Jones v Jones, 2012 ABQB 93

Court of Queen ’ s Bench of Alberta Citation: Jones v Jones, 2012 ABQB 93 Date: 20120213 Docket: 4803 136381 Registry: Edmonton Between: Barbara Elizabeth Jones Plaintiff - and - Terence Stanley Reginald Jones Defendant Corrected judgment: A corrigendum was issued on February 14, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is a Family Law viva voce hearing.

The wife issued a Statement of Claim for Divorce and Division of Matrimonial Property dated October 19, 2005 in which she sought spousal support and an equitable division of the matrimonial property. The husband filed a Counterclaim for Divorce and Division of Matrimonial Property dated September 21, 2011. The husband submits that the wife has already received the matrimonial property she was entitled to in exchange for her waiver of her entitlement to spousal support. [ 2 ] There is an extensive history in this matter which is outlined in the within timeline of facts: –

1964 The Parties Marry 1968 (approx.) Husband Leaves the Armed Forces for the private sector as a helicopter pilot 1979 Parties Purchase House in Sherwood Park, Alberta located on a ½ acre lot 1980's Husband Employed with Shirley Helicopter; Invests in Business Ventures and Works for Delta Helicopter (Edmonton Area) 1990 Husband Employed in Los Angeles Mid 1990's Husband Involved in Another Business Venture, Working in Washington, D.C., and in New Jersey 2000 Husband Works at Yellowhead Helicopter, Valemont, B.C.

Sept 27, 2003 Parties Separated, Husband Began Paying $2,600 per month to Wife until June 2005 Fall 2004 (Approx) Husband Purchases House in Valemont Dec 2005 First Queen ’ s Bench Order of Justice Sulatycky Ordering $2,600 a month in Spousal Support Payments commencing December 1, 2005.

Failed Attempts to Agree on Matrimonial Property Distribution and Spousal Support as a result of a December 9, 2005 Draft Minutes of Settlement Feb 2006 Husband Declares Bankruptcy April 2001 Husband on 60 day Medical Leave from Yellowhead Helicopter June 2006 Husband ’ s Employment Ends at Yellowhead Helicopter May - Aug 2007 Husband Takes Employment at Call Centre in Kingston, Ontario at $15.00 per hour Sept 2007 - May 2008 Husband Takes Employment at Call Centre in Kingston, Ontario at $10.00 per hour April 2008 Justice Trousdale - Ontario Court ’ s First Reciprocal Enforcement Order June 2008 to Present Husband Takes Employment at Highland Helicopter in Vancouver, B.C.

July 2009 Justice Gill ’ s Alberta Court of Queen ’ s Bench Order Nov 2009 Justice Veit ’ s Alberta Court of Queen ’ s Bench Order

April 2010 Justice Trousdale ’ s Second Order Subsequent Adjournments of Justice Trousdale ’ s hearings Oct 2010 Discharge from Bankruptcy for Husband Nov 9, 2010 Bankruptcy Fraudulent Preference Caveat Removed from Matrimonial Home May 2011 Justice Manderscheid ’ s Alberta Court of Queen ’ s Bench Order July 4, 2011 Husband Has Neck/Spinal Fusion Surgery Sept 2011 Justice Manderscheid ’ s Order Regarding Current Spousal Support Payments of $1,800 a month Nov 25, 2011 Justice Ross ’ Order Setting Matter Down for Viva Voce Hearing [ 3 ] The only asset of any significant value remaining is the residential home located in Sherwood Park, Alberta on a half acre lot.

The house itself is approximately 60 years old. The wife assesses the value at approximately $362,000 to $374,000 which the County lists its fair market value at. The husband believes that the ½ acre lot alone makes it much more valuable than $375,000. The wife lives in the former matrimonial home and wishes to remain there. [ 4 ] Both parties are 76 years of age. The wife is in relatively good health and is only on one medication that lowers her blood pressure.

The husband ’ s health situation is much more problematic in that he suffers from sinitis, asthma, depression, high blood pressure, and neck and back problems. In July 2011 he had surgical neck fusion, he has lower spinal surgery in 2004, and several surgeries to relieve his breathing and sinitis problems. The husband is on numerous regular medications. [ 5 ] The husband was a licensed pilot for many years flying both airplanes but primarily helicopters.

He has not flown as a pilot since 2006, but continues to work in the industry as a Safety and Operations Manager in Vancouver for Highland Helicopter, earning approximately $85,000 a year. [ 6 ] The wife was a stay at home mother throughout their lengthy marriage since 1964, raising three children who are now all adults. The daughter remains with the mother in the former matrimonial home. The daughter is 43 years of age and is a Paramedic, single with no dependents.

The mother was trained as a hairdresser and completed grade 10 high school, but spent little time in the work force. [ 7 ] The husband ’ s current budget is as follows: – Rent (2 Bedroom, Vancouver, B.C. Apartment shared with current common law spouse) $ 1,840.00 Insurance 60.00 Telephone/Cable 150.00 Food 300.00

Meals (Lunch) 30.00 Clothes 150.00 Car Insurance/Gas 183.00 Food for 6 Rescue Dogs 100.00 Debts for outstanding legal fees 1,700.00 Medications 200.00 Spousal Support Payments 1,800.00 Personal Loans 26,000.00 BC Hospitals Charges 800.00 [ 8 ] The wife ’ s monthly income and monthly expenses are as follows: – Rent/Mortgage/Property Taxes $ 1,330.32 Cable/Internet/Telephone 186.47 Utilities 100.00 Home Maintenance 100.00 Gas for Vehicle 50.00 Vehicle Insurance 59.00 Food/Household Supplies 600.00 Meals - outside 25.00 Medical Expenses 30.00 Clothing 50.00 Personal Care 25.00 Newspaper Subscription 4.00 Alcohol/Tobacco 100.00 Entertainment 40.00 Gifts/Allowances 50.00 Credit Cards - Debt 300.00 Strathcona County 200.00 [ 9 ] The husband and his new common law live in Vancouver where he is working full-time.

They rent a two bedroom apartment near the Kerrisdale District of Vancouver and pay rent of approximately $1,840 a month plus power. The husband ’ s budget is skewered somewhat by outstanding legal fees being repaid at $1,700 a month, which debt is not long term. [ 10 ] The wife continues to live in the former matrimonial home with her 43 year old daughter. In addition to the total monthly income of the wife, the daughter pays the wife an additional $1,100 cash each month as her contribution towards the household expenses.

The wife has quantified the cost of utilities since the date of separation in September 2003 to January 2012 as being approximately $18,000 in total. The wife also lists expenses for maintenance and upkeep of the matrimonial home since the date of separation which

totals approximately $14,000. The wife has essentially been making the mortgage and tax payments on the home. [ 11 ] The home was refinanced by the parties shortly before the separation in 2003. While there is some dispute about the amount of the net proceeds from the refinancing, I am satisfied that the husband received in his sole name bank account $21,193 on September 16, 2003 as the net cash proceeds from the refinancing. The refinanced mortgage remains on the matrimonial home presently. There is approximately $96,000 still owing on the mortgage which matures on October 15, 2013.

Monthly payments on the mortgage are approximately $1,341 which includes the payment of property taxes. The house is valued for municipal taxation purposes at approximately $362,000 to $375,000. The wife considers that to represent fair market value, but the husband submits that the house is worth considerably more then that given that it is located on what he says is the largest and most desirable piece of residential property in Sherwood Park. There is no formal appraisal before me with respect to actual value of the former matrimonial home currently.

Conclusion [ 12 ] The husband is currently in arrears in Court ordered spousal support of over $111,000. The wife submits that while there can be a slight downward adjustment in those arrears for 2007, spousal support should continue at the rate of $1,800 a month as per the Order of Justice Manderscheid issued in September 2011. [ 13 ] The husband submits that his relatively poor health situation and his advanced age at 76 mean that he will not be able to continue working very much longer, if at all. He and his employer are very much of a mind that he will be retiring in the very near future.

The husband submits that given the significant value of the formal matrimonial home over and above its value for municipal taxation purposes, the wife should accept his share of the matrimonial home, in exchange for cancelling all arrears and future spousal support.

The husband attempted to make an application in April 2006 to lower spousal support from the $2,600 a month he was then ordered to pay by the Alberta Courts, however this application was never completed because the husband declared bankruptcy. [ 14 ] I would value the arrears of spousal support in April 2006 at approximately $31,000, had the husband been able to proceed with his application but for his bankruptcy. [ 15 ] Counsel for the wife submits as a preliminary point that the husband has no interest in the former matrimonial home as a result of his 2006 bankruptcy.

He submits to the Court the case of Daemore v Von Windheim , 2011 BCSC 437 which was an application in a family law case where the respondents applied to dismiss or strike out the property claims of the claimant (the husband) on the basis that any such claims vested in the claimant ’ s trustee in bankruptcy, and were never validly reassigned to the claimant. Accordingly the contention was that the claimant had no ability to maintain the property claims set out in the Notice of Family Claim.

The claimant husband in Daemore on the other hand contended that the trustee in bankruptcy reassigned the claims to him, and that therefore he had now obtained the capacity to pursue the claims on his own behalf. [ 16 ]

Section 40 of the Bankruptcy and Insolvency Act R.S.C., 1985, c. B-3 deals with the disposal of the bankrupt ’ s property at the conclusion of the bankruptcy. It reads as follows: – Disposal of unrealizable property 40(1) Any property of a bankrupt that is listed in the statement of affairs referred to in paragraph 158(

d) or otherwise disclosed to the trustee before the bankrupt ’ s discharge and that is found incapable of realization must be returned to the bankrupt before the trustee ’ s application for discharge, but if inspectors have been appointed, the trustee may do so only with their permission. Final disposition of property

(2) Where a trustee is unable to dispose of any property as provided in this section, the court may make such order as it may consider

necessary. [17] In Daemore v Von Windheim the British Columbia Supreme Court concluded as follows at paragraphs 36 and 37:– 36 The trustee may re-assign unrealizable property to the bankrupt, even after the discharge of the trustee, pursuant to the trustee'sauthority set out in s. 40(1) of the BIA: Foldy, supra; Alfano v. KPMG Inc., at para. 56, 17 C.B.R. (4th) 1 (Ont.S.C.J.).

In Foldy, supra, Walsh J. stated that at para. 10: ... the execution of the assignment of a chose in action after the discharge of the trustee is purely an administrative act on his part. 37 The revised wording of s. 40(1), not applicable here, requires that the property to be returned by the trustee as unrealizable must bedisclosed prior to the discharge of the bankrupt.

In other cases, a court order is required under s. 40(2). [18] My colleague Topolniski J in Lecerf v Lecerf, 2004 ABQB 501 dealt with a similar issue and concluded as follows atparagraphs 44 and 45:– 44 In the end result, I find that the right to seek the MPA exemption in the present case was property within the meaning of the BIAthat vested in Mr. Lecerf's Trustee in Bankruptcy on the date of bankruptcy.

The next question to be answered is whether the Trustee,and in turn the creditors, should be deprived of any of the excluded property because the Trustee did not intervene or make submissionson this point at the trial. The short answer is no. 45 The MPA obliges the court to exclude from distribution the property enumerated in s. 7(2). The language is not permissive. Oncethe evidence establishes that property is s. 7(2) property, it should be excluded from distribution regardless of who adduces the evidence.It is simply a matter of applying the legislation to the facts as they are disclosed.

That having been said, I would expect that in futuretrustees might choose to take an active role in appropriate MPA proceedings. Their objective should, of course, be to ensure that thevalue of the bankrupt's estate is maximized for the benefit of the creditors. [19] I conclude that the preferable view is that with respect to this matter the British Columbia case is not only distinguishable onits facts but deals with an unrealizable asset versus an unrealized asset, which is the present case before me.

Accordingly I conclude thatthe husband can file and proceed with his matrimonial property claim in 2011, notwithstanding his 2006 bankruptcy, because the wifeshould not in any event receive a windfall as a result. [20] The wife has also listed a made it claim with respect to her occupancy costs since the date of separation. My colleagueClackson J in Busenius v Busenius, 2006 ABQB 162 discusses the issue of occupation rent, and occupancy costs as follows atparagraphs 38 to 46:– Occupation Rent 38 Mr. Busenius takes the position that Ms.

Gullion has had exclusive possession of the matrimonial home since August 8, 2000 andshe should have to pay occupation rent. He argues that he has been paying the annual property taxes on the property and Ms. Gullion hasbasically lived rent free, only having to pay utilities and upkeep expenses. There was no debt owing against the property at the time ofseparation. 39 Mr. Busenius seeks 61/2 years of occupation rent at a notional monthly rental of $1,200.00 per month. Ms. Gullion argues thatoccupation rent is not properly awarded to Mr.

Busenius because of his delays in the production of financial information and the fact that

he did not make such a claim until almost five years after separation. I accept that the delay in resolving this matter rests almost entirelywith Mr. Busenius. He was not forthcoming with the financial information which was necessary to establish his economic circumstancesand his claims for exemptions. In fact, it is patent that Mr. Busenius has still not produced much of the kind of financial informationwhich would be routinely exchanged in the pursuit of a property settlement. Indeed some of his financial information was not produceddespite notices to produce, notices to disclose and court orders.

In those circumstances, it is hardly surprising that this property disputerequired a trial. The delay between separation and trial has benefited Mr. Busenius. The value of the matrimonial home has increased ashas the value of Ms. Gullion's pension. By way of example, the matrimonial home has increased in value by $58,000.00. He would nothave received those benefits had the matter been resolved at or around the time of separation. 40 An thorough analysis of Justice Slatter in Kazmierczak v. Kazmierczak, 2001 ABQB 610 , [2001] A.J.

No. 955 (Q.B.) atparas. 87 through 93: [87] This claim for occupation rent has many similarities to the claim just discussed for a capitalization of unpaid spousal and childsupport. The notional income from the property represented by this occupation rent would have been an expense to Mr. Kazmierczak,and income to Mrs. Kazmierczak, during the period of separation. If Mrs.

Kazmierczak had demanded occupation rent in a timely way,that demand would probably have been met with a cross-demand for child support and exclusive possession of the matrimonial home.That in turn might have triggered a claim for spousal support. The occupation rent would have been an additional expense in Mr.Kazmierczak's budget and it would have been an income item in Mrs. Kazmierczak's budget. All of these factors would have beenconsidered by a Court in deciding whether to award spousal support, child support, or occupation rent.

Accordingly, this banking ofoccupation rent raises many of the issues raised by the capitalization of an inchoate support obligation. [88] The concept of "occupation rent" is a common-law attribute of the joint ownership of property. At common law, all joint tenantshave an equal right to the occupation of the whole of the premises, and neither had the right to exclude the other. In limitedcircumstances the Courts would recognize a right to occupation rent in favour of the joint tenant who was out of possession. In his bookPrinciples of Property Law (Scarborough: Carswell, 1993) Professor B.

Ziff summarizes the law with respect to occupation rent at p.266: These rules require elaboration. Given that all co-tenants are inherently entitled to possession of each and every part of the property, nomatter the size of their individual shares, one co-owner cannot exclude or "oust" another (say, by changing the locks). Not only is thisdirect action unlawful, but also where the conduct of one co-owner is so egregious that one would not expect the other party to remain,this amounts to a constructive ouster.

If a party is locked out or forced to leave by the expulsive conduct of the other, the remainingowner may be charged with an occupation rent. No occupation rent is normally payable simply because one owner has enjoyed exclusivepossession. However, where, on partition, the party in possession makes a claim for reimbursement for the payment of current expenses,a counterclaim for occupation rent may be entertained.

The amount of rent ordered is often based on an estimation of the market value ofproperty (divided by the number of co-owners), but sometimes it is pegged at the cost of current expenses. (footnotes omitted, emphasisadded) [89] In Alberta the law respecting jointly owned property is partly codified in

Part 3 of the Law of Property Act, R.S.A. 1980, c. L-8which deals with partition and sale. Where the Court makes an order for partition, s. 17(2) permits the Court to order an accounting withrespect to the lands, and lists a number of factors that can be taken into account.

Section 22 provides that where the land in question isthe matrimonial home, the partition and sale application can be stayed pending proceedings under the Matrimonial Property Act. [90] In my view, care must be taken in carrying forward the common-law concept of occupation rent into the family law context.Non-family joint tenants generally do not have mutual obligations of support for each other, and for children. In the family law context,such mutual obligations of support are generally present, and would usually dominate and outweigh the common-law property rightsassociated with joint tenancy.

Occupation rent should only be awarded in the family law context with great caution. [91] In Mastron v. Cotton, (ON CA), [1925] O.J. No. 134, (1925), 58 O.L.R. 251 (App. Div.) the Court identified thefollowing principles regarding claims for occupation rent: 1. If the tenant in occupation asks the other tenant to contribute to upkeep and repairs, the occupying tenant must submit to an allowancefor use and occupation of the premises. 2. If the tenant in occupation has made improvements or repairs which have increased the value of the property, the other tenant cannot

benefit from the increase in value without submitting to an allowance for the improvement and repairs. 3. Where one tenant has paid more than his or her share of encumbrances on the property, that tenant is entitled to an allowance for suchsurplus. In Mastron it was held that the wife, who was in occupation of a jointly-owned matrimonial home, could only ask her husband forcontribution toward payments made on mortgages, taxes and repairs if she submitted to being charged for use and occupation.

The rulethat occupation rent is to be awarded only by way of counterclaim against claims for contribution to expenses has been followed insubsequent cases including Szuba v. Szuba, [1951] O.W.N. 61 (Ont. M.). [92] In Grinde v. Grinde (1977), (AB KB), 5 A.R. 561 (decided before the Matrimonial Property Act was in force) theCourt reviewed the common law relating to jointly-owned property.

In Grinde a wife's claim for occupation rent from her husband on thepartition of their jointly owned farmland was dismissed on the grounds that the husband had not elected to ask the wife for contributiontowards his expenses as occupier of the premises. This election was held to vest in the co-owner in possession, and to be exercisable attrial. Grinde was acknowledged as "good law" in Aleksiuk v.

Aleksiuk (1991), 112 A.R. 298, but the Court added at p. 307 that "in viewof the concept of the Matrimonial Property Act, and in particular the wording of s. 8(c), I do not think that the principles enunciated inGrinde v. Grinde would strictly apply to a matrimonial property division ...". In Aleksiuk the Court held that "... in consideringoccupation rent one would have to take into account the fact that the parties' children resided in the property so that an adjustment wouldhave to be made, the defendant being equally responsible for their maintenance".

Aleksiuk therefore recognized the link between a claimfor occupation rent, and the responsibilities of each party to support the children, and to potentially support each other. To the sameeffect is the Balzar case (MB KB), [1990] M.J. No. 395 (supra, para. 57) where the husband and wife cohabited for14 years and separated for 16 years. During the lengthy separation, the husband lived in the matrimonial home with the child of themarriage, supported the child, made all mortgage payments, and paid for the taxes, insurance and repairs.

No occupation rent wasallowed while the child was a child of the marriage. [93] In Hantel v. Hilscher (2000), 2000 ABCA 84 , 255 A.R. 187 (C.A.) the Court of Appeal held at para. 26 that: Occupation rent is a discretionary remedy. It depends largely on the circumstances of the case. Hantel and the two children had beenresiding in the home since the separation. The trial judge granted Hilscher occupation rent and left the value of the rent to be determinedby the parties, taking into account the fact that Hilscher had a responsibility to maintain his two children who were in the home.

The trialjudge made no error in principle in exercising his discretion to award occupation rent on the evidence before him. By describing occupation rent as a "discretionary remedy", the Court of Appeal moved away from the traditional analysis of occupationrent as a property right arising between co-tenants. 41 Justice Slatter then went on to consider the kinds of factors which should inform the exercise of discretion where issues of spousalsupport and/or child support are also relevant. 42 These comments have been widely adopted as appropriate in considering claims for occupation rent.

See for instance Braglin v.Braglin, [2002] A.J. No. 1198, 2002 ABQB 816 and Carmichael v. Carmichael, [2005] N.S.J. No. 465, 2005 NSSC 318. For my part,although unnecessary to this decision, I agree. 43 The striking feature of Kazmierczak and most cases involving a claim for occupation rent is that such claims are invariably tied toissues of spousal and/or child support. The case before me is strictly a matrimonial property action. There are no support claims.Furthermore, there is no claim by Ms. Gullion for contribution by Mr.

Busenius to the upkeep costs incurred by her in relation to thematrimonial home. 44 In those circumstances it is appropriate to approach the matter from first principles. What is occupation rent in the context of amatrimonial property action? It is compensation for loss of access or use. It is the notion that as a result of the breakdown of the marriageone party got a benefit at the expense of the other party. Put alternatively, it is the notion that one party has had to shoulder a greaterfinancial load than the other. However, a matrimonial property action is about property.

It is about assets and distribution of assets.

Living rent free is not a distributable asset. Having had to pay rent where one's spouse has not is not a matrimonial debt. To the extent that one spouse has paid rent, that fact is reflected in less matrimonial property accumulation. Of course, the non renting spouse also loses, proportionately. To the extent that one spouse has not paid rent, that fact is likely reflected in a greater asset accumulation. Of course the other spouse will benefit from that increase. Therefore, the exclusive possession is already accounted for.

It seems to me that with few exceptions the Matrimonial Property Act in ss. 7 and 8 is concerned with value, not fault. In fact, if Mr. Busenius is right and he should be compensated for occupation rent, then why not occupation rent in relation to the household furnishings or Ms. Gullion's car: Occupation Rent , Kevin Hannah, Legal Education Society of Alberta presentation, Calgary, March 7, 2000. In my view occupation does not create property which can be distributed. 45 That does not foreclose the Law of Property Act claim for upkeep and counterclaim for rent in occupation.

Both would be perfectly appropriate claims in a matrimonial property action. It would also be permissible to claim that one party has, while in exclusive possession of the matrimonial property unreasonably or negligently destroyed or dissipated the value of the property so as to justify an unequal division of the matrimonial assets. However, that is not a claim for occupation rent, but a claim to set aside the presumption of equality in the distribution of the assets. That is a circumstance specifically identified in s. 8 (

l) of the Matrimonial Property Act . 46 In my view when stripped of obligations of support, joint ownership in the matrimonial context is no different than joint ownership in general. Therefore, the claim for occupation rent would only be applicable to meet the claim by the exclusive occupier for contribution to expenses incurred. Since Ms. Gullion has not sought to reimbursed for expenses incurred to keep up the matrimonial home, there is no basis upon which Mr.

Busenius can claim occupation rent. [ 21 ] My conclusion based on the above analysis is that since occupation rent is not being sought by the husband, occupation costs should not be taken into account. Neither occupation rent nor occupation costs should be taken into account in this matter. [ 22 ] This leaves the Court then with spousal support and

Section 15.2 of the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp.) and

Section 8 of the Matrimonial Property Act , R.S.A. 2000, c. M-8. [ 23 ]

Section 15.2 of the Divorce Act reads: – Spousal Support Order 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1). Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just . [Underlining Added]

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage. Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 24 ]

Section 8 of the Matrimonial Property Act reads: – Matters to be considered 8 The matters to be taken into consideration in making a distribution under

section 7 are the following: (

a) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent; (

b) the contribution, whether financial or in some other form, made by a spouse directly or indirectly to the acquisition, conservation, improvement, operation or management of a business, farm, enterprise or undertaking owned or operated by one or both spouses or by one or both spouses and any other person;

(

c) the contribution, whether financial or in some other form, made directly or indirectly by or on behalf of a spouse to the acquisition, conservation or improvement of the property; (

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

i) that each spouse had at the time of marriage, and (ii) that each spouse has at the time of the trial; (

e) the duration of the marriage; (

f) whether the property was acquired when the spouses were living separate and apart; (

g) the terms of an oral or written agreement between the spouses; (

h) that a spouse has made (

i) a substantial gift of property to a third party, or (ii) a transfer of property to a third party other than a bona fide purchaser for value; (

i) a previous distribution of property between the spouses by gift, agreement or matrimonial property order; (

j) a prior order made by a court; (

k) a tax liability that may be incurred by a spouse as a result of the transfer or sale of property; (

l) that a spouse has dissipated property to the detriment of the other spouse; (

m) any fact or circumstance that is relevant. [ 25 ] As for determining what is fair and equitable in this case, my analysis in this regard is that based on the current income and expenses of the parties, and their advanced ages, that the wife should be able to keep the matrimonial home where she wishes to stay, and the husband ’ s interest in the home is extinguished. [ 26 ] As for ongoing spousal support and the full repayment of current arrears of $111,000, the husband ’ s soon to be adjusted income from the $84,000 a year that he earns currently to less than $2,000 a month, plus the ongoing medical expenses for prescription medication that he must pay out of his own limited income means that he does not have the where with all financially, or the ability to

pay ongoing spousal support, or arrears of previously ordered spousal support. I conclude that the husband owes $31,000 in spousal support arrears, which the husband will have to pay off at the rate of $1,000 a month commencing immediately. [ 27 ] The parties may apply to settle the terms of the Order and/or speak to costs within 60 days. Heard on the 3 rd day of February, 2012. Dated at the City of Edmonton, Alberta this 13 th day of February, 2012. Donald Lee J.C.Q.B.A. Appearances: Kenneth J. Alyluia Gledhill Larocque for the Plaintiff Michele J.

Reeves Attia Reeves Tensfeldt for the Defendant _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Donald Lee _______________________________________________________ The Docket number has been corrected to read 4803 136381.