Morrison v. Morrison, 2012 ABQB 510

Court of Queen ’ s Bench of Alberta Citation: Morrison v. Morrison, 2012 ABQB 510 Date: 20120808 Docket: 4813 004836 Registry: Ft. McMurray Between: Martin Trevor Morrison Plaintiff/Applicant - and - Sherry May Morrison Defendant/Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Invoking material changes of circumstance relating to his health and employment income, in this special chambers application Mr. Morrison asks the court to terminate his obligation of interlocutory without prejudice monthly spousal support - initially in the amount of $4,000.00 subsequently reduced to $3,000.00 - or, in the alternative, to further reduce his spousal support obligation and to cancel spousal support arrears, or, in the further alternative, to suspend spousal support in light of the disproportionate matrimonial debt load he is carrying on his greatly reduced income. [ 2 ] Ms.

Morrison opposes any change in the current level of spousal support; she indicates that she had a higher standard of living during the marriage than she is able to afford at this time. She also states that, in view of the length of the marriage, Mr. Morrison ’ s spousal support obligation should be made permanent.

[3] Here, the original matrimonial support award was made on incomplete evidence concerning Mr. Morrison’s actual incomefrom employment. As of the date of this special chambers application, Mr. Morrison has effectively overpaid spousal support byapproximately $7,200.00. In recognition of that overpayment, his arrears of approximately $4,800.00 are cancelled; the differencebetween the overpayment and the cancellation of arrears is not credited to Mr. Morrison but is left with Ms. Morrison as a contribution toher need to set up a separate residence. [4] On a go-forward basis, Mr.

Morrison has partly rebutted the assumption of mutual social obligation which is the basis fornon-compensatory spousal support. Ms. Morrison is able to support herself financially but for a large credit card debt; Mr. Morrison’scontribution to the interdependency created by the marriage is to pay Ms. Morrison monthly spousal support of $600.00 for 3 yearswhich will, effectively, pay her credit card debt. [5] Ms. Morrison is not entitled to retroactive spousal support since her claim for support was only made in August, 2011. Cases and authority cited [6] By the Applicant: Fisher v.

Fisher 2009 ABQB 85. [7] By the court: Moge v Moge (SCC), [1992] 3 S.C.R. 813; Bracklow v Bracklow, (SCC),[1999] 1 S.C.R. 420; Coghill v Michalko 2010 ABQB 59; Freake v Riley 2010 ABQB 562. 1. Background [8] The parties, who are currently 53 and 49 years old, married in 1980 and separated in November 2010. The parties moved toFort McMurray from Edmonton in 2005. They have one child, an adult who is independent. [9] In August 2011, this court made an interim without prejudice order requiring Mr. Morrison to pay his wife monthly spousalsupport of $4,000.00, commencing September 1, 2011.

At that time, it was represented to the chambers judge that Mr. Morrison wasearning $234,195.00 based on his Notice of Reassessment for 2009. Ms. Morrison had also made an application for retroactive spousalsupport based on the fact that, although she was then earning a yearly gross income of $28,500.00, she could not longer enjoy the "verycomfortable" standard of living that the parties enjoyed during the marriage. The court adjourned her application for retroactive spousalsupport without setting a date for the hearing of that part of the application. [10] In support of her August application, Ms.

Morrison indicated that she has had a long standing history of mental health issues.She appended to her affidavit a statement from her psychiatrist outlining contact since January 6, 2009 and reporting statements from Ms.Morrison that she was feeling mildly depressed and anxious and experiencing self esteem issues. There was no diagnosis. However, Ms.Morrison received prescriptions for medication including Seroquel, Epival, Cipralex, and Topamax. In April 2011, Ms. Morrison askedfor a copy of her records for a referral to a psychiatrist in Edmonton. [11] Ms.

Morrison also stated that she had not been employed outside the home for long periods during the marriage and that shehad been a stay-at-home Mom during most of the marriage. [12] In May, 2011, Ms. Morrison resumed employment with River City Credit Union Ltd. in Edmonton, as a receptionist, aposition she had held before the parties had moved from Edmonton up to Fort McMurray. In May 2011, Ms. Morrison's starting salarywas $28,550.00 per annum or $14.64 per hour.

[ 13 ] Ms. Morrison is paying off her credit card debt of approximately $22,000.00 as a condition of maintaining her employment; these credit cards do not represent matrimonial debt. She pays approximately $600.00 per month on those credit cards. [ 14 ] As part of the August 2011 application, Mr. Morrison submitted an affidavit from the parties' adult child stating that, during her early childhood, her great grandmother lived with the family and provided the child with meals, transportation to and from school, etc.

She also states that her mother improperly used for her own benefit funds which the daughter had received as damages from a car accident. The adult child ’ s perception is that her mother was not a “ stay-at-home ” mother in the normal sense of that word. This child and her mother are now estranged. [ 15 ] In September 2011, Mr. Morrison applied for a review of the August order, based on the fact that his income was approximately half of the amount stated by the wife. In support of that application, Mr.

Morrison swore an affidavit stating that, in February, 2011, due to downsizing at Syncrude, he changed his job from a supervisory position to a maintenance position. Both his wages and his overtime were greatly decreased. His salary for 2011 was projected to be $153,000.00. Moreover, commencing January 12, 2012, his salary was to be reduced by 10% per year until it is in line with his new occupational position. [ 16 ] Mr. Morrison states that for the period August 28 to September 10, 2011, his pay cheque totalled $2,690.00.

He claimed monthly expenses for the matrimonial home as: mortgage payments - including taxes $1,538.47 condo fees 175.00 telephone and cable 570.00 insurance - home and contents 99.94 repairs and maintenance 100.00 utilities 362.00 Sub-total $2,450.41 car insurance for his and his wife's vehicle $ 410.00 loan payments for the RV 760.00 line of credit 120.00 Sub-total $1,290.00 Monthly matrimonial expenses Total $4,135.41 [ 17 ] Given his monthly net income of approximately $5,500.00, he could not afford to pay his wife $4,000.00 monthly and also pay the matrimonial debts. [ 18 ] In addition to the debts which he characterizes as matrimonial, Mr.

Morrison also has outstanding credit card bills which totalled a little over $22,200.00 in September 2011. [ 19 ] An oddity about the parties' matrimonial home is that it is a mobile home in a mobile home park in which the Morrisons own a strata title. However, since the mobile home is older than 30 years, banks will apparently not lend money on the security of the mobile home; this means that, effectively, it will be difficult if not impossible, to find a buyer for the matrimonial home. Notionally, there is approximately $100,000.00 of equity in the mobile home. Ms.

Morrison understands that although the bank may not lend money to a third party on the security of this mobile home, the bank may re-finance the home for the parties themselves. She is willing to turn over

her interest in the matrimonial home to her husband in order to allow him to increase the size of the mortgage so that he could pay off some of the other debts. [ 20 ] Also, the parties owe approximately $21,000.00 on the RV whereas the most they expect that they could get for it in a sale is $11,000.00. [ 21 ] In his September 2011 affidavit, Mr. Morrison also stated that his wife had been employed throughout most of the marriage, that she took upgrading courses, and that she changed her employment frequently. She worked for River City Credit Union in Edmonton from approximately 2002 to 2005.

Until she closed it down in September 2007, she operated her own business, "Pet and Home Sitting Service" in Fort McMurray. [ 22 ] Mr. Morrison claims that, between May 2008 and September 2010, Ms. Morrison mostly lived with her mother and brother in Edmonton. [ 23 ] In November 2010, Mr. Morrison took stress leave which he attributes to Ms. Morrison's erratic behaviour and spending habits. Mr. Morrison had earlier sought counselling in 2002 to deal with his marriage problems. [ 24 ] Between May 29, 2010 and February 17, 2011, Mr. Morrison deposited $3,750.00 into Ms. Morrison's bank account.

In addition, since March 2009, Mr. Morrison paid between $12,000.00 and $15,000.00 for esthetics courses for Ms. Morrison. [ 25 ] Mr. Morrison states that he does not believe that his wife has long standing mental health problems. Rather, he states that she has some learning difficulties, but that they are limited and treatable, as evidenced by an assessment she underwent at the University of Alberta Hospital. The testing showed, for example, that Ms.

Morrison "had good accuracy and made few errors in distinguishing between important and unimportant figures, which is often very difficult for people with pronounced attention problems." The assessment proposed a number of strategies to Ms. Morrison to help her deal with the problems she said she had experienced since childhood. [ 26 ] Mr. Morrison acknowledged that he was contemplating a relocation to the Philippines. [ 27 ] In September 2011, a special chambers date of February 1, 2012 was set. In December 2011, because they believed that they had reached an agreement, the parties cancelled the February date.

Negotiations subsequently broke down. July 26, 2012 was the earliest date on which the special chambers hearing could be rescheduled. [ 28 ] From October 13, 2011 to January 30, 2012, Mr. Morrison was on short term disability which paid his base salary, but no overtime or shift premium adjustments. His family physician diagnosed Mr. Morrison with an enlarged heart and he was prescribed medication. In February 2012, his physician told Mr. Morrison that it was in his best interest not to work more than the required 40 hours per week. [ 29 ] Mr.

Morrison's T4 for 2011 indicates that, during that year he earned $201,068.23. However, approximately $40,000.00 of that amount was earned before Mr. Morrison changed positions. The decisions in Coghill and Freake comment on the unique employment issues in Fort McMurray. [ 30 ] As of July 5, 2012, Mr. Morrison was $ 4,813.18 in arrears of his spousal support obligation. [ 31 ] Mr. Morrison advises that MEP suggested that he sell what he can in order to stay current with his spousal support. To that end, he has cashed in one of his RRSPs for $3,500.00 to pay for the mortgage and RV loan.

He has used his Thrift Plan at Syncrude to pay the mortgage and certain living expenses. He sold his 2007 Yamaha for $6,800.00 to pay for legal fees and other bills. He plans to sell all his vehicles except his 2004 Dodge truck. If he is unable to pay for arrears, he will lose his licence and then be unable to perform certain of his duties at work and might lose his employment.

[ 32 ] From December 2011 to March 2012, Mr. Morrison's wages have been garnisheed by MEP leaving him with approximately $600.00 per month to live on, to pay the matrimonial debt, and to pay his credit cards. [ 33 ] Mr. Morrison acknowledges that his brother has been living with him in the matrimonial home and has been trying to pay him $500.00 monthly rent; however, he states that his brother has had difficulty in obtaining employment and is not always able to pay rent. [ 34 ] As of June 1, 2012, on a without prejudice basis, Mr.

Morrison's monthly spousal support obligation was reduced from $4,000.00 to $3,000.00. 2. Principles relating to spousal support [ 35 ] The Supreme Court of Canada articulated the basic principles relating to spousal support in the Moge decision. However, it is in Bracklow that the Supreme Court outlined the principles which apply to a claim for non-compensatory spousal support. [ 36 ] In Bracklow , the Supreme Court reminded us that the mutual obligation theory of marriage applies unless it is rebutted.

That theory was explained as follows: 30 The mutual obligation theory of marriage and divorce, by contrast, posits marriage as a union that creates interdependencies that cannot be easily unravelled. These interdependencies in turn create expectations and obligations that the law recognizes and enforces. While historically rooted in a concept of marriage that saw one spouse as powerful and the other as dependent, in its modern version the mutual obligation theory of marriage acknowledges the theoretical and legal independence of each spouse, but equally the interdependence of two co-equals.

It postulates each of the parties to the marriage agreeing, as independent individuals, to marriage and all that it entails -- including the potential obligation of mutual support. The resultant loss of individual autonomy does not violate the premise of equality, because the autonomy is voluntarily ceded.

At the same time, the mutual obligation model recognizes that actual independence may be a different thing from theoretical independence, and that a mutual obligation of support may arise and continue absent contractual or compensatory indicators. 31 The mutual obligation view of marriage also serves certain policy ends and social values. First, it recognizes the reality that when people cohabit over a period of time in a family relationship, their affairs may become intermingled and impossible to disentangle neatly.

When this happens, it is not unfair to ask the partners to continue to support each other (although perhaps not indefinitely). Second, it recognizes the artificiality of assuming that all separating couples can move cleanly from the mutual support status of marriage to the absolute independence status of single life, indicating the potential necessity to continue support, even after the marital "break".

Finally, it places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistance rolls. (Emphasis added) [ 37 ] The Supreme Court has not stated that, where parties have been married for a long time, it is appropriate for them to share their combined income.

Rather, the Supreme Court interprets the objective of the spousal support provisions of the Divorce Act to be the equalization of the consequences of a marriage and its breakdown. 3. Applying the principles to the situation here [ 38 ] Ms. Morrison states that, even using Mr. Morrison ’ s income in the second half of 2011 as the basis for determining spousal support, the Spousal Support Guidelines suggest a low end of $2,800.00 monthly and a high end of $3,600.00 monthly. She states that the mid-point of that range is $3,200.00 and she claims that amount as a spousal support award.

[ 39 ] There are two problems with Ms. Morrison ’ s position. The first is that, as a matter of principle, the Spousal Support Guidelines are only intended as a calculation tool once entitlement has been established. Therefore, the first issue that the court must address is Ms. Morrison ’ s entitlement to spousal support now that the marriage has broken down. [ 40 ] Evidence might be led at a trial about any compensatory basis for awarding Ms. Morrison spousal support; however, on this application, it does not appear that Ms.

Morrison gave up anything, or suffered anything, as a result of the marriage. [ 41 ] Where there is no claim for compensatory support, and no basis for contractual support, the only basis left for assessment of entitlement to spousal support on the breakdown of a marriage is the non-compensatory basis, or the mutual obligation theory of spousal support. On this application, the evidence relating to that theory in this marriage is sparse. [ 42 ] Ms. Morrison was, of course, very young when she married. The parties did have one child. However, the evidence from the parties' only child suggests that Ms.

Morrison did not suffer any hardship relating to economic self-sufficiency as the result of her care of the child of the marriage. [ 43 ] The affidavit evidence available on this application does not reveal a situation where the parties strove together to establish a secure economic foundation for their marriage. Rather, the picture which emerges from these affidavits is one in which Ms. Morrison has not seen herself as part of a team or a partnership, but rather as a lone player. For example, Mr.

Morrison states that while he was studying for his apprenticeship exams he had to go to the Public Library to study so as not to disturb Ms. Morrison, but when Ms. Morrison decided to take up esthetics, she used the family residence as a base of commercial operations. Mr. Morrison, and the parties ’ adult daughter, state that Ms. Morrison was always encouraged to take up-grading during the course of the marriage, but declined to do so. In the last few years, Mr. Morrison has made a sizeable contribution to Ms. Morrison ’ s training balance, having invested at least $12,000.00 in esthetics courses.

For her part, however, at least since separation, Ms. Morrison has only been contributing to paying down her own credit debt: she has not been contributing to paying down of matrimonial debt, although it seems quite likely that she will make a claim for a share of the matrimonial property. On the other hand, it appears from the affidavits filed that Ms. Morrison was never completely financially independent during the marriage and relied not only on her husband, but also on her daughter, for financial and economic support.

Although a different picture could well emerge at a trial of the issue of spousal support, the economic picture of this marriage is one where Ms. Morrison has been economically dependent on her spouse but where the husband has made significant contributions to Ms. Morrison ’ s economic self-sufficiency such that Ms. Morrison should be able to be economically self-sufficient. [ 44 ] Although more evidence could, of course, be called at a trial, on this application it appears that any problems which Ms.

Morrison has in securing and maintaining employment are due to learning disabilities apparent from childhood and not related to the marriage. In any event, the evidence on this application is that Ms. Morrison has, especially during the last decade, been employed. [ 45 ] In addition, although Ms. Morrison claims that she enjoyed a higher standard of living during the marriage than she is able to afford now, there is no evidence of such higher standard of living available on this application. The fact that Mr.

Morrison did, for a relatively short time, have a high income, does not necessarily translate into a higher standard of living, given the very high cost of living in Fort McMurray: a wage of $250,000.00 in that community is not comparable to a similar wage in Edmonton. [ 46 ] On the issue of principle, therefore, although Ms. Morrison has shown that her economic status has been intertwined with that of Mr. Morrison for a very long time, the evidence also discloses that, for a very long time, Mr. Morrison has been encouraging Ms. Morrison to become financially independent. In the result, although Ms.

Morrison is entitled to some financial support from Mr. Morrison, in part to recognize the hardship which setting up a separate residence always causes, this is not a situation in which Ms. Morrison can claim that she is entitled to an equal division of the family ’ s total income. [ 47 ] Turning then to the specifics of the application, Ms. Morrison states that, inserting Mr.

Morrison ’ s actual income and her last reported income into the Spousal Support Guidelines, she is entitled to spousal support at the mid-point of the $2,800.00 to $3,600.00 range, or $3,200.00 range. [ 48 ] Using those figures as a base, I begin by noting that Mr. Morrison ’ s income for the last part of 2011, the part during which he was paying spousal support at the rate of $4,000.00 per month, he was actually earning income closer to the $150,000.00 range than in the $234,000.00 range that was used to calculate spousal support. Therefore, even using Ms. Morrison ’ s assumptions, for the period

September 1, 2011 to May 1, 2012 inclusive, Mr. Morrison overpaid spousal support by $7,200.00 ($800.00 overpayment per month for 9 months). [ 49 ] Using Ms. Morrison ’ s assumptions, since June 1, 2012, Mr. Morrison ’ s obligation would have amounted to $9,600.00 rather than the $9,000.00 which has been imposed. If the notional $600.00 underpayment for that period were deducted from the previous overpayment, that would leave an overpayment by Mr. Morrison of $6,600.00 for the total period from September 1, 2011 to August 1, 2012, inclusive. [ 50 ] Mr.

Morrison is $4,813.18 in arrears in spousal support obligations. Using Ms. Morrison ’ s calculations, and given the overpayment which Mr. Morrison has made during the period to date, the court concludes that it is fair to cancel Mr. Morrison ’ s arrears and to state that Mr. Morrison is not in arrears with respect to spousal support up to August 1, 2012. Although the cancellation includes acceptance of the fact that Mr. Morrison has overpaid spousal support by approximately $1,800.00, the court concludes that an amount of that size should be credited not to Ms.

Morrison ’ s ongoing need for support, but to her one time need to set up a separate residence. That amount could, as it happens, be a last month deposit on rental accommodation for Ms. Morrison in Edmonton. [ 51 ] On an ongoing basis, until further order of the court, Mr. Morrison should contribute something to Ms. Morrison ’ s support in recognition of the long-time interdependency of the parties. Although Ms. Morrison appears to be well settled in employment which she is comfortable with and which she is good at, Ms. Morrison requires assistance to pay off her monthly credit card bills.

Therefore, starting on September 1, 2012 for a period of 3 years from today ’ s date or until further order of the court, Mr. Morrison will pay monthly support of $600.00 (outstanding credit card debt of $22,000.00 being paid off at the rate of $600.00 per month). This will allow Ms. Morrison to use her income from employment for her daily living needs; any additional credit card expenditures she makes will be her responsibility. [ 52 ] There is no doubt that Ms. Morrison would like to acquire some capital with a view to purchasing accommodation rather than leasing it. Indeed, it appears likely that, given Ms.

Morrison ’ s very small monthly accommodation cost, she has been able to make considerable savings from the spousal support she has been receiving from Mr. Morrison; her failure to keep her financial disclosure evergreen has, however, prevented an assessment of how much money she has been able to set aside. However, until the parties ’ matrimonial property issues have been determined, Ms. Morrison cannot expect to have the issue of capital re-distribution addressed. 4. Retroactive support [ 53 ] Ms. Morrison has not established an entitlement to retroactive spousal support.

The Canadian spousal support system is based on a demand for support and Ms. Morrison only made a demand as of September 1, 2011. In any event, the evidence establishes that during the period prior to her application for spousal support, Ms. Morrison was receiving voluntary payments from her husband. 5. Costs If the parties are not agreed, I may be spoken to on the issue of costs within 30 days of the release of this decision. Heard on the 26 th day of July, 2012. Dated at the City of Ft. McMurray, Alberta this 7 th day of August, 2012.

J.B. Veit J.C.Q.B.A. Appearances: Caitlin A. Hanly, McMurray Law Office for the Plaintiff, Mr. Morrison Navdeep Singh Bamrah, Student-at-Law, Hamish Henderson Prof. Corp. for the Defendant, Ms. Morrison