Puddicombe v Vrban, 2012 ABQB 781

Court of Queen ’ s Bench of Alberta Citation: Puddicombe v Vrban, 2012 ABQB 781 Date: 20121219 Docket: 4803 155657 Registry: Edmonton Between: Michael David Puddicombe Respondent (Plaintiff) - and - Anita Mathilda Vrban Applicant (Defendant) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] Anita Vrban applies for spousal support from her ex-husband, Michael Puddicombe. Mr. Puddicombe opposes the application. Background Facts

[ 2 ] The parties were married on November 9, 1985. They separated on July 26, 2010. They had no children, and both parties worked throughout the marriage. Ms. Vrban is currently 43 years old; Mr. Puddicombe is 50. After separation, Ms. Vrban continued to occupy the matrimonial home in Legal. Mr. Puddicombe paid Ms. Vrban $500.00 per month while she lived in the matrimonial home, and he made payments on matrimonial debt. [ 3 ] Ms. Vrban remained in the matrimonial home until August of this year, when it was sold.

The proceeds, after paying off the mortgage and other debt, are being held in trust pending settlement of the matrimonial property claims. During argument, I was advised that the amount remaining to be divided is not substantial. [ 4 ] When the parties separated, Mr. Puddicombe was employed as an automobile mechanic. He has had steady employment with the same employer for some time. His earnings have been as follows: 2007 - $93,356.00 2008 - $91,164.00 2009 - $82,319.00 2010 - $93,071.00 2011 - $74,693.45 He expects to earn $75,000.00 in 2012. [ 5 ] Ms.

Vrban had been employed at Alberta Health in an executive administrative position. A month after the separation, she had surgery on both wrists to treat carpal tunnel syndrome. She returned to work after a fairly brief recuperation, but was immediately dismissed. Alberta Health paid severance equivalent to six or eight months' pay. [ 6 ] Instead of returning to work, Ms. Vrban lived off the severance pay until it ran out. She then began to seek employment in Legal, as she was still in the matrimonial home. Because of limited job opportunities in Legal, she had difficulty finding full-time work.

She is currently working in Edmonton for a temporary help agency and earns $16.00 per hour. She expects to have full-time employment with the company to whom she is currently assigned, and believes she will make approximately $20.00 per hour. [ 7 ] Because of ongoing wrist pain (possibly tendinitis according to medical reports attached to her affidavit in support of the application), Ms. Vrban does not think that she will be able to find employment at the same level as she had when she was with Alberta Health. [ 8 ] Ms.

Vrban's income has been as follows: 2007 - $76,201.00 2008 - $83,579.00 2009 - $79,987.00 2010 - $85,677.94 [ 9 ] In 2010, Ms. Vrban also received severance pay of $66,478.77. In 2011 she received Employment Insurance of $12,080.00 and withdrew $31,574.65 from her RRSPs.

[10] Ms. Vrban says she has been earning $16.00 per hour since mid-September, 2012 and works between 35 and 40 hours perweek. She expects to begin earning $20.00 per hour shortly. She is not optimistic that she will be able to work at her former pre-surgerylevel. I estimate that these rates of pay will produce an annual income of somewhere between $30,000.00 and $40,000.00 for Ms. Vrban. [11] Ms. Vrban's budget, now that she is not living in the matrimonial home, shows before-tax expenses of $3,158.00 per month.Mr.

Puddicombe's budget of $4,727.97 includes monthly payments of approximately $1,050.00 to his parents. He is retiring a debt ofapproximately $13,000.00 which he says was necessary to pay legal expenses in relation to these proceedings. [12] Court applications were necessary in relation to the sale of the matrimonial home, as well as in relation to undertakings givenon questioning of Ms. Vrban in this application. Position of the Parties Ms. Vrban [13] Ms. Vrban seeks spousal support of $2,500.00 for an indefinite period.

She points to her wrist problems, the difficulties shehas had finding alternate employment and the difference in the parties' incomes. She says she is not meeting her budgeted expenses, andhas now exhausted her RRSPs and the severance she received. She attributes Mr. Puddicombe's drop in income to his working fewerdays, claiming that he is spending up to two months per year abroad visiting his girlfriend. She also claims that Mr. Puddicombe agreedto pay her $500.00 per month. Mr. Puddicombe [14] Mr. Puddicombe denies any obligation to pay spousal support.

He notes that it has been over two years since the partiesseparated, and this is the first application for support Ms. Vrban has made. He believes that she is able to adequately support herself. [15] He argues that there is no basis for compensatory support, as Ms. Vrban worked throughout the marriage and was not out ofthe workforce or unable to pursue her career as she chose. He also argues that she has not done enough to seek suitable employment. Herexperience and skills are such that she does not need to work at a lower level than she was at the time they separated. [16] Mr.

Puddicombe claims that he has been saddled with the matrimonial debt and had to live with his parents while Ms. Vrbanremained in the matrimonial home. He claims that Ms. Vrban received most of the matrimonial furnishings. He says that while he didagree to pay Ms. Vrban $500.00 per month, that was only while she was occupying the matrimonial home and making the mortgagepayments on it. He acknowledges that Ms. Vrban paid all household expenses except insurance and half of the parties' line of credit. [17] Mr. Puddicombe says his drop in income is due to health issues and a decline in the economy.

He also claims that Ms. Vrbanhas been working ‘under the table' using a false name. An affidavit sworn by an acquaintance of Ms. Vrban's supports this allegation.Ms. Vrban denies it. Analysis [18] Moge v. Moge, (SCC), [1992] 3 S.C.R. 813 and Bracklow v. Bracklow, (SCC), [1999] 1S.C.R. 420 set out the basis for spousal support. To determine entitlement, the party seeking support must establish that there is aprincipled basis for support, as being compensatory, contractual, or non-compensatory (needs/ability to pay).

[ 19 ] As for contractual entitlement, there is no written agreement between the parties. I cannot determine what was actually promised to Ms. Vrban by Mr. Puddicombe on the basis of affidavits, but on an interim basis pending trial of the matter, I am persuaded by the absence of anything in writing between the parties that there is any binding arrangement between them. I do not see this as a relevant factor on this application. [ 20 ] On the evidence before me, I do not see a basis for compensatory support. Ms.

Vrban pursued a certificate program at Grant MacEwan Community College shortly after the parties were married, and pursued education-related employment on a full-time basis after she graduated. [ 21 ] On a non-compensatory needs/ability to pay analysis, Ms. Vrban appears to have experienced hardship as a result of the breakdown of the marriage. I do not see Ms. Vrban's budget as being extravagant, especially having regard to the fact that the parties' combined income in the year before they separated was well in excess of $170,000.00.

It would appear, having regard to the scant matrimonial property remaining, that these parties lived to the fullest extent of their incomes, and I can infer from the level of their incomes that they likely lived well. [ 22 ] Mr. Puddicombe's expenses include payment of over $1,000.00 per month to his parents. It is fortunate that he was able to borrow from his parents rather than through a commercial lender, but his repayment

schedule with them is aggressive. The debt was apparently incurred to cover legal expenses in the divorce proceedings, and while those expenses are often unavoidable in matrimonial proceedings, they are generally not a strong factor in determining need or an ability to pay. On his income and his budget, I conclude that he has the ability to pay some maintenance, but not more than $1,000.00 per month on his present income. On an interim application such as this, I cannot determine if he is underemployed at present or since the parties separated such that additional income should be attributed to him.

It is not clear whether he has a capacity to earn significantly more than he is at present as there is a dispute in the evidence explaining his drop in income and future prospects. [ 23 ] Ms. Vrban's budget shows some need on her part. I cannot conclude on the evidence before me if she is actually earning more than she claims or has had higher earnings since the parties separated. I cannot conclude that she is not earning more either. On an income of between $30,000 and $40,000 (before tax) based on her current earnings and expectations, she is likely falling as much as $1,000 per month short of her budget.

The medical evidence does not support any finding that long term, she will be unable to regain her former level of employment. The diagnosis of tendinitis was based on her self-reported symptoms and difficulties. The most current report gives an uncertain prognosis, and suggests that recovery may occur if Ms. Vrban takes physiotherapy and other treatments. Ms. Vrban's financial circumstances presently do not allow for physiotherapy costs. Some support by Mr. Puddicombe may assist with that.

She has also moved to Edmonton so should be able to access the greater and more remunerative job market here as opposed to Legal. Her need for ongoing maintenance is not certain. [ 24 ] As for relevant factors to consider for non-compensatory support, I can take judicial notice of the fact that carpal tunnel syndrome does not appear overnight. For her to have surgery for that condition, and on both wrists, she must have suffered from it for some time over the last part of the marriage.

The vows "for better or worse" still have some legal effect, as health disabilities that arose during the marriage and which affect a spouse's ability to become self-sufficient thereafter may create long term dependencies. Some of the dependency here arises out of the breakup of the marriage. While the presumption of mutual support implied during the marriage comes to an end when the marriage breaks up, a spouse cannot automatically avoid non-compensatory support if the dependancy is based on issues that arose during the marriage or as a result of the breakdown of the marriage.

Non-compensatory support is very fact- driven. [ 25 ] There is evidence before me that Ms. Vrban suffered some disadvantage arising out of the breakdown of the marriage. She had surgery for a degenerative condition shortly after the parties separated. It is not unforeseeable that she might have difficulty regaining her former level of employment immediately after the surgery (if at all). She appears to require some funds to pursue treatment for her medical condition, which she currently cannot afford on her wages.

She has, in my view, made out a prima facie case for non-compensatory support. [ 26 ] This is an interim application. A trial may be necessary to determine if Ms. Vrban has done everything reasonable to rehabilitate herself and to find appropriate employment. Medical evidence as to her long-term prognosis and employability may be necessary to determine the duration of any spousal support award. A trial may be necessary to determine the credibility issues which have arisen. [ 27 ] Subject to what happens with Ms.

Vrban's medical condition, it is reasonable to believe that she will at some stage be able to replace her former level of employment and income, and achieve a degree of self-sufficiency so that she will no longer be dependent on

Mr. Puddicombe for support. On the evidence before me, that time has not yet arrived. Quantum [ 28 ] I have not been provided with evidence as to Ms. Vrban's actual take-home earnings. Her budget is presented on an after-tax basis. She would appear to need something between $500 and $1,000 per month to meet her budgeted expenses. On Mr. Puddicombe's income, I conclude that he has the ability to pay support in that range. That may be at the expense of his being able to reduce the debt to his parents over a short period of time.

Alternatively, he may have the ability to return to his pre-separation level of income. [ 29 ] The spousal support advisory guidelines show a range of $1,100.00 to $1,800 per month, depending on Ms. Vrban's income. These parties had a relationship for over 25 years. They appear to have lived to the fullest extent of their combined incomes. It should not come as a surprise to Mr. Puddicombe that he has some spousal support obligations to his long-term former spouse. He has out-earned her by a significant margin over the recent past, but for the year Ms.

Vrban worked and received a large severance payment. [ 30 ] With respect to the spousal support guidelines, they are of more assistance when considering compensatory support. Where non-compensatory support is warranted, a needs/ability to pay analysis is more appropriate in determining the appropriate level of support. Ms. Vrban has demonstrated reasonable needs of some $3,100.00 per month (after tax). That would appear to be well within the standard of living she enjoyed during the marriage. [ 31 ] Mr.

Puddicombe is living in similar circumstances, with similar expenses (but for the debt repayment to his parents). In my view, Ms. Vrban is entitled to spousal support of $750.00 per month, commencing September 1 and continuing until further order of the Court. Having regard to the tax deductibility of spousal support, this should allow Mr. Puddicombe to continue to retire his debt to his parents, but at a reduced pace. [ 32 ] Mr. Puddicombe paid $1,500.00 per month for July and August. That was while Ms. Vrban was still in the home, and, according to her evidence, not working.

Those payments were pursuant to the order of Sulyma J. on June 20, 2012. Ms. Vrban began working in September, and her expenses dropped because of the sale of the home. That level of support appears to have been appropriate under the conditions that existed at the time of the order, but Ms. Vrban's circumstances changed at the end of August. Duration [ 33 ] On the evidence before me, I cannot determine the duration over which support should be paid. That will be influenced by Ms. Vrban's recovery and ability to work, her efforts to become self-sufficient and potentially by the matrimonial property settlement.

Spousal support should be reviewed on the earlier of the matrimonial property settlement, financial disclosure for 2012 (presumably by June 30, 2013 when the parties will have exchanged their 2012 tax returns and then-current pay stubs), at the matrimonial property and corollary relief trial in this matter, or following a material change in either party's circumstances. Costs Costs of this interim application, as well as the costs of the steps leading up to it, should be determined in the context of the matrimonial property settlement, or at the corollary relief trial of this matter.

Heard on the 10 th day of December, 2012. Dated at the City of Edmonton, Alberta, this 19 th day of December, 2012. Robert A. Graesser J.C.Q.B.A. Appearances: Ms. Vrban on her own behalf Lesley R. Kroeker, Bishop & McKenzie for the Respondent