Lawlor v. Lawlor, 2012 ABQB 723

Court of Queen ’ s Bench of Alberta Citation: Lawlor v. Lawlor, 2012 ABQB 723 Date: 20121127 Docket: 4803 153014 Registry: Edmonton Between: Sherri Lynn Lawlor Plaintiff - and - Peter John Anthony Lawlor Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Background [ 1 ] The parties married on June 8, 1985, when Ms. Lawlor was 27 years old and Mr. Lawlor was 30. Prior to their marriage, Ms.

Lawlor had obtained a Bachelor of Education degree but had been unable to find a job as a teacher, so she had begun working in the banking field. She stopped working outside the home in 1986 after the birth of their first child. She then operated a day home until April of 1990 when their third child was born. She resumed operating the day home in 1995 and continued it until 1997. In 1990 the parties had taken on a cleaning contract for an office building. Both worked on the contract until they separated. After that Ms. Lawlor and the children did the cleaning until the contract ended in July 2006.

[ 2 ] At the time of their marriage, Mr. Lawlor was working in the construction industry. He continued to do so during the first two years of the marriage and then began upgrading his education in 1986. He graduated from university in April of 1992. While attending university he assisted with the cleaning contract, worked part-time at the university, and worked construction in the summer. After graduating from university, he worked at a junior high for three years and then at a high school for three years. Since 1999 he has held various positions at NAIT and is currently employed there as a Dean. [ 3 ] Ms.

Lawlor obtained part-time employment at a financial institution in 1999 and has continued to work there since. She has also held a casual part-time position at the Jubilee Auditorium since 1993. She continues part-time at the latter and works nearly full- time at the financial institution. [ 4 ] In August of 1994 the Lawlors purchased a home for $96,500, using Ms. Lawlor’s pension funds and savings for the down- payment. During their marriage they also took out loans from time to time to purchase vehicles and consolidate credit card debt.

They agree that the current value of the home is $250,000. [ 5 ] Prior to separation, the family’s only vacations were annual visits to Ms. Lawlor’s family. They did not have cable or satellite TV as they viewed these as an unnecessary expense. Their children were involved in sports, dance, and music. They both coached various teams the children played on. In addition, Ms. Lawlor and the children were involved in church activities, Mr.

Lawlor having withdrawn from such activities after a short period of involvement. [ 6 ] After 16 years of marriage, the Lawlors separated on or about December 1, 2002. [ 7 ] Prior to their separation, Ms. Lawlor was responsible for managing the household finances, including paying the bills. Originally, the parties had joint bank accounts into which Mr. Lawlor would deposit all of his pay. In approximately 2000 he had stopped doing this and began giving Ms. Lawlor a cheque for the amount of “direct debits” on the account. Following the separation, for a time Mr.

Lawlor continued to pay the amount of these direct debits and Ms. Lawlor paid the rest of the household expenses. [ 8 ] The parties signed a Separation Agreement dated September 21, 2004 (the “Agreement”). The validity of this Agreement is at issue and therefore it will be discussed in some detail later in this Judgment. [ 9 ] After signing the Agreement, Mr. Lawlor began paying $1,500 per month in child support, $120 per month for the children’s expenses and $200 per month in spousal support. This continued until September 6, 2011, when this Court raised the child support payment to $2,103 per month.

Spousal support remained at $200 per month. [ 10 ] The parties’ incomes between 2007 and 2011 were as follows: Ms. Lawlor Mr. Lawlor 2007 $ 34,567 $ 115,073 2008 37,382 138,312 2009 40,481 144,635 2010 43,928 150,528

2011 44,986 162,133 [ 11 ] At the time the Agreement was signed Mr. Lawlor had advised Ms. Lawlor that his income was $82,700. Although his income rose over the course of the separation he did not advise Ms. Lawlor of these increases. Although his income was significantly higher than Ms. Lawlor’s he lead her to believe that he did not have sufficient funds to pay for some of his expenses. Therefore she paid his car insurance, life insurance premiums, and amounts towards his MBA tuition.

In addition, she obtained the benefit of an employee loan rate to obtain a line of credit at a favourable interest rate which Mr. Lawlor then used exclusively, refusing to allow Ms. Lawlor to access funds under this favourable rate load to reduce her interest charges on debt she had acquired. [ 12 ] Following their separation, Mr. Lawlor lived in a basement suite for approximately one year. He has lived in his current home since approximately September of 2004. That home was purchased jointly with a woman named Ms. Griswold. He and Ms. Griswold had made an offer to purchase this home in July of 2004. Mr.

Lawlor claims that his half of the down-payment came from his account and that he did not use any of the line of credit funds which had been secured against the matrimonial home and funded in March of 2004. Although he and Ms. Griswold are currently in a personal relationship, he maintains that this was not the case at the time they purchased this property. Rather, he says they lived there under a business arrangement before becoming romantically involved. Mr. Lawlor did not tell Ms. Lawlor that he had purchased this property and Ms.

Lawlor did not find out about it until approximately two years ago. [ 13 ] The Lawlors have four children, all of whom are now over the age of 18 and one of whom is now married. Mr. Lawlor testified that he felt he had a good relationship with the children at the time of the separation and that he stayed in touch with them until Ms. Lawlor filed for divorce in 2010. He admitted that his relationship with the children diminished over time and that it is currently very fractured. He acknowledged that Ms.

Lawlor had invited him to the matrimonial home for quite some time after separation and tried to facilitate his contact with the children, including deciding not to move from Edmonton when he expressed a concern that the move might affect his ability to see the children. He maintained that he tried to stay connected to them by asking for information from Ms. Lawlor but that she eventually told him to communicate directly with the children. [ 14 ] Ryan resided with Ms. Lawlor until late 2006.

Karlee graduated from high school in 2005, worked full-time for the next three years and started university full-time in January 2008. She continued to live at home until she married in August 2009. While she attended university she paid room and board of approximately $150 per month. Her costs while attending university, up to the date of her marriage, were $4,852. [ 15 ] Tessa and Evan continue to live with Ms. Lawlor. Evan graduated from high school in 2008 and began attending university in January 2009. Mr. Lawlor paid $1,337 toward one term of Evan’s tuition and Evan paid the rest.

At the time of trial he was working part- time and attending university part-time. He had earned approximately $5,500 in 2010. His 2011 income was unknown. He uses his part- time income to contribute to gas, some food purchases and some clothes. Tessa attended university full-time directly after high school, paying her own tuition. She is scheduled to graduate this year. In addition, she works part-time and contributes in the same way as Evan. [ 16 ] Between 2004 and 2010 the cost of the children’s extracurricular activities totalled approximately $6,200. All of these were paid by Ms. Lawlor.

At the time of trial, Mr. Lawlor still owed her for some payments she had made for the children’s dental work. Issues [ 17 ] I must determine the following main issues: 1. the validity of the Separation Agreement; 2. the division of matrimonial property; 3. retroactive and ongoing child support; and

4. retroactive and ongoing spousal support. 1. Validity of the Separation Agreement Position of the Parties Ms. Lawlor ’s Position [ 18 ] Ms. Lawlor testified that she was surprised when Mr. Lawlor brought a draft separation agreement to the matrimonial home in the latter part of September 2004 because Mr. Lawlor had been mentioning the possibility of reconciling. Mr. Lawlor indicated that he had prepared the draft agreement from a “kit” he had bought. She said he did not explain how he arrived at the child support amount and did not include any amount for spousal support.

He told her that his income was $82,700 but did not show her his tax returns and she had no knowledge of his assets or income other than what he told her at the time. Mr. Lawlor said he would give her a couple of days to review the draft and would then bring a final draft. She said she read the draft agreement and questioned a few things but did not seek legal advice because she could not afford it, nor did she discuss it with anyone. [ 19 ] Ms. Lawlor testified that Mr. Lawlor returned two days later with a revised draft, which included a provision for spousal support and a reduced amount for child support.

She recalled that Mr. Lawlor had changed some of the asset values, although she did not realize any of these changes had been made until after she signed the Agreement. She said she signed the Agreement approximately half an hour after receiving the revised draft because Mr. Lawlor had previously arranged for a neighbour to witness their signatures. [ 20 ] Ms. Lawlor took the position that she signed the Agreement out of fear, that she did not have the strength to question Mr.

Lawlor on changes made between the first and second drafts, that she did not fully understand the Agreement, that she would not have signed the Agreement had she understood it, that she felt pressured to sign it, and that she was emotionally afraid of Mr. Lawlor. [ 21 ] Ms. Lawlor submitted that the Agreement should be considered void or unenforceable. She pointed to the fact that there was no independent legal advice which, although not necessarily fatal to its enforceability, is a factor which ought to be considered.

This is particularly so since the Agreement was presented to her without notice and she was only given a couple of days to consider it before she was taken to have the Agreement signed before a neighbour. She submitted that it is not clear whether and to what extent the first draft was revised. She also submitted that there was an imbalance of power between herself and Mr. Lawlor, as evidenced by, among other things, her post-separation conduct in continuing to make insurance payments on behalf of Mr. Lawlor, obtaining a line of credit for him, and her unwillingness to ask for further information from him. Mr.

Lawlor ’s Position [ 22 ] Mr. Lawlor acknowledged that he had had discussions with Ms. Lawlor regarding their relationship and had tried to reconcile. However, he was motivated to get the Agreement in place as a result of Ms. Lawlor saying that she did not love him. He felt he needed some certainty and therefore bought a kit in order to prepare an agreement. He did not consult a lawyer. [ 23 ] Mr. Lawlor acknowledged that September 20 might have been the date he prepared the Agreement, which is dated September 20 and was signed September 21.

He acknowledged that there were only a couple of days between the time he provided Ms. Lawlor with the draft and when it was signed. He did not recall doing a different first draft, nor did he recall Ms. Lawlor asking for any changes. He had pre-arranged for them to go to a neighbour’s house on September 21 to have the Agreement witnessed. He recalled them being there for approximately 30 minutes but did not recall the specifics of any conversation. There was no discussion after the Agreement was signed about the Agreement or any proposal for changes to it. [ 24 ] Mr.

Lawlor took the position that the values contained in the Agreement were the amounts requested by Ms. Lawlor. He

based the child support number on a table contained in the “kit”. He said he based the spousal support number on Ms. Lawlor’s needs, although he is not sure how he came up with the $200 amount. He estimated his income at $82,700 by extrapolating his “year to date” income at that time. He testified that the values of the assets stated in the Agreement were estimates based on his knowledge. The $16,000 in the bank account was the balance left from the $18,200 line of credit advance that had been made in March. He said that the monthly expenses were based on the amount he had been paying Ms.

Lawlor to that point, that he was not sure what the number was based on, and that he gave Ms. Lawlor whatever she wanted. Mr. Lawlor did not recall Ms. Lawlor questioning him on any of the values stated in the Agreement. He agreed that neither of them disclosed their income or liabilities. Mr. Lawlor maintained that he did not know that the amount of child support should change with increases or decreases in his income. [ 25 ] Although Mr. Lawlor and Ms.

Griswold signed an Agreement to Purchase their current residence on July 4, 2004, he maintained that he was not in a personal relationship with her, nor was he living with her, at the time of the Agreement. Mr. Lawlor maintained that he thought about a separation agreement months before the opportunity arose to purchase the new home with Ms. Griswold. [ 26 ] Mr. Lawlor submitted that the Agreement should govern the relationship between the parties. He denied that he pressured Ms. Lawlor into signing it.

To the contrary, he said that she had the opportunity to review it over a couple of days and to seek legal advice if she wished. She could have refused to sign the Agreement, or she could have asked for revisions; but she chose to sign it. [ 27 ] Mr. Lawlor took the position that the values set out in the Agreement were close to accurate and that Ms. Lawlor had access to information upon which the estimates were based. He pointed to the provision in the Agreement in which Ms. Lawlor acknowledges that she read and understood it.

The Agreement was intended to be final and complete and, although it was not negotiated at the time, Ms. Lawlor did not contest it until years later. [ 28 ] Mr. Lawlor submitted that, in order to be found invalid, the Agreement must be tainted or grossly unfair. He maintains that it is neither and that Ms. Lawlor freely signed the Agreement after reading and understanding it. [ 29 ] Finally, Mr. Lawlor submitted that it can be inferred from the Agreement that it was not intended to apply to after acquired property, but only to the property identified in the Agreement.

In relation to the identified property, it was intended to be a final and complete settlement. Therefore, since the Agreement provided that Ms. Lawlor would become completely liable for the mortgage but that Mr. Lawlor would receive half the proceeds when it was sold, he claims a half interest in the current equity in the property. However, property acquired after the Agreement was signed should not be shared. Analysis And Decision [ 30 ] In Miglin v. Miglin 2003 SCC 24 , relied on by Ms. Lawlor, the couple executed a separation agreement one year after they separated.

Approximately four years later, the wife applied for sole custody, child support and spousal support. These were issues that had been dealt with in the separation agreement. The Supreme Court of Canada held that an application for support inconsistent with a pre-existing arrangement requires a two stage investigation into all of the circumstances surrounding the agreement.

The first stage of the investigation focuses on the time of its formation; the second focuses on the time of the application. [ 31 ] In looking at the time of formation of a separation agreement, a court should consider whether the agreement was negotiated fairly and whether it conformed with the objectives of the Divorce Act . The court should also determine if there were any circumstances of oppression, pressure or other vulnerabilities at play.

The degree of professional assistance received by the parties is also a factor to be considered. [ 32 ] At the second stage of the analysis, the court must consider the current circumstances of the parties and whether the agreement still reflects the intentions of the parties or whether there has been a significant change in circumstances which was reasonably unforeseeable at the time of execution of the agreement. [ 33 ] In Miglin the Supreme Court held that only a significant departure from a range of reasonable outcomes would lead the court to give the agreement little weight.

However, in appropriate circumstances a separation agreement could be given little weight and could be altered. Courts should seek to strike a balance between finality and fairness and courts should decide each case on its own merits. In Miglin , the Supreme Court concluded that the separation agreement should be upheld. Significant factors leading to this result were that

the parties engaged the services of counsel, negotiations had persisted over a lengthy period, nothing in the agreement was a significant departure from the objectives of the Divorce Act , and the division of the assets and quantum of support reflected the needs of the parties. [ 34 ] Mr. Lawlor relies on B.(P.D.) v. B.(J.A.) , 2010 ABQB 286 , and Baldwin v. Funston , 2007 ONCA 381 . In the former case, the husband brought an application to vary or invalidate a separation agreement which had been entered into nine months following separation after a 19 year marriage.

The agreement was negotiated without the assistance of legal counsel and was based on a document purchased by the husband at a book store. After negotiating and executing the agreement, the parties obtained independent legal advice and executed s. 38 Matrimonial Property Act (“ MPA ”)Acknowledgement Certificates. Subsequently the husband argued that he had not understood the full nature of the agreement and that he had not received adequate legal advice.

This Court dismissed the application and held that the husband had voluntarily entered into the agreement and that it reflected the original intention of the parties. It found that there was no undue pressure on the husband and, further, that even though the distribution of matrimonial property was unequal, the agreement was meant to settle the respective rights of the parties. The court confirmed that lack of independent legal advice does not automatically invalidate a separation agreement. Rather, the advice operates to remove a taint that, left unremoved, might invalidate the agreement.

An agreement entered into voluntarily, fairly, and without duress will be valid despite a lack of independent legal advice. [ 35 ] In Baldwin , the wife had appealed a dismissal of her retroactive child support claim. The parties had entered into a separation agreement many years earlier which provided for $2,010 a month in child support, to be indexed to the Consumer Price Index. Following their divorce, the husband’s income increased dramatically. The wife claimed he should have disclosed this change in his income.

She relied on a clause in the agreement which required the parties to keep each other informed of major changes that affected the interests and well-being of the children. The Ontario Court of Appeal dismissed the appeal and held there was no burden of automatic disclosure when income increases. Therefore, a separation agreement would have to either explicitly or implicitly require this burden. It found that the agreement did not expressly or implicitly require the father to disclose material changes to his income.

Although the court also held that the failure to report the increase in income was blameworthy conduct on the part of the husband, given the magnitude of the increase, this conduct was not determinative in assessing the retroactive support claim and was simply one factor that had to be considered in the overall determination. [ 36 ] I have concluded that the Agreement was not valid and therefore ought not be enforced. I cannot conclude that this Agreement was negotiated fairly. In fact, I cannot conclude it was negotiated at all. At a time when I am satisfied Ms. Lawlor believed that Mr.

Lawlor was still interested in reconciling, she was presented with a draft agreement that she had not been expecting and which had been prepared without her input. The evidence is clear that some months before presenting her unexpectedly with this draft agreement, Mr.

Lawlor had entered into an agreement to purchase another residence with another woman, a fact that he not only failed to disclose to her at the time he presented her with the draft agreement but one which he did not disclose to her until several years later. [ 37 ] Her lack of input into the drafting of the Agreement and the lack of any indication that it was going to be presented to her was then further compounded by Mr. Lawlor giving her somewhere between 24 and 72 hours to consider the draft before he showed up with a revised draft, telling her he had made arrangements with a neighbour for them to it.

Clearly, the element of surprise in presenting her with the draft, the lack of any meaningful input by Ms. Lawlor into the terms of the Agreement, the lack of any time for her to consider the Agreement, the lack of disclosure concerning Mr.

Lawlor’s decision to buy a property with another woman at the same time he was suggesting he might reconcile with her, the arranging of a meeting with their neighbours for the purposes of them witnessing its execution, and the lack of any legal advice, are among the many factors which confirm the Agreement was not negotiated fairly, that there were circumstances of oppression and pressure, and that there were other vulnerabilities at play at the time of its formation. [ 38 ] In addition, the terms of the Agreement were unfair to Ms.

Lawlor and the result of the Agreement does not accord with the objectives of the Divorce Act . 2. Division of Matrimonial Property Position of the Parties Non-disputed Items [ 39 ] In relation to the division of the matrimonial property, the parties agree on a few things:

• that post-separation debts should remain separate unless they are linked to an asset, with a few exceptions that the parties disagree on; • that Mr. Lawlor’s ATRF pension should be divided from its commencement to its termination date; • that Mr. Lawlor should reimburse Ms. Lawlor for the cost of car insurance and life insurance premiums paid by Ms. Lawlor on Mr. Lawlor’s behalf after separation; • that Mr. Lawlor should reimburse Ms. Lawlor for the VISA payments she made in relation to his MBA tuition in 2005 and 2006, although they disagree on whether or not Mr.

Lawlor should reimburse her for the interest she had to pay on those amounts (in the approximate amount of $500); and • that Mr. Lawlor should complete the transfer of the Dodge Caravan, which was ordered in September 2011, to Ms. Lawlor, who has possession of this vehicle. Ms. Lawlor ’s Position [ 40 ] Ms. Lawlor submitted that matrimonial property should be valued as at the date of trial, since all of it was acquired during the marriage even if acquired after separation. She also submitted that the date of divorce is the appropriate date for division of the pensions.

She further submitted that there should be an unequal distribution in her favour based on the imbalance of power which resulted in her paying for things (like Mr. Lawlor’s insurance) and Mr. Lawlor’s refusal to transfer the car even after being ordered to do so by this Court. She argued that the evidence shows that Mr. Lawlor had ample funds and therefore the ability to pay for his own expenses but refused to do so. She pointed out that, while Mr. Lawlor was earning double her income, she remained responsible for almost all of the costs of the matrimonial home and the children, while Mr.

Lawlor used his much higher income to build up equity in another property. [ 41 ] Ms. Lawlor further submitted that she should be compensated for expenses she has paid since separation. She argued that the $18,200 increase in the mortgage, effected just prior to their separation, was used by Mr. Lawlor when she expected it to be used to improve the matrimonial home and that it was she who made the payments on that additional debt. She also pointed out that she arranged for a favourable interest rate line of credit because of her employment at the financial institution.

This line of credit was used exclusively by Mr. Lawlor, who refused to allow her to take advantage of the line of credit to pay off a loan she had at a much higher interest rate. In addition, she was responsible for the payments and ensured they were made on time. She acknowledged that he eventually made all payments but pointed out that he often made them late and she was therefore required to cover them in the interim. She also allowed him to use her VISA when he said he needed funds for his MBA fees. He refused to reimburse her until he offered to do so at the trial. She submitted that Mr.

Lawlor also kept reimbursements on items she had paid in respect of things like the children’s dental expenses, retaining the reimbursement received under his benefits policy for months before reimbursing her. [ 42 ] Ms. Lawlor submitted that Mr. Lawlor should reimburse her for one-half of the expenses she incurred in preserving the matrimonial property, including $60,000 on the mortgage, $13,000 on the taxes, $4,700 on insurance and $22,000 for renovations. Mr. Lawlor ’s Position [ 43 ] Mr.

Lawlor argued that I should give effect to the Agreement, which provided that he would retain his one-half interest in the matrimonial home, receiving one-half of the proceeds on its sale. In relation to the renovations made to the home between separation and trial, he argued that only one-third of the costs of the renovations should be attributed to him because Ms. Lawlor did not consult with him about them and he completed some of the work himself. [ 44 ] He argued that he should not be responsible for any of the other expenses related to the matrimonial home, being the amounts claimed by Ms.

Lawlor for mortgage payments, property taxes and home insurance, because Ms. Lawlor had exclusive use of the home during this period and he had to pay rent or mortgage payment elsewhere. In addition, he paid child and spousal support during this time,

at least some of which would have been available to cover these expenses. In the alternative, he argued that, if he is to be responsible for any of these expenses, the amount should be offset by way of a claim for occupation rent from Ms. Lawlor. [ 45 ] Mr. Lawlor also submitted that assets acquired post-separation should remain separate.

On this basis he submitted that he should retain his half interest in his current home, his Jeep Patriot, the 1993 Toyota Camry, one-half the equity in the Dodge Challenger, one-half the equity in the Dodge Caravan, the Sea-Doo and the Victory motorcycle. [ 46 ] On the second day of trial, Mr. Lawlor provided some documentation in relation to an inheritance of $49,275.77 that he claimed he received from his aunt. He stated that he used some of this inheritance to purchase the Sea-Doo for $12,500 and some toward the purchase of the Dodge Challenger.

He also used some of it, together with the sale proceeds received from the sale of two prior motorcycles he had owned, to purchase the 2005 Victory motorcycle. He submitted that property purchased with the inheritance should be exempted from matrimonial property. [ 47 ] In relation to the $18,200 increase to the mortgage on the matrimonial home which was funded just prior to separation (which Ms. Lawlor said was intended for the construction of a garage), Mr. Lawlor denied that he used any portion of these funds to purchase his new residence with Ms. Griswald.

Instead, he stated that he used these funds for his education. He argued that this loan advance was allocated and divided under the Agreement, and also that, since it was part of a joint mortgage, one-half could be attributed back to Ms. Lawlor. Analysis and Decision [ 48 ] Given my decision in relation to the unenforceability of the Agreement, I must determine how all matrimonial property is to be distributed. In doing so, I must determine if any property now owned by either is subject to an exemption or should otherwise be excluded from the distribution.

I must also determine how and when the property is to be valued. And I must also determine whether there should be an even or uneven distribution. [ 49 ] Both parties rely on Hodgson v. Hodgson , 2005 ABCA 13 . In that case, the parties had married in 1983 and separated in 1991. The divorce trial was held 11 years after separation, by which time various assets had increased in value and the parties had received inheritances and gifts. The Court of Appeal held that the value of matrimonial property must be determined as of the date of trial; that valuation at such date is a rule, not a mere presumption.

The Court of Appeal directed that a three step process should be used. The first step is to identify all of the property owned at the date of trial. The second is to identify property that is exempt from distribution under s. 7(2) of the MPA . The third step requires a determination of what property falls under s. 7(3) of the MPA . The judge is then obliged to divide the remaining assets equally, unless it would be unjust or inequitable to do so pursuant to s. 8 of the MPA . [ 50 ] Ms. Lawlor also relied on Elliott v. Elliott , 2010 ABQB 789 ; and Yassa v. Parker , 2012 ABQB 167 .

In the former case, the parties had married in 1984, separated in 1999 and divorced in 2005. The court held that it was appropriate to make an unequal distribution of matrimonial property pursuant to s. 8 of the MPA . It had determined that the wife had been responsible for maintaining the matrimonial home, had paid the joint line of credit herself, and had borne all of the children’s expenses. These payments by the mother outweighed any notional occupation rent from the husband.

As a result, the court held that an appropriate distribution was two-thirds to the wife and one-third to the husband. [ 51 ] In Yassa , the parties had married in 2000, separated in 2007 and divorced in 2010. Both sought an unequal distribution of matrimonial property. The court held that neither had proved a basis upon which to depart from the presumption of equal sharing and ordered an equal distribution.

However, for a number of accounts and assets the court held that the property ought to be valued at the date of separation, rather than trial, because of the way the parties had lived their lives after separation. However, the court held that pensions should be distributed at the date of divorce because that was the time in the financial connection between the parties substantially came to an end. [ 52 ] Mr. Lawlor relied on Coulthard v. Coulthard , 2002 ABQB 695 , in arguing that certain assets and liabilities should be valued at the date of separation.

In Coulthard the parties had married in 1973, separated in 1997 and divorced in 2000. The issue at trial was the value of the matrimonial property and the appropriate date for its valuation. The court held that property is generally valued at the date of trial, but that in some cases the court can determine the distribution should not include assets acquired after separation. The court held

that the day of trial should be used for real property, because in that case the increases in value were due to the market and both parties should share the benefit. However, the court held that remaining assets and liabilities should be valued at the date of separation, because the wife had left the property at the time of separation and had not contributed to the value of those assets or liabilities thereafter. [ 53 ] With the exception of those assets and liabilities that the parties have agreed are to be treated in a particular manner, I must look at all property owned by both parties as at the date of trial.

This includes all property acquired by them after the date of separation. [ 54 ] I am then required to identify property that is exempt from distribution under section 7(2) of the MPA. Mr. Lawlor has claimed an exemption for certain items he claims were purchased with the proceeds of an inheritance (a Sea-Doo, the Dodge Challenger, and part of the 2005 Victory motorcycle). While there is no doubt that assets acquired from the proceeds of an inheritance are exempt, Mr. Lawlor has failed to provide adequate proof of both the inheritance and its use toward the purchase of these assets.

Providing minimal evidence of the possible receipt of an inheritance on the second day of trial does not satisfy his burden. He had ample time to provide evidence but failed to do so. Therefore, his claim for an exemption is denied. [ 55 ] Ms. Lawlor’s submission that the matrimonial property should be valued as at the date of the trial is in accordance with the Court of Appeal authority. The issue then is whether there ought to be an unequal distribution in relation to some or all of the property in which either or both of the parties currently have an interest. Mr.

Lawlor seeks to maintain his entitlement to one half of the equity of the matrimonial home while retaining for himself the value of all other assets he has acquired since the date the separation. Ms. Lawlor seeks to retain more than 50% of the current equity in the matrimonial home on the basis of Mr. Lawlor’s conduct since separation. [ 56 ] Mr. Lawlor took inconsistent positions in relation to his post-separation financial dealings with Ms. Lawlor. He maintained that he did not want to have an on-going financial connection with her and that was one of the reasons he desired a separation agreement.

He also indicated that he did not want to have further financial connections with her because he did not trust her. These positions are clearly in conflict with his actions throughout the relevant time period. He asked Ms. Lawlor to obtain an employee rate line of credit for his sole use, having her make the payments on this loan even when he had not provided her with funds to do so in a timely fashion.

He asked her to pay his MBA fees because he maintained he did not have sufficient funds to pay them himself (despite his having a significantly larger income during this time and his contention that he used most of the $18,200 mortgage increase for the purposes of his education). He also had Ms. Lawlor pay his car and life insurance premiums throughout this time period and only agreed to reimburse her on the eve of trial. Although it is clear that he was reminded of certain outstanding debts that he owed to Ms. Lawlor and that reimbursement had been requested prior to trial, some remained unpaid at trial.

He took the position that some of these items had not been repaid because he did not want to reimburse her for things “piece-meal” if they were not getting back together. This too is inconsistent with his position that he wanted no further financial connections with Ms. Lawlor as early as 2004. [ 57 ] It is clear that through the period of separation Mr. Lawlor was less than forthcoming in his dealings with Ms. Lawlor. He did not advise her that he was buying a residence with another woman. To the contrary, he continued to lead Ms.

Lawlor to believe that they might reconcile while he was making arrangements to purchase that property. Mr. Lawlor did not disclose his significant increases in income during this period but, to the contrary, suggested he was unable to pay his MBA tuition. By doing so, he not only failed to fulfill his child support obligations, he also convinced Ms. Lawlor to bear some of his expenses. [ 58 ] The parties separated approximately ten years ago, they remained married, presumably by choice, since either had grounds to obtain a divorce long before Ms. Lawlor sought one in 2010.

As I said before, the evidence showed that during this time there was an ongoing financial relationship between the parties. Surprisingly, in light of the respective financial positions of the parties, this financial relationship often involved Mr. Lawlor obtaining financial assistance from or through Ms. Lawlor. Inter-dependance continued to the date of trial. It is appropriate that both parties’ pensions be divided as at the date of trial. There was some question about Ms.

Lawlor’s pension and she is directed to obtain complete and accurate information concerning her pension entitlements for the purposes of effecting proper distribution. [ 59 ] In relation to the matrimonial home, in view of my conclusion that Mr. Lawlor’s interest in the home he owns jointly with Ms. Griswold is matrimonial property and that Ms. Lawlor should share her one-half interest in his half interest in that property, I conclude that it is not appropriate for Mr. Lawlor to reimburse Ms.

Lawlor for the mortgage payments, taxes, and property insurance that she paid on the matrimonial property after separation. She had the benefit of living in the property and Mr. Lawlor presumably bore similar expenses in connection with the property he was living in. However, he should bear one-half of the cost of the renovations to the matrimonial home since he will benefit from any increased value resulting from them. He has conceded that he ought to contribute to those payments but argues that he ought to pay less than one-half because he contributed to some of the improvements.

However, I conclude that he has not met the burden of proving the fact or the value of those contributions. Therefore, the expenses proven by Ms. Lawlor ought to be borne equally. [ 60 ] It is clear that Mr. Lawlor received full benefit of the $18,200 mortgage increase that the parties arranged just prior to

separation. Mr. Lawlor asserts that he used these funds for his education and denies that any amount was used for the purposes of contributing to the down payment on his new property. He provides no documentary evidence to show that the $18,200 was used for the purpose alleged, nor does he provide proof of the source of the funds used for the purchase of the new property. As I said, however, it is clear that he received the sole benefit of these funds, which I accept were arranged on the understanding that they would be used to renovate the matrimonial home. Mr.

Lawlor is to be credited with receiving the full amount of these funds. [ 61 ] I decline to resolve the Lawlor’s disagreement over the interest that Ms. Lawlor alleges accrued on her VISA bill because of Mr. Lawlor’s lateness in providing her with funds to pay the bill. She estimates, but provides no proof, that it is in the neighbourhood of $500. No adjustment is to be made for this item. [ 62 ] I am satisfied that the property Mr. Lawlor acquired after separation is matrimonial property and its value should be determined as at the date of trial. It is clear that Ms.

Lawlor, although she did not know about these assets, directly or indirectly contributed to their acquisition. The difficulty in determining the value of the property for the purposes of determining the equalization payment is that there is little evidence concerning the value of the assets acquired by Mr. Lawlor post-separation. While it would be easier to divide the property by giving Ms. Lawlor sole interest in the matrimonial home and Mr. Lawlor sole interest in the home he subsequently acquired with Ms. Griswold, I cannot determine that that would result in an equitable distribution.

Similarly, the values given for the various vehicles are estimates provided by the parties and there is little or no back-up documentation in relation to those values. Mr. Lawlor also asserts that some of the vehicles and other assets are jointly owned with Ms. Griswold. [ 63 ] I am directing that the parties provide their positions regarding the net value of their beneficial interest in all of the assets in which either of them had a beneficial interest as at the date of trial. They are to exchange this information within two weeks of the date of receiving this Judgment.

To the extent that they agree on the value of any assets, those values will be used for the related assets. To the extent that the parties disagree on the value of any of the assets, each is to obtain and exchange evidence in support of the value they have given, within one month of receiving advice from the other that the value is disputed.

If the parties are not able to agree on the value following the exchange of that information, they are to bring the matter back before me for determination. [ 64 ] It is clear from the positions taken by the parties that they have a strong desire to retain certain assets which they currently have in their possession. It is also clear that it would be preferable for them to attempt to effect an in specie distribution of assets to the extent possible.

Without having additional information concerning the value of the assets held by them, I do not know the extent to which this can be effected in a manner that minimizes an outstanding debt from one to the other. 3. Child Support Ms. Lawlor ’s Position [ 65 ] Ms. Lawlor testified that Mr. Lawlor made all spousal and child support payments called for under the Agreement except for two missed payments. She said that Mr. Lawlor did not provide payment in October 2008 and that the January 1, 2009, payment was for December of 2008, alleging that he missed payments in October and January.

She also testified that his payments were often received after the time specified in the Agreement. [ 66 ] Ms. Lawlor did not claim any support payments on her tax returns. She testified that she and Mr. Lawlor did not discuss the possibility of future variation to the support payments when they signed the Agreement. She said she did not raise these issues with Mr. Lawlor earlier because she was intimidated by and afraid of him. She claimed that conversations about money were very unpleasant.

She testified that a few years ago her brother had told her that couples were required to disclose their incomes so she raised this with Mr. Lawlor. When she did so, she said he became angry, telling her: “Don’t quote the law to me”. She did not know how much he earned and did not ask until she began divorce proceedings. Similarly, she did not ask him to contribute any additional money for the children prior to commencing divorce proceedings. She confirmed that the children largely paid their own post-secondary expenses and have augmented their earnings with student loans in order to do so. [ 67 ] Ms.

Lawlor submitted that child support is the right of the child and that, at a minimum, child support should be adjusted retroactive to April 2007, three years prior to the Statement of Claim, which constituted effective notice. She submitted that child support should be based on the Child Support Guidelines (“ Guidelines ”) with credit for the $1,500 per month that Mr. Lawlor paid during this

time period, less the two missed payments. This would result in an adjustment of $33,967. Ms. Lawlor argued that this would not constitute a windfall, as it would benefit the children, who had to borrow money for education costs as a result of their father’s lack of support. A retroactive award would help with repayment of these loans and with future additional education costs. She argues that the children’s part-time earnings should not disentitle them to support.

Although Karlee has since married, she should be entitled to four months of support, since she remained a child of the marriage up until the date of her marriage. Mr. Lawlor ’s Position [ 68 ] Mr. Lawlor stated that he did not know of Tessa’s attendance at university until 2012, although he had asked about it a number of times. He confirmed that he knew Evan had started university but did not know if he had continued because Ms. Lawlor would not tell him. Mr. Lawlor did not recall his children asking for help with tuition, except with respect to the one term he paid for Evan. [ 69 ] Mr.

Lawlor agreed that Tessa remains a child of the marriage but argued that, since Evan is not registered in school full-time and is working part-time, Evan is no longer a child of the marriage for child support purposes. He also submitted that Karlee should not be considered a child of the marriage since she married in 2009. In the result he argued that the existing child support order should be varied to set ongoing child support at $1,412 per month. [ 70 ] Mr.

Lawlor testified that he paid $1,620 per month in child support between September 2004 and September 2011 and then, pursuant to the order of this Court, began paying $2,103 per month thereafter. He admitted that he did not increase his child support payments as his income increased but argued that he did not have to do so because he was fulfilling his obligations under the Agreement. He further submitted that the children have had limited contact with him and that if they wished to have support, they had an obligation to further their claim by being cooperative with him.

He also submitted that the children have not gone without since the separation and Ms. Lawlor was able to meet her requirements without borrowing. [ 71 ] Mr. Lawlor denied having missed two payments but admits he missed one support payment totalling $1,820. He took the position that Ms. Lawlor had not proven her allegation that the January 2009 payment was for a missed payment in 2008. He is willing to pay the payment he missed in October 2008. [ 72 ] Mr. Lawlor acknowledged that some adjustment is in order but argued that it should not create a windfall for Ms. Lawlor. He pointed out that Ms.

Lawlor waited a significant period of time to apply for retroactive payments, not requesting them until she filed the Statement of Claim in April 2010. He submitted that, if any retroactive payments are awarded, they should not go back beyond April 2010. Analysis and Decision [ 73 ] Ms. Lawlor relied on a number of cases in support of her position in relation to child support: S. (D.B.) v. G. (S.R.) , 2006 SCC 37 ; Matthews v. Matthews , 2010 ABQB 584 ; Cove v. Cove , 2010 NSSC 407 ; and Rebenchuk v. Rebenchuk , 2007 MBCA 22 .

The first of these cases is the leading authority in relation to retroactive awards and the enforcement of past obligations. In it, the Supreme Court held that a court has the jurisdiction to award retroactive child support and outlined the factors which must be considered by courts in the exercise of their discretion to do so. The court pointed out that this necessitates a balancing of the payor’s interest in certainty with the need for fairness and flexibility.

In making this determination, a court should consider the reasonableness of the delay in seeking support (including the reason for the delay), the conduct of the payor, the circumstances of the child, and the hardship occasioned by a retroactive award. [ 74 ] Reasonable excuses for a delay in bringing an application include: circumstances where the recipient harboured fears of the payor’s reaction; lack of financial or emotional means to bring an application; or inadequate legal advice. Blameworthy conduct by the payor includes anything that privileges their own interests over that of a child’s.

Courts should consider both the present and past circumstances of the child. If, upon consideration of these factors, a court determines that a retroactive reward should be made, it then must determine how far back the award should extend. The Supreme Court held that a retroactive award should generally be retroactive to the date when effective notice was given to the payor, but, in the absence of blameworthy conduct, should not extend more than three years prior to such date. Notice includes any indication that support should be paid or that the current amount needs to be renegotiated.

Finally, the court must determine the quantum of the award. The court held that it should be in accordance with the Guidelines unless there is undue hardship, or an unreasonable delay in effective notice, or it would extend prior to May 1, 1997.

[75] In Matthews, the husband made an application to cancel all arrears of child support and to alter the retroactivity of hispayments. He claimed that his income had not been close to the income upon which his child support payments were based. The courtdetermined that S.(D.B.) v. G.(S.R.) requires a court to chose from a number of dates with respect to retroactive support applications: thedate of the change in income or circumstances; the date of effective notice for a change in support; three years from the date of theapplication; and the date of the application.

The court determined three years from the date of application (in that case the date ofeffective notice) was the date to which retroactive payments should be set. The court also held that estrangement is rarely a factor inchild support obligations and that it should not be a basis for reducing child support. [76] In Cove, the wife brought an application for spousal and child support. The parties agreed that all of the children remainedchildren of the marriage. All were attending post-secondary education and were using student loans and summer employment income topay the costs.

The court stated that there was no rule for how long a child could continue to go to school and still be eligible for support.It further held that it would be reasonable to expect support to be paid at least until the children finished the first undergraduate degree,and perhaps for a short period after, to give them an opportunity to secure employment. If a child decided to attend post-graduate studies,the court would have to determine if support was still payable based on the condition, means, needs and other circumstances of the childand the financial ability of each parent to contribute to the support.

The court concluded there was no set ending to child support. [77] In Rebenchuk, the father made an application seeking to have a child declared to no longer be a child of the marriage. TheCourt of Appeal followed a three step process in making this determination. The first step was to determine whether the person forwhom support was sought was a “child of the marriage”. The second step was to determine whether the table amount in the Guidelineswas “inappropriate” and, if not, the Guideline amount should be awarded.

However, if the Guideline amount was inappropriate, then thethird step was to determine what level of support is appropriate. [78] The Court held that the onus was on the applicant when determining if the person is a child of the marriage. The onus was nota heavy one where the adult child is pursuing a first level of post-secondary education. It becomes more burdensome when the issueconcerns post-graduate studies. The court confirmed there is no pre-determined age of cutoff for support.

The court suggested a numberof questions to consider when determining whether support is warranted, including: - what would the parents have decided if the marriage remained intact; - to what degree is the adult child able to earn income; - are the adult child’s living expenses reasonable; - are the child’s career plans reasonable; - is the child likely to benefit from the program of study; - is part-time employment available; - has there been an unjustified unilateral termination of a relationship with the payor parent; and - is the student eligible for student loans? [79] Mr.

Lawlor also relied on the Supreme Court of Canada decision in S.(D.B.) v. G.(S.R.). He also relied on Lampron v. Lampron, (ON SC), 2006 29 RFL (6th) 307. In that case, the husband applied to terminate child support for childrenwho had reached the age of majority. The Ontario Superior Court held that a parent paying child support is entitled to receiveconfirmation from the educational institution where the child is enrolled as to enrollment and whether they are attending on a part-timeor full-time basis.

The Court also held that children will not be entitled to support if they have attained the age of majority and state theydo not wish to have the parent involved in their lives. [80] Mr. Lawlor suggests that his fractured relationship with his children disentitles them to support. However, Mr. Lawlor has notestablished that the children have refused to have a relationship with him or that their current attitude toward him is not directly andreasonably attributable to his own actions. In that regard, I accept that Ms.

Lawlor attempted to maintain a relationship between thechildren and their father for many years following the separation. Mr. Lawlor’s testimony confirmed that to be the case. However, theyare now adults and as they were approaching adulthood she indicated that she did not wish to continue to be a conduit between thechildren and their father. She suggested that Mr. Lawlor deal with the children directly. There was no evidence provided as to Mr.

Lawlor’s attempts to maintain that relationship or to re-establish it once it had become strained following Ms. Lawlor’s decision not to continue acting as a go-between between Mr. Lawlor and their children. [ 81 ] Ms. Lawlor does not seek a retroactive award beyond three years from the date of effective notice and therefore I do not need to address the issue of blameworthy conduct. I am satisfied that Ms. Lawlor did not seek to adjust the child support payment between the signing of the Agreement in 2004 and the filing of her Statement of Claim in 2010 largely as a result of the unpleasantness of Mr.

Lawlor’s reaction if she did so. In addition, throughout this time Mr. Lawlor not only failed to advise her of his increases in income but he led her to believe that he was unable to pay some of his own expenses, causing her to make payments or provide or arrange loans for him as outlined previously in this Judgment. I am satisfied that this is a case in which a retroactive award is appropriate. The issue, then, is the effective date to which the award should be made. [ 82 ] Karlee married prior to the filing of the Statement of Claim and therefore ceased to be a child of the marriage before Ms.

Lawlor sought a retroactive award. In addition, she had three years of full-time earnings, earned before she commenced her studies, to contribute toward the cost of her university education. I therefore do not make a retroactive award in relation to Karlee. [ 83 ] It is clear that the children have earned some income while attending university. It is also clear that this minimal income has been used to contribute to basic necessities and tuition costs.

The extent to which they have incurred student loan debt in order to afford to attend university is not known, but there is no suggestion that they will not have to pay such loans back. They would not have incurred this debt and may not have had to work to pay living expenses had their father been contributing child support in accordance with the Guidelines . During this period, Ms. Lawlor, with a significantly lower income, was bearing the majority of the children’s living expenses, including the costs associated with the residence they were living in and all extracurricular activity costs. Mr.

Lawlor ought to have been paying child support in accordance with the Guidelines . [ 84 ] However, I must take into account the fact that the children were able to contribute to some extent to the cost of their university education. I must also consider that they have student loans which will have to be repaid. I am satisfied that the retroactive award will benefit Tessa and Evan but that an award which goes back three years prior to the date of effective notice would likely constitute a windfall to some extent.

Taking into account these circumstances, I conclude that the effective date from which the retroactive award should be calculated is April 1, 2009. There is to be an adjustment for any periods of time in which Tessa or Evan were not in full-time attendance. However, if they were in full-time attendance to the end of a school year and resumed full-time attendance at the beginning of the next year, they are to be considered to have been in full-time attendance for a full year, including the summer recess.

Future child support should be paid for so long as they remain in full-time attendance or should resume if they resume their post- secondary studies. [ 85 ] It is not clear that Mr. Lawlor missed two payments in 2008. It is clear he missed the one in October and I direct the adjustment be made on that basis. 4. Retroactive and Ongoing Spousal Support Ms. Lawlor ’s Position [ 86 ] Ms. Lawlor submitted that she has been disadvantaged and has had to work two jobs to earn approximately $45,000 per year. She has been frugal by necessity and argued that she should not be penalized for it.

She pointed out that she has not gone on any vacations with the children and she has been unable to contribute to their education costs. She has not been able to upgrade her employment skills and has gone without cable television or a cell phone. She pointed out that she has helped Mr. Lawlor with his education, resulting in an increase in his income and an increasing discrepancy in hers. In addition, she has performed the majority of childcare while working outside of the home.

She submitted that she is entitled to spousal support on a compensatory basis because of the length of her marriage and the disadvantage to her as a result of its breakdown. [ 87 ] In addition, Ms. Lawlor submitted that she should receive retroactive spousal support for three years prior to the date of the Statement of Claim, in an amount falling within the mid-range of the Spousal Support Advisory Guidelines . She argued that, given Mr. Lawlor’s income, $200 per month for spousal support was inadequate.

Taking into account the $200 per month he paid, she submitted that the total spousal support owing would be $85,816. She submitted that support should continue until Mr. Lawlor reaches age 65.

Mr. Lawlor’s Position [88] Mr. Lawlor agreed that Ms. Lawlor “ran the home” but maintained that they shared household duties. He stated that Ms.Lawlor is “really good with numbers” and therefore they decided she should manage the household finances. He maintained that hebecame concerned when she was reluctant to give him money when he needed it, so he reorganized the finances so that Ms. Lawlorwould tell him what she needed for the house and he would give it to her. He was not sure when this change in the household financesoccurred. [89] Mr. Lawlor testified that he and Ms.

Lawlor did not have any discussions about spousal support. Instead, any discussionsabout money focussed on things she needed around the house. He did not see a reason to increase the $200 per month spousal paymentsas his income increased. He did recall a discussion about exchanging income information but did not recall how it turned out. [90] Mr. Lawlor submitted that spousal support should be “reasonable” and “fair”. He conceded that $200 a month in spousalsupport was inappropriate given the disparity in their incomes.

He also conceded that the length of the marriage, the disparity in income,and the contributions of Ms. Lawlor entitled her to a certain amount of retroactive spousal support. He submitted that an appropriatespousal support would be $1,306 per month, less credit for the $200 a month he paid. He submitted that Ms. Lawlor should receiveretroactive support to the date of filing of the application in April 2010 and that it should continue until December 2012, when spousalsupport was to cease pursuant to the Agreement. [91] Mr.

Lawlor submitted that there is no presumption of entitlement to spousal support and that an award in the amountrequested by Ms. Lawlor would create a windfall and would be unreasonable. He urged me to take into account Ms. Lawlor’s delay inpursing her support claim, as well as the terms of the Agreement. [92] He also submitted that Ms. Lawlor had not been economically disadvantaged by the breakdown of the marriage and there wasno evidence that her life has been negatively impacted.

She did not really change her lifestyle, nor did she have to borrow money. [93] He argued that an exceptional increase in income should not necessarily result in a retroactive award. He maintained that thereis no compensatory basis to Ms. Lawlor’s claim for a retroactive spousal support award and that an award in the amount requested byMs. Lawlor would be punitive to him and unjustified. [94] In the result, he submitted that he should owe a total of $33,152 in spousal support and that payment of this amount should bemade by way of lump sum from his equity in the matrimonial home. Analysis and Decision [95] Ms.

Lawlor referred me to the Supreme Court of Canada decision in Bracklow v. Bracklow, (SCC), [1999]1 S.C.R. 420. In that case, the Supreme Court discussed the two main theories of marriage and spousal support reflected in the DivorceAct, R.S.C., 1985, c. 3. The basic social obligation theory reflects the idea that the former spouse has the primary responsibility ofproviding lost income an ex-spouse used to enjoy during the marriage. This model is the basis for non-compensatory support. Thesecond theory, the independent model of marriage, provides for compensatory spousal support.

The court held that, in assessing spousalsupport claims, a court should consider the condition, means, needs and other circumstances of each spouse. Where the extent of aneconomic loss can be determined, compensatory factors may be paramount. Where it cannot, court should use the needs and standard ofliving as the primary criteria, along with the ability of the other party to pay. In addition, where there has been economic disadvantage ofone spouse as a result of the marriage and its dissolution, long term support or an alternative settlement will be required.

Although aspouse is entitled to some support, this does not mean he or she is entitled to indefinite support to maintain an accustomed lifestyle. [96] Ms. Lawlor also cites K. (S.D.) v. K. (R.D.), 2011 ABQB 245. In that case, the wife made an application for child support, s. 7expenses and a division of assets. The parties had married in 1999 and separated in 2008.

The court determined that a just resolution ofspousal support should take into account the economic effect of the marriage and its breakdown, the contribution of the spouses to thecareer advancement of each other, the standard of living enjoyed by each spouse during the marriage, and the requirement of spouses toseek to achieve self-sufficiency. The court pointed out that it must also be mindful that parties should be able to continue their own lives

and function independently of each other. In addition, the court determined that another relevant consideration was who did the majority of child rearing and who attended to the family needs. After considering the history of the marriage, the roles played by the parties, the disparate career and income prospects of each, and the ongoing disproportion of contribution to childcare by the wife in that case, the court held that the wife was entitled to spousal support for a period of three years. [ 97 ] Mr. Lawlor relied on two cases: the Supreme Court of Canada decision in Kerr v.

Baranow , 2011 SCC 10 ; and Thompson v. Thompson , 2007 ABQB 715 . In the former, a common law couple in their late 60's separated after a 25 year relationship. Both had worked and contributed to their mutual welfare. The common law wife claimed property on the basis of resulting trust, unjust enrichment and spousal support. The Supreme Court was called upon to decide if spousal support should be effective as of the date of the application, the date of the trial, or some other date.

The Court determined that considerations used in determining child support are also relevant to deciding the suitability of a retroactive award of spousal support. These factors include the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support, and any hardship an retroactive award might place on the payor.

However, the court held that these factors must be considered and weighed in light of the different legal foundation for spousal support, holding that there is no presumptive entitlement to spousal support and that a spouse is not obligated to look out for the other spouse’s legal interests. Therefore, concerns about notice, delay and misconduct should carry more weight in relation to this issue.

Based on these factors, the court found that spousal support should have been paid upon the commencement of proceedings. [ 98 ] In Thompson , the husband brought an application to strike child and spousal support requested in a petition for divorce. The petition was brought by the wife in 1988 and the application was brought by the husband in 2007. The court determined that notice, without anything more, does not move forward a claim for support.

Rather, a prolonged period of inactivity after notice may indicate that the payor’s reasonable interest in certainty has returned and that the petitioner has abandoned their claim. The court held that, even if effective notice is given, it will usually be inappropriate to delve too far into the past and that it would be inequitable or unjust to require a large retroactive lump sum spousal support payment. The court concluded that the wife had delayed inordinately and that her claim should be struck. [ 99 ] Since the Lawlors separated in 2002, Ms. Lawlor has done an admirable job of supporting herself.

In addition, given Mr. Lawlor’s underpayment of his obligation to both the children and to her, she has borne a disproportionate share of the living expenses of the children. And, as I have stated earlier in this Judgment, she provided financial assistance to Mr. Lawlor notwithstanding that his income vastly exceeded hers. Ms. Lawlor has from the outset achieved an admirable level of self-sufficiency. It cannot be said that she currently (or even in recent years) is unable to support herself.

I conclude that she would not be entitled to a retroactive award, or an ongoing award, of spousal support on a needs basis. [ 100 ] Ms. Lawlor is, however, entitled to spousal support on a compensatory basis given the length of the Lawlor’s marriage and her obvious contributions to Mr. Lawlor’s educational upgrading during the marriage. Ms. Lawlor was significantly under-supported by Mr. Lawlor for the last ten years. That she is requesting a retroactive award to the date of the Statement of Claim cannot be viewed as unreasonable. [ 101 ] Given, however, that Ms.

Lawlor has achieved a high degree of self-sufficiency and her lifestyle has not changed significantly from the time when she was co-habiting with Mr. Lawlor, I conclude that spousal support below the lower end of the range suggested by the Spousal Support Advisory Guidelines is more appropriate in this case. Spousal support should be recalculated based on a monthly spousal support payment of $1,500 per month effective three years prior to the date of the filing of the Statement of Claim, with credit for the $200 per month payments that were made. Spousal support should continue until Mr.

Lawlor reaches the age of 65, subject to review by either party if they are able to establish a change in circumstance. Conclusion [ 102 ] In the result: (

a) matrimonial property is to be divided in accordance with the principles and directions set out in

section 2 of this Judgment. As I have provided in that section, the parties are at liberty to return for further determination of the value of the assets currently held by each of them if they are unable to agree on the amount or there are any other issues that require further determination; (

b) Ms. Lawlor is awarded retroactive and ongoing child support in accordance with

section 3 of this Judgment; and

(

c) Ms. Lawlor is awarded retroactive and ongoing spousal support in accordance with

section 4 of this Judgment. [ 103 ] If the parties are unable to agree on costs, or on the calculations required in respect of the awards made by me in this Judgment, they are to notify my assistant to arrange a time at which the matters can be spoken to. Heard between the 17 th and 19 th days of April, 2012. Dated at the City of Calgary, Alberta this 23 rd day of November, 2012. D.L. Shelley J.C.Q.B.A. Appearances: David S. Patterson for the Plaintiff Michelle C. Di Toppa for the Defendant