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he orshe is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent... [44] The Court in Chartier rejected the notion that a person may unilaterally withdraw from a parental relationship, holding atpara 36 that “the existence of the parental relationship under s. 2(2)(

b) of the Divorce Act must...be determined as of the time the familyfunctioned as a unit.” [45] In Doe v Alberta, 2007 ABCA 50, 404 AR 153, the Court of Appeal applied Chartier, stating: 20 It emerges apparent that the analytical focus is the nature of the relationship informed by an objective determination of intentionpremised in large measure on the manner in which the person has “acted.”

[46] The Court of Appeal again considered this issue in Shirley v Shirley, 2007 ABCA 281, 417 AR 170: 4 The appellant contends that under Chartier v. Chartier, (SCC), [1999] 1 S.C.R. 242, [1998] S.C.J. No. 79 (QL), at para. 18, 20, 32 and 39, and Doe et al. v. Alberta, [2007] A.J.

No. 138 (QL), 2007 ABCA 50, (20007) 278 D.L.R. (4th) 1, leave denied[2007] SCCA No. 211, the first analytical step in deciding whether a person is a “child of the marriage” of a divorcing couple is tocorrectly interpret and apply the words “stand in the place of a parent” as appears in s. 2(2) of the Divorce Act, R.S.C. 1985, c.3, and notto apply the common law concept of in loco parentis... ... 7 ...As to its factors, the Divorce Act does not define “child of the marriage” in exclusively biological terms, nor does s. 1(

m) and s. 48of the Family Law Act, S.A. 2003, c. F-4.5. 8 At a hearing of this issue, the Court would consider the best interests of the children. The Court might consider what the children’sbelief was: Chartier, supra at para. 38. The Court would consider the respondent’s intent having regard to all of the facts: Chartier,supra at para. 39; Doe, supra at paras. 16-23 (albeit in the context of s. 48 of the Family Law Act). The Court would consider if an“indefinite unconditional commitment is made”: Theriault v. Theriault, (1994) 1994 ABCA 119 , 113 D.L.R. (4th) 57, [1994]A.J.

No. 187, at para. 14... [47] In my view, it is plain from the evidence of the Defendant that he made an indefinite, unconditional commitment to PC fromthe time of her birth. His evidence on this point came in cross-examination and during questions posed by the Court. In cross-examination, the Defendant testified as follows (Transcript: September 9, 2011, pp 24-25): Q. ...Were you always happy that Mrs. [NC] was pregnant? A. Oh yes, yes. Q. And after -- A. Remember the first kid -- Q. Yes. And after the child’s birth, were you still happy? A. Oh, yes. Q. And did you consider yourself that child’s father? A.

Oh, I don’t know. Of course the kid, innocent kid. Your kid. Q. Mm-hm. A. I loved [PC]. Q. Do you still love [PC]? A. She -- she give us enjoyment. You know? Playing around. Q. Mm-hm. She gave you enjoyment. A. Oh, yes.

Q. Is that my understanding? Yes. A. We were playing. Q. Did you always -- did you always -- A. Yes. Q. -- did you always love her? A. Yes. Q. Do you still love her? A. Of course I love her. Q. Is she still your daughter. A. Yes. (INDISCERNIBLE) Q. Are you still -- and you ’ re still her dad? A. Yes, she ’ s call me dad, Buba. Q. And you ’ ll always be her dad, won ’ t you? Or -- A. Of course. Q. -- will you always be her dad? A. Of course, she is -- she is the first child. Q. Do you feel that way about all of your children? A. Yes. Yes, I do. Q. And you love all your children equally? A.

Yeah. [ 48 ] According to the Plaintiff, PC was always part of the family unit. She called the Defendant “ Dad. ” The Defendant only began to express a lack of interest in being PC ’ s Dad after the Plaintiff left the marriage. Throughout the marriage, the Defendant said that PC was his child and treated her as his own. PC is not aware that the Defendant is not her biological father, though the Defendant recently told his daughter CC that PC was not her real sister, leading CC to question the Plaintiff about the situation.

With respect to PC ’ s biological father, the Plaintiff testified that the Defendant did not want the Plaintiff to find the biological father during the course of the marriage, though he recently told her she was a “ whore ” and that she should now go and find PC ’ s father. [ 49 ] The Defendant testified that he named PC at the request of the Plaintiff, and that he “ love[d] the kid ” (Transcript, p 5, l 24). The Defendant confirmed that he only found out that PC was not his biological child following the separation in 2004 as a result of the DNA testing of the four children.

While he was previously suspicious that he might not be the father, the Plaintiff never told him that PC

was not his child. [ 50 ] I am satisfied that the Defendant stood in the place of a parent relative to PC from the time of her birth in1993 until around 2004. While the family was together, he held out to the child, the family and the world that he was the child ’ s father and, as such, responsible for her as a parent. While some of his actions post-separation suggest that he questions his parental role relative to PC, I am of the view that the Defendant continues to this day to hold out to PC and to the world that he is her parent.

Further, following Chartier , I find that the Defendant cannot unilaterally withdraw from a parental relationship after the fact, and that the operative time period to consider the existence of a parental relationship is when the family was together as a functioning unit. [ 51 ] I am satisfied, based on all of the evidence, that the Defendant stood in the place of a parent to PC. [ 52 ] PC turned 18 years old on June [...], 2011. The Plaintiff ’ s trial evidence was to the effect that PC was taking upgrading courses as of September, 2011 and that she wants to continue her education to become a scientist.

She is still dependent upon her parents for support. In my view, PC continues to be a child of the marriage within the meaning of s. 2 of the Divorce Act , as she continues to pursue her education. On the basis of the evidence before me, I am satisfied that she continued to be a child of the marriage as of September, 2011. As such the Defendant ’ s responsibility to pay child support for PC continues into the foreseeable future so long as she continues her studies and is dependent on her parents for support. b.

Quantum - Table Amount [ 53 ] The Plaintiff claims child support for all four children of the marriage from September 1, 2004, and has pursued the matter in a timely manner. The Defendant has been aware of this claim since being served with the divorce documents. [ 54 ] I find the following to be the Defendant ’ s annual income since 2004: Year Defendant 2004 89,476 2005 58,516 2006 53,275 2007 92,656 2008 83,343 2009 83,394 2010 100,767 2011 54,959 [ 55 ] The Defendant ’ s income as stated above includes employment insurance which he received periodically when laid off.

It also reflects RRSP withdrawals in 2007 (BMO - $5,512) and 2009 (CIBC - $18,976) which are reflected in the Defendant ’ s tax returns for those years. I will treat those withdrawals as income in the relevant years for the purpose of calculating child support. [ 56 ] Since retiring in September 2010, the Defendant ’ s regular income has been comprised of pension income and CPP. The Defendant ’ s evidence as to the reasons for his retirement are, in my view, fairly clear. He testified that he had cataract surgery for both eyes and surgery for a detached retina.

At one point in his evidence, he explained his reduced income in 2003 on the basis that he was then waiting for surgery, which I interpreted to be this eye surgery. On November 30, 2006, the Defendant had an eye operation for damage to his retina due to welding. His doctor advised not to return to work until at least March 20, 2007 (the doctor ’ s note is attached as an exhibit to the Defendant ’ s affidavit of February 8, 2007).

[ 57 ] However, the Defendant indicated that he returned to work for a period of two to three years after these medical issues had been addressed. On April 20, 2012, he was given a further opportunity to provide material which would support a finding that he is incapable of working due to this outstanding medical issue. [ 58 ] After the deadline imposed for provision of further evidence and on the eve of release of this decision, the Defendant faxed an extremely short letter from a general practitioner, Dr.

Campbell, indicating that the Defendant had to retire in 2010 due to chronic arthritis in his neck and back, and that he had developed neuropathic pain in his right arm with muscle wasting, the doctor concluding that he would not be able to return to gainful employment in the near future. [ 59 ] During the lengthy proceedings, despite ample opportunity, the Defendant made no mention whatsoever of the types of problems referred to by Dr. Campbell. These proceedings have been repeatedly delayed for provision of further information.

Counsel for the Plaintiff objects to my receipt of what is characterized as new evidence touching on a matter that was not raised by the Defendant when he testified at trial or, indeed, at any point thereafter. Under the circumstances, I am not prepared to deal with this very cryptic evidence of a general practitioner at this stage. I do note that despite any infirmities he might have, the Defendant was able to represent himself in a fashion over many months before this Court, with no apparent physical discomfort.

If the Defendant wishes to raise this new issue of chronic arthritis, he is free to do so on an application to vary support. [ 60 ] Based on the evidence before me at trial, I am satisfied that the Defendant ’ s decision to retire was not based on physical incapacity, but rather he decided that he had reached an age where he ought to be able to retire. I further find that his decision to retire was based at least in part on a belief that he could thereby avoid or reduce his support obligations to the Plaintiff and his children. [ 61 ] The children of the marriage are now 19, 16, 14 and 11 years of age.

I have found, above, that 19 year old PC is still attending school and is dependent upon her parents for support. Given the ages of the children, it is clear that both the Plaintiff and the Defendant will continue to have responsibilities for the financial support of at least some of their children until the Defendant turns 65 years of age (in 2015), and beyond. [ 62 ] I recognize that the Defendant is 61 years old and has been working in a job involving physical labour for many years.

Nevertheless, the Defendant cannot, in my view, simply make the decision to retire at this point seemingly without regard to his ongoing financial responsibilities for these children. [ 63 ]

Section 19 of the FCSG provides: 19.

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse... [ 64 ] Given all of the circumstances, I consider the Defendant to be intentionally unemployed and, taking into account his income history and age, it is appropriate to impute to him an annual income of $70,000 for 2011 until July 2015 when he will turn 65.

In imputing this level of income to the Defendant, I am mindful that he was self-represented in these proceedings and may not have fully appreciated the risk he took in making the decision to retire in 2010. However, he was on notice at least as early as January, 2009 that the Plaintiff was asking the Court to impute income at $95,000 from 2004 onward.

Under all of the circumstances, it was unreasonable for the Defendant to assume that he could unilaterally reduce his financial obligations to his children by deciding that he no longer wished to work. [ 65 ] Therefore, the Defendant ’ s s. 3 child support obligation from September 2004 to May 2012 is as follows:

Year Defendant FCSG Base Amount 2004 89,476 2,003 x 4 = 8,012 2005 58,516 1,338 x 12 = 16,056 2006 53,275 1,220 x 12 = 14,640 2007 92,656 2,070 x 12 = 24,840 2008 83,343 1,874 x 12 = 22,488 2009 83,394 1,875 x 12 = 22,500 2010 100,767 2,240 x 12 = 26,880 2011 70,000 1,583 x 12 = 18,996 2012 70,000 1,583 x 5 = 7,915 TOTAL $162,327 [ 66 ] The Defendant ’ s s. 3 interim child support obligation to date under the previous orders was: August 1/06 to May 31/07 10 months x 1,337 = 13,370 June 1/07 to May 31/08 12 months x 1,221 = 14,652 June 1/08 to February 28/09 9 months x 2,071 = 18,639 March 1/09 to May 1/09 3 months x 2071 = 6,213 June 1/09 to May 1/12 36 month x 1,699 = 61,164 TOTAL $114,038 [ 67 ] The difference is $48,289 .

The Defendant provided a copy of correspondence from Maintenance Enforcement dated May 13, 2012 stating that he has outstanding arrears on the basis of the two previous orders of $23,108.71 . It is not entirely clear what proportion of this represents child support as opposed to spousal support. For ease of calculation, I will call this child support arrears, however this is not intended to change the nature of the arrears for the purpose of tracking by Maintenance Enforcement nor for the parties ’ tax purposes.

Proceeding on this basis, the s. 3 child support owing from the Defendant to the Plaintiff for the period from September 1, 2004 to date is $71,397.71 . c. Quantum -

Section 7 [ 68 ] At trial, the Plaintiff adduced extensive evidence relating to her monthly budget, specifically the expenses she incurs to support herself and the five children in her care. A great deal of evidence was given on costs incurred by the Plaintiff, including school fees, textbook rental, bus fees and bus passes, lunch supervision fees, and school supplies.

While I acknowledge that all of these fees add up to a significant amount relative to four children, I am of the view that they are not extraordinary expenses within the meaning of s. 7 of the FCSG , but rather the type of ongoing expenses that are intended to be covered by regular child support payments. [ 69 ] The amount claimed for extracurricular activities for the four children is nominal, and I find this does not constitute an extraordinary expense for extracurricular activities under s. 7(1) (

f) of the FCSG , taking into account the factors set out in s. 7(1.1) . [ 70 ] Some health-related expenses are claimed. To the extent they are not covered by an insurance plan, the parties are responsible for their proportionate shares of medical and dental expenses under s. 7(1) (

b) or (

c) of the FCSG .

[ 71 ] The calculation of the parties ’ respective share of the s. 7 expenses is complicated by the incomplete evidence presented at trial on the actual income of both the Plaintiff and the Defendant. I am left in doubt as to whether or not the parties properly accounted for spousal support payments in the preparation of their income tax returns in the years since separation. In the case of the Plaintiff, it is not clear whether she included spousal support payments as income; in the case of the Defendant, whether he claimed spousal support payments as a deduction.

Likewise, I have concerns as to the Defendant ’ s inclusion as income the funds he received as a result of collapsing his RRSP investments in 2008 and 2011. Finally, there remain outstanding issues as to the whether or not the Plaintiff received (and if received, properly reported for income tax purposes) benefits received from the Canada Child Tax Benefit and the Universal Child Benefit.

However, based on the material that was presented to me, I find that the Plaintiff and the Defendant had the following income in the years since the date of separation. (The Defendant ’ s income for 2011 reflects income imputed above): Year Defendant Plaintiff Percentage Split 2004 89,476 12,778 87.5/12.5 2005 58,516 16,182 78/22 2006 53,275 15,325 78/22 2007 92,656 15,653 85.5/14.5 2008 83,343 26,553 76/24 2009 83,394 28,297 75/25 2010 100,767 37,122 73/27 2011 70,000 37,380 65/35 [ 72 ] Given the incomplete information before me, I leave it to the parties to make the appropriate calculations.

Should the parties be unable to agree on the amount outstanding, they may appear before me for a determination and further direction. 2. Matrimonial Property [ 73 ] There are essentially four types of assets making up the matrimonial property in this case:

a) the matrimonial home;

b) the Defendant ’ s union pension and CPP;

c) RRSPs; and

d) the Defendant ’ s alleged property holdings in Turkey. [ 74 ] I will state at the outset that I find no compelling reason to use a date other than date of trial as the date of division. a. The Matrimonial Home [ 75 ] The matrimonial home, a bungalow constructed in approximately 1962, is located at 8[...]-163 Street, Edmonton. The Defendant ’ s evidence was that he paid $78,000 for the residence in 1978, prior to the marriage, and that it had an initial mortgage of $56,000. The title to the property has, from the outset, been listed in the name of the Defendant alone.

Prior to his marriage, the Defendant indicated that he lived at the property with his brother and that they were paying the mortgage together.

[76] The property was appraised by James B. Robertson, Certified Real Estate Appraiser, relative to three dates: the date ofmarriage (October 21, 1989); the date of separation (September 15, 2004); and shortly before trial (August 26, 2011). Mr. Robertson’sappraisal of the property as of the date of marriage is $73,000, based on the direct comparison approach involving four other properties,two of which were located in the same neighbourhood of Meadowlark Park. Mr.

Robertson’s appraisal of the property at the date ofseparation is $139,000 based on the direct comparison approach involving three other properties, two of which were located inMeadowlark Park. The appraisal as at August 26, 2011 values the property at $256,000. This appraisal was based on six comparablesales used to estimate the market value of the property, as well as a review of other active listings.

I find this last figure reflects thecurrent value of the property. [77] The Defendant’s evidence at trial confirms that a line of credit which he was unable to pay was rolled into a re-negotiatedmortgage in or around 2002. As of August 18, 2011, the matrimonial home was subject to a mortgage in favour of the Bank of Montrealwith an outstanding balance of $70,744. [78] To summarize, the house has had the following values: 1978 78,000 (56,000 mortgage) 1989 73,000 2004 139,000 2012 256,000 (70,744 mortgage) [79] The equity in the residence as of August, 2011 was approximately $185,000.

In the absence of updated figures, I will use thisfigure for the purpose of the matrimonial property division. [80] Under s. 7(2)(

c) of the Matrimonial Property Act, the market value of property acquired by a spouse before the marriage isexempted from distribution. There was no evidence as to any mortgage on the property as at the date of marriage.

Therefore, I find that$73,000 is exempt, leaving a balance of $112,000. [81] Pursuant to s. 7(3), the Court must, after taking into account the factors set out in s. 8, distribute in a manner that it considersjust and equitable the difference between the exempted value of property and the market value at the time of the trial of the property. [82] The parties both contributed to the marriage and to the welfare of the family, the Defendant as breadwinner and the Plaintiffas homemaker and parent. Both parties contributed to the conservation or improvement of the property. The Defendant contributedfinancially.

The Plaintiff did not have financial resources from which she could contribute, however she contributed through her hardwork on improvements to the house. The marriage was a long-term, traditional union. [83] Having considered the relevant factors, I find that the Plaintiff is entitled to 50% of the equity in the residence accumulatedduring the marriage. This amounts to $56,000. [84] In her Amended Statement of Claim for Divorce, the Plaintiff makes a claim for occupational rent. No specifics were pled inthe Amended Statement of Claim and no evidence was led at trial.

The record contains documents wherein the Defendant indicates thatone other person lived in the house from December 2007 to December 2008. This was a cousin of a friend from Turkey. He never paidrent, and the Defendant had no other tenants. [85] The issue of occupational rent was extensively reviewed by Slatter J. (as he then was) in Kazmierczak v. Kazmierczak, 2001ABQB 610, aff’d 2003 ABCA 227.

He warned at para 90 that care must be taken in carrying forward the common law concept ofoccupational rent into the family law concept and occupational rent should only be awarded in the family law context with great caution. [86] I note that he follows the decision of Johnstone J. in Timms v Timms (1997) (AB KB), 203 AR 81 where

it was found that the non-occupying spouse is deemed to have notice that the excluded spouse has a notional claim for occupational rent.At para. 56-57, Johnstone J. stated: “...the operative word is ‘notional.’ The awarding of occupation rent is discretionary and is linkedinextricably to the award of child and spousal maintenance.” In Kazmierczak, Slatter J. (at para 93) finds that “the claim for occupationrent cannot be considered in isolation” and that “rarely, if ever, should one spouse be able to bank a claim for occupation rent, andpresent that claim in capitalized form years later as apart of a matrimonial property action” (at para. 95(f)). [87] In rejecting the claim for occupational rent, Slatter J. cited Ziff’s Principles of Property Law (Scarborough: Carswell, 1993)at p 266: No occupation rent is normally payable simply because one owner has enjoyed exclusive possession.

However, where, on partition, theparty in possession makes a claim for reimbursement for the payment of current expenses, a counterclaim for occupation rent may beentertained. The amount of rent ordered is often based on an estimation of the market value of the property (divided by the number of co-owners), but sometimes it is pegged at the current expenses. [88] I share Slatter J.’s reservations about the importation of common law property principles, specifically occupation rent, to thefamily law context.

Even if I were to apply the principle here, there is no suggestion that the Defendant has ever made a claim forreimbursement for the payment of expenses relative to the matrimonial home since separation so as to trigger a counterclaim foroccupation rent. [89] The claim for occupational rent is dismissed. In my view, the fact of the Defendant's continuous occupation of thematrimonial home since the date of separation is a matter to be considered in the context of the award of child and spousal maintenance. b.

Defendant’s Union Pension and CPP [90] The Defendant began collecting pension income from the Edmonton Pipe Industry in September, 2010. In a letter datedOctober 18, 2010, he was advised that his pension amounted to $1,904.89 per month, and was to be deposited directly into his bankaccount commencing November 1, 2010.

A cheque covering his pension for the months of September and October, 2010, was attachedto the correspondence. [91] Further correspondence sent to the Defendant by the pension administrator and dated October 20, 2011, confirmed that thePlaintiff: is entitled to a maximum of 50% of the value of the pension accrued over the course of the marriage and may be received as a lump sumtransfer to a Locked-in Retirement Account (LIRA) or a monthly pension for her lifetime. These amounts are $110,249.23 and $496.61respectively.

Your monthly pension will be reduced by $588.09 regardless of the option the ex-spouse elects. [92] The letter sets out the process required to complete the division.

It is not clear from this correspondence which dates wereused for the purposes of calculating pension accrued “over the course of the marriage.” [93] Given the gaps in the information provided in the initial correspondence from the Edmonton Pipe Industry, the parties re-attended before me on April 20, 2012, at which time I directed the Defendant to obtain additional information from his union regardingthe date that he commenced paying contributions towards his pension; the date that he ceased to make contributions to his pension; andthe current value of the pension.

This information was received by way of letter from the pension administrator dated April 25, 2012. [94] On the evidence adduced at trial, it is clear that the Defendant contributed to his pension from October, 1978, untilSeptember, 2010. As such, he contributed to his pension for a total of 32 years. For the purposes of calculating pension entitlement, Ifind the parties cohabited for 15 years. The Plaintiff is entitled to 50% of the proportion reflecting the years of cohabitation under theformula in McAlister v McAlister (1982), (AB KB), 41 AR 277 (QB). The pension will be divided at source on thisbasis.

[95] I direct that the Plaintiff’s counsel prepare a form of order on this basis pursuant to McAlister v McAlister (1982), (AB KB), 41 AR 277 (QB) for review by the Defendant and the pension plan administrator. The union pension will not beincluded in this matrimonial property division. If the parties are not able to agree on a form of order, either party may apply to this Courtfor directions. [96] Documents filed at trial confirm that the Defendant also began collecting a Canada Pension Plan (CPP) retirement pensioneffective November, 2011 in the amount of $589.03 per month.

I direct that the parties apply for a division of Canada Pension Plancredits. c. RRSPs [97] The Defendant’s trial testimony (in cross-examination) was that he believed there was $10,000 remaining in the RRSP. Whengiving further evidence later in the trial, the Defendant stated that he cashed in his RRSPs to pay debts. [98] The CIBC documents obtained by the Defendant (and filed as Exhibit #19 in this proceeding) provide some informationrelative to his RRSP holdings.

The first Statement of Account (dated December 31, 2003) shows three non-redeemable GIC’s in theaccount with various maturity dates - February 27, 2004; April 27,2004; February 27, 2005. The principal amounts are $5,164.01($5,267.29); $16,000 ($16,698.47); and $10,000 ($10,041.64), respectively. The total amount is $31,164.01 (principal) and a value of$32,277.40 at maturity. [99] The three GIC’s matured and were renewed until February 27, 2006, when the Defendant transferred out at maturity one GICat a value of $5,415.98.

The transaction involved a transfer fee of $25.00, leaving income in the hands of the Defendant in the amount of$5,390.98. [100] The Defendant withdrew $10,776.73 on February 27, 2008. However, on the following day, February 28, 2008, he made acontribution of $9,766.00. [101] On August 27, 2008, the Defendant transferred on maturity $18,926.22 from a non-redeemable GIC to a daily interest savingsRRSP. He subsequently withdrew $18,976.00 from the latter account on January 2, 2009.

On February 28, 2011, it appears theDefendant withdrew on maturity $10, 957.99 from a non-redeemable GIC. [102] This documentary evidence indicates that there were no remaining CIBC RRSP funds as of the date of trial. [103] The Defendant appears to have withdrawn approximately $46,000 from his CIBC RRSP accounts. I have already included theRRSP withdrawal of $18,976 as income in 2009 for the purposes of calculating child support, as this amount is reflected in theDefendant’s tax return.

Around $27,000 of these withdrawals do not appear to have been included in the Defendant’s income for taxpurposes, and therefore I will treat this amount as a matrimonial asset. [104] From the Defendant’s 2007 tax return, it appears that he contributed to more than one RRSP during the marriage. However,no documentation was provided regarding any remaining BMO RRSP. [105]

Section 8(

l) of the Matrimonial Property Act speaks to dissipation of property. In Cox v Cox, 1998 ABQB 987 at para 346,Paperny J., reviewed the case law and summarized the principles relating to dissipation: ... 3. Dissipation does not necessarily result where an asset is worth less at trial than it was at separation. Dissipation requires a degree of

intent although that intent does not necessarily have to extend to intentionally depriving the other spouse of a fair distribution of matrimonial property. It is sufficient if one spouse intends to dissipate the assets (usually for their own enjoyment), and that dissipation arises in detriment to the other spouse. 4. There must be actual detriment to the other spouse. 5. The law generally does not find dissipation if the reduction in assets was due to reasonable expenditures made on behalf of the family or to maintain existing matrimonial assets.

However, the court will look to see if the spouse could have paid those expenses out of income rather than by depleting assets. Purely personal expenses which do not benefit the other party that are paid out of matrimonial property may also be considered dissipation (even though prior to separation they might have been matrimonial expenses). [ 106 ] The evidence before this Court is that the Defendant enjoyed a relatively significant income over the years in question, out of which he could easily have satisfied his child and spousal support obligations. He presented no evidence of any other unusual obligations.

I conclude that the withdrawals from his RRSPs were for purely personal expenses. They did not benefit the Plaintiff. I find the Plaintiff is entitled to 50% of $27,000, or $13,500 on account of the CIBC RRSP. [ 107 ] Given the Plaintiff ’ s ongoing circumstances and obligations, it is imperative that the Plaintiff receive support arrears and matrimonial property as soon as possible and I will not further delay this decision. However, I direct the Defendant to provide the Court within 14 days of this decision with documentation regarding the BMO RRSP.

I reserve the right to revise this decision in light of that information. d. Turkish Properties [ 108 ] The Plaintiff alleged during trial that the Defendant held a number of investment properties in Turkey. According to the Plaintiff, both properties were in Turkey in or near Bodrum, a seaside tourist area. The Plaintiff ’ s evidence was that the Defendant acquired one property from his brother for $1,000.00, though no information was provided as to the date of this transaction.

The Plaintiff testified that the Defendant also had his own property, an empty lot without a building in the same tourist area, that he purchased from a family member during the course of the marriage. She claimed that the land was “ very expensive. ” She also claimed that the Defendant gave away both of the lots prior to the date of separation as he did not want her to have anything. [ 109 ] It was not clear whether or not the Defendant gave one or both lots to his brother.

The Plaintiff ’ s claim in this regard was linked to her evidence that the Defendant was taking care of his brother during the course of the marriage. The Plaintiff claimed that this brother did not work, but that the Defendant gave him money on a somewhat regular basis, to the detriment of the Plaintiff and the children of the marriage. [ 110 ] The Defendant testified that he acquired the property in Turkey from his older brother in 1991 for $8,000, though did not actually pay his brother at the time of the purchase.

According to the Defendant, his brother told him that the Defendant could pay the money when he was able to do so. The Defendant ’ s evidence was that he owed “ $8,000 or something ” on the property when he gave it to his brother in 1992. The Defendant says that he gave it to his brother at a time when the brother paid for the Plaintiff to travel to Turkey to visit her sick father at a time when the Defendant could not afford her air ticket.

At another point in his evidence, the Defendant testified that he sold this property in 1993. [ 111 ] Land registry documents from Turkey were filed as Court Exhibit #17 in these proceedings. These documents, including official translations of same, indicate that the Defendant did own a property identified as 318A, but that it was transferred to OC on December 7, 1994. [ 112 ] The Plaintiff denies the Defendant ’ s version of the events relative to the second property.

Her evidence was that the Defendant ’ s brother sold the property to the Defendant for $8,000; that the two brothers signed papers in her presence and she recalls the $8,000 changing hands. According to the Plaintiff, the Defendant ’ s brother said that he needed money. [ 113 ] In argument, counsel for the Plaintiff indicated that the Plaintiff was not making any claim with respect to the Turkish

properties. I accept this concession without reservation given the conflicting evidence that was presented relative to the existence, location, acquisition date, value and disposition of this property. As with many aspects of this matter, the evidence presented on this issue was vague and non-specific. 3. Spousal Support [ 114 ] The remaining issue is spousal support.

Section 15.2 of the Divorce Act provides: 15.2(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. ...

(3) The court may make an order under subsection (1) ... for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse.

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) 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; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 115 ] This was a long-term marriage. The parties were married for almost 23 years. The final separation occurred approximately eight years ago. As stated above, the couple had a traditional marriage in the sense that the Plaintiff stayed at home to care for the

children while the Defendant earned an income outside of the home. The Plaintiff also worked to improve the matrimonial home, asoutlined above. [116] As a result of the separation, the Plaintiff obtained employment. She has difficulty with the English language and has noparticular career training. She was on maternity leave for part of 2005 and 2006. She started working for Mid Arctic on August 5, 2008which has resulted in a modest increase in employment income. She has been receiving some interim spousal support pursuant toMacklin J.’s order.

She was entitled to $3,000 in 2006 and $7,200 annually in subsequent years, so is credited roughly $45,000 to date. [117] The Plaintiff continues to work in a physically demanding job notwithstanding her health issues. She works some overtime inthe summer, and is laid off over the winter months. On her evidence, she has continued to work notwithstanding the advice of her doctorand without fully disclosing to her employer the nature or extent of her medical condition.

As she testified, she continues to worknotwithstanding the risk to her health because her children are important to her. [118] The Plaintiff was economically disadvantaged from the breakdown of the marriage as she was almost entirely dependent on theDefendant for her support and that of the children. She has incurred financial consequences from the care of the four children of themarriage as she has been the sole caregiver to them during cohabitation and since separation. She has and continues to experienceeconomic hardship as a result of the breakdown of the marriage.

She requires support to promote her own economic self-sufficiencywithin a reasonable period of time. [119] Given the length of time the spouses cohabited, the functions performed by each spouse during cohabitation and their currentrespective situations, I find that the Plaintiff is entitled to some ongoing spousal support on both compensatory and non-compensatorybases: Bracklow v Bracklow, (SCC), [1999] 1 SCR 420 at para 15.

I must, therefore, consider the Plaintiff’sentitlement to support and the Defendant’s ability to pay support: Bains v Bains, 2008 ABQB 271, 438 AR 327 at para 42, MacNeill vMacNeill, 2008 ABQB 535 at para 30. [120] I have considered Plaintiff’s counsel’s submissions based on the spousal support guidelines, and the Plaintiff’s budget of$2,381, which I find to be reasonable for a household with four children. As a result of this judgment, the Plaintiff will receive fundsfrom the sale of the matrimonial home. She will also receive a portion - in an amount yet to be determined - of the Defendant’s unionpension.

Although the Plaintiff has some health issues, she is 48, is employed, and has periods of time off during slow season. She hasreceived spousal support since August, 2006.

The Defendant is nearing retirement and will be paying a significant amount in arrears andmatrimonial property to the Plaintiff. [121] Having considered all of the circumstances, I order ongoing spousal support payable by the Defendant to the Plaintiff in the amount of $200 per month commencing June 1, 2012, to be reviewed in June 2015 (shortly before the Defendant’s 65th birthday). [122] Should the amount of the union pension to which the Plaintiff is ultimately entitled be significantly different than the $439.61per month quoted in correspondence from the pension administrator, one or both parties may contact me for reconsideration of thequantum of ongoing spousal support.

Conclusion [123] The Defendant will pay s. 3 child support for the four children based on annual incomes as outlined above, an income of$70,000 being imputed for 2011 and until June 2015. Child support will be payable thereafter based on the Defendant’s actual income. [124] The parties will pay their proportionate share, as outlined above, of the four children’s medical and dental expenses which arenot covered by an insurance plan so long as they continue to attend school and be dependent on their parents. [125] The union pension and CPP will be divided at source.

The Plaintiff is entitled to $56,000 in equity from the matrimonial homeand $13,500 from the RRSPs, for a total of $69,500. However, the Defendant owes the Plaintiff support arrears in the amount of$71,397.71. The Plaintiff’s share of the matrimonial property plus support arrears amount to $140,898. The evidence indicates that theDefendant holds equity of approximately $185,000 in the home.

[ 126 ] Given the Defendant ’ s choice to retire and his ongoing support obligations, in my view the only realistic option in this case is that the house be sold and the Plaintiff be paid the amounts owing to her paid from the equity in the home. Therefore, I order under s. 9(2) (

b) of the Matrimonial Property Act that the matrimonial home located at 8[...]-163 Street, Edmonton be sold no later than July 31, 2012 with a possession date no later than August 31, 2012. The net proceeds will be held in trust and the amount of $140,898 shall be paid to the Plaintiff from those proceeds. Any remaining funds will be paid to the Defendant. [ 127 ] Ongoing spousal support shall be paid by the Defendant to the Plaintiff in the amount of $200 per month commencing June 1, 2012, to be reviewed in June 2015.

As mentioned above, should the amount of the union pension to which the Plaintiff is ultimately entitled be significantly different than the $439.61 per month quoted in correspondence from the pension administrator, one or both parties may contact me for reconsideration of the quantum of ongoing spousal support. [ 128 ] The Defendant shall provide the Court within 14 days of this decision all documentation regarding the BMO RRSP from which he withdrew funds as reflected in his 2007 tax return.

The Court reserves the right to revise this decision in light of that information. [ 129 ] Due to the incomplete evidence before the Court, the parties may address the Court and request revised calculations if there are any inaccuracies in the financial information as set out herein. Costs [ 130 ] If the parties cannot agree on costs, they may be spoken to within 30 days of the release of this decision. Heard on the 6 th to the 10 th days of September, 2011, the 11 th and 12 th days of October, 2011, the 20 th day of April and the 31 st day of May, 2012.

Dated at the City of Edmonton, Alberta, this 1 st day of June, 2012. M. David Gates J.C.Q.B.A. Appearances: Mr. W.G. Krys

for the Plaintiff Mr. U.C. on his own behalf _______________________________________________________ Corrigendum of the Reasons for Judgment of the Honourable Mr. Justice M. David Gates _______________________________________________________ Please note the following change. The last line of Paragraph 71 should read: “ 2011 70,000 37,380 65/35".