Marshall v. Marshall, 2012 ABQB 570

Court of Queen ’ s Bench of Alberta Citation: Marshall v. Marshall, 2012 ABQB 570 Date: 20120917 Docket: 4804 09144 Registry: Grande Prairie Between: Stanley Gordon Marshall Plaintiff - and - Velda Marie Marshall Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In this special chambers application, Ms. Marshall asks for interlocutory support of $2,000.00 per month. She bases her claim on need, stating that she has not been able, since separation, to find employment that will allow her to maintain the same standard of living she enjoyed since 1997 during the marriage [ 2 ] Mr. Marshall responds that Ms.

Marshall was self-sufficient when she entered into the marriage, that the marriage itself did not disadvantage her, that there are no children of the marriage, that the economic hardship of the break-up of the marriage was compensated by a one time $1,500.00 payment, and that there is no support for Ms. Marshall ’ s claim that she is not capable of economic self-sufficiency at this time.

[ 3 ] Ms. Marshall ’ s claim is allowed, in part. [ 4 ] On this application, Ms. Marshall ’ s claim is based on need. Non-compensatory support, that is the support obligation arising from a social obligation is, in many ways, the weakest of the three bases for spousal support since it is a claim that is not connected to the marriage other than to the bare fact of marriage.

Indeed, the lesser importance of the non-compensatory basis for spousal support can be discerned from Parliament ’ s legislative objectives for spousal support awards, each of which is directly connected to the marriage. [ 5 ] On this application, the only entitlement that Ms. Marshall has been able to establish is an entitlement to relief for the economic hardship which she has suffered as a result of the breakdown of the marriage and her departure from the matrimonial home: she has had to transport and warehouse her furniture and personal possessions and she has had to establish independent accommodation.

For a period of 6 months, commencing October 1, 2012, Mr. Marshall will pay Ms. Marshall $500.00 monthly at the commencement of the month to help her re-establish herself independently. [ 6 ] An applicant for interlocutory spousal support must establish their entitlement for such support in the same way as they would at trial, that is to say that neither the Divorce Act nor the case law relieves the applicant for interlocutory support from any of the obligations established as pre-requisites to the granting of such support. The fact that Ms.

Marshall has not been able to establish any economic disadvantage arising from the marriage on this application is no predictor of her likely success in making that claim at trial or at judicial dispute resolution. Cases and authority cited [ 7 ] By Ms. Marshall: McEachern v McEachern 2006 BCCA 508 1. Background [ 8 ] Ms. Marshall was 40 years old in 1997 when she married Mr. Marshall who was 46. Ms. Marshall had moved to Ontario - where Mr. Marshall lived - from Southern Alberta where she had been living. The parties had no children together. [ 9 ] Prior to 1997, Ms.

Marshall states that she earned a living from painting windows and murals in Southern Alberta. She states that she had also done construction work, mainly as a labourer, had an auction business and a second hand goods business. If I have understood her statements properly, at the time of her marriage to Mr. Marshall, she had only $2,000.00 in debts and she owned her own vehicle. She lived in a motor home and home schooled her children. She states that when she met and married Mr.

Marshall, although he owned farm equipment and had a 100 head cow/calf operation, he did not own any real property, but lived with his parents. [ 10 ] Some time after the marriage, Ms. Marshall inherited $30,000.00. She states that she used this money as a down payment on a farm of which she and Mr. Marshall became joint owners. She said that they eventually increased the size of the cow-calf operation to 200 head. In time, they sold the first farm and acquired a second, also in joint names.

There is no evidence on this application of what the economic circumstances were relating to the property and farm operations in Ontario. [ 11 ] At some time, the parties sold 40 acres of bush they owned in Ontario and, from the proceeds, Ms. Marshall received $28,000.00 which she invested in an RRSP. [ 12 ] During the years they lived together, Ms. Marshall states that she worked on the house and garden, and helped with the farm operation. She also took a writing course, a real estate course, and obtained some certification relating to horsemanship. Payment for

these courses was made from matrimonial assets. In 2011, after separation, Ms. Marshall took a certification course for the operation of heavy machinery - a “ dozer ” course - at a cost of $6,000.00 or $7,000.00 and paid for from her RRSP; the certification from this program has not led to employment in that field. [ 13 ] In 2008, the parties bought a quarter

section at Snipe Lake in Northern Alberta despite the fact that Ms. Marshall states that she informed her husband that she preferred to live in Southern Alberta. There is a farm credit mortgage on the property although Ms. Marshall states that no real farming is done on it. There is no information on this application about what happened to the proceeds of the sale of the farm properties in Ontario. [ 14 ] For two or three years prior to the purchase of the property in Alberta in 2008, Ms.

Marshall had been spending relatively lengthy periods of time in Alberta during which visits she often worked and lived independently. She states that the vertigo from which she suffered seemed to go into remission when she lived in this province. During the time that she was in Alberta, Ms. Marshall has worked on construction crews at a relatively good wage. From time to time, Ms. Marshall would return to Ontario and resume cohabitation with Mr. Marshall. [ 15 ] When she left the matrimonial home in early 2011, Ms.

Marshall purchased a van and a bus in the expectation that the latter could be used to transport and store her belongings. [ 16 ] After separation, Ms. Marshall worked for some time for a pipeline contractor; there is evidence that, during one two week period while working for the pipeline contractor, she earned gross income of $2,565.00. In total, she worked at that job for approximately 9 weeks. However, she states that injuries and personnel conflicts caused her to leave that employment without either workers ’ compensation or employment insurance benefits. Ms.

Marshall has, in the latter stages of the marriage, had similar relatively high wage paying, but short term, employment. [ 17 ] More recently, Ms. Marshall has accepted employment with a stock contractor and rancher who was on the chuckwagon circuit. Although she will be earning a relatively low wage, she will also be provided with room and board. [ 18 ] Ms.

Marshall indicates that she has cashed in, and spent, the proceeds of her RRSP. [ 19 ] She indicates that she has, during the course of the marriage, suffered from depression and anxiety for which she has been prescribed medication and that she has taken counselling. She states that she has received no consistent medical explanation of her vertigo. [ 20 ] For the purposes of this application, the court concludes that Mr. Marshall ’ s income from employment is approximately $40,000.00 gross annually. After separation, Mr. Marshall made a one time voluntary payment to Ms. Marshall of $1,500.00. [ 21 ] Ms.

Marshall, who was formerly represented by counsel, has not yet filed a statement of defence to Mr. Marshall ’ s statement of claim for divorce.

b) Legislative [ 22 ] The Divorce Act puts applications for interlocutory spousal support on the same footing as applications for “ final ” spousal support orders: Spousal support order 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. Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim 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, pending the determination of the application under subsection (1). [ 23 ] Parliament has established the following factors relating to, and objectives of, spousal support: s. 15.2

(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. . . . s. 15.2

(6) An order made under subsection (1) or an interim order under subsection (2) 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 any obligation 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. (Emphasis added) [ 24 ] The case law makes it clear that no single factor or objective is paramount. 2. General principles relating to interlocutory spousal support awards [ 25 ] Marriage by itself does not entitle a spouse to support. Parliament ’ s statement of principle relating to spousal support has been interpreted by the courts as establishing three potential bases for such support, compensatory, contractual and non-compensatory. [ 26 ] Ms.

Marshall does not allege that she should be compensated in a spousal support award for something she gave up because of the marriage. This is not a long term marriage entered into at an early age by the applicant, nor one where there were responsibilities of child care during the course of the marriage, nor one in which Ms. Marshall gave up of career or other opportunities to fulfill the marriage commitment. Nor is this one of those situations where a litigant was lured into relocation thereby suffering losses or losses of opportunity at the first location: Ms.

Marshall chose to move to Ontario, independently of Mr. Marshall. Similarly, there is no evidence on this application to suggest that Ms. Marshall has ever given up employment, or accommodation, to be with Mr. Marshall; on the contrary, it appears that her marriage to Mr.

Marshall provided her with stable accommodation and that he has moved to Alberta to accommodate her. [ 27 ] Because the legal approach to interlocutory spousal support is exactly the same as the legal approach to final spousal support, the applicant for interlocutory spousal support must mount the same case on a chambers application as would be required at a trial. In many situations, this will not be difficult.

However, in situations like the one here where the parties married in mid-life, had no children together, and where the applicant cannot establish any obvious compensatory entitlement to support, there is a considerable evidentiary

hurdle for the claimant at the interlocutory level. This is not one of the situations where only straightforward, and virtually uncontested, evidence will be sufficient to establish an entitlement to spousal support. [ 28 ] Three potential results flow from the evidentiary difficulties of certain types of interlocutory spousal support applications.

First, where there are sufficient assets to ensure that any over-compensation of spousal support can be corrected at trial, a chambers judge might not examine the evidence tendered in support of a spousal support claim with the same rigour as would be required where there are no assets available to correct an error. Second, a failure to meet the test for spousal support on an interlocutory application is not always a reliable predictor of the likelihood of success of such a claim at trial and this would have to be taken into account at the dispute resolution stage of the pre-trial process.

Third, since a special chambers application is merely a long morning chambers application, where a contest is expected on the evidence presented, the dispute may not be able to be resolved in a chambers application, but must be resolved by way of trial or judicial dispute resolution. [ 29 ] In

summary on this point, there is no basis on the evidence provided at this hearing to justify a compensatory spousal support award. [ 30 ] Ms. Marshall does not claim any contract or arrangement or agreement between herself and her husband with respect to spousal support. She therefore has no contractual claim to such support. [ 31 ] The only basis on which Ms.

Marshall can claim support is the third basis, need or non-compensatory support: she says that she has not been able to find a stable employment situation which provides her with a standard of living similar to the standard that she enjoyed during the course of the marriage. [ 32 ] Non-compensatory support, which is a support obligation arising from a social obligation is, in many ways, the weakest of the three bases for spousal support since it is a claim that is not connected to the marriage other than to the bare fact of marriage.

Since marriage can now be terminated essentially at will, it is somewhat incongruous that federal legislation would require ongoing support based solely on such a fragile link. Indeed, the lesser importance of the non-compensatory basis for spousal support can be discerned from Parliament ’ s legislative objectives for spousal support awards, each of which is directly connected to the marriage.

In other words, unless a spouse ’ s current need can somehow be tied to the marriage, there is slight legislative support for a purely non-compensatory award. [ 33 ] As a final comment in a discussion of the general principles that should guide this court in assessing this application, I note that the McEachern decision is not of very great assistance to Ms.

Marshall: the parties there had a long marriage, there was a child of the relationship, there was an agreement between the spouses concerning support, and there was a constant relocation by the wife in that case to accommodate herself to her husband ’ s work, whereas the only relocation here seems to be Mr. Marshall ’ s relocation to accommodate Ms. Marshall. On the evidentiary side, the decision is an appeal from a trial, not from a chambers application. 3. Has Ms.

Marshall proved that she is entitled to interlocutory spousal support? [ 34 ] Turning then to the factors and objectives set out by Parliament, the court notes that the evidence presented without significant contest on this application establishes that: - the spouses cohabited from 1997 to 2011, although there were relatively lengthy periods during the last part of that span during which Ms. Marshall was living independently in Alberta; - while the spouses lived together, Ms. Marshall performed the traditional functions of a farm or ranch wife, which were not remunerated directly. Ms.

Marshall had a good deal of free time in which she took employment related courses, which were paid for from matrimonial funds;

- there is no order, agreement or arrangement relating to support; and - there is no child of the marriage. [ 35 ] As to any economic disadvantage suffered by Ms. Marshall arising from the marriage, Ms. Marshall notes the inheritance which she contributed to the matrimonial regime. However, she also acknowledges that a lump sum payment of an almost equivalent amount to the inheritance was made to her during the course of the marriage. She would, of course, have been entitled to half of that amount in any event as her share of matrimonial property.

Therefore the payment to her that allowed her to purchase the RRSP could be considered as a return of half of the inheritance gift that she made to her husband. Ms. Marshall has, of course, a matrimonial property claim outstanding. On this application, the parties do not agree about the reasons why there has not been a settlement of that claim either by way of agreement or by way of trial, but Mr. Marshall indicates that he has made offers of settlement, at least one of which was developed with the assistance of Ms. Marshall ’ s son who is an accountant, which Ms. Marshall ignores.

There are problems connected with the disposition of the matrimonial home since it has been characterized by the parties in a certain way and may now have to account for any benefits received as a result of that characterization. [ 36 ] There is simply no evidence before the court on this application of any other economic disadvantage that Ms. Marshall suffered as a result of the marriage or its breakdown. On the contrary, the only evidence is that, during the course of the marriage, Ms.

Marshall increased the diversity of her work experience, that she was able to increase her training for employment, and that she was able to acquire tack for her horses, etc. She has left the marriage with no debts as Mr. Marshall is paying the mortgage and the farming losses incurred presumably both in Alberta and in Ontario. Moreover, there is no evidence of the standard of living that Ms. Marshall enjoyed while the parties lived together: on the contrary, any of Ms. Marshall ’ s statements are to the effect that her life both in Ontario and in Alberta was extremely difficult. [ 37 ] As to Ms.

Marshall ’ s economic self-sufficiency, although she is an older woman, she is an older woman with a wide variety of employment experience. Ms. Marshall has not presented any medical evidence suggesting that, because of her reported anxiety, depression and vertigo, she is unable to work. She has apparently decided to reside in the Grande Prairie area where there is an economic boom and where there is a great demand for the construction and camp worker type jobs which Ms. Marshall appears to prefer. Nor is there any evidence of any reasonable initiatives that could be undertaken at this stage to promote Ms.

Marshall ’ s further economic self- sufficiency. She has always been able to make a living for herself, before, during and after her marriage. [ 38 ] However, Ms. Marshall has suffered economic hardship as a result of the breakdown of the marriage: she has lost a matrimonial home.

This has ongoing effects: not only has she had to find a means to transport and store her personal belongings, but more importantly she has had to find alternative accommodation in circumstances where her own stake in the matrimonial home has not yet been resolved. [ 39 ] I have concluded that, on this interlocutory application and without purporting to remove any issues for consideration at a jdr or at a trial, Ms. Marshall has only established that she is entitled to a relatively small top-up to the income she ought to be able to earn so as to allow her transition to full independence.

In the result, the court orders Mr. Marshall to pay his wife monthly spousal support of $500.00, commencing on October 1, 2012 and continuing for a period of 6 months. 4. Costs [ 40 ] If the parties are not agreed on costs, I may be spoken to within 30 days from the issue of these reasons. Heard on the 16 th day of May, 2012. Dated at the City of Grande Prairie, Alberta this 14 th day of September, 2012.

J.B. Veit J.C.Q.B.A. Appearances: Velda Marshall, on her own behalf Glenn Taylor, Taylor & Company For Mr. Marshall