Macdonald v Schmutz, 2012 ABQB 43

Court of Queen ’ s Bench of Alberta Citation: Macdonald v Schmutz, 2012 ABQB 43 Date: 20120118 Docket: 4803 155655 Registry: Edmonton Between: Donald Charles Macdonald Plaintiff - and - Deborah Ann Schmutz, Also Known As Deborah Ann Macdonald Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an application by the husband for exclusive possession of the matrimonial home, and for an Order directing that the matrimonial home be listed with a real estate agent to be sold.

A counter application has been filed on behalf of the wife seeking spousal support. [ 2 ] The husband is currently 76 years of age, and the wife is currently 54 years of age. There is a dispute as to when their relationship commenced. The wife is of the view that the parties began living in a common-law relationship that commenced in August 2003.

The husband submits that the parties started living together in mid 2005, and that prior to 2008 when the parties did marry on November 1, the parties had both claimed the status of “Single” on their respective income tax returns as they were living as roommates before marriage, each having their own separate bedroom.

[ 3 ] The parties did separate in December 2010, and at the time of the marriage the husband had assets which included a house and investments which he valued at over $469,000, as well as a military pension as a result of having served in the military for 36 years. When the husband retired, he was a Master Warrant Officer and had completed various postings worldwide. At the time of the marriage the wife apparently had no assets and no other property. [ 4 ] In late 2008 the husband’s health started to deteriorate and he was put on oxygen full-time.

In December 2008 the husband put his home in joint tenancy with the wife as a result of the marriage. In April 2010 the husband received a military payment in the amount of $110,431.88. In May 2010 the husband’s physician advised him to stop driving, at which point the husband became essentially dependent on the wife. The husband purchased a new vehicle for the wife, and it is alleged that the wife did not use the new vehicle to take the husband to his various medical appointments and military events, but rather used the vehicle to facilitate her partying, gambling, and spending.

It is alleged that the wife dissipated the husband’s assets in the space of the last three years to the point that the husband’s net worth has dropped from $579,000 to approximately $70,000. [ 5 ] The wife also alleges that the husband dissipated assets during the course of the relationship, and the wife submits that there must be a trial of the issues that are outstanding in this matter given that the parties dispute the length of their relationship, the dissipation alleged on both sides, and the current value of the assets and the extent of the liabilities of the husband need to be determined. [ 6 ] When these parties separated the wife remained in the former matrimonial home where she still lives.

The husband seeks to have an order of exclusive possession of that former matrimonial home so that it can be sold as soon as possible. The husband is unable to care for himself any longer, and currently does not have sufficient monies to afford to live in an assisted living complex. He continues to be responsible for and pay for matrimonial debt. The husband his currently living between his two adult sons’ homes, and needs the proceeds from the matrimonial home to stay financially solvent.

The husband currently receives old age assistance of $521 a month; Canada pension plan payments of $790 a month; and a Canadian Armed Forces pension of just over $2,000 for a total of approximately $3,400 a month. An assisted living complex is estimated would cost approximately $3,000 a month. Conclusion Should the Wife Receive Spousal Support? [ 7 ] It appears that the wife is in a better financial position now then she was prior to the commencement of the relationship, as she now has a new vehicle and the means to support herself through employment.

This was a short term marriage in which the husband appears to have suffered an acute financial down turn. [ 8 ] I conclude certainly in the short term that there is no obvious basis or need for the wife to receive spousal support from the husband, particularly given the husband’s limited financial means, his seriously deteriorating health, and his need to move into an assisted living complex which would take most of his monthly financial assets to pay for.

Should the Husband be Entitled to Exclusive Possession of the Former Matrimonial Home, and Should that Former Matrimonial Home be Sold? [ 9 ] While the former matrimonial home was an exempt asset previously owned by the husband prior to the marriage, he brought that matrimonial home into matrimonial property when he placed it into joint names with the wife in December 2008 upon their marriage.

The home needs to be thoroughly cleaned and prepared for sale, and the husband is currently forced to live between his two adult sons’ homes given that he can no longer care for himself, and does not have sufficient monies to afford to live in an assisted living complex.

[ 10 ] The wife submits that any Order for petition and sale should consider the financial circumstances of each party, and there is insufficient information presently before the Court, so that the husband’s application is premature. It is submitted that the wife is also suffering from a disability. [ 11 ] I agree that there are still issues that are in contention, particularly the issue of dissipation, and the issue of the length of the relationship.

I am satisfied however that this is not a long term relationship in any event, and that the Court has a fairly good idea as to the current assets and liabilities of the parties, who do not have much by the way of income or net worth in either case. [ 12 ] As such I conclude that the former matrimonial home is the only real asset of value remaining and that it should be listed expeditiously with a real estate agent and sold.

The net sale proceeds can be held and will be held in trust pending the agreement of the Parties, or further Court Order, with respect to its distribution. [ 13 ] This matter has already been delayed on several occasions by the wife. The husband’s application has been adjourned on at least three previous occasions essentially because the wife required counsel, when counsel was retained the wife discharged that counsel, and now the wife has not be able to obtain new counsel. The husbands precarious health situation requires that the matrimonial home be disposed of.

I see no reason why the wife cannot relocate within the next six months to other accommodation. The wife advises that she is currently seeking new legal counsel and wishes to have a trial.

This is something that I do not preclude, as all monies received from the sale of the matrimonial home will be held in trust until the parties agree to its final disposition, or until the Court makes a further Order with respect to those net sale proceeds. [ 14 ] The Court’s Order then is that the property will be listed immediately for sale; the wife has six months to deliver vacant possession of the premises that she now occupies; there will be a police assistance clause; and the net sale proceeds from the sale of the former matrimonial home will be held in trust pending an agreement between the parties, or pending a further Court Order, with respect to its distribution.

Heard on the 13 th day of January, 2012. Dated at the City of Edmonton, Alberta this 17 th day of January, 2012. Donald Lee J.C.Q.B.A. Appearances: Jordan R Crerar for the Plaintiff

Deborah Ann MacDonald Appeared on Her Own Behalf