Clarke v. Clarke, 2012 ABQB 92

Court of Queen ’ s Bench of Alberta Citation: Clarke v. Clarke, 2012 ABQB 92 Date: 20120208 Docket: 4803 147224 Registry: Edmonton Between: Colleen E. Clarke Plaintiff - and - Barrie Matthews Clarke Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Is Colleen E. Clarke entitled to receive spousal support from Barrie Matthews Clarke? If so, how much should she receive and for how long? Should Mr.

Clarke be relieved of his existing obligation to pay past spousal support which he has not paid? What division should be made in respect of the parties’ matrimonial property? [ 2 ] These issues arise out of a special chambers application made in June 2011 by Mr. Clarke. He sought an order terminating his ongoing interim spousal support obligation. The application was heard by Veit J. She denied Mr. Clarke’s application because the evidence provided on the application was insufficient. She ordered Ms. Clarke to bring the issue of her entitlement to continued spousal support to trial. She ordered case management.

Her decision also contemplated that it might be possible to add the issue of matrimonial property division to the trial.

[3] The spousal support issue centers on Ms. Clarke’s medical condition. Her position before Veit J. was that she is not capableof self support because of her medical condition and is entitled to continued financial support from Mr. Clarke because of thefundamental obligations they undertook toward each other when they married – that is, financial support not on a compensatory orcontractual basis but on a non-compensatory basis arising out of the marriage relationship itself. This is the obligation described by theSupreme Court of Canada in Bracklow v.

Bracklow (SCC), [1999] 1 S.C.R. 420, paras. 48 and 49. [4] Veit J. contemplated that at the trial the Court would receive expert medical evidence relating to Ms. Clarke’s medicalcondition. No such evidence was in fact offered at trial. The only evidence as to Ms. Clarke’s medical condition was that contained inher own testimony. [5] Ms. Clarke was of the understanding that in the course of case management, agreement had been reached to permit Ms.Clarke to adduce written medical reports without calling their authors. Mr.

Clarke disputed that there was such an agreement and did notconsent to the introduction of the written medical reports into evidence. Unfortunately, whatever had occurred in case management onthis point was not reduced to writing, or at least if it was, the writing was not offered at trial to establish what had been agreed. I did notpermit the written medical reports to be placed in evidence. [6] Ms. Clarke testified that she met Mr. Clarke in 1991. She was 21 years old at the time and divorced with two children by herprevious marriage. Mr. Clarke was 23. They began to cohabit in 1995 when Ms.

Clarke became pregnant with their son. [7] Ms. Clarke had meningitis before she met Mr. Clarke. At the time they met she was getting over that. She suffered frommigraine headaches and was on Demerol, then Percocet. Also, she had suffered from rheumatoid arthritis since she was 12 years old. She was on social assistance. She testified that Mr. Clarke was aware of all of this at the time they were married. [8] Prior to the birth of their son, Ms. Clarke was employed as a meter reader for TransAlta Utilities. She stopped work,however, because her pregnancy was difficult. Mr. Clarke worked in the oil industry.

Their son was born in January 1996. ThereafterMs. Clarke stayed home to look after her children. The parties were married on July 20, 1996. [9] When their son was a year old (by which time the other two children were in school), Ms. Clarke started working again. Sheworked for a subcontractor to TransAlta, reading meters. Her take-home pay was about $1600 a month. [10] She stopped working within a year because of illness. She had a hysterectomy in late 1997.

She did not return to paidemployment after that - she was a stay-at-home mom until 2001. [11] In 2001 the family moved to a new house which they bought in Onoway, Alberta. Ms. Clarke returned to work as a chambermaid and bartender at the Onoway Hotel. She worked full time at minimum wage. [12] Again she did not work for a full year. She stopped when she again required surgery at the end of 2001. At this point Mr.Clarke was earning a significant income, $80,000 or $90,000 a year, in the oil patch. He was away from home a great deal. [13] In 2001 and 2002 the family’s financial situation was good.

They had a nice home, two vehicles and were reasonablycomfortable. [14] After 2001 Ms. Clarke’s health further deteriorated. She had a nervous breakdown caused, she testified, by the abuse of theparties’ son by a friend of Mr. Clarke’s. She testified that she had post-traumatic stress disorder. She did not know who to trust. Thesituation changed her. She was scared for her son. The abusive friend continued to bother her son. She took Effexor for an anxietydisorder.

[ 15 ] It was at this time that marital problems between Mr. and Mrs. Clarke began. Child Welfare authorities were involved at some point. [ 16 ] In 2002 she got a job at a meat packing plant. She worked in the quality control department and was paid $14 an hour, working six to ten hours a day. After working for a year and a half she fell on the job and broke two bones in her elbow. Thereafter she was unable to work. Her elbow continues to trouble her. She has had surgery on it. She testified that she needs a joint replacement but she is not old enough for that treatment.

She testified that the medical technology for the type of joint replacement she needs does not exist for a person her age. [ 17 ] Though she testified this injury happened when she was on the job, she did not mention Worker’s Compensation in her testimony. Why it would not be available to her was not explored or explained in her evidence. [ 18 ] She testified that she undertook some job-retraining through Employment Insurance. It involved testing at NAIT.

She participated in a program there for some time (the fall of 2006 and into 2007) and had taken 11 courses, before the testing determined that she would not be able to do the job for which she was being trained. As a result she was taken out of the program. [ 19 ] After that, in 2008, Ms. Clarke left the home in Onoway, moved to Edmonton, and for a time was homeless. This was when the parties physically separated. Though they had lived under the same roof for some time before that, they were in fact not living together as man and wife for some time before Ms. Clarke left the home. Ms.

Clarke testified that they were in fact separated from 2002. [ 20 ] On February 20, 2009, on Ms. Clarke’s application, Shelley J. made an Interim Order which, among other things, ordered Mr. Clarke, on a without prejudice basis, to pay $1000 per month spousal support to Ms. Clarke, commencing February 1, 2009 and continuing thereafter until further order. The Order also provided that Mr. Clarke, “will continue to be responsible for the costs associated with the matrimonial home and payment on the Hyundai Tiburon vehicle”. The Order also required Mr. Clarke to pay child support. It recited Mr.

Clarke’s income as $94,991 and Ms. Clarke’s as $23,891. [ 21 ] Mr. Clarke did not start to pay spousal support until mid 2010 and then not in the full amount ordered. Ms. Clarke ended up on AISH in January 2010. Before that she was either on Employment Insurance or student financing. Her family provided financial assistance to her and her children. [ 22 ] Since then Ms. Clarke has been working one or two hours a day in a restaurant kitchen. She testified that she is physically unable to work any longer than that. She earns about $400 a month.

She did not work for two months in the spring of 2011 because she had surgery and was recovering from it. She had further surgery in the fall of 2011 for the removal of cysts and at the time of the trial had only recently gone back to work. [ 23 ] She testified that she has further medical issues relating to her stomach and that her immune system “is low”. She testified that further cysts have been found in her breasts and that she requires testing. [ 24 ] She is 41 years old. She had two previous marriages. Both were of very short duration.

Neither of her previous husbands is obliged to pay spousal support. [ 25 ] Ms. Clarke testified that she receives $1178 a month from AISH. That includes $100 for her son. Further she receives just under $400 a month from her work in the restaurant kitchen. She also receives a $400 a month rental supplement. Such spousal support as Mr. Clarke pays goes to the Crown which claims a subrogation because of its support for Ms. Clarke through AISH.

She is entitled to a Child Tax Benefit payment, but, as I understood her evidence, half of it goes to Revenue Canada in relation to the repayment of a debt she owes that agency which stands at about $4000. The other half goes to social assistance. Her monthly income is therefore about $2000 plus child support. She did not present complete evidence as to her monthly expenses though she testified that they exceed her monthly income.

[ 26 ] The parties have been separated for about ten years. For the first eight of those years they both lived in the matrimonial home and Ms. Clarke was supported financially by Mr. Clarke. For the last two and a half years Mr. Clarke has been subject to an order requiring him to pay $1000 a month spousal support. In my view Ms. Clarke’s entitlement to compensatory spousal support has been satisfied by Mr.

Clarke’s payments to her or for her benefit for the last ten years. [ 27 ] As to her entitlement to non-compensatory support, I am in no better position than Veit J. was when this matter was before her in special chambers. There is still no expert medical evidence. I accept that Ms. Clarke’s testimony as to her medical condition was truthful in the sense that it was an accurate reflection of her understanding of her medical condition. I am not however satisfied that her understanding is accurate.

Her evidence about the need for and unavailability of joint replacement surgery for a person her age is difficult to credit. So is her explanation for the abandonment of the retraining program in which she participated. The absence of any reference to a Worker’s Compensation Claim in respect of her work place injury is mysterious. [ 28 ] Ms. Clarke’s evidence about her medical situation falls far short of establishing the true extent of her health problems, or that they prevent her from earning a livelihood.

Yet she receives AISH which provides some minimal support for the conclusion that she is by reason of medical problems unable to earn a livelihood. [ 29 ] The divorce judgment granted below will bring this marriage to a formal end about 15½ years after it began. However, as noted, the parties have been practically separated for about ten years, far longer than they were together. For all but two and half of those years, that is during about five years of marriage and about eight years of separation, Ms. Clarke received the benefit of Mr. Clarke’s “obligation founded on the marriage relationship”.

For about the last two years she has received (or has been entitled to receive) $1000 a month which I consider to have been justified on the same basis, that is, a non-compensatory basis – on the basis of “obligation founded on the marriage relationship”. [ 30 ] Veit J. ordered that Mr. Clarke’s spousal support obligation would end on November 15, 2011 if the trial she ordered had not been held by then. The trial was not held by that date. And when it was held, Ms. Clarke failed to establish a basis for continued non- compensatory spousal support. I decline to revive Mr. Clarke’s spousal support obligation.

I confirm the effect of the Order of Veit J. Mr. Clarke’s spousal support obligation shall be deemed to have terminated on November 15, 2011. [ 31 ] I see, however, no reason to relieve Mr. Clarke of any arrears of spousal support which had accrued to that date. Indeed Mr. Clarke abandoned his claim for cancellation of arrears during the trial. [ 32 ] Mr. Clarke was subject to the Order to pay $1000 a month spousal support from February 1, 2009 to November 15, 2011 - 33½ months. His total spousal support obligation was therefore $33,500. He also had child support obligations for the same period totalling $13,959.

He paid a total of $28,699.54 during the period. Those payments should be applied first to child support. Accordingly, $14,740.54 should be credited against spousal support. This leaves arrears of spousal support of $18,759.46. I declare the arrears of spousal support to be in that amount. [ 33 ] I direct that if Mr.

Clarke pays $1000 per month against the arrears of spousal support starting March 1, 2012, and if in addition he pays the full amount of his child support obligation, enforcement in respect of the unpaid arrears of spousal support shall be stayed. [ 34 ] As to matrimonial property, though the parties discussed property that they had owned during the marriage, including a house and several vehicles, the evidence established that most of these assets no longer exist as matrimonial property in any form. The house was foreclosed on. The vehicles were repossessed.

There are some remaining chattels which are matrimonial property in the possession of one or other of the parties. Ms. Clarke has some remaining debt. Mr. Clarke declared bankruptcy in 2008 and will not be discharged until 2013 assuming he makes the payments he has been required to make as a condition of discharge. I am satisfied and declare that the informal distribution of remaining property and debts between the parties is just.

I make no further order for distribution of matrimonial property. [ 35 ] Evidence necessary to satisfy the requirements for the granting of a divorce was provided in an affidavit sworn by Ms. Clarke on December 19, 2011 and filed on December 21, 2011. On the basis of that evidence I grant an order of divorce.

[ 36 ] There shall be no award of costs to either party. Heard on the 19 th day of December 2011. Dated at the City of Edmonton, Alberta this 8 th day of February 2012. Brian R. Burrows J.C.Q.B.A. Appearances: Fausta L. Mauro for the Plaintiff Barrie Matthews Clarke appeared without counsel