Tomlinson v. Tomlinson, 2012 ABQB 509

Court of Queen ’ s Bench of Alberta Citation: Tomlinson v. Tomlinson, 2012 ABQB 509 Date: 20120807 Docket: 4813 005087 Registry: Ft. McMurray Between: Deanne Joy Tomlinson (also known as Deanne Joy Smith) Plaintiff - and - Ian Francis Tomlinson Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Relying mainly on the fact that he was a stay-at-home parent for nearly two years, in this special chambers application, Mr. Tomlinson asks for primary parenting involving relocation of the parties’ 12 year old son. Relying mainly on the fact that his wife supported him for nearly two years while he was unemployed and that he has yet to become financially self-supporting, Mr. Tomlinson asks for monthly spousal support of $1,000.00 for a limited duration. [ 2 ] The application for primary parenting is denied. The parties ’ child has essentially lived all of his life in Fort McMurray. In

the situation here, where the father’s move far away from the child’s home prevented easy contact between the child and both hisparents, the father’s failure to provide any satisfactory reason, relative to the child’s best interests, for moving from Fort McMurray toEdmonton is a factor which the court can take into account in determining whether relocation should be allowed. Moreover, relocating toEdmonton would cause this child’s effective loss of support not only from his mother and sibling, but also from his school-mates andneighbourhood friends.

Finally, the father was not an active stay-at-home parent in the sense of a parent who chose to stay at home toparent, for example, to home school a school age child; rather, the father was unemployed. During his unemployment, the father’s parenting responsibilities were minimal. Given the age of the child, the child’s lack of special needs and the payment of the sibling forafter-school care, the child has no special attachment to the father as a result of the father’s period of unemployment. [3] The application for spousal support is denied.

In mid-April 2012, this court reminded both parties of their obligation ofcontinuing or evergreen financial disclosure. Despite this reminder, Mr. Tomlinson has not provided current information concerning hisincome. In those circumstances, Mr. Tomlinson has not satisfied his obligation to establish financial need. Also, Ms. Tomlinson hasprovided some bridge financial support for Mr. Tomlinson, Mr. Tomlinson has received substantial financial support from his ownparents, and Mr.

Tomlinson has not cooperated in the realization of matrimonial property. [4] In any event, the notion of spousal support is predicated upon the role of the marriage in the spouse’s financialcircumstances. Where non-compensatory spousal need is established, it must be connected to the marriage in order to ground entitlementto spousal support. Here, Mr. Tomlinson has not established need: even accepting that he has serious arthritis in his shoulder which hasnot been substantially alleviated by arthroscopic surgery, there are many types of employment in which Mr.

Tomlinson could engage. [5] Moreover, this is not a situation where the mere fact of marriage entitles him to spousal support: Mr. Tomlinson was a fullymature adult, with children of his own, and a likely career path established, when he embarked upon this marriage. There is no spousalsupport contract between the parties; there is no suggestion that Mr. Tomlinson lost career opportunities as a result of the birth of thechild of this marriage or that, in any other way, he deserves compensation for some advantage that he lost as a result of the marriage, andMr. Tomlinson has not proved that Ms.

Tomlinson consented to, or allowed him to, become financially dependent on her during thecourse of the marriage. On the contrary, the evidence on this application is that Ms. Tomlinson did what she could to encourage him tobecome financially independent. On this application, Ms. Tomlinson has rebutted the mutual obligation premise for spousal support. Cases and authority cited [6] By Mr. Tomlinson: Gordon v. Goertz, (SCC), [1996] S.C.J. No. 52; Moge v. Moge, (SCC), [1992] 3 S.C.R. 813; Shields v. Shields, [2008] A.B.C.A. 213; Divorce Act, R.S.C. 1985 C.3 (2nd Supp.), 15.2. [7] By Ms. Tomlinson: Cronkhite v.

Cronkhite (NB KB), 20 N.B.R. (2d) 447, 34 A.P.R. 447; Berger v. Berger (1974), R.F.L. 216; Figliano v. Figliano (2007), (ON SC), 35 R.F.L. (6th) 71, [2007] W.D.F.L. 1639; Jarrettv. Jarrett, [1995] W.D.F.L. 306; Roy v. Roy (NB KB), 1991, 118 N.B.R. (2d) 347, 296 A.P.R. 347; Dykes v. Dykes (NS SC), 1977, 24 N.S.R. (2d) 527, 35 A.P.R. 527; Stewart v. Stewart, ; Elliot v. Elliot, ; Harris v. Harris, 1999 ABQB 325; Mullins v. Mullins, (NL SC), 1995 Carswell Nfld 8, 12 R.F.L. (4th) 461; Bakken v. Bakken, (AB KB), 132 A.R. 356, [1992] W.D.F.L. 1273; Garbutt v. Garbutt, (MB KB), 84 Man.

R. (2d) 237. [8] By the court: Armstrong v Armstrong 2012 BCCA 166; Bracklow v Bracklow (SCC), [1999] S.C.J. No.14. 1. Background [9] The parents married in 2000, moved to Fort McMurray in 2001, and separated on February 28, 2012. The wife is 36 and thehusband is 41. At the time of their marriage, each of the parties had children from former relationships. [10] The parties are the parents of a child who has just turned 12; the child has no special needs. The child is changing schools toattend a junior high school; the child has not been participating in extra-curricular activities at his elementary school.

The child has livedwhat is essentially his whole life in Fort McMurray, with his parents and an older step-sibling.

[ 11 ] In 2010, the wife earned gross income of approximately $200,000.00 as a real estate agent; in 2011, her gross income was approximately $300,000.00. Prior to 2010, the wife earned relatively small incomes. [ 12 ] Since moving to Fort McMurray, the father has had the following jobs: service manager at a motorsports dealership, bartender, sales of truck accessories, bus driver, privy truck operator, motorcycle mechanic, steam truck operator, general foreman at a lube shop, parts salesman, heavy hauler, real estate salesman.

In 2010, the father had arthroscopic surgery on one shoulder to correct problems caused by arthritis in that joint; the father acknowledges that the condition of his shoulder does not prevent him from constructing a deck, from cutting down trees, from riding a motorcycle. Shortly after separation, the father quit his job at a real estate firm in Fort McMurray and moved to Edmonton; at that time he had secured no employment in Edmonton, and was living with friends.

The father has no relatives in Edmonton and had not previously lived there; his children from former marriages, and his parents, all live in British Columbia.

Edmonton is a significant - i.e. five hour one way - distance from Fort McMurray, a distance which effectively prevents even routine alternate week-end access. [ 13 ] In mid-April, 2012, the father brought an application for generous access to the child, including alternate week-end access; that application resulted in an interim without prejudice order for alternating weekend access, as well as an order that the wife pay to the husband monthly spousal support of $1,000.00 commencing April 1, 2012, which support was to be reviewed at the special chambers application on July 26.

In early June, 2012, the father brought an application for primary residence of the child.

On June 28, 2012, the father brought an application extending week-end access to include Fridays and Mondays and for an order requiring the mother to drive the child to Grasslands, approximately half way between Edmonton and Fort McMurray, for parenting exchanges; without leave of the court, he made that application returnable on the same day as the day on which the special chambers application was to be held. [ 14 ] The parties have agreed to the sale of the matrimonial home, in which the husband claims there is an equity of approximately $100,000.00. 2.

Change of primary parenting responsibility in a relocation context [ 15 ] Mr. Tomlinson asks for an order giving him primary parenting responsibility, including the right to have the child relocated from his home in Fort McMurray and placed in Mr. Tomlinson ’ s home in Edmonton. [ 16 ] Because the order of April 17, 2012 giving Mr. Tomlinson alternate week-end access is characterized as an “ interim without prejudice ” order, on this application I give the benefit of not having to prove a material change of circumstance to Mr.

Tomlinson. [ 17 ] In every parenting decision, the court is guided first and foremost by concern for the best interests of the child.

In addition, in the circumstances here, the Gordon decision is of some specific guidance to this court: although that case involved a parent who already had primary parenting rights and responsibilities and who wished to deprive an access parent of the benefits of an existing access regime as a result of a proposed relocation, the principles outlined by the Supreme Court in that decision are of assistance to a court which must determine whether there should be a change of primary parenting which involves relocation.

Therefore, the court must consider: The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents;

(

d) the views of the child; (

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community.

The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [ 18 ] As these principles apply to the situation here, I begin with the fact that although the mother was the actual custodial parent, Mr.

Tomlinson having, at best from his perspective, left the child in the mother ’ s care when he departed for Edmonton, the father ’ s relocation to Edmonton is a material change of circumstance in the parenting relationship which requires the court to address the best interests of this child anew. [ 19 ] As to the existing parenting arrangements, although Mr. Tomlinson describes himself as a stay-at-home parent, it is more accurate to describe him as an unemployed parent. Indeed, between at least August 2011 and February 28, 2012, Mr.

Tomlinson was working as a real estate agent in Fort McMurray so was neither stay-at-home nor unemployed. But, with respect to the period from 2010 when he had his arthroscopic surgery to August 2011, Mr. Tomlinson was at home because he said he could not work. During that time, the parties ’ son was going to school. The evidence from the mother is that she paid her older son a regular wage to provide after-school care for the parties ’ son.

Nonetheless, there is no denying that the parties ’ son has, and has had, a good, close relationship with his father. [ 20 ] Frankly, that makes the father ’ s decision to leave Fort McMurray for Edmonton all the more puzzling. The Supreme Court has told us that the court should not usually concern itself with the reason why one parent wants to relocate. However, here the father chose to move to Edmonton, even though a move to that city would essentially ensure that one of the parents could no longer effectively parent their child.

And the father had no good reason for moving to Edmonton; on the contrary, he had no job or support system there. On the contrary, he quit a job to move there. In those circumstances, the father ’ s decision to put so much distance between himself and his son is a factor which the court is entitled to consider. Obviously, maximum contact between the child and each of his parents is not only statutorily required, but also desirable. However, by choosing to relocate to Edmonton, where he had, and the child has, no links whatever, the father has made maximum contact impossible.

The father ’ s reasons for moving to Edmonton are not related to meeting the child ’ s needs; case law establishes that the parent ’ s reasons for moving when those reasons have a negative impact on the child can be taken into account. This is just such a situation: by moving to Edmonton, the father has caused unnecessary turmoil in the child ’ s life. [ 21 ] The child has just turned 12; indeed, he was only 11 when the application was brought. Although a child ’ s wishes at that age will be taken into account, they are far from decisive.

In any event, the evidence here is that this child, like most children, tells each parent what they think the parent wants or needs to hear.

There is no evidence on this application to suggest that this child is different in that respect from other children. [ 22 ] There would inevitably be great disruption caused by the removal of this child to Edmonton: all links he has with the only community he has known would be effectively broken and even his links with his nuclear family - his mother and his brother - would be dramatically changed. [ 23 ] Finally, although there is no presumption that the mother ’ s wishes in respect of relocation will prevail, because she is the actual custodial parent, her wishes are entitled to great respect. [ 24 ] In all these circumstances, Mr.

Tomlinson has not established that a change in primary parenting with a concomitant relocation to Edmonton is in his son ’ s best interests. 3. General principles underlying the statutory right of spousal support

[25] As the British Columbia Court of Appeal recently usefully reminded us, Parliament’s stated objective in enacting thestatutory provisions of the Divorce Act relating to spousal support is to “equalize the economic consequences of the marriage or itsbreakdown”: Armstrong.

Although in that case the court was specifically addressing the issue of whether equalization of net disposableincome was a principle of Canadian family law, the reasoning of the court applies equally to the issue of whether the mere fact ofmarriage is a sufficient grounding for a claim of spousal support. 68 The trial judge reviewed the compensatory and non-compensatory bases for spousal support as articulated in Moge v. Moge, (SCC), [1992] 3 S.C.R. 813 and Bracklow v.

Bracklow, (SCC), [1999] 1 S.C.R. 420, concluding that "[t]heSupreme Court thus endorsed an expansive compensatory basis for spousal support, citing as its purpose the equitable distribution of theeconomic consequences of the marriage" (para. 58). However, he then awarded Ms. Armstrong indefinite monthly spousal support of$1,680, subject only to a review after seven years, as an "amount sufficient to leave the parties with an equal share of net family income,after taking into account child support" (para. 66).

In assessing this amount, the trial judge relied on Divorcemate calculations providedto him by counsel that included the imputed incomes of $100,000 for Mr. Armstrong and $35,000 for Ms.

Armstrong, which resulted in anet equalized disposable income for each party of $4,415. 69 The equalization of the net disposable income of the parties is not the legal test for compensatory support, which test is wellsummarized in the headnote to Moge: The doctrine of equitable sharing of the economic consequences of the marriage or its breakdown, which the Act promotes, recognisesand accounts for the economic disadvantages or advantages flowing from the role adopted by the spouses in the marriage.

This doctrine does not involve the equalization of the parties' net disposable income but the equalization of the economic consequencesof the marriage or its breakdown. This accords with the factors to be considered in s. 15.2(4) of the Divorce Act which directs aconsideration of "the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spousescohabited; (

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

c) any order, agreement or arrangement relating tosupport of either spouse." 70 As discussed above, the means of each spouse includes his or her capital base. With respect, in my view the trial judge's division ofproperty may have amounted to an effective reapportion of the family assets in favour of Ms.

Armstrong in the manner noted above.Such an effective order would be a relevant factor to any award for compensatory spousal support. 71 As well, in my view the imposition of a review provision seven years after the "Final Order" does not fall within the parameters forsuch orders as outlined in Leskun at paras. 36 and 37. As discussed in that case, review orders play a very limited role and are restrictedto situations where there is genuine uncertainty about the effect the breakdown of the marriage will have on the future economiccircumstances of the parties.

In circumstances where a review order is appropriate, it should specify the basis for the uncertainty andwhich aspects of the support order are to be reviewed. (Emphasis in original) [26] Accordingly, when a spouse claims spousal support, that spouse must address not only the statutory factors identified byParliament as undergirding the award of spousal support (length of the relationship, roles during the relationship, agreement between theparties), but also what Parliament described as its objectives for spousal support awards ((

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

b) apportion betweenthe spouses any financial consequences arising from the care of any child of the marriage . . .; (

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

d) in so far as practicable, promote the economic self-sufficiency of eachspouse within a reasonable period of time). 4. Application of the general principles to the situation here

[ 27 ] The court begins its analysis of Mr. Tomlinson ’ s claim for spousal support by stating its conclusion that Mr. Tomlinson has not established any need: the evidence on this application supports only a conclusion that the arthritis from which Mr. Tomlinson suffers and which may not have been fully alleviated by the arthroscopic surgery to his shoulder may prevent him from certain kinds of employment requiring heavy lifting, but it certainly does not preclude employment to which Mr. Tomlinson appears to be suited and trained including sales positions relating to vehicles. In other words, the fact that Mr.

Tomlinson chooses to embark on a new career from the type of career that he has pursued during the course of the marriage does not establish need but merely establishes choice. [ 28 ] In any event, however, in this application, Mr. Tomlinson has not demonstrated that he has suffered a negative economic consequence of the marriage itself which should result in an award of spousal support. On the contrary, for a period of two years when his wife earned a relatively high income, Mr. Tomlinson presumably received some temporary advantage from the marriage. In light of the relatively short duration of Ms.

Tomlinson ’ s high earnings, Mr. Tomlinson has not established that he has lost a conjugal standard of living which he is entitled to have continue. [ 29 ] Nor has Mr. Tomlinson established that he has suffered any financial consequence as a result of the care of the child of the marriage: he didn ’ t quit his job to care for the child, but rather, because he says that he could not work because of his shoulder injury, he took on some responsibility for the care of the child. [ 30 ] There is no doubt that the breakdown of the marriage and Mr.

Tomlinson ’ s decision to quit his job and move to Edmonton from Fort McMurray without having a job has had economic consequences for him; however, he has not tied those economic consequences to the marriage itself. [ 31 ] There is no doubt that Mr. Tomlinson ’ s decision to leave his job in Fort McMurray and to leave Fort McMurray has caused him some economic hardship. However, Ms. Tomlinson has provided him with a total of $4,000.00 in support to help him transition to a life on his own. Moreover, even though Mr.

Tomlinson has chosen - as a result of quitting his Fort McMurray job - not to avail himself of the employment insurance resources provided by the state, he has not been thrown upon the less generous social support resources of the state: he has had access to substantial financial support from his own parents. Finally, Mr. Tomlinson has not actively cooperated in realizing the equity in the matrimonial home which, according to Mr. Tomlinson, would provide him with approximately $50,000.00 cash. [ 32 ] Because Mr.

Tomlinson has not established, at least on this application, that he should be compensated for something he lost as a result of the marriage, the Moge decision, which focussed on compensatory spousal support awards, is of less utility to this court on this application than is the Supreme Court ’ s decision in Bracklow which focussed on non-compensatory justification for such awards: Absent indications to the contrary, when two spouses are married, they owe each other a mutual duty of support. Marriage is a joint endeavour. When a marriage breaks down, however, the presumption of mutual support no longer applies.

This is reflected in the Divorce Act and the provincial support statutes, which require a court to determine issues of support by reference to a variety of objectives and factors. A general presumption of post-marital support would be inappropriate because of the presence of two "competing" theories of marriage and post-marital obligation. The independent, clean-break model of marriage provides the theoretical basis for compensatory spousal support. The basic social obligation model undergirds "non-compensatory" support.

Both models of marriage and their corresponding theories of spousal support permit individual variation by contract, and hence provide a third basis for a legal entitlement to support. Parliament and the provincial legislatures, through their respective statutes, have acknowledged both models. . . . 32 Both the mutual obligation model and the independent, clean-break model represent important realities and address significant policy concerns and social values. The federal and provincial legislatures, through their respective statutes, have acknowledged both models.

Neither theory alone is capable of achieving a just law of spousal support. The importance of the policy objectives served by both models is beyond dispute. It is critical to recognize and encourage the self-sufficiency and independence of each spouse. It is equally vital to recognize that divorced people may move on to other relationships and acquire new obligations which they may not be able to meet if they are obliged to maintain full financial burdens from previous relationships.

On the other hand, it is also important to recognize that sometimes the goals of actual independence are impeded by patterns of marital dependence, that too often self-sufficiency at the time of marriage termination is an impossible aspiration, and that marriage is an economic partnership that is built upon a premise (albeit rebuttable) of mutual support. The real question in such cases is whether the state should automatically bear the costs of these

realities, or whether the family, including former spouses, should be asked to contribute to the need, means permitting. Some suggest it would be better if the state automatically picked up the costs of such cases: Rogerson, "Judicial

Interpretation of the Spousal and Child Support Provisions of the Divorce Act , 1985 (Part I)", supra, at p. 234, n. 172. However, as will be seen, Parliament and the legislatures have decreed otherwise by requiring courts to consider not only compensatory factors, but the "needs" and "means" of the parties. It is not a question of either one model or the other.

It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court. [ 33 ] Given the age and other circumstances of the parties when they married, and the evidence available on this application of the relationship between the parties since they married, including the evidence that Ms. Tomlinson acted in such a way that Mr. Tomlinson would be aware that she did not view the marriage itself as a social undertaking of support that outlasts the breakdown of the marriage, the court concludes that Ms.

Tomlinson has rebutted - for purposes of the interlocutory application - the presumption of mutual support based solely on the existence of the marriage. 4. Costs [ 34 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the delivery of these reasons. Heard on the 26 th day of July, 2012. Dated at the City of Fort McMurray, Alberta this 3 rd day of August, 2012. J.B. Veit J.C.Q.B.A. Appearances: Christopher F. Olutola, Campbell & Cooper for Mr. Tomlinson Cyril Bright, Aurora Law Group for Ms. Tomlinson