Repas v. Repas, 2012 ABQB 572

Court of Queen ’ s Bench of Alberta Citation: Repas v. Repas, 2012 ABQB 572 Date: 20120919 Docket: FL03 23468 Registry: Edmonton Between: Peggy Ann Repas Plaintiff - and - William Alan Repas 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 Madam Justice J. H. Goss _______________________________________________________ Introduction

[ 1 ] The parties married in 1976, separated in 1989, and filed for divorce and division of matrimonial property in 1991. The husband passed away in 2008. The parties never did obtain a divorce. The wife now seeks division of certain matrimonial property. Facts [ 2 ] The parties married in 1976 when the wife was 16 years old. They had two children: a son, born in 1977 and a daughter, born in 1979. The parties separated in 1989 when the wife left the matrimonial home. The wife had left the matrimonial home due to stress on a few previous occasions for periods of time of six months or less.

During those periods the husband was left to care for the children or to arrange for their care. On one such occasion, the children had to move from their home outside of Whitecourt to be cared for in the home of an aunt in Rocky Mountain House for a period of approximately four months. It was the wife ’ s evidence that she had wanted to take the children with her on those occasions when she left, but her husband would not allow it so she left without them. The children recall her leaving them behind.

The wife did not see the children at all while she was gone. [ 3 ] When the wife left the marriage in September of 1989, she initially moved into an apartment in Whitecourt with the parties ’ daughter, while their son continued to reside with his father, spending periods of time at his mother ’ s new apartment. Approximately seven months after the separation, the daughter moved back to her father ’ s home where she has remained ever since.

The father resided in the same home during the entire period of separation, until his death in 2008. [ 4 ] The Statement of Claim in this matrimonial property action was filed in 1991. The parties have never obtained a divorce. [ 5 ] The wife testified that she was a homemaker for most of her married life, only occasionally working outside of the home. The husband worked as a truck driver, which required him to be away from home for long periods of time.

She gave evidence that she was involved in her children ’ s lives, attending such things as parent teacher interviews and extra-curricular activities, some of which she coached. [ 6 ] The property where the matrimonial home is now located was purchased by the parties in 1985. The family first lived in an old home on the property, which was in bad condition. The plan was to build a new log home on the same property. [ 7 ] Building the new home was a slow process. The logs were delivered, had to sit over the winter and were then hand peeled.

The wife gave evidence that she peeled logs, bleached logs, did the daily clean up of saw dust, sealed the grouting on the ceramic tiles and cooked for and fed all of the workers whenever she was there. Her husband took an active role in the construction when he was not working. A contractor and others were also involved in the construction. [ 8 ] The wife recalled in her evidence that the roof was on the new home by 1989 when she left, and that the cabinets, appliances and bathroom fixtures all went into the home in 1990.

The daughter gave evidence that they moved into the new house in the fall of 1990. [ 9 ] The parties completed a Statement of Disclosure for the Canadian Imperial Bank of Commerce as part of an application for a mortgage in June 1987. That Statement indicates that the couple ’ s personal total net worth then was $136,438.08, and the wife confirmed that this was accurate. Between that time and the date of separation, the parties purchased a new dodge truck with financing, a Chrysler 5 th Avenue for $30,000 with financing, and a Gravel Truck worth about $10,000.

She was unaware whether the mortgage had been paid off by the date of separation. Both parties also had RRSPs of approximately $5,000 to $6,000 and monies in personal bank accounts. The husband had incorporated a company in 1987 called Repas Enterprises Ltd. The wife was the secretary and helped with the books.

At the date of separation, there was approximately $40,000 in the corporate bank account. [ 10 ] The wife left the marriage with her RRSPs of approximately $5,000, the money in her bank account amounting to approximately $1,500, the Chrysler 5 th Avenue (which the husband paid off except for the last two payments of $600 each), and a 1974 Ford pick-up truck later sold for $500. The husband also once gave her $200, and paid her fuel with his fuel card for the first nine

months after separation until the wife finished school. At the present time, the wife owns only a 1998 Jeep. [ 11 ] The wife confirmed that after the date of separation she contributed nothing to the family, the company or the properties, other than returning occasionally in the first year to see the children, cook some meals for the children and some of the workmen still working on the new home, and clean the house. The contractor, Arlind Bauer, recalls this occasional involvement; the children do not.

There has been very little contact since that time between the wife and the children, either in person or by telephone. After separation, the husband raised the children himself. The wife and the children are now estranged. It is the wife ’ s belief that the husband alienated the children. The children disagree . [ 12 ] After separation, the husband acquired four more properties. He purchased a lot in 1998 for approximately $15,000 which he held in trust for his son. That property is now in the son ’ s name. He also purchased another property (6 acres) which he held jointly with his daughter.

That property is now in the daughter ’ s name. Furthermore, he and his common law partner, Ms. Larsen, purchased six quarter sections of land in 2004 for about $240,000, which he held in trust for her. That property is now in Ms. Larsen ’ s name. Finally, he held another quarter

section of land in joint tenancy with Ms. Larsen which he transferred to her in 2008. [ 13 ] The husband ’ s company is no longer operating and currently has $43,542.22 in its bank account. When the husband passed away, he also owned some investments (GICs), the RRSPs referred to earlier and his pick up truck.

Issues [ 14 ] Two main issues were raised by the parties: 1) Is an equal division of matrimonial property just and equitable taking into consideration the factors in s. 8 of the Matrimonial Property Act , RSA 2000, c M-8 ( MPA )? 2) Is it is just and equitable to value and divide the matrimonial property as at the date of trial? Positions of the Parties [ 15 ] The wife seeks an equal division of the matrimonial home property, legally described as SW 1/4 of

Section [...], Township 59, Range 12 W of the 5th, and of the assets of Repas Enterprises Ltd. She is not requesting any portion or division of properties that the husband acquired after separation, which are now in the name of the son, the daughter and Ms. Larsen. [ 16 ] It is argued on behalf of the husband that it would be unjust or inequitable to divide the subject property equally or at all, and that the wife is entitled to nothing.

Further, the delay in the proceedings coming to trial could lead to a windfall for the wife given that the property in question has appreciated in value over the period of delay, and therefore the property should be valued as at the date of separation. Law [ 17 ] Division of matrimonial property is governed by the MPA .

Section 7(4) provides: 7(4) If the property being distributed is [non-exempt] property acquired by a spouse during the marriage... the Court shall distribute that property equally between the spouses unless it appears to the Court that it would not be just and equitable to do so, taking into consideration the matters in

section 8 .

[18] The Court of Appeal in J(

D) v J(M), 2009 ABCA 272, 464 AR 16 noted at para. 18 that s. 7(4) establishes a legalpresumption of equal distribution. As a result, it is only where, after considering the factors in s. 8, the court concludes it would be unjustor inequitable to divide the property equally, that an unequal distribution of non-exempt property can be made. [19] Addressing a similar statutory framework in LeBlanc v LeBlanc, (SCC), [1988] 1 SCR 217, [1988] SCJ No6, LaForest J. stated: 10 ... the general principle that each spouse is entitled to an equal share of marital property...must be respected.

In applying that principle,courts are not permitted to engage in measurements of the relative contributions of spouses to a marriage... 11 While a court should,..."be loath to depart from [the] basic rule [of equal division]", it should nonetheless,... exercise its power to doso "in clear cases where inequity would result, having regard to one or more of the statutory criteria set out..." This does not...mean that acourt should put itself in the position of making fine distinctions regarding the respective contributions of the spouses during a marriage.Nonetheless, where the property has been acquired exclusively or almost wholly through the efforts of one spouse and there has been no,or a negligible contribution to child care, household management or financial provision by the other, then, in my view, there arecircumstances relating to the acquisition, maintenance and improvement of property that entitle a court to exercise its discretion... [20] The proper approach to the s. 8 factors was described by the Court of Appeal in Mazurenko v Mazurenko (1981), 1981ABCA 104 , 30 AR 34, [1981] AJ No 23 (CA), leave denied [1981] SCCA No 107: 20 ...The court must ... look at the relevant facts under s. 8 and then ask itself if it would be unjust or inequitable to divide the propertyequally.

That conclusion would not be lightly reached. There must be some real imbalance in the contribution having regard to what wasexpected of each or attributable to the other factors in s. 8. In establishing the presumption I take the Legislature to have decided that inordinary cases equality is the rule... The legislation introduces a discretionary system with the presumption of equal sharing, which issimilar to a deferred sharing scheme with a power of adjustment.

The important point is that both of these schemes recognize "... theprinciple that a husband and wife carry on their married life, including their economic functions, for their mutual benefit and account andaccording to arrangements accepted by both for that purpose. That principle, if accepted, requires that the law provide in some way forthe sharing of their economic gains between the husband and wife"... That is done by the legislation and done with the presumption ofequality... [21] In J(

D) v J(M), The Court of Appeal confirmed that Mazurenko remains the law in Alberta, emphasizing at para. 20 that therespective contributions of the parties will rarely be identical or easily compared. Further, not only do partners allocate expectations andresponsibilities in a manner satisfactory to them, but those responsibilities change and evolve over time. Therefore, it is not realistic torequire that the contributions of each party be equal in order for there to be an equal division.

The Court continued to caution the courtsat para. 23 that they should not embark upon the weighing of each party's respective contribution and divide property proportionate tothe relative contributions of each spouse, because the contribution of each spouse will rarely be the same.

The Court held that thepurpose of the legislation is to avoid a microscopic analysis of the respective roles each party played to determine who did more. [22] As for the date of valuation, it has been clearly established by our Court of Appeal in Hodgson v Hodgson, 2005 ABCA 13,361 AR 190 at para 29 that the appropriate date of valuation for division under the MPA is the date of trial, not the date of separation,and the courts are to deal with any inequities that might arise by applying the factors set out in s. 8.

In some cases the courts have held,using a s. 8 analysis, that the distribution between the parties should not include assets acquired after separation where a party has notcontributed to the property and its increased value is due to the actions or contributions of one party and not the other. For example, inCoulthard v Coulthard, 2002 ABQB 695, [2002] AJ No 1312, and JJM v CDM (Estate), 2008 ABQB 116, 62 RFL (6th) 137, theCourts held that the date of separation should be used for the division of property where the increase in value of the property fromseparation to trial was attributable to only one party.

Analysis [23] I will consider the evidence and arguments in light of the relevant factors set out in s. 8 of the MPA.

i) The contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent [ 24 ] It was argued on behalf of the husband that a comparison of the parent ’ s characters and behavior should be taken into consideration, rendering an equal division unjust and inequitable. Before the parties separated, the wife was a homemaker and the primary care giver for the children. During this period, she left the home for periods of time, leaving the husband to care for or arrange for care of the children.

The husband initially worked in oil field hauling where he was away from his children for long periods. He left that job and started log hauling so that he could be closer to his family and home more often in the evenings. [ 25 ] On separation, the daughter resided with her mother for about seven months until she moved back in with her father and brother. The husband and two children resided together in the new log home. Thereafter, the relationship with the children deteriorated which the wife attributes to actions by the husband to alienate the children.

The children gave evidence that their father did not poison their relationship with their mother, but rather their mother did that herself. There was little to no contact between the wife and her children. The wife did not pay child support to the husband. She had little ability to pay. The wife slowly became estranged. [ 26 ] The reasons for increasingly limited contact and the destruction of the relationship between the wife and her children are not clear on the evidence. The wife sees it one way and the children another.

It is clear, however, that the husband raised the children on his own after the parties separated with no help financially or otherwise from the wife. [ 27 ] The entire history is very unfortunate. It is impossible, after this period of time, and given the fact that the husband is deceased, for this court to determine all of the factors which led the wife to leave on occasion, then for good and for her relationship with her children to deteriorate.

It is this Court ’ s experience that the circumstances are never as “ black or white ” as was suggested on behalf of the husband. ii) The contribution, whether financial or in some other form, made by a spouse directly or indirectly to the acquisition, conservation, improvement, operation or management of a business, farm, enterprise or undertaking owned or operated by one or both spouses or by one or both spouses and any other person [ 28 ] Before separation the wife was the secretary and helped with the books of Repas Enterprises Ltd.

In addition, her work as homemaker and primary caregiver for the children before separation would have enabled the husband to devote time to establishing that business. The wife acknowledges that she contributed nothing to the company nor to the family after separation, other than returning occasionally in the first year to see the children. [ 29 ] It is argued on behalf of the husband that the assets of Repas Enterprises Ltd. should be valued as of the date of separation as any increase in value thereafter is due entirely to the actions or contributions of the husband and not the wife.

The company was incorporated in 1987, two years before separation. The husband continued to operate the company over the next 19 years himself, with some involvement of his son in the later years. iii) The contribution, whether financial or in some other form, made directly or indirectly by or on behalf of a spouse to the acquisition, conservation or improvement of the property [ 30 ] The wife gave evidence that she did some work on the new log house prior to separation. The husband also worked on the construction when he was not trucking.

Again, the wife ’ s support as homemaker and caregiver of the children before separation would have enabled the husband to spend time working on the log house. [ 31 ] The log house was not finished when the wife left. It is argued on behalf of the husband that the value in the log home resulted from the effort and work of the husband and others, much of which took place after separation, raising s. 8 (

f) considerations as property acquired when the spouses were living separate and apart.

[ 32 ] I disagree that these circumstances bring the property within s. 8 (

f) of the MPA . Whether or not the log home strictly falls within the definition of “ matrimonial home ” in s. 1 (

c) of the MPA , it constitutes matrimonial property. The land with the original home in which the family initially resided was acquired in 1985, before separation. Construction of the log home, which was intended to and did replace the original home as the family home, was commenced before separation, although not completed.

In my view, the property was not “ acquired ” through the work done to complete the home after separation, although it was improved to some extent. [ 33 ] The only evidence as to contributions to the increase in value of the matrimonial home property relates to the cleaning up of garbage on the property and the work done by the husband and wife during construction of the new log home on the property both before and after separation.

There was no evidence before me of other improvements made to the property (other than passing reference to a shop built later from the leftover logs) by either of them or at all, either before or after separation. [ 34 ] I am not satisfied, on the evidence before me, that the increase in value of the matrimonial property is due entirely to the actions or contributions of the husband and not the wife.

As stated by the Court of Appeal, the contributions and work of married parties to the accumulation of marital assets will rarely be identical or measure equally and it is not a requirement that the contributions of each party be equal for there to be an equal division. The completion of the log house on the site of the matrimonial home was the culmination of thirteen years of hard work by the couple. The fact of the separation meant that the wife was not present to contribute during the last stages of construction.

Having considered all of the circumstances, I do not find that there was a real imbalance in their respective contributions to the property. iv) The income, earning capacity, liabilities, obligations, property and other financial resources that each spouse had at the time of marriage, and that each spouse has at the time of the trial [ 35 ] At the time of marriage, the wife was 16 years old, and the couple had their first child six months later. The wife had a Grade 8 education and worked outside the home occasionally during their married life. She obtained her Grade 12 equivalency after separation.

Since then, she has worked at various jobs, some paying poorly and some paying somewhat more. [ 36 ] The husband worked as a trucker throughout the marriage and thereafter, building his company. [ 37 ] At the date of trial the wife ’ s only asset is her vehicle. The husband was able to accumulate value in his company, a number of properties, some investments, RRSPs and his vehicle. It is argued on behalf of the husband that this was due to his hard work. Clearly, the husband was able to accumulate assets through his hard work.

However, it is important to note that despite their meagre beginnings, the couple ’ s net worth by the time of the separation would have approached $200,000. The great majority of that asset base was kept by the husband to the exclusion of the wife. She left the marriage with $5,000 in RRSPs and two vehicles, and received virtually no financial support.

v) The duration of the marriage [ 38 ] The duration of the marriage was 32 years but the parties were separated for 19 of those years prior to the husband ’ s death. vi) A previous distribution of property between the spouses by gift, agreement or matrimonial property order [ 39 ] As mentioned above, the wife left the marriage with approximately $35,500 worth of assets (on paper), and little education or outside work experience.

At separation, the husband retained his personal accounts, RRSPs and trucks, and he continued to reside in the matrimonial home and carry on operating his company. vii) Any fact or circumstance that is relevant [ 40 ] The wife notes that no spousal support was ever paid to her by the husband.

[ 41 ] It was argued on behalf of the husband that the delay in the proceedings should be taken into consideration. It was also argued on behalf of the husband that the date of separation ought to be used as the valuation date, not the date of trial, as the increase in value of all of the matrimonial property is due entirely to the actions or contributions of the husband and not the wife. [ 42 ] The wife submits that the husband could also have moved the proceedings along himself, noting that he was in a better position financially to do so.

She testified that the delay in proceedings was due to both a lack of money for legal counsel, delay occasioned by the husband in letting his counsel go twice when negotiations were close to conclusion, and her desire when the children were younger not to put her husband in a position where he would have to sell the matrimonial home in order to be able to both pay out her share of the matrimonial property and pay for the children ’ s schooling. She stated that she waited, for this reason, until the children were finished school prior to pushing the matrimonial property action forward.

She gave evidence that on three occasions when she attempted to have contact with her son or her daughter, the children made that contact conditional on her discontinuing the action. In this regard, it is interesting to note that her son gave evidence that he understood his mother to be unwilling to settle the litigation. [ 43 ] I do not find the delay in these proceedings to be the clear result of the actions of either party.

Neither moved the action forward, nor did settlement occur. [ 44 ] As for the argument that the wife might receive a windfall due to the delay, it should again be noted that the husband benefited throughout his life from the asset base which the wife helped to create over the 13 years prior to the separation. The husband had the use of the matrimonial property in question over the entire 19 years of separation. The wife left the marriage with very little.

Had she received her share of the matrimonial assets at or closer to the date of separation, she might have used that money to improve her overall position, as in fact the husband proceeded to do. [ 45 ] Having considered the evidence in light of the relevant s. 8 factors, I conclude that it would be just and equitable to order an equal distribution of the matrimonial home property in question valued as at the date of trial.

The presumption of equality remains and any increase in value in that property over the years of separation shall benefit both equally. [ 46 ] There was no evidence before me as to the actual value of the matrimonial home property at the date of trial, and therefore I am not able to attribute a monetary value to this asset. [ 47 ] With respect to the business, I find, after considering the applicable s. 8 factors, that it would not be just and equitable to order an equal division of the value of this asset as of the date of trial, as there was a real imbalance in contribution after separation.

The wife ’ s contribution stopped entirely after separation and the increase in value of the company thereafter resulted entirely from the husband ’ s hard work. Therefore, the wife is entitled to that portion of the asset representing half of the value as of the date of separation. [ 48 ] I have only the wife ’ s evidence regarding the value of this corporate asset at the date of separation. She stated that there was $40,000 in the corporate bank account at the date of separation.

I accept this value. [ 49 ] With respect to the other property taken and retained by each of the parties at the date of separation, the evidence was somewhat vague. No further equalization was requested. The wife does not seek any division of properties that the husband acquired after separation. Conclusion [ 50 ] There will be a division of the matrimonial property as outlined above. [ 51 ] Should the parties require further direction in order to carry out the division, they are free to speak to me within 60 days of this decision.

Costs [ 52 ] The parties may also speak to costs within 60 days of this decision. Heard on the 4 th , 5 th and 6 th days of September, 2012. Dated at the City of Edmonton, Alberta this 18th day of September, 2012. J. H. Goss J.C.Q.B.A. Appearances: Russel G. Horne for the Plaintiff Larry E. McConnell, Q.C. for the Defendant