Erickson v Erickson, 2012 ABQB 374

Court of Queen ’ s Bench of Alberta Citation: Erickson v Erickson, 2012 ABQB 374 Date: 20120607 Docket: 4803 135412 Registry: Edmonton Between: Jacqueline Cheryl Erickson Respondent/Plaintiff - and - Delano Emil Leslie Erickson Applicant/Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] The wife applies for interim ongoing and retroactive spousal support; as well as for an Order severing the Divorce Judgment from the Corollary Relief and the Matrimonial Property issues.

The husband seeks an Order transferring the matter to the Court of Queen ’ s Bench of Saskatchewan, Judicial District of Swift Current; or alternatively seeks a stay of the Alberta action. [ 2 ] The parties married in 1969 after having lived together prior to the marriage. They had four children together from 1969 to 1981. None of these children are children of the marriage at this time. The parties separated in 2004. [ 3 ] The husband is 64 years of age, and the wife is 62 years of age. The wife was primarily responsible for raising the children

and maintaining the matrimonial home. The husband ’ s primary role throughout the marriage was that of financial provider, and the parties owned an extensive farming operation in Saskatchewan. [ 4 ] During the marriage the husband obtained an Engineering Degree in 1971, and took some courses towards a Masters Degree. He worked primarily on the farm since 1979, and between 1991 and 2011 has also done some environmental consulting work. The husband intends to give up his environmental consulting work because heart health issues, and his inability to continue working two jobs at age 64.

The husband has had two heart attacks related to chronic atrial fibrillation, and is scheduled to undergo a surgical heart procedure in the summer of 2012. [ 5 ] The wife ceased working outside the home when her second child was born in 1972. The wife moved to the Edmonton area from the farm in Saskatchewan so that the two youngest daughters could attend the Edmonton School of Ballet in 1998.

The wife is currently working as a client care assistant in the Edmonton Detox Facility, earning approximately $1,500 a month. [ 6 ] The husband submits that the wife is not working at anywhere near a full time basis since she earns approximately $22 an hour. Counsel for the husband submits that the wife should be imputed income of $21,000 a year plus $7,000 a year Canada Pension benefits that she could be receiving for a total of $28,000.

The husband currently receives approximately $7,000 a year in Canada Pension benefits, and since the parties ’ effectively split their income over a number of years, the wife should receive that much as well in CPP benefits if she were to apply. [ 7 ] The farming corporation was clearly able to pay both parties significant salaries in 2006 through 2009. In July 2009 the wife apparently unilaterally withdrew $200,000 from the family farming business, and the husband ceased paying her any salary from the Corporation.

Prior to that, the wife was receiving annually between $60,000 to $80,000 from the Corporation. [ 8 ] The husband ’ s current annual income is between $60,000 and $85,000, and the Corporation covers a number of the husband ’ s living expenses as well. The parties obtained a report which indicates that the farm corporation has a maintainable cash flow of between $133,000 and $175,000 a year. [ 9 ] The husband is currently in control of the majority of the family assets, although the wife lives in the parties ’ home in Sherwood Park. The husband lives on the family farm, and controls the farming corporation.

The husband has been paying the mortgage of approximately $960 a month since the beginning of 2012 on the Sherwood Park home occupied by the wife, for a total to date of approximately $4,800. He proposes paying the wife spousal support retroactive to January 1, 2012 at the rate of $2,000 a month, reduced by the $4,800 that he has paid on the mortgage, on an ongoing basis. [ 10 ] The husband argues that the Spousal Support Guidelines ( “ SSG ” ) suggest a similar $2,000 a month payment when taking into account the enhanced income for the wife, as well as the reduced income for the husband.

The husband ’ s reported income in 2011 of almost $93,000 it is argued should be set at approximately $77,000 since the husband was required to include for tax purposes income he never received, but was forced to declare because of the wife ’ s unilateral withdrawal of $200,000 from the farming business. [ 11 ] Counsel for the wife submits that spousal support should be set at $6,000 a month given the possible annual cash flow to the parties in the range of $250,000 suggested in one of the business reports from the farming operation.

Spousal Support - Conclusion [ 12 ] I acknowledge that the wife should have provided the Court with a detailed monthly budget. However the wife has a relatively modest actual monthly income of $1,500 so she does have a financial need, and entitlement to spousal support has been conceded. The nature of the family farming business is that it can be erratic in terms of ultimate year to year profitability. Having said that the farming business appears to be clearly profitable over the long term although currently it may not be as profitable as it has been generally in the past.

The husband has also identified some legitimate health concerns with respect to his heart which will result in him not being able to carry on two jobs as he has in the past. The husband will concentrate on the farming operation and will give up his

environmental consulting business. [ 13 ] As for the wife, it is correct to impute and assess her income at $21,000 a year from employment which would require her to work approximately .6 of a full work load at $22 an hour. The $7,000 a year that the wife could receive from Canada Pension Plan benefits however is not something I will impose on her, because to force her to apply early at age 62 for Canada Pension Plan benefits will have a detrimental affect of reducing her benefits over the longer term.

In other words if the wife applies for her benefits at a later date she will receive more benefits on a monthly basis, although I accept that she could receive $7,000 approximately of immediate benefits if she were to apply now. [ 14 ] Accordingly I set the wife ’ s income at $21,000 a year although she only earns $18,000, and I accept that the husband ’ s current income is approximately $77,000 a year.

I determine that ongoing monthly spousal support payable by the husband on an interim basis from January 1, 2012 will be $3,000, with credit given to the husband for the $4,800 in mortgage payments he made from January to May, 2012 (5 months of $960 a month payments). Severing Corollary Relief [ 15 ] The wife ’ s application to severe corollary relief was opposed originally because of “ tax planning opportunities ” available to the parties which would justify putting off the divorce.

At the hearing of this matter counsel for the husband however agreed that the Court should severe the corollary relief from the divorce action given the lack of specific tax planning opportunities actually having been identified. Therefore given that the parties have been separated for approximately eight years, it is fair and appropriate in the circumstances to move forward as discussed by our Court of Appeal in Miles v Miles , 2004 ABCA 361 . I allow the wife to immediately apply for a desk divorce, especially as this appears to be very important to her.

Transferring the Matter to Saskatchewan [ 16 ] Counsel for the husband submits that this Court should decline to exercise jurisdiction in this matter and should either transfer the matrimonial property action to Saskatchewan; or stay the Alberta action while the action commenced in Saskatchewan proceeds. It is submitted that Saskatchewan is a much better forum in which to determine the matrimonial property issues between these parties as the property primarily consists of the family farming operation carrying on through a corporation in Saskatchewan.

It is submitted that witnesses other than the parties will be the business valuators, appraisers, and accountants addressing the value of the land and the crop operations in Saskatchewan, who will be in inconvenienced by having to come to Alberta to testify. [ 17 ] It is also argued that the law of Saskatchewan will be applicable to the determination of the issues with respect to the division of matrimonial property. [ 18 ] The Matrimonial Property Act of Alberta , R.S.A. 2000, c.M-8 addresses whether the Court of Queen ’ s Bench of Alberta can take jurisdiction over this matter.

Section 3(2) indicates that the wife was entitled to apply for a division of matrimonial property in this matter in Alberta, and

Section 9 grants the Court a great deal of latitude to make Orders when dealing with parties who have property in other jurisdictions. Transferring the Matter to Saskatchewan - Conclusion [ 19 ] In this case the Statement of Claim was filed in 2004, and the parties have both retained Edmonton legal counsel. There has been a collaborative settlement process in this matter ongoing for a number or years. Counsel for the wife advises the Court that the wife will apply for an exemption from the mandatory pre-trial mediation/JDR requirements in Alberta.

[ 20 ] While these parties lived most of their lives in Saskatchewan, the wife has been in the Edmonton area for over a dozen years, and she would be required to incur significant legal expenses in restarting the process in Saskatchewan. Even if the trial would proceed in Swift Current and although all of the experts may be in Saskatchewan, it is not likely that they would be located in Swift Current.

Accordingly the expert witnesses would likely have to travel from Regina or Saskatoon in any event to attend the trial, so their attendance in Edmonton would not be a significant further impediment or inconvenience. [ 21 ] It is also assumed by the Court that given the relative financial strength and income of the parties, the wife is clearly the least able to afford the additional legal fees of transferring the matrimonial property action to Saskatchewan at this time. [ 22 ] Although it has been argued that there are maybe different laws applicable between Alberta and Saskatchewan in respect to this matrimonial property action, it is unclear to me what material differences exist at this time. [ 23 ] Accordingly I determine that the husband will not be granted his Order to transfer this action to the Court of Queen ’ s Bench of Saskatchewan, Judicial District of Swift Current; or alternatively the Alberta action will not be stayed.

Costs [ 24 ] The parties may speak to costs within 60 days of these Reasons if they deem it necessary. Heard on the 1 st day of June, 2012. Dated at the City of Edmonton, Alberta this 7 th day of June, 2012. Donald Lee J.C.Q.B.A. Appearances: Christopher Jackson Jackson Law for the Plaintiff Shirley McNeilly, Q.C. Emery Jamieson LLP

for the Defendant