De Winter v. De Winter, 2012 ABQB 408

Court of Queen ’ s Bench of Alberta Citation: De Winter v. De Winter, 2012 ABQB 408 Date: 20120621 Docket: 4803 149368 Registry: Edmonton Between: Frank Albert De Winter Plaintiff - and - Kathy Mary-Ann De Winter Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Gerald A.

Verville _______________________________________________________ Background [ 1 ] After a lengthy marriage, Frank Albert De Winter (the “ Plaintiff ” ) and Kathy Mary-Ann De Winter (the “ Defendant ” ) separated and subsequently divorced. At issue are: 1) entitlement, amount and duration of spousal support, 2) valuation and distribution

of matrimonial property, and 3) whether two adult children continue to be children of the marriage. Facts [ 2 ] The Plaintiff was born on [...], 1954 and currently is 58 years of age. The Defendant was born on [...], 1952 and will be 60 on her next birthday. [ 3 ] The parties were married on November 2, 1984. They were both divorced prior to this marriage. The Plaintiff had one child and the Defendant had two children from their previous marriages. These children initially lived with them. [ 4 ] There are three children of the parties ’ marriage.

The oldest child, Christina (Radke), has completed university and is married. The two younger children, Frances Louise (born in 1990) and Audrey Rose (born in 1993), have completed high school. Frances has completed some university courses and Audrey plans to go to university. [ 5 ] The Plaintiff and Defendant lived in Edmonton from 1984 to 1990 and then in Kitchener, Ontario until 2004, when they returned to Edmonton. They moved for employment reasons. They acquired a cottage on Lake Huron while living in Ontario.

The parties have agreed that the value of cottage is $300,000 and for the purposes of matrimonial property distribution it shall be the property of the Defendant. [ 6 ] The parties formally separated in September of 2008 and were divorced on August 16, 2010. [ 7 ] The Defendant received interim spousal support of $1,200 per month pursuant to an order of Ross J. commencing November 1, 2009 and lived in the matrimonial home until it was sold in June of 2010. The Plaintiff continued to pay the mortgage, utilities, taxes and other household expenses until the sale.

Pursuant to an order of Browne J., interim spousal support for the defendant was increased to $2,700 per month commencing October 1, 2010. [ 8 ] The matrimonial home in Riverbend sold for about $670,000. The mortgage and a line of credit pertaining to the home were paid out. The parties have each received $175,000 pursuant to three orders granting interim distributions from the net proceeds of the matrimonial home.

Net proceeds of approximately $224,000 remain in trust from the sale of the home. [ 9 ] The Plaintiff ’ s earnings from 2007 through 2011, inclusive of bonuses, have been $233,700, $222,453, $265,553, $229,679 and $298,047 respectively. The Plaintiff testified that his 2011 income was inflated by about $20,000 as it included a bonus that would normally be paid in the following year. Evidence of Witnesses The Plaintiff [ 10 ] The Plaintiff moved out of the matrimonial home in September of 2008 and rented a townhouse.

He stated that the Defendant had spent the summer at their cottage on Lake Huron and was returning home at that time. The Defendant continued to reside in the matrimonial home until it was sold in June of 2010. During that time, the Plaintiff made the mortgage payments and paid the utilities and taxes, which payments totalled around $3,400 a month.

[ 11 ] The Plaintiff resided in the townhouse with his two youngest daughters, Frances and Audrey, for approximately six months after the separation. When Frances moved to Calgary in about March of 2009, he rented a house. His oldest daughter, Christina, and her husband and children moved in and occupied the upstairs while he and Audrey occupied the downstairs. Christina looked after Audrey when he was away. This arrangement lasted until about November of 2010 when Christina and her husband moved into their own place.

The Plaintiff stated that during this time he was subsidizing Christina and her family as he was paying $1,750 for rent plus about $600 for utilities and splitting the food costs. In return he received $875 each month from Christina which is the amount she and her husband had been paying for an apartment. At present he is living in a smaller rented home with his daughter Audrey who has just moved back in with him. [ 12 ] In 2004, the company the Plaintiff was working for in Edmonton was acquired by Siemens and he was offered an employment contract by Siemens at that time.

He has continued to work for Siemens and is currently working in Pittsburgh on a six month assignment. [ 13 ] The Plaintiff ’ s current base pay is $172,917. He acknowledged that has earned substantial bonuses over the last five years. He stated these bonuses are based on a complicated formula but in large part were due to the significant growth of the business he managed. [ 14 ] The Plaintiff stated that he initially planned to retire in 2010 at age 55 but recognizes that retirement is not possible given his current financial position.

He stated that he is currently the oldest person in his company who is managing a business and that he will have to retire at age 65 at the latest. He had a heart attack a little over a year ago which he related to stress, the divorce and family history. [ 15 ] The Plaintiff testified that he worked long hours throughout the marriage. He recalled that he and the Defendant wanted to have some children, and that the Defendant indicated that she was going to go back to work when the children were in elementary school.

However, he stated that the Defendant never worked throughout the marriage other than to teach some piano students. [ 16 ] The Plaintiff asserted that at some point during the marriage he became the principal caregiver and the two older children took on larger roles. He stated that Christina became the go-between for the Defendant and the younger two children. He further stated that when the children were older, the Defendant did not get up for breakfast with them and was often out four nights a week. [ 17 ] The Plaintiff became engaged to Michelle Soupal after the divorce.

He stated that they planned to get married and live together after Audrey left home. He purchased a residence with his fianc é (each having 50% ownership). He made virtually all of the down payment. The plan was that his fianc é would pay half of the mortgage costs as she was working at the time. However, because of health problems his, fianc é cannot work at present and the marriage is on hold. The fianc é is currently living in the home while the Plaintiff lives in rental accommodation.

At one point the fianc é ’ s most recent common law husband apparently moved into the home and resided there for about six weeks, during which time he made a mortgage payment. He also apparently pays child support for the fianc é ’ s youngest daughter of $450 a month. However, with the exception of the above, the Plaintiff has and is continuing to make the mortgage payments, pay the utilities and taxes and support his fianc é and her children from the previous relationships. [ 18 ] The Plaintiff testified that he is supporting three households and partially subsidizing his two younger children.

As a result, he has taken on substantial debt since the separation. He admitted that he has cashed certain savings including a small account of the Defendant. Christina Radke [ 19 ] Christina Radke, the oldest child of the marriage, testified that she has been married for six years and has two children. She stated that she had been living in an apartment with her husband and children at the time her parents separated. She and her family subsequently moved in 2009 into the top floor of a home rented by her father, who occupied the bottom floor along with her sister Audrey.

She stated that the Plaintiff paid the monthly rent for the home but that she and her husband paid him $900 each month which was equivalent to their apartment rent. This living arrangement continued for about a year and a half. [ 20 ] She described the role of her mother when she was younger as cooking meals, doing the laundry, encouraging her and her sisters to practice piano, and doing a lot of gardening. She recalled that in addition to spending time walking and reading, her mother

spent a lot of time on the phone and visiting and was very active doing church work. She testified that as she and her sisters got older her mother spent less time at home and her father became more involved in their personal lives. [ 21 ] Christina stated that she took on more responsibilities as she got older in looking after her two younger sisters. She was their protector and helped them with their homework. Frances De Winter [ 22 ] Frances De Winter testified that she resided with her father for approximately six months after the separation before moving to Calgary.

She worked at a number of jobs in Calgary before attending Mont Royal University for the fall semester in 2009, during which time she was taking psychology. Her father paid for her tuition and books and helped pay for her rent, dental work and glasses. She then took the spring semester of 2010 off and went to Africa. [ 23 ] In the fall of 2010 and spring semester of 2011 she was enrolled full time in a business program. In the fall of 2011, she was enrolled part time, taking two courses by correspondence.

She enrolled for but did not attend the spring semester of 2012 because the courses she wanted to take were not available. She stated that her father paid for her spring 2012 enrollment and that she has a credit which can be used for the fall 2012 semester for which she is now registered. [ 24 ] She testified that with the exception of a two month period when she returned to Edmonton and worked at a job, she has continuously resided and worked either part time or full time at various jobs in Calgary which have paid between $9.00 and $17.00 an hour.

She began living common law in September of 2010, married in February of 2011, separated in April of 2011 and obtained a divorce in May of 2012. [ 25 ] She described her father ’ s role in the last six or seven years before the separation as that of making money to support the family and doing odd jobs and chores around the house.

She stated that her mother made meals, did the laundry and volunteered at the church. [ 26 ] She stated that her big sister, Christina, looked after her and her younger sister, Audrey, and was there for them in dealing with their emotional problems. [ 27 ] Frances testified that she does not feel that she is financially dependent. She stated further that if her father had not provided the financial assistance he did, she would have worked more and enrolled in school part time rather than full time.

Audrey De Winter [ 28 ] Audrey De Winter testified that she lived with her father continuously from the time of the separation until the summer of 2011, when she moved out for a few months and then moved in back in again. She then moved out for awhile over the winter to live with her boyfriend, but moved back to live with her father a week before the commencement of this trial. [ 29 ] She testified that while in high school, she worked for three years at a private club as a server and a cook. She later worked at a daycare and then as a server at different restaurants.

Currently, she is working full time at a restaurant, earning around $16.00 or $17.00 an hour with tips. [ 30 ] Her father paid for everything while she was in high school with the exception of some of her own clothes and her entertainment. At present, she does not have any savings. [ 31 ] Audrey plans to go to Grant McEwan to take a two year course in social work this fall. Her father will provide financial

assistance and she will take out a student loan. She plans to get a job in social work when she graduates and to pay him back at that time. [ 32 ] Audrey stated that while the family lived together prior to the separation, her father was the breadwinner, made decisions and did certain chores around the house. She stated that her mother did the cooking, laundry, dishes and was away a lot doing work for the church. [ 33 ] Audrey stated that she struggled a lot in junior high and received assistance from the school councillor and her sister Christina.

She stated that she had an eating disorder and was suicidal at one time. She sees a psychologist. Her father pays these costs. [ 34 ] Audrey described Christina as her primary caregiver while she was struggling. She stated that Christina got her ready for school and church, taught her piano, helped her with her school work and made sure she was eating properly.

After Christina got married and moved out, Audrey went to live with Christina and her husband for a period of about four months when she was fourteen. [ 35 ] She stated that her mother was not there for her either physically or emotionally, and that she did not talk to her very much. The Defendant [ 36 ] The Defendant obtained a bachelor of arts degree in 1973 at Brigham Young University and an after-degree in teaching in 1975 from the University of Alberta.

She then taught junior high school in Edmonton for two years either as a permanent or substitute teacher. [ 37 ] The Defendant married her first husband in 1977 and divorced him in 1983. She had two children at that time. She did not work outside the home during her first marriage. After marrying the Plaintiff in 1984, his son from his first marriage and her two children who were about six and four years old resided with them.

The Plaintiff ’ s son went back to live with his mother in 1985. [ 38 ] She stated that in the back of her mind she thought she might eventually go back to teaching, but never did as there were too many children. While initially living in Edmonton, she had a miscarriage before having Christina and Frances. [ 39 ] At the time of the move to Kitchener in 1990, the two children of her first marriage were about thirteen and eleven, Christina was four and Frances was about three weeks old. The youngest child, Audrey, was born while they resided in Kitchener.

The Defendant stated that they did not know anyone in Kitchener when they moved there. As the Plaintiff ’ s income was lower in Kitchener, the Defendant stated that she offered to work but the Plaintiff said “ no ” and that a mother should be in the home. [ 40 ] The Defendant stated that the Plaintiff worked very hard throughout the marriage and at times travelled quite a bit. The Plaintiff (sometimes with the children) accompanied the Defendant to conferences or on holidays.

She recalled going to Europe twice, to Florida four or five times for Christmas and to San Diego, New Orleans and San Antonio in the United States. [ 41 ] She stated that the Lake Huron cottage, which was about an hour and a half drive from Kitchener, was purchased in 1996. As it was too difficult to keep up two households, the Defendant and the children spent the entire summer each year at the cottage and the Plaintiff came out when he could.

She stated that she started the children with household chores at age six, such as washing floors and vacuuming and that as the children got older they did more. [ 42 ] The Defendant testified that while they were living in Kitchener, she became heavily involved in church activities. She volunteered to do a number of what were referred to as “ callings ” which were time consuming. As the children got older they also became more active and age 14 went every day to church for seminary classes between 6:30 and 7:15 in the morning. The church was about five miles away.

[ 43 ] The Defendant stated that the children were heavily involved in music and that she taught all of the girls piano while in Kitchener. According to her, the children were all doing well in school and pretty much handled their own homework with the Plaintiff at times helping them with mathematics. She stated that she went to parent teacher meetings, volunteered for school trips, was active in the parent council and attended their concerts. [ 44 ] The Defendant also attended to the children ’ s medical needs, noting that they were not particularly healthy babies but got healthier as they developed.

She mentioned that Audrey ’ s hand was severely burned when she was about four years old as a result of falling into a camp fire and that this was not only traumatic but required lots of therapy and surgery. [ 45 ] The Defendant stated that her son from her first marriage left in 1992 to live with his father as she was having issues with him. Her daughter from the first marriage left a year later when she was thirteen or fourteen as she missed her brother. [ 46 ] The Defendant further stated that her health was good while living in Kitchener, but that she was quite tired.

At one point she had considered getting a masters in social work but got pregnant and that ended her plans. She taught piano to young children while in Kitchener but never had many students and never made much money. She used some of this money to purchase what was referred to as her minerals crystals collection. [ 47 ] The Defendant testified that the Plaintiff was stressed out from working too hard at his job in Kitchener and got a one year severance package. He subsequently obtained new employment in Edmonton.

After commuting for about eight months between Kitchener and Edmonton, the family moved back to Edmonton. The Defendant sold the house in Kitchener and drove to Edmonton with the children in a van. She stated that this was a very stressful time and that the move was very hard on the children who were about twelve, fifteen and eighteen at the time. [ 48 ] Life in Edmonton continued to be stressful.

The Plaintiff ’ s new job took him away from Edmonton a lot on business, significant renovations were being made to the matrimonial home, and the Defendant ’ s mother- who died in 2006 - was in poor health. [ 49 ] The Defendant testified that her relationship with her children deteriorated. She stated that they became rude, so she stayed in her bedroom as she could not get along with them. She recalled that some months the Plaintiff was away on business three weeks travelling to places like China. Every summer she went to the Lake Huron cottage. [ 50 ] The Defendant remained active in church and other activities.

As she could not work in the home, she helped people out of the home. She went for long walks every day and learned Tai Chi. She continued to look after her father, whom she described as abusive and grouchy. She stated that she was having panic attacks at this time. Her father died on July 22, 2008. On August 21, 2008, the night before her birthday, the Plaintiff came to the Lake Huron cottage and told her he had a new place to live and was leaving with the girls. [ 51 ] The Defendant stated that her husband looked after the finances during the marriage.

On returning to the matrimonial home after the separation the Plaintiff initially gave her $400 every two weeks. She found she had insufficient money and made applications for interim spousal support. [ 52 ] The Defendant stated that since the separation she has taken some courses with respect to how to use a computer and has obtained her level 1 beginner therapeutic touch certificate (an energy therapy which practitioners claim promotes healing and reduces pain and anxiety). She stated that she has to obtain her level 3 certificate in order to work in this field.

She further stated that she would have to build up a clientele and believed she could charge $80 per hour. [ 53 ] She testified that she managed her father ’ s estate after his death which included $5,000 for each of the children. She has given this money to the two older children and will give the remaining $5,000 to Audrey when she goes to university. [ 54 ] The Defendant testified that she has been emotionally upset since the separation and does not have the qualifications, training or wherewithal to be gainfully employed at the present time.

She stated that while no doctor has said she cannot work, her family doctor

does not think she should work and she knows how she feels. She stated that there are no opportunities in teaching. Positions of the Parties [ 55 ] The Plaintiff submits that the Defendant should be working and supporting herself, or alternatively be imputed the income of a teacher. He says that the Defendant ceased to be the primary caregiver of the children many years ago. Further, he says that the Defendant should not be awarded retroactive spousal support, and if the Defendant is to receive ongoing support the amount and duration are in issue.

He submits that there should be a reduction of spousal support because of his obligations to his two younger children, and further the Court should take into consideration the fact that the Defendant has done nothing to become all or partially self sustaining since the date of the separation. [ 56 ] The Defendant seeks retroactive and ongoing spousal support and says the two younger children are no longer children of the marriage for support purposes.

Further, the Defendant seeks an unequal distribution of matrimonial property on the basis that the Plaintiff has frittered assets away and created a large line of credit. Finally, the Defendant puts the Plaintiff ’ s credibility in issue. Credibility [ 57 ] The Defendant submits that the Plaintiff has been less than forthcoming with respect to financial matters. For example, when dealing with interim support issues the Plaintiff set out what he was paying each month for the home he was sharing with Christina ’ s family, but failed to mention that she was contributing $900 a month towards the rent.

Further, the Plaintiff initially insisted when testifying in chief that his line of credit related in part to the matrimonial home, whereas it was established that the matrimonial home line of credit was paid out at the same time as the mortgage. Finally, the Plaintiff on questioning indicated that he had not taken money from an account of the Defendant, whereas it was clearly established at trial that he had withdrawn the funds for his own use. [ 58 ] In my view, while the Plaintiff may have been a bit confused with respect to certain financial transactions, I find that he was at times less than candid.

Distribution of Matrimonial Property [ 59 ] The parties generally agree that there should be an equal division of matrimonial property, subject to certain adjustments.

Section 8 of the Matrimonial Property Act , RSA 2000, c M-8, sets out the factors to be taken into consideration in making a distribution pursuant to s. 7 . [ 60 ] The Defendant cites Elliott v Elliott , 2010 ABQB 789 , 95 RFL (6th) 90 , SDK v RDK , 2011 ABQB 245 , 95 RFL (6th) 90 and Hennesey v Hennesey , 2005 ABQB 883 , [2005] AJ No 1703 in support of her argument that assets should be valued as at the date of separation, or alternatively consideration should be taken of dissipation of certain assets under s. 8 . [ 61 ] The Court of Appeal in Hodgson v Hodgson , 2005 ABCA 13 , [2005] AJ No 22 , reaffirmed that the date of valuation should be the date of trial, stating: 10 The fact that this rule was not stated in absolute terms has led to the suggestion that it is only a "strong presumptive rule" that can be departed from in special circumstances.

We do not agree. In our view, other provisions in the statute, as well as the overall statutory scheme, support the view that valuation and division must take place as of the date of trial. ... 22 In the end, therefore, it is apparent that the statutory scheme, when viewed as a whole, is aimed at achieving a just and equitable division of property owned by the parties at date of trial.

Issues such as the length of separation, or the independence of the parties - the issues that concerned the trial judge here - are to be dealt with by considering the exemptions set out in section 7(2) (along with the applicable case law) and the factors set out in

section 8.

... 32 In

summary, the rule set down by Stevenson J.A. in Mazurenko, 1981 ABCA 104 , [1981] A.J. No. 23, is more than apresumptive rule. The court is obliged to divide the matrimonial property as of the date of trial - given the statutory language, and thelegislative scheme, of the MPA. This is not a rebuttable presumption but a rule of division. [62] Prior to argument, the Plaintiff sought to have several of the Defendant’s bank accounts included for the purpose of thematrimonial property distribution. However, these accounts were created as a result of the $175,000 paid out to each party pursuant tothree court orders.

In SDK Greckol J. stated: 79 There has been an interim equal distribution of $100,000 from the proceeds of sale of the matrimonial home. Considering thecontext in which the money was received and disbursed, as well as the considerations above, it is just and equitable that neither thisdistribution nor its sequella be re-visited.

The same reasoning applies here. [63] The Defendant submits that due to dissipation by the Plaintiff, the value of seven of his accounts (two ScotiaMcLeodaccounts and five Sun Life accounts) as at the date of trial should be scrutinized in order to arrive at a fair and equitable distribution. [64] The Plaintiff concedes that the two ScotiaMcLeod accounts have been dissipated, but submits that it was necessary towithdraw funds from these accounts in order to assist the Plaintiff in supporting another family and his dependent children.

In otherwords, the Plaintiff submits that some, but not all, of the amounts withdrawn should be attributed to dissipation. With respect to the SunLife accounts, the Plaintiff submits that the fact that the three remaining accounts have grown by approximately $55,000 should be takeninto consideration. [65] In CS v TL, 2003 ABQB 1013, 48 RFL (5th) 155 Topolniski J. stated: 31 Although some depreciation of capital assets may have been necessary to support two households in the manner that the parties hadbeen previously accustomed, it is not reasonable to maintain those lifestyles where the budgets cannot afford it.

I accept that the wife feltfinancially burdened after the separation, however, the evidence does not substantiate her claim that all of the money she spent was fornecessities. For example, since there is no medical evidence to say that it was a necessity, I can only presume that the laser eye surgerywas a luxury. But for her furnace and vehicle repairs, and payments on the equalization payment advance loan, there are no assets thatcan either be traced or said to have enhanced the matrimonial estate.

Further, the wife's inability to account for the significantexpenditures in the months before trial coupled with her failure to disclose complete financial information is troubling. 32 I am satisfied that the wife intentionally sought to deprive the husband of a fair distribution of matrimonial property, if by no othermeans than by dissipating assets for her own use and enjoyment. [66] In Hennesey, Foster J. held: 110 The Act allows me to take into account DMH's loss or spending of matrimonial property since separation, even in the absence ofdissipation. In Kazmierczak v.

Kazmierczak, [2004] 1 W.W.R. 598, 2003 ABCA 227, the appeal court noted as follows: 111 Criticism #18 of the trial judgment is related. Counsel for the wife contends that the law forbids the trial judge to look at why thewife lost a number of assets during the period of separation, unless he formally finds "dissipation", which he did not. Counsel for the wifemade this point several times, but only in oral argument, offering no authority for it. Section 7(3) of the Act tells the court to distributethe matrimonial non-exempt property "in a manner that it considers just and equitable".

Section 8 lists some matters which the court is totake into consideration when doing that, and paragraph (

d) includes "the income, [and] earning capacity" of each spouse at marriage andat trial. The word "dissipated" only occurs as part of a long list of 12 or more specific factors. Furthermore, those 12 are not exclusive,

because paragraph (

m) says "any fact or circumstance that is relevant." 112 It would be bizarre if a party's positive contributions of or to assets should be weighed, no matter how indirect or small, yet that party's negative contributions must be totally ignored unless they fit into a certain legal category. Under such a scheme, the fact that a spouse had spent twenty years lying on a couch watching television would have to be ignored. [ 67 ] The Plaintiff had complete control of the accounts. He did not discuss withdrawals with the Defendant, nor did he disclose them to her.

He moved money around from account to account, making it difficult to determine exactly what was transpiring.

He was examined extensively with respect to his spending habits, which in my view have at times been completely out of control since the separation, and produced a monthly budget which in my view was fanciful. [ 68 ] However, in the circumstances of this case there is no need to analyse these spending habits or the monthly budget in light of the fact that the Plaintiff was not an individual living on a subsistence income but rather earning on average $245,000 a year, and has already received (and spent) an advance of $175,000 from the sale of the matrimonial home.

He paid the Defendant rather minimal spousal support, given his income, and the support for his two youngest children has not been significant. I find that he did not give any credible explanation for this dissipation. Accordingly, I find that this is not a situation where the depreciation of capital assets may have been necessary with respect to the accounts discussed below.

I accept the submission of the Defendant that funds withdrawn should be added back to his side of the ledger. [ 69 ] The Scotia McLeod account [...]89 (originally account [...]03) went from a value of $113,637.01 after the separation to zero value at the time of trial. Scotia McLeod account [...]59 had a value of $118,704.29 as late as August 19, 2011 and $48,001.58 at the time of trial.

The Plaintiff conceded during argument that a value greater than zero or $48,001.58 but not the full amount suggested by the Defendant should be attributed to these accounts. [ 70 ] With respect to the five Sun Life accounts, the evidence was that they were subject to market fluctuation. Again, the Plaintiff was unable to give a credible explanation as to exactly what transpired with these accounts. On October 12, 2010, the five accounts had a total value of $132,492.68.

Two accounts referred to as the ATA which had a value of $39, 277.77 and the TFSA which had a value of $6,550.01 were subsequently reduced to zero balance. An updated statement provided on May 15, 2012 showed that the three accounts which had not been touched had grown and the ATA account had a value of $932.29. The Defendant submits that it would be more equitable to value all of the accounts as they existed before dissipation rather than use higher current values for the three accounts that have grown. In my view, this is a reasonable approach. Accordingly, I have attached as

Schedule A a Matrimonial Statement which sets out values I have attributed to certain accounts and below those amounts an asterisk in front of the current values. [ 71 ] As previously stated, the parties have agreed that the value of the Lake Huron cottage is $300,000 and shall be the property of the wife. With the exception of the accounts discussed above, the parties are in agreement with respect to the value of the one other account of the Plaintiff and two accounts of the Defendant, being all of the other accounts listed on

Schedule A. [ 72 ] The remaining three items to be valued, which are property of the Defendant, are the grand piano, jewellery and a rocks and minerals collection. The parties agree that the value of the piano is about $15,000. The Defendant however claims an exemption of $10,000 as a result of a gift from her father and recalled that she had contributed savings of $5,000 towards the purchase. The Plaintiff recalled that he had contributed about $13,000 towards the original purchase. I find that the evidence is unclear, which in all likelihood is due to the passage of time.

It is my view in the circumstances that the Defendant should be given a $5,000 exemption. [ 73 ] Neither party retained an expert with respect to the jewellery and a rocks and minerals collection. The Defendant had an individual from Discovery Gemstones look at these items and his written valuation was included among numerous documents which were included as one exhibit. This individual valued the jewellery at $1,500 but said he would only pay $850 for this collection. Further he valued the rocks and gemstones at $3,000 but advised that as a purchaser he would only pay $1,400 for these items.

The Plaintiff counted and videotaped all of the items and arbitrarily valued each of the rocks and gemstones at $22 (495 pieces) and each piece of jewellery (509 pieces) at $30 a piece. [ 74 ] In my view, the valuations prepared for the Defendant are more realistic. The Plaintiff was aware of these valuations long before trial and could have called someone with at least equivalent expertise to the individual retained by the Defendant rather than arbitrarily ascribing his own valuations. I accept the valuations of the Defendant ’ s valuator.

I do not accept his lower market values as I have no basis upon which to infer that these are fair market values.

[ 75 ] The parties were in agreement that the Defendant invested approximately $3,400 that she had from her first marriage in a Scotia Investment account and which was exempt from the matrimonial property distribution. At some point in time, the account became a joint account in the names of both the Plaintiff and the Defendant. No one could explain how or why or when. During cross examination, however, the Defendant finally admitted that on May 25 he withdrew all of the funds in the account for his personal use.

Again for reasons no one could explain, the account at that time only had a value of $3,043.20 as neither party admitted to any earlier withdrawals. Clearly, the Plaintiff acted improperly in withdrawing these exempt funds and this amount will be characterized in

Schedule A as payable by the Plaintiff to the Defendant. [ 76 ] The Plaintiff has not paid the $500 in legal costs ordered on December 9, 2009 by Ross J. This amount also appears in

Schedule A as payable by the Plaintiff to the Defendant. [ 77 ] Pursuant to an order of Gates J., in October of 2011 the Plaintiff was directed to pay expenses totalling $7,081.96 with respect to the Lake Huron cottage. These monies were never paid and again this amount will be characterized in

Schedule A as payable by the Plaintiff to the Defendant. [ 78 ] In the result, I have found taking into consideration that $350,000 has already been distributed that the value of the remaining assets is $1,069,592.80. Pursuant to

Schedule A, the Defendant, after taking into consideration the above amounts payable by the Plaintiff, is in effect entitled to an equalization payment of $53,091.56, the result being that there will be a net payment to the Plaintiff of $32,341.24 once the amounts owing by him to the Defendant are taken into account. [ 79 ] The Plaintiff submitted that a $4,000 payment made to the Defendant in June of 2010 should be either treated as matrimonial property or spousal support. For the reasons set out below, I have treated this amount as spousal support. Child Support [ 80 ] The Divorce Act , RSC 1985, c 3 (2nd Supp) provides: 2(1) "child of the marriage" means a child ... who ... (

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 their charge or to obtain the necessaries of life. 15.1

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied ...

(

b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those specialprovisions.

(6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined inaccordance with the applicable guidelines, the court shall record its reasons for having done so. 15.3(1) Where a court is considering an application for a child support order and an application for a spousal support order, the courtshall give priority to child support in determining the applications. [81] The Federal Child Support Guidelines, SOR/97-175 provide: 3(2) Unless otherwise provided under these guidelines, where a child to whom a child support order relates is the age of majority or over,the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate having regard to the condition,means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. 7(1) In a child support order, the court may, on either spouse's request, provide for an amount to cover all or any portion of the followingexpenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests andthe reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern priorto the separation: .... (

e) expenses for post secondary education ...

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by thespouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. [82] The Plaintiff cites numerous authorities dealing with child support in relation to adult dependent children, including:Wesemann v Wesemann, 49 RFL (4th) 435, , CMP v PEP, 1999 ABQB 976, 257 AR 36, Farden v Farden, (BC SC), 48 RFL (3d) 60, [1993] BCJ No 1315, Hojnik v Hojnik, 2010 ABCA 192, 26 Alta LR (5th) 21, FCW v BEW,2005 ABQB 835, [2005] AJ No 1606, Trehearne v Trehearne, 2000 ABQB 991, [2000] AJ No 1632, Schick v Schick, [1997] SJ No447, (QB), MAM v DWM, 2006 ABQB 930, [2006] AJ No 1665 and King v King, 2007 ABQB 509, [2007] AJ No886.

Needless to say, the result in each of the above cases was driven by its own particular facts. [83] The Plaintiff has been the sole breadwinner since the parties’ marriage. It is apparent that he has a close relationship with allthree of his children as evidenced by the fact that they testified in this case on his behalf. His assistance and support since the time of theseparation is commendable. It is notable that Frances was only 18 and Audrey 14 at the time. Both are now adults. [84] Frances testified that she does not feel that she is financially dependant at this time.

Audrey plans to take a two year course atGrant McEwan in the fall and will probably require some financial assistance. Like Frances, however, she has a fairly strong workrecord and to this point in time has shown a fair amount of financial independence. [85] The issue of whether or not Frances and Audrey are children of the marriage for the purpose of child support affects not onlychild support, but also the issue of spousal support (ss. 15.3(1)(2)(3)).

[ 86 ] Audrey was a minor and clearly a child of the marriage at the time of the separation. The Defendant testified that she will receive $5,000 from her maternal grandfather ’ s estate when she goes to university. Frances, while living in Calgary, has received some but not significant support (around $7,000) from the Plaintiff since the separation. In my view, Frances is no longer a child of the marriage for support purposes.

However, even assuming both children will continue to be children of the marriage for support purposes for the next year or two, the support required in my view will not be significant. [ 87 ] The interim spousal support orders, and in particular the amounts awarded, presumably took into consideration among other things the fact that the Plaintiff was looking after the two younger children.

However, even if they did not, I am mindful that Browne J. ’ s order increasing interim spousal support for the Defendant to $2,700.00 per month commencing October 1, 2010 was made during a year when the Plaintiff ’ s income including bonuses was $298,047. [ 88 ] I am satisfied that the Plaintiff will continue to be supportive of his children ’ s educational endeavours while encouraging their independence.

However, it is my view in the circumstances of this case that any support the Plaintiff provides for Frances or Audrey on an ongoing basis to further their educations, assuming they in fact go or continue to go to university, should have no impact on the amount of spousal support to which the Defendant is entitled.

Spousal Support [ 89 ] The relevant portions of the Divorce Act provide: 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) ... 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 anyobligation 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. [90] With respect to retroactive and ongoing spousal support the Plaintiff cites numerous authorities including: Lerner v Lerner,2008 SKQB 308, 321 Sask R 78, Beardsall v Dubois, (ON SC), Kazmierczak v Kazmierczak, 2001 ABQB 610, 292AR 233, aff’d 2003 ABCA 227, 17 Alta LR (4th) 205, Bracklow v Bracklow, (SCC), [1999] 1 SCR 420, [1999] SCJNo 14, Bennett v Bennett, 2005 ABQB 984, 57 Alta LR (4th) 380, Corbeil v Corbeil, 2001 ABCA 220, 286 AR 330, Panara v DiAscenzo, 2005 ABCA 47, 361 AR 382, Katz v Nimelman, (ON SC), [2007] OJ No 4634, 46 RFL (6th) 392 (Sup CtJust), Juvatopolos v Juvatopolos (2005), (ON CA), 202 OAC 1, [2005] OJ No 4181, Ungerer v Ungerer (1998), (BC CA), 105 BCAC 250, 37 RFL (4th) 41, Bryant v Gordon, 2007 BCSC 946, 45 RFL (6th) 99, Janakowski vJanakowski, (ON SC), [2000] OJ No 2650, 7 RFL (5th) 117 (Sup Ct Just), Teeple v Teeple (1999), (ON CA), 124 OAC 294, 2 RFL (5th) 464, Furlong v Furlong, (NS SC), [1992] NSJ No 87, 111 NSR (2d) 391(SC TD), Boucher v Boucher, (NS FC), [1991] NSJ No 691, 36 RFL (3d) 179 (Fam Ct), Hayes v Hayes, (BC SC), [1991] BCJ No 2450, 34 RFL (3d) 274 (SC), MacAllister v MacAllister, (NB KB), [1990]NBJ No 38, 101 NBR (2d) 422 (QB), Picciano v Picciano, (MB KB), [1989] MJ No 685, 22 RFL (3d) 196 (QB) andGrohmann v Grohmann (1991), (BC CA), 5 BCAC 277, [1991] BCJ No 3820. [91] The Defendant cites: Moge v Moge, (SCC), [1992] 3 SCR 813, 43 RFL (3d) 345 and Riad v Riad, 2002ABCA 254, 317 AR 201.

While they do set out general principles, all of these authorities mostly establish that spousal support must beconsidered on a case by case basis. [92] The Defendant seeks both retroactive and ongoing spousal support. Ongoing Spousal Support Entitlement [93] This was a long term marriage. The Plaintiff will be 59 years old and the Defendant 60 on their next birthdays. [94]

Section 15.2 of the Divorce Act mandates inter alia that I take into consideration the condition, means, needs and othercircumstances of each spouse, including the length of time the spouses cohabited, the functions performed by each spouse duringcohabitation, and any order, agreement or arrangement relating to support of either spouse.

A spousal support order is intended torecognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown, relieve any economichardship of the spouses arising from the breakdown of the marriage, and in so far as practicable, promote the economic self-sufficiencyof each spouse within a reasonable period of time. [95] In Riad, the Court of Appeal stated: 33 ... need cannot be defined as an absolute quantity. It is relative to the standard of living enjoyed prior to the collapse of the marriageand can be equated to reasonable expectations: Brown v. Rae, [2001] A.J.

No. 1516 (Q.B.) at para 55; Lake v. Lake (1997), (AB KB), 210 A.R. 358 (Q.B.) at paras. 44-45. Need is a flexible concept and is not confined to a subsistence lifestyle:Myers v. Myers, (BC CA), [1995] B.C.J. No. 2300 (BCCA) at 228. Spousal support is intended to provide economicstability and a predictable level of income that would allow the recipient to budget, plan, and move forward along the road toself-sufficiency, beyond mere subsistence living: Morrison v. Morrison (1993), (AB KB), 139 A.R. 124 (Q.B.). Asthis court stated in Corbeil v.

Corbeil "[a] long-term spouse who has enjoyed a high standard of living because of a high-earning spouseneed not work and live at minimum wage": 2001 ABCA 220 , [2001] A.J. No. 1144 (C.A.) at para. 47.

34 ... As stated in Moge, supra, at 870, the longer a marriage endures, the closer its economic union and the greater the presumptiveclaim to equal standards of living upon its dissolution. Where it is not possible to preserve a lifestyle like that enjoyed during themarriage, a stay-at-home spouse should not be burdened with a standard of living significantly lower than that of the employed spouse ....One spouse should not be allowed to leave a marriage of long duration, in a substantially better economic position than the other: Redl v.Redl (1983), (ON SC), 35 R.F.L. (2d) 117 (Ont.

H.C.). [96] In Moge, L'Heureux-Dubé stated at para 84: ... As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greaterwill be the presumptive claim to equal standards of living upon its dissolution (see Rogerson, "Judicial

Interpretation of the Spousal andChild Support Provisions of the Divorce Act, 1985 (Part I)", supra, at pp. 174-75). [97] In assessing the Defendant’s entitlement to spousal support, I must take into account the effect of the marriage in eitherimpairing or improving each party's economic prospects: Moge. The Defendant’s contributions as a wife, homemaker and parentessentially allowed the Plaintiff to work as hard and as much as he wanted. He was described as a workaholic and has been quitesuccessful.

The Defendant was never asked by the Plaintiff to go to work and in fact he encouraged her to stay in the home as ahomemaker when she offered to go to work while living in Kitchener. [98] The Defendant’s counsel describes the last four or five years of the marriage prior to the separation as dysfunctional. TheDefendant attributed this to problems with rebellious and rude teenage children which made her life unbearable, and the fact the Plaintiffwas often away on business. The Plaintiff, on the other hand says the Defendant was rarely at home.

Although I recognize that theDefendant’s contribution to the home during the last four five or so years prior to the separation may have lessened, it is indisputable thatshe has been out of the workforce since 1977. As well, while the Plaintiff’s assistance and support of the children since the time of theseparation is commendable, there was no evidence that it has hampered his career or income. [99] At the present time, the Defendant does not have any marketable employment skills. The suggestion that she could have goneback to teaching is not realistic.

It is apparent that her coping skills were not the best during the last few years of the marriage and thatshe has not coped well since then. I am mindful that she will be 60 years old in approximately two months and to expect someone whohas been out of the workforce for 35 years to suddenly become self supporting is in my view completely unrealistic. She is not requiredin the circumstances of this case to try to find a job that pays minimum wage, and such a job would not lead to relative self sufficiency byretirement age. Acquiring computer skills for someone her age is difficult.

Pursuing study in the field of therapeutic touch may be asrealistic as any other effort to obtain some level of self sufficiency, but in my view it would be unrealistic to impute any income to herfrom this endeavour. While the Defendant should be encouraged to engage in the future in meaningful activities and to improve herprospects to the extent possible, I find for all intents and purposes that she is in effect unemployable at this point in time. Amount [100] The Plaintiff testified that he cannot live on his current income.

While this may well be the case, this is due solely to choiceshe has made since the separation. For the reasons set out above, it is not in my view due to the support that he was obliged to provide forhis two younger children. In fact, the cost of the engagement ring which he purchased for his fiancé ($20,558.30) is disproportionate tothe amount spent directly or indirectly in support of Frances and Audrey.

The fact that he has purchased a home with a woman heintended to marry and has continued to make the mortgage payments and provide support for this women and her children whilemaintaining a separate residence is not in my view a factor I should be taking into consideration when considering amount of spousalsupport. To the extent that the Plaintiff is running into cash flow difficulties, he is the author of his own misfortune. [101] The parties enjoyed a comfortable lifestyle prior to the separation. They travelled to Europe, to the United States and withinCanada.

In Edmonton, they lived in a large renovated home. [102] The assets available to each of the parties from matrimonial property are relevant to the issue of spousal support to the extentthat there is income earning capacity based on capital or income generating property. This is one of the circumstances that results fromthe marriage, the roles assumed by the parties and the impact on them of the marriage breakdown: Cook v Cook, 2002 NSSC 124, 204

NSR (2d) 167, aff'd 2003 NSCA 131, 219 NSR (2d) 170. The Court of Appeal in Lucas v Lucas (1983), 1982 ABCA 316 , 35RFL (2d) 216 at 217 to 218, [1982] AJ No 1069 (CA) suggests that it is an error to fail to take into consideration the income earningcapacity of a matrimonial property award: see also Kostyna v Kostyna (1979), (SK CA), 97 DLR (3d) 383, [1979] SJNo 536 (CA).

In this case, however, given the current economic climate, the income the Defendant will earn from her various bankaccounts or even appropriate alternative investments is likely minimal in the foreseeable future. [103] The Plaintiff’s average income with bonuses over the last five years taking into consideration a slightly inflated 2011 incomehas been approximately $245,000. Using most recent income or averages, the Defendant provided three sets of calculations pursuant tothe Spousal Support Advisory Guidelines Without Child Support.

A fourth set of calculations based solely on the Plaintiff’s base incomeof $172,917 without bonus was also provided together with the submission that if that model were followed, the Defendant should alsoreceive a percentage of the Plaintiff’s bonus each year if and when received. With respect to the base income, the spousal support wouldrange between $5,404 and $7,065 depending on what percentage of the cash projection each party would receive.

A monthly payment of$5,404 would result in the Plaintiff receiving 60.34% of the cash projection and the Defendant 39.99% [104] The Guidelines are in my opinion a useful tool when considering the issue of spousal support. Taking into account thecircumstances of the marriage and the parties' current situations, as well as the purposes set out in s. 15.2, I find that spousal support of$5,404.00 is warranted with respect to the Plaintiff’s base income. Further, I direct that if and when the Plaintiff receives a bonus, 30% ofthe gross amount of the bonus be paid to the Defendant within 30 days of receipt of same.

Duration [105] While the circumstances of either or both parties will likely change in the forthcoming years, I am not persuaded that thereshould be a time limit on spousal support. As stated above, this was a long term marriage. I order that the spousal support continue for anindefinite period. However, this order will be subject to review when the Defendant turns 65 years of age at the instance of either partywithout the necessity of proving a material change in circumstances.

Retroactive Spousal Support [106] The Plaintiff opposes the payment of any retroactive spousal support on the basis that he has supported two children of themarriage, has paid spousal support, and also paid the mortgage, utilities and taxes on the matrimonial home until it was sold. In my view,these are valid considerations. However, I am mindful that the home was sold in June of 2010 and that only Audrey was living with thePlaintiff at that time. [107] The Defendant suggests that retroactive spousal support be paid from the time of the sale of the matrimonial home.

In June of2010 the Defendant received $4,000 from the Plaintiff to assist her in moving. In my view this should be treated as spousal support,keeping in mind the fact that prior to sale of the house, the Plaintiff was paying $1,200 per month in spousal support as well as mortgageand other house related expenses totalling approximately $3,400 per month. [108] The submission that retroactive support should be calculated from after the sale of the matrimonial home is in my view areasonable approach.

The payments of $1,200 after the sale of the matrimonial and later $2,700 per month in my view were clearlyinadequate given all of the circumstances. [109] With respect to amount, I am mindful that the Plaintiff has provided some support for the two younger children since the saleof the home. Rather than using an elaborate formula (base pay each year and percentage of bonus) to calculate retroactive spousalsupport, I direct that the arrears be calculated for each month since July 1, 2010 on the difference between $5,000, which in my viewshould have been paid, and the exact amount that was paid during that period.

Conclusion [110] There will be a division of matrimonial property as set out in

Schedule A. Unless the parties agree otherwise, the amount of$32,341.24 shall be paid to the Plaintiff out of the balance of the house sale proceeds.

[ 111 ] Any ongoing support the Plaintiff provides to the two younger children for their education will not impact on the amount of spousal support to be paid. [ 112 ] The Plaintiff will pay the Defendant $5,404.00 per month each and every month commencing July 1, 2012 plus 30% of the gross amount of any bonus he receives within 30 days of receipt of same. [ 113 ] The Defendant is awarded retroactive spousal support from July 1, 2010 to July 1, 2012 of $5,000 per month less the amount actually paid.

Costs [ 114 ] If the parties cannot agree on costs they may speak to me within 45 days of this judgment, otherwise the parties will bear their own costs. Heard on the 14 th to 18 th & 31 st days of May, 2012. Dated at the City of Edmonton, Alberta this 21 st day of June, 2012. Gerald A. Verville J.C.Q.B.A. Appearances: Chad Bowie Snyder & Associates for the Plaintiff David S. Patterson Patterson Family Law Office for the Defendant

Schedule A - MATRIMONIAL PROPERTY DIVISION

ASSETS Plaintiff Defendant Total Lake Huron Cottage (Ontario) 300,000.00 300,000.00 Scotia McLeod Invest. [...]89 113,637.01 *00.00 113,637.01 Scotia McLeod RRSP [...]59 118,704.29 *48,001.58 118,704.29 Scotia McLeod RRSP [...]21 126,996.03 126,996.03 Sun Life (DCPP) 26,026.83 *32,593.61 26,026.83 Sun Life (RRSP) 32,390.53 *40,690.45 32,390.53 Sun Life (ATA) 39,277.77 *932.20 39,277.77 Sun Life Siemens (TSA) 28,247.54 *36,581.17 28,247.54 Sun Life (TFSA) 6,550.01 *00.00 6,550.01 Great Western RRSP [...]46 38,082.98 38,082.98 Scotia Investments [...]10 1,140.08 1,140.08 Grand Piano (less $5,000 exemption) 10,000.00 10,000.00 Jewellery 1,500.00 1,500.00 Rocks & Gemstones 3,000.00 3,000.00 Balance sale proceeds 224,039.74 224,039.74 Total Assets 491,830.01 577,762.80 1,069,592.80 Equalization Payment (42,966.40) 42,966.40 Each Party to Receive 534,796.41 534,796.40

Owing to Plaintiff - Scotia Investment Account (3,043.20) Owing to Plaintiff - legal costs

(500.00) Owing to Plaintiff - Cottage Expenses (7,081.96) Net Payment by Defendant 32,341.24 * Amount in account at trial