Van Slyke v. Van Slyke, 2012 ABQB 721

Court of Queen ’ s Bench of Alberta Citation: Van Slyke v. Van Slyke, 2012 ABQB 721 Date: 20121128 Docket: 4803 147965 Registry: Edmonton Between: David Mervin Van Slyke Plaintiff - and - Monica Leonora Patrizia Van Slyke Defendant - and - Christopher Van Slyke Third Party _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________

[ 1 ] David Van Slyke seeks a divorce from Monica Leonora Patrizia Van Slyke and division of matrimonial property. The divorce is uncontested. The issues requiring determination relate to the division of matrimonial property. [ 2 ] David Van Slyke and Monica Van Slyke were married on July 31, 1999 when David Van Slyke was 38 years old and Monica Van Slyke was 41. They separated in October 2008. This action was commenced in November 2008. [ 3 ] The evidence presented satisfies the requirements for the granting of a divorce judgment and I therefore do so.

There will be a divorce judgment in the usual form dated the date of these Reasons. [ 4 ] Monica Van Slyke had been married and divorced twice before she married David Van Slyke. Her son was born during the first marriage. Her daughter was born during the second. David Van Slyke legally adopted Christopher Van Slyke by adult adoption after he turned 18. [ 5 ] Both of her previous divorces were effected without dispute or litigation. She received no property from the first divorce. She worked and had acquired some property by the time of the second marriage.

In the second divorce both she and her second husband kept the property they had at the start of the short marriage. After that divorce Monica Van Slyke continued to work to provide for her children and acquired further assets. [ 6 ] The matrimonial property dispute relates entirely to property owned by Monica Van Slyke. David Van Slyke had no significant property at the commencement of the marriage and acquired none during the marriage.

He claims a right to a distributive share of the property of Monica Van Slyke under the provisions of the Matrimonial Property Act . [ 7 ] In almost all instances his claim is to a distributive share of the increase in value of property which is itself exempt from distribution under the MPA. This is property to which s. 7(3) of the MPA applies.

There are two instances of property which is not exempt from distribution and to which the equal division presumption of s. 7(4) of the MPA applies. [ 8 ] In the Reasons which follow I first determine the distributable value in respect of the various assets which were identified and discussed in the evidence and submissions of counsel. I then consider and determine the just and equitable distribution of that value between the parties. The Commercial Condominium [ 9 ] When David Van Slyke and Monica Van Slyke met, David Van Slyke was operating a hair salon business in Camrose, Alberta.

He was living in his parents ’ home. David and Monica Van Slyke decided that upon their marriage, David Van Slyke would close the Camrose business, move into Monica Van Slyke ’ s home in Edmonton, and open a new hair salon business in Edmonton. [ 10 ] On July 10, 1999, a few weeks before the marriage, Monica Van Slyke (then Monica Henderson) and David Van Slyke entered into a Real Estate Purchase Contract to buy a commercial condominium in Edmonton for $69,000. The commercial condominium was to be used as the premises of David Van Slyke ’ s new hair salon.

The sale closed on August 20, 1999, a few weeks after the marriage. Title to the property was put into David Van Slyke ’ s name alone. [ 11 ] Monica Van Slyke provided all of the $69,000 used to purchase the commercial condominium. It is clear that she held these funds prior to the marriage, and that therefore, before they were used to purchase the commercial condominium, they were exempt from distribution under the MPA. [ 12 ] The documentary evidence establishes that putting the commercial condominium title into David Van Slyke ’ s sole name was deliberate on the part of Monica Van Slyke.

The evidence includes a copy of the handwritten message Monica Van Slyke sent, with the

funds required to close the purchase, to the lawyer who handled the conveyance. The lawyer wrote his own note on this message. It says: - just Daves name for now – she has been m. 2X before & knows about the potential problems Monica Van Slyke understood the significance of having put title in Daniel Van Slyke ’ s name, if the marriage ended and distribution of matrimonial property was necessary. [ 13 ] Monica Van Slyke testified that the title was put into David Van Slyke ’ s name because it was to be his business.

It was anticipated that the business would succeed and in due course it would provide sufficient income that Monica Van Slyke would be able to stop working. She further testified that her advance of the funds to purchase the property was a loan to be paid back when the business was a success. [ 14 ] The documents put in evidence by David Van Slyke include the first page of a document entitled “ Sales Verification Form ” dated August 21, 1999. It appears to have been filled out by Monica Van Slyke for David Van Slyke. In a

section dealing with the financing of the purchase, there is a handwritten entry which says: I took a personal loan - line of credit - thru my wife. There is no evidence as to whom, if anyone, or for what purpose the representations in this document were made. [ 15 ] In his testimony David Van Slyke acknowledged that he did not contribute anything to the purchase of the property, but denied that Monica Van Slyke advanced the funds as a loan. He testified that he did not expect to have to pay any part of the funds back. [ 16 ] A year into the marriage and the business, the business was not showing a profit.

Monica Van Slyke ’ s evidence was that the business expenses exceeded the income and she was making up the difference from her own resources. In August 2000 the commercial condominium title was transferred into both of their names. Monica Van Slyke testified that this was done because she took the position that if she was financing the business losses she wanted her name on the title to the business property. [ 17 ] The business never succeeded financially. Monica Van Slyke testified that it operated at a loss for the 6 years it was open. She funded the losses which amounted to about $16,000 in total.

In June 2005 the parties decided to close the business. The commercial condominium was sold for $112,000. The proceeds were paid to Monica Van Slyke and she put them in her bank account. She testified, that, also by agreement, she kept the proceeds of the sale of the property as she had provided all the funds to acquire the property in the first place. [ 18 ] Monica Van Slyke testified that David Van Slyke sold the equipment that had been used in the business for about $20,000 and, with her agreement, he kept those proceeds.

David Van Slyke, who testified before Monica Van Slyke, was not asked about the disposition of the chattels. There was no documentary evidence on the subject. In these circumstances I am unable to attach weight to Monica Van Slyke ’ s evidence on this point. [ 19 ] David Van Slyke testified that the net proceeds of the sale of the commercial condominium went to Monica Van Slyke. He acknowledged that he probably signed a document authorizing that payment. He denied telling her that she could have the proceeds because she had paid for the condominium in the first place.

He acknowledged that he did not demand that she pay him some of the those proceeds at the time of the sale, which was about 3 years before the parties separated. [ 20 ] David Van Slyke ’ s position is that any exemption that applied to the funds used to purchase the commercial condominium was lost when title to the property was put in his name. He claims entitlement to half of the proceeds of sale, $56,000, plus what that sum earned after it was paid into Monica Van Slyke ’ s bank account.

[21] Monica Van Slyke presented alternative analyses. First, she submitted that her advance in August 1999 of the purchase fundsshould be characterized as a loan to David Van Slyke which she made with exempt funds. The receivable loan retained its exemptstatus. The loan should be deemed to have been repaid when the property was sold. The sale proceeds not required to repay the loanamount to $43,000.

That plus the amount those funds have earned while in the investment account are, she submits, the value to bedistributed. [22] The alternate analysis submitted by Monica Van Slyke involved, in effect, ignoring the fact that title was initially put inDavid Van Slyke’s name alone and treating the transaction as if title had gone into both names at the start so that an exemption of half ofthe value survived. [23] In my view, the evidence does not justify either of the alternative analyses offered by Monica Van Slyke. The evidence doesnot permit characterization of the advance of funds by Monica Van Slyke as a loan.

The Sales Verification Form does not suggest thatthere was a loan by Monica Van Slyke to David Van Slyke. By referring to a “line of credit” it suggests that David Van Slyke borrowedthe funds from a financial institution. Without evidence as to the purpose for which that statement was made, or to whom it was made,or that David Van Slyke even knew of it, the evidence is of little weight. There was no loan agreement signed. There was no chargeregistered against the land in favour of Monica Van Slyke.

I am not satisfied that the transaction was intended as a loan. [24] In my view, the correct analysis is that the exemption attaching to the funds used to buy the property was lost when theproperty was put in David Van Slyke’s name. The entire property became “matrimonial property” subject to distribution. [25] As mentioned, the proceeds were paid into a bank account. Monica Van Slyke acknowledges that their value grew further inthat account.

Though the records for that account have been produced, and they show that interest was paid monthly on the balance inthe account, no analysis of the earnings realized on the funds in the account, or any portion of them, has been provided. [26] Monica Van Slyke also held a TD Waterhouse investment account in which she deposited a substantial inheritance shereceived from her father’s estate. This account is an asset considered later in these Reasons.

The evidence indicates that on July 31, 2012,6 weeks before trial, the market value of the non-registered portion of the investment account was 104.4% of the book value. MonicaVan Slyke proposed to use 4.4% as the growth rate of funds put into the interest bearing bank account (into which the commercialcondominium sale proceeds were paid) on the basis, I presume, that this is a reasonable rate and is about what the funds would haverealized if they had been invested. She proposed that 4.4% be used as the total growth rate, not an annual growth rate. David Van Slykedid not respond to this proposal.

He neither disputed it nor offered any alternative proposal. In my view, it is a reasonable approach. [27] An adjustment to the proceeds amount is necessary. The evidence is that the business operated in those premises lost$16,000 over the 6 years it operated. Monica Van Slyke covered those losses. That amount should be deducted from the sale proceeds. The adjusted proceeds amount to ($112,000 - $16,000) $96,000. [28] I find that the fund traceable to the sale of the commercial condominium and available for distribution under the MPA is$100,224 (104.4% of $ 96,000).

The rebuttable presumption of equal division created by s. 7(4) of the MPA applies to this fund. The Skaha Residential Condominium [29] In August 2001, the parties purchased a residential condominium in Penticton, British Columbia for $59,000. In thislitigation it was referred to as the “Skaha condo” (to distinguish it from a second residential condominium Monica Van Slyke laterbought in Penticton, the “Yorkton condo”.) The funds used for the purchase were received by Monica Van Slyke by inheritance from herfather.

Before the funds were used to purchase the Skaha condo they were clearly exempt from distribution under the MPA. [30] The title to the Skaha condo was put into the names of both parties jointly. Applying Harrower v. Harrower (1989) (AB CA), 68 Alta. L.R. (2d) 97 (Alta. C.A.), this had the effect of reducing the exemption by one-half. The exemption inrespect of one-half of the purchase funds was lost. $29,500 of the property remained exempt. The other $29,500 worth of the propertywas subject to division as matrimonial property.

[31] The Skaha condo was sold in June 2006 for $130,976. The growth in the value of the asset during the time it was owned bythe parties was therefore $71,976. [32] Monica Van Slyke submitted that the growth in value should be apportioned equally between the exempt portion of theproperty and the non-exempt portion. That submission is in error. The MPA in s. 7(3) requires that the entire increase in market valueduring the marriage be distributed between the spouses. See Carmichael v. Carmichael (2007) 2007 ABCA 3 , 404 A.R. 144(Alta.

C.A.) at para. 20. [33] The sale proceeds ($130,976) were paid to Monica Van Slyke. $117,000 of those proceeds can be traced into her bankaccount. The remainder, $13,976 cannot be traced. That portion of the proceeds appears to have been dissipated during the marriageand is not available for distribution.

The amount dissipated, in my view, must be apportioned between the exempt and non-exemptportion of the sale proceeds. [34] As discussed above, the $117,000 should be deemed to have grown by 4.4% to the date of trial. [35] Therefore, at the time of trial the distributable fund traceable to the sale of the Skaha condo is $94,635 calculated as follows: Non-exempt value of the condo at acquisition $ 29,500 Exempt portion of the value at acquisition 29,500 Gross Proceeds of Sale 130,976 Proceeds of Sale net of exempt portion 101,476 Percentage of sale proceeds not exempt 77.48% Dissipation attributable to non-exempt proceeds 77.48% of $13,976 10,829 Deduct dissipation ($101,476 - $10,829) 90,647 Fund for distribution (104.4% of $90,647) $ 94,635 The rebuttable presumption of equal division created by s. 7(4) of the MPA applies to this fund.

The Edmonton Residence [36] Monica Van Slyke owned the Edmonton residence at the time of the marriage in July 1999. She had bought it in November1987 for $45,000. The only evidence of its value at the time of the marriage is in the form of a realtor’s letter, admitted in evidence byagreement, which says, Historical Market value for July of 1999 would be $120,000-$150,000. The parties appear to be agreed that on the basis of this evidence the value as at the date of marriage should be found to have been

$135,000. [ 37 ] In 2008 Monica Van Slyke had renovations done to the house. The evidence indicates they cost approximately $60,000. [ 38 ] The documents presented by Monica Van Slyke and admitted in evidence by agreement include 3 appraisal reports prepared by a qualified appraiser. Two of the appraisal reports are as to the value of the house on October 1, 2008 (the approximate time the parties separated). On the first appraisal report, though the renovations had been done by that date, the appraiser values the house as if the renovations had not been done.

In his opinion the value of the un-renovated house on that date was $293,000. On the second report he values the renovated house as at October 1, 2008 at $320,000. On the third report he values the house as at September 10, 2012, a week before trial, at $355,000. [ 39 ] The house was property acquired by Monica Van Slyke before the marriage. Under s. 7(2) its value at the time of the marriage, $135,000, is exempt. The increase in value during the marriage was $220,000.

On the evidence, part of that increase in value, $27,000, is attributable to the renovations which were paid for entirely by Monica Van Slyke using funds she inherited from her father ’ s estate. The value of the renovations is therefore exempt from distribution. [ 40 ] The appreciated value available for distribution therefore is $193,000. This is the increase in value of an originally exempt asset. The equal division presumption of MPA s. 7(4) does not apply. By MPA s. 7(3), I am to distribute it in the manner I consider just and equitable taking into consideration the factors set out in s. 8 of the MPA.

I will present my analysis in that regard later in these Reasons. The Yorkton Residential Condominium [ 41 ] In October 2003, Monica Van Slyke bought a second residential condominium in Penticton, British Columbia. This was referred to as the “ Yorkton condo ” in this litigation. She paid $111,000. These funds came entirely from her inheritance from her father ’ s estate. At the time of its acquisition, therefore, the Yorkton condo was exempt from distribution under the MPA . [ 42 ] The evidence establishes that the Yorkton condo is now worth $193,000. The increase in value is therefore $82,000.

Being the increase in value of an originally exempt asset, the increase in value is not subject to the equal distribution presumption of s. 7(4). I am to distribute it in the manner I consider just and equitable. Again my analysis in that regard is presented later in these Reasons. The Edmonton Residential Condominium [ 43 ] In June 2009 Monica Van Slyke and a long time friend together bought a residential condominium in Edmonton as a business investment. The purchase price was $307,000. Monica Van Slyke contributed $159,510.68 to the purchase.

The source of these funds was Monica Van Slyke ’ s inheritance from her father. At the time of the purchase, title was put in the name of Monica Van Slyke and her friend. [ 44 ] In December 2009, Monica Van Slyke purchased her friend ’ s interest in the Edmonton condominium for $140,000. The source of these funds was also Monica Van Slyke ’ s inheritance from her father.

At that point the title to the condominium was put into the name of Monica Van Slyke ’ s son, Christopher Van Slyke and he moved into the condominium as his residence. [ 45 ] Monica Van Slyke ’ s interest in the Edmonton condominium, for which she paid about $300,000, using funds exempt from distribution under the MPA was itself exempt. Under s. 7(3) any growth in the value of that property during the marriage is subject to distribution. [ 46 ] The evidence admitted by agreement includes an appraisal of this property as of September 10, 2012.

The appraiser valued the Edmonton condominium at $238,000 as of that date. Therefore there has been no growth in the value of the exempt investment during the marriage. In respect of the Edmonton condominium, there is nothing to distribute under the MPA.

RRSP Account [ 47 ] Monica Van Slyke has a RRSP investment account. The account is the successor of an RRSP account she owned at the time of the marriage. The evidence indicates that she contributed a total of $22,247 to the RRSP account during the marriage. The source of all of these contributions is traceable to monies received by Monica Van Slyke as inheritance from her father ’ s estate. [ 48 ] As of July 31, 2012 the book value was $106,144.36 and its market value was $112,994.81.

Though it probably resulted in an overstatement of the growth of the exempt asset during the marriage, Monica Van Slyke proposes that the difference between these figures be used for that purpose. The fund for distribution under MPA s. 7(3) is therefore $6850. TD Waterhouse Investment Account [ 49 ] The total amount which Monica Van Slyke inherited from her father ’ s estate was $1,215,742.56. She received these funds in 25 payments between February 2001 and December 2009.

There have been several references so far in these Reasons to her use of portions of the inherited funds to acquire assets, including the Skaha condo, the Yorkton condo, the renovations to her Edmonton residence, the Edmonton condominium, and the RRSP account. [ 50 ] Monica Van Slyke also invested $653,764 of the inherited funds in a TD Waterhouse investment account. This is the account referred to above in paragraph [26]. She made 6 deposits, totalling that amount, into this account between March 2006 and November 2008. The investment was of exempt funds.

Only the growth in the value of the portfolio during the marriage is subject to distribution under s. 7(3) of the MPA. [ 51 ] The statement for this account dated July 31, 2012 shows a book value of $513,049.10 and a market value of $535,827.17. Monica Van Slyke submitted that because the market value appears to be less than the amount she invested, there has been no growth in the value of this investment. [ 52 ] Though the account has existed for more than 6 years, only 5 of the monthly statements relating to it were put in evidence. Some of these appear to be incomplete.

The only withdrawals from the account shown on these statements are 3 withdrawals of $3000 each, for a total of $9000. [ 53 ] Because the July 31, 2012 book value is about $118,000 less than what Monica Van Slyke invested in the account, I infer, that there have been withdrawals from the account in at least that amount. This point was not addressed by either counsel either in the evidence or in their submissions.

The conclusion that because the market value is lower than the amount invested, there has been no growth in the investment, is not justified. [ 54 ] The evidence on the question of what growth there has been is unsatisfactory. In my view, it is reasonable to apply the same reasoning as Monica Van Slyke proposed in respect of other assets as described above in para. [26]. I will impute 4.4% growth in this asset during the marriage. The fund for distribution under MPA s. 7(3) in respect of the TD Waterhouse investment account is (4.4% of $653,764) $28,765.

TD Bank Account No. ***6975 [ 55 ] Monica Van Slyke has a TD Bank account with a balance of $10,503.59 as of July 31, 2012. Complete records for this account from January 1, 2001 to July 31, 2012 are in evidence. Almost all of the deposits into this account were the funds Monica Van Slyke inherited from her father ’ s estate. The inherited funds did not stay in the account for long. They were paid out of the account and into the TD Waterhouse investment account or some other investment shortly after they were received.

There were a few deposits, totalling about $40,000, that could not be linked to inheritance funds. Their source was not identified in the evidence. There were also payments out of this account for some expenses of Christopher Van Slyke. These included his university tuition expenses.

[ 56 ] Though there was interest paid monthly on the balance in this account it does not appear to have ever been a significant amount. [ 57 ] Neither counsel offered any evidence or submissions as to what growth in this largely exempt asset there was during the marriage. I am not satisfied that there was any growth. In my view there is no distributable value relating to this asset. Employment Pension [ 58 ] Monica Van Slyke was employed for many years by an agency of the Government of Alberta. She retired from the employment. The evidence indicates that she has a LAPP pension entitlement.

The only evidence adduced indicates that her pension contributions with interest stood at $33,849.70 as of 2011. The document indicates that contributions began in November 1995. It also indicates that as of the end of 2011 the estimated monthly pension to which she would be entitled at age 55 was $780. [ 59 ] The evidence is silent as to what contributions were made during the marriage. The evidence does not permit a determination of what portion of the pension asset is distributable under the MPA . Distributable Fund [ 60 ] In

summary, the preceding analysis indicates that the property available for distribution is: Assets not subject to presumption of equal division (MPA s. 7(3)) Growth in value of: Edmonton residence $193,000.00 Yorkton condo 82,000.00 RRSP account 6,850.00 TD Waterhouse investment account 28,765.00 Total $310,615.00 Assets subject to rebuttable presumption of equal division (MPA s. 7(4)) Commercial condominium sale proceeds $100,224.00 Skaha condo sale proceeds 94,635.00 Total $194,859.00 Distribution of Assets Not Subject to the Presumption of Equal Division - The s. 7(3) Assets

[ 61 ] As noted, under MPA s. 7(3), where property of a spouse is exempt at the time of its acquisition or at the time of the marriage, the difference between the exempt value and the market value of property at the time of trial is distributable in the manner the Court considers just and equitable taking into account the matters listed in MPA s. 8. [ 62 ] Monica Van Slyke submits that consideration of the s. 8 matters justifies the conclusion that the s. 7(3) assets should be distributed to her alone.

David Van Slyke submits that a just and equitable distribution with respect to this property would be an equal division between the parties. [ 63 ] I consider each of the s. 8 factors which have significance or relevance in this case: (

a) 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 [ 64 ] There were 4 witnesses at trial, the parties and Monica Van Slyke ’ s 2 adult children. I have considered the evidence each gave relevant to the s. 8(

a) factor. I find that during the 9 years the “ family ” existed, Monica Van Slyke ’ s contribution as a homemaker and a parent was very significantly greater than that of David Van Slyke. Monica Van Slyke worked as the executive assistant to the Vice President of Human Resources for Caritas Health Group, did most of the housework, most of the cooking, and most of the parenting. The family lived mainly on her income. She provided their residence.

In the year or so prior to their separation, after his income from employment improved, David Van Slyke paid Monica Van Slyke $1000 for room and board. [ 65 ] David Van Slyke testified that he contributed to the household by doing what Monica Van Slyke asked him to do. Monica Van Slyke disputed the accuracy of that evidence. I find that David Van Slyke made little contribution to the household. He spent most of his time working in his unsuccessful hair salon business and for some of the time in a second job at Ikea. His earnings while he was operating the hair salon were modest.

He did only a modest amount of housework. [ 66 ] Christopher Van Slyke testified that the combined contribution of himself, his sister and his father, David Van Slyke, to maintaining the home was significantly less than the contribution of Monica Van Slyke. Michelle Williams, Monica Van Slyke ’ s daughter, testified that as to housework, her mother, Monica Van Slyke, did everything: the cleaning, the laundry, the cooking. [ 67 ] As to parenting, the children who lived in the home during the time the parties were together were 9 and 13 at the time of the marriage.

David Van Slyke testified that he assisted with parenting the children. He testified that the younger child presented significant parenting challenges and that he provided Monica Van Slyke with emotional support as she made efforts to meet those challenges. The child in question, now an adult and a mother herself, testified that when she had problems as a child it was Monica Van Slyke who helped her. She testified that David Van Slyke ’ s role was to work “ at my Mom ’ s hair salon ” . (

b) 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 [ 68 ] Monica Van Slyke gave very significant support to the hair salon business which, at least nominally, was David Van Slyke ’ s business. Her money was used to buy the premises in which the business was conducted. She did the business ’ books and tax returns.

She paid the expenses of the business that were not covered by its earnings. She paid David Van Slyke ’ s personal bills which his earnings were insufficient to cover. [ 69 ] David Van Slyke operated the business. He, however, could not make it succeed. Though it operated for 6 years it never turned a profit. He testified that this was because it was not in a good location. He indicated that Monica Van Slyke had chosen the location.

Monica Van Slyke testified that in her assessment the business failed because David Van Slyke did not give it adequate effort. [ 70 ] When the business was sold, David Van Slyke took a job at the airport and thereafter did considerably better financially.

Monica Van Slyke testified that she found him the airport job. (

c) 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 [ 71 ] David Van Slyke made no contribution of any type either directly or indirectly to two of the assets now under consideration; the growth in the RSP Account and the TD Waterhouse investment account. [ 72 ] Neither did he make any direct or indirect financial contribution to either of the other two assets; the Edmonton residence and the Yorkton condo.

His contribution to the conservation or improvement of the Edmonton residence was minimal. He testified that he fixed the fence and the garbage hut and did some painting. As to the Yorkton condo, he testified that in a period when he had no job, he went to Penticton for 6 weeks to organize renovation work on the condo.

Monica Van Slyke testified that there were only minimal renovations done to the Yorkton condo and that she paid for them. [ 73 ] All of the capital represented by the assets now under consideration came from Monica Van Slyke either through her pre- marriage savings or through inheritance from her father ’ s estate. The assets available for distribution under s. 7(3) are the growth in the value of those capital assets during the marriage. Much of that growth in value is the result of market forces entirely out of the control of both parties. The parties were never a financial unit.

On that level Monica Van Slyke conducted her financial affairs after the marriage largely in the same way she conducted them before the marriage: alone. (

d) the income, earning capacity, liabilities, obligations, property and other financial resources (

i) that each spouse had at the time of the marriage, and (ii) that each spouse has at the time of trial [ 74 ] Monica Van Slyke was employed as executive assistant to the Vice President of Human Resources of Caritas Health Group at the time of the marriage. She continued in that employment until the fall of 2007 when she was off work for an extended time for health reasons. When her sick leave was over she decided not to return to work. The income from the investment of her inheritance from her father provides her with a very modest income.

Her annual income after leaving her job was less than half what it was at the start of marriage. There is no indication in the evidence that she has any debt. She paid off the mortgage on her residence before the marriage. She is 54 years old. [ 75 ] David Van Slyke had a hair salon in Camrose immediately prior to the marriage. He owned no property except a car. At the time of the marriage he closed the Camrose business and opened a new hair salon in Edmonton. Monica Van Slyke provided all of the capital required for that business. The business was operated for the first 6 years of the marriage.

It always operated at a loss. It was shut down in 2006 and David Van Slyke got a job at the airport. His annual personal income more than doubled after he left the hair salon and went to work at the airport. The evidence indicates he has about $14,000 in outstanding credit card and car loan debt. He is 51 years old. [ 76 ] I find that Monica Van Slyke is significantly less financially secure than she was at the start of the marriage. And the financial security she has depends very heavily on the capital she owns almost entirely as a result of having received a large inheritance from her father ’ s estate.

I find that David Van Slyke is significantly more financially secure than he was at the start of the marriage because he is now employed in a job that yields a significantly greater income than the employment he had during the first 6 years of the marriage. He had no capital at the start of the marriage. Subject to the outcome of this case, he is in the same position now. (

e) the duration of the marriage [ 77 ] The parties were married in 1999. They separated in 2008. They have now been married for 13 years. They were together

for 9 years and separated for 4 years of their marriage. [ 78 ] In my view the force of David Van Slyke ’ s claim to a share of the growth in the value of the exempt assets is significantly weaker that it would be had these parties been married for significantly longer. (

f) whether the property was acquired when the parties were living separate and apart [ 79 ] As noted several times, the property now under consideration is the growth in the value of 4 assets which are themselves exempt from distribution under the MPA. Some portion of the growth must have occurred during the 4 years the parties have been separated. The evidence does not establish how much. In my view it is reasonable to assume that a significant portion of the total growth value of $310,615 was “ acquired ” when the parties were living separate and apart. (

g) the terms of an oral or written agreement between the parties [ 80 ] Monica Van Slyke testified that prior to the marriage she proposed that the parties enter a pre-nuptial agreement but that David Van Slyke declined to do so. She did not press the point, she testified, because David Van Slyke said he would never claim an interest in her assets. David Van Slyke testified that there was never any such proposal or conversation. The evidence is insufficient to prove that there was an oral agreement between the parties. This factor is not applicable to the consideration of a just and equitable distribution in this case. (

h) that a spouse has made (

i) a substantial gift of property to a third party, or (ii) a transfer of property to a third party other than a bona fide purchaser for value [ 81 ] Monica Van Slyke transferred the Yorkton condo into her son ’ s name shortly after the parties separated. She says this was a gift. When David Van Slyke took proceedings against Christopher Van Slyke, the property was transferred back into Monica Van Slyke ’ s name. In effect the gift was revoked. The transfer does not have any significance to the determination of a just and equitable distribution of the assets now under consideration.

Indeed the growth in value of the Yorkton condo is one of those assets. [ 82 ] The Edmonton residential condominium was transferred to Christopher Van Slyke. The evidence of both Monica Van Slyke and Christopher Van Slyke was that this was not a gift. Rather, Christopher is indebted to Monica Van Slyke for $300,000, the value of the condominium. I accept that evidence. It renders Christopher Van Slyke a bona fide purchaser for value. In any event, the evidence, as previously noted, was that the Edmonton residential condominium has declined in value. There has been no growth in its value during the marriage.

David Van Slyke has not be prejudiced by its transfer to Christopher Van Slyke. [ 83 ] I conclude that there is nothing in the circumstances to render this s. 8 factor of significance in the determination of a just and equitable division of the s. 7(3) assets. (

m) any fact or circumstance that is relevant [ 84 ] In my view, it is relevant to a determination of a just and equitable distribution of the s. 7(3) assets that, as determined below, David Van Slyke is entitled to a significant share of the s. 7(4) assets, which were also acquired with funds which were exempt before they were used to purchase the s. 7(4) assets.

[ 85 ] Further, David Van Slyke ’ s interest in the s. 7(4) assets is in both their capital value (or a portion of it) and the growth in that value. His interest arises because the property in question or a legal interest in it was put in his name when it was purchased. That he was given a legal interest in the property creates a connection or link between the marriage and the property which does not exist in respect of any of the s. 7(3) property.

The lack of such a link in respect of the s. 7(3) assets is, in my view, relevant to the determination of a just and equitable distribution of the growth in the value of those assets during the marriage. Conclusion as to the s. 7(3) Assets [ 86 ] In my view, consideration of the s. 8 matters discussed above justifies the conclusion that it is just and equitable to distribute the s. 7(3) assets, the growth in value of the assets exempt from distribution during the marriage, to Monica Van Slyke alone. It would not be just and equitable for David Van Slyke to receive any portion of the s. 7(3) assets.

Distribution of Property Subject to the Presumption of Equal Division - The s. 7(4) Assets [ 87 ] In my view, the matters considered above, though they justify the distribution indicated with respect to the s. 7(3) assets, do not justify deviation from the presumption of equal division in respect of the s. 7(4) assets. [ 88 ] The s. 7(4) assets, the Skaha condo and the commercial condominium, were both acquired very early in the marriage.

Clearly Monica Van Slyke intended to give David Van Slyke a portion of the exempt funds she held at the time the properties were acquired – the portion required to give him an interest in the two properties which he acquired. There is a clear link between these properties and the marriage.

The lesser contribution David Van Slyke made to the household and parenting and to the other matters previously discussed is largely irrelevant to the question of whether he should now have the benefit which Monica Van Slyke intended him to have when the properties were acquired. [ 89 ] I find that an equal division of the s. 7(4) assets is just and equitable. [ 90 ] David Van Slyke will have judgment against Monica Van Slyke for ($194,859 ÷ 2) $97,429.50. [ 91 ] If the parties are unable to agree as to a costs disposition they may contact my office to arrange for a process by which costs will be addressed, so long as they do so before December 20, 2012.

Otherwise, each party will bear their own costs in respect of the claim proper. The Third Party Claim - MPA s. 10(3) Notice - Against Christopher Van Slyke [ 92 ] As noted, Christopher Van Slyke is the natural son of Monica Van Slyke and the adopted son of David Van Slyke. David Van Slyke served Christopher Van Slyke with notice under s. 10(3) of the Matrimonial Property Act alleging that Monica Van Slyke gave Christopher Van Slyke money and property in an attempt to defeat David Van Slyke ’ s claim for division of matrimonial property.

David Van Slyke seeks an order requiring Christopher Van Slyke to pay what he received from Monica Van Slyke into Court. [ 93 ] Christopher Van Slyke admits receiving title to the Yorkton condo as a gift from his mother but denies that it was given to him with the intent of defeating any claim by David Van Slyke. He testified to the same effect and I accept his evidence. [ 94 ] I also accept the evidence of Monica Van Slyke that she transferred the Yorkton condo to Christopher Van Slyke because he had job opportunities in the area and she anticipated he would be able to live in it.

That she owned the Yorkton condo was known to David Van Slyke at all times. It seems to me very unlikely she could have expected to defeat any claim he might have to an interest in the growth in its value by transferring it to her son. This, in my view, supports the conclusion that she had no such intention.

[ 95 ] After the s. 10(3) notice was served on him, Christopher reconveyed title to the Yorkton condo to Monica Van Slyke. This rendered the proceedings against Christopher Van Slyke in respect of the Yorkton condo redundant. David Van Slyke did not, however, abandon the proceedings.

He maintained them in respect of the Edmonton residential condominium which Monica Van Slyke bought with exempt funds and which she also transferred to Christopher Van Slyke. [ 96 ] Monica and Christopher Van Slyke both testified that the transfer of the Edmonton residential condominium to Christopher Van Slyke was for value and was not done with the intention of defeating any claim by David Van Slyke.

I accept their evidence in that regard. [ 97 ] In any event, shortly before the trial the appraisal of the Edmonton residential condominium, showing that it is worth less than what Monica Van Slyke paid for it and what Christopher Van Slyke owes on it, was obtained. As the property was bought with exempt funds, David Van Slyke ’ s only possible claim was to the growth in value of the condominium during the marriage. There was no growth in value.

David Van Slyke had no interest capable of being defeated by the transfer of the condominium to Christopher Van Slyke. [ 98 ] The Third Party proceedings are dismissed. [ 99 ] Christopher Van Slyke is entitled to costs from David Van Slyke. I direct that the quantum of those costs, if not agreed, be taxed and that they be paid by Monica Van Slyke to Christopher Van Slyke and that the amount paid be deducted from the payment Monica Van Slyke is required by this decision to pay to David Van Slyke. Heard on the 17 th day of September 2012. Dated at the City of Edmonton, Alberta this 28 th day of November 2012.

Brian R. Burrows J.C.Q.B.A. Appearances: Peter D. Spitz for the Plaintiff Sid Kobewka for the Defendant Roderick Hall

for the Third Party