Henderson-Jorgensen v Henderson-Jorgensen, 2013 ABQB 213

Court of Queen ’ s Bench of Alberta Citation: Henderson-Jorgensen v Henderson-Jorgensen, 2013 ABQB 213 Date: 20130409 Docket: 4801 150275 Registry: Calgary Between: Patrice Henderson-Jorgensen Plaintiff - and - Dorian William Leslie Henderson-Jorgensen Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice E.C. Wilson _______________________________________________________ Introduction

[ 1 ] The issues I am called upon to decide were explored at a trial which was held February 4-7, 2013. As insufficient trial time was booked to allow for oral argument, counsel agreed to provide written submissions. The Plaintiff’s (hereafter “the Wife”) submission was filed February 21, 2013. The Defendant’s (hereafter “the Husband”) response was filed March 7, 2013. Although invited to do so, the Wife chose to file no Reply to the Husband’s Response. [ 2 ] The Court is called upon to decide the following issues: A. Is retro-active child support owed by the Husband and, if so, how much? B.

Is retro-active and ongoing spousal support owed by the Husband and, if so, how much? C. What exemptions from the matrimonial property distribution, if any, can be claimed by the Husband? What, if any, reimbursements of matrimonial property are owed? D. Is the Wife in civil contempt of previous Orders of this Court? [ 3 ] For the reasons below my decision is as follows. A. The answer is ‘no’. B. The answer is ‘no’. C. Only a partial exemption for the Tacoma truck is allowed. The Wife owes a reimbursement from her share of the value of matrimonial property in the amount of $3,333.50. D. The answer is ‘no’.

Background [ 4 ] The parties began a common law relationship in January 2007. They married July 11, 2009. They separated June 27, 2011. [ 5 ] They have two children together. Emilia was born [...], 2008; Abigail was born [...], 2010. The children have been in the custody of their mother since separation. Child Support [ 6 ] An Interim Order of Rawlins, J. pronounced June 7, 2012 provides a useful starting point when considering this issue. Among other things, Rawlins, J. determined the Husband’s guideline income at $144,000 and the Wife’s guideline income at $10,720. [ 7 ] Effective July 1, 2012 ongoing

Section 3 child support was set at $2,020 per month. Rawlins, J.’s Order declared that the Wife was entitled to retro-active child support from the date of separation, less any amounts paid as child support before the date that such retro-active child support is granted, with leave granted to the Wife to determine the quantum of retro-active child support. [ 8 ] Rawlins, J. also ruled that the Wife’s right to claim to

Section 7 expenses under the Child Support Guidelines was reserved. [ 9 ] The Husband and Wife lived separate but under the same roof from June 27, 2011 until October 2011 when the Husband went into a one month alcohol rehabilitation centre in Quebec. He had been charged earlier that month with impaired operation of a motor vehicle when apprehended by the authorities while driving his employer’s motor vehicle. He was fired from his employment for this offence.

[ 10 ] The Plaintiff seeks child support retro-active to the date of separation, which effectively would begin July 1, 2011. [ 11 ] It was the Wife’s evidence that the Husband’s income for 2010 and 2011 was approximately $144,000 for each of those years. The Wife’s income was nil for the same time period. I accept this evidence. [ 12 ] According to the Wife’s unchallenged testimony, during the whole of their relationship the parties spent approximately $6,000 per month which covered all their living and lifestyle expenses for themselves and their children.

In addition, the Husband paid his monthly credit card charges from his income. [ 13 ] While there were some sporadic savings along with the regular monthly RRSP payment for the Husband, this family came fairly close to spending - in one way or another - almost all the money that was being brought in. Indeed, on one occasion, the Husband’s income was insufficient.

There was a payment on the Wife’s Visa card of $8,413.45 on July 7, 2011 (i.e. post separation) which the Wife recalled came from the Husband’s line of credit (see Exhibit 8). [ 14 ] While the Husband earned all the money for the family it fell to the Wife to perform the lion’s share of the child rearing and to look after paying all the family bills.

As the Husband’s work took him away from home for increasingly longer hours and then increasingly more days, it fell to the Wife to attend to the feeding and clothing for herself as well as the children. [ 15 ] Based on the uncontradicted evidence of the Husband, I am satisfied that for the period of July 2011 to October 2011 - when the husband lost his job and went into alcohol rehab - the Wife was able to and did freely draw upon their joint accounts to cover all of the needs of herself and the children in the same fulsome manner that she had done for all the many months and years that preceded their June 27, 2011 separation. [ 16 ] In the circumstances, where the litigants continued to live under the same roof and carried on their financial affairs, etc. post- separation in the same fashion that they did pre-separation, there is no reality to a claim for retro-active child support from July 2011 to October 2011.

It is denied. [ 17 ] Prior to the Defendant going into rehab in early-mid October 2011, I am satisfied that the Wife, Husband and Husband’s father sat down to discuss the litigants’ financial situation. I accept the father’s explanation for doing so. His son was jobless and going into rehab. He wanted to know what monies were available going forward and, if the litigants needed, he would help them out financially. [ 18 ] At that meeting, the father’s testimony was that he was satisfied that the financial situation for the immediate future, i.e. November and December 2011, was certainly manageable.

Both the Husband and Wife testified that they recalled there was approximately $15,000 on deposit in their two joint accounts. From my review of the financial records, they are not far off in the accuracy of their recollections. [ 19 ] My review of Exhibit 24 - which was comprised of statements from various bank accounts - shows that on October 14, 2011 with the Husband’s payroll deposit of $10,800.75 there was a balance in the litigants’ joint chequing account of $11,257.43. On October 13, 2011 there was a balance in the litigants’ joint savings account of $4,057.

The total of the two accounts was therefore $15,314.43. [ 20 ] The Husband returned from rehab on November 8, 2011. [ 21 ] Their previous domestic arrangement was ended by the Wife who no longer wanted the Husband living in the matrimonial home. The Wife obtained an ex parte Order for exclusive possession of the matrimonial home. By mid November 2011 the Wife had also filed a Statement of Claim for Divorce and Division of Matrimonial Property. She also sought sole custody of the children, child support and spousal support.

[ 22 ] The dramatic change in the domestic situation was paralleled by a dramatic change in the litigants’ two bank accounts. On November 10, 2011 the Husband withdrew $1,500 from the joint chequing account. The balance remaining in that account on November 10, 2011 was $33.09. The balance in the joint savings account on November 10, 2011 was $.90. [ 23 ] While some of the bank funds had been properly expended by the Wife for her and the children’s living expenses, etc., the Wife had also transferred monies from these two accounts to a third account held by the Wife and her mother.

I will refer to this third account as the Wife’s account or her own account. [ 24 ] On October 14, 2011 the Wife transferred $1,000 from the litigants’ joint chequing account to the Wife’s account. [ 25 ] After moving funds from the litigants’ joint chequing account to their joint savings account, the Wife, on October 20, 2011, transferred $8,000 from the joint savings account to the Wife’s account. On November 1, 2011 she transferred $7,000 from her account back to the joint savings account.

In the result, there was the $1,000 different yet remaining in her own account. [ 26 ] On November 8, 2011 the Wife transferred $6,000 from the joint savings account to her own account. (Subsequently there was a curious development. On November 10, 2011 there was a transfer of $6,000 from the Wife’s account to the joint chequing account but that was followed on the same day by a $6,000 transfer from the joint chequing account back to the Wife’s account.

However, it appears that nothing turns on these transactions.) [ 27 ] Thus, by November 10, 2011, the mid October joint bank account balance of over $15,000 had been reduced by over one half that amount - $8,000 - through transfers out and into the Wife’s own account. [ 28 ] After November 10, 2011 the banking records reveal transfers of monies from the Wife’s account back to the joint chequing account to cover the automatic debits for the mortgage, vehicle loan, insurance, banking loan and Husband’s RRSP.

The joint chequing account bank statement for the period November 10, 2011 to December 9, 2011 shows the transfer from the Wife’s account to that account amounted to $2,935. On the bank statement for the period December 9, 2011 to January 11, 2012, the transfer deposits amounted to a total of $2,198. The total of these two transfers in one and one-half months is $5,133. Deducted from the $8,000 previously transferred out to the Wife’s account leaves $2,867 unaccounted for. [ 29 ] No attempt was made by the Wife to demonstrate where those unaccounted funds may have gone.

For instance, Exhibit 20, which is the bank statement for the account of the Wife and her mother shows payments to Costco, Sobey’s, Real Canadian Superstore, etc. which may have been for food but this was not established in the evidence. [ 30 ] This is not a matter where the Court is wishing to be difficult. [ 31 ] But one cannot help but note that when the defence did attempt to do a “tracing” of three other transfers, the Wife could offer no explanation for any of them. [ 32 ] These earlier transfers occurred on two different days.

On September 29, 2011, $3,200 was transferred from the litigants’ joint savings account to the Wife’s account. On October 3, 2011 a total of $600 was transferred from the two joint accounts of the litigants to the Wife’s account. [ 33 ] When asked where the $3,800 had gone, the Wife was unable to answer. [ 34 ] In total therefore, I am left with $6,667 in unaccounted funds last held in the hands of the Wife in the fall of 2011.

[ 35 ] Accepting, as I do, the Wife’s assertion that the Husband’s 2011 income was $144,000, the monthly child support owing would be the same amount as was determined by Rawlins, J. in June of 2012 - $2,020 per month. [ 36 ] I have taken pains to show that the Wife had at least $15,000 in hand when the Husband went away to rehab in October 2011.

Add to that the $3,800 transferred into the Wife’s account in September and early October 2011. [ 37 ] In the result, I find that there were more than sufficient funds in the Wife’s hand or available to her to cover the required monthly child support payments for November 2011, December 2011, January 2012 and February 2012. [ 38 ] Added to those funds is the last payroll cheque of the Husband for $1,479.36 which was deposited November 15, 2011 to the litigants’ chequing account. [ 39 ] Also added to those funds are the money orders for child support provided by the Husband to the Wife on January 20, 2012 and on February 11, 2012 in the amount of $500 each - see Exhibit 23. [ 40 ] While the Wife used the funds to pay off loans, the mortgage and other household costs, there is no complaint being advanced by the Husband about her doing so. [ 41 ] Despite the Wife’s testimonial claims that she was trying to cut back on her costs, the only examples of this that I noted in her evidence were directed at reducing the electrical bill by turning off the TVs and the lights in the house.

Such ‘savings’ would amount to a pittance. [ 42 ] A review of her credit card statements shows a lot of debits for restaurants, bars and clothing stores - see Exhibits 8 and 21.

My sense is that the Wife was carrying on spending as freely as always notwithstanding she knew that the Husband was out of work as of October 2011 and she did not return to the workforce herself until January 2012 and for which she earned very little money. [ 43 ] In other words, she carried on with little regard for the reality that there was no more money coming in. [ 44 ] The Wife wanted the Court to believe that this period of November 2011 to the end of February 2012 was so financially stressful that she was forced to charge a lot of the daily and monthly costs of running a household upon her credit cards or forced to borrow from her mother.

However, my review of her credit card statements do not bear out her assertions. So too when I review the “loan history” between her and her mother - see Exhibit 7,

Schedule A. [ 45 ] The initial ‘draw downs’ - November 15, 2011 for $5,000 and December 1, 2011 for $1,854 are clearly noted to be for the Wife’s lawyer’s fees. [ 46 ] The purpose of the five subsequent ‘draw downs’ are not specified. Both the Wife and her mother testified what each was for. Where they have disagreed, I have accepted the mother’s recall as being the accurate version.

I say this because I generally found the Wife to be unreliable when trying to recall financial details and at other times demonstrated a selective memory which I find to be self- serving. [ 47 ] Thus, on the December 30, 2011 draw down of $6,500 I accept the mother’s testimony that these were for lawyer’s fees. [ 48 ] The January 23, 2012 draw down of $750 was fully transferred in two deposits to the litigants’ joint chequing account of January 23, 2012 and January 25, 2012 and was used to pay for auto insurance and a vehicle loan. [ 49 ] The purpose for the January 12, 2012 draw down of $600 could not be recalled by the Wife.

The mother thought it was to go

towards the mortgage. I am unable to trace it. [ 50 ] For the sake of completeness, the last draw down - March 27, 2012 - was for $2,800. This was deposited in the Wife’s account (Exhibit 20) on that day. On the same date a debit in favour of the law firm for $2,000 issued. Interestingly the Husband provided the Wife with the money order for child support in the amount of $1,000 which the Wife deposited into her account of March 29, 2012.

The next day, March 30, 2012 a further debit in favour of her law firm for $1,000 issued. [ 51 ] The purpose of doing this tracing of the Wife’s loans from her mother is to demonstrate that the vast majority of those funds had nothing to do with the needs of housing, clothing or feeding the children or for running the household and paying off the regular bills.

The funds were used, in the main, to retain counsel. [ 52 ] The only implication can be that the Wife did have sufficient funds otherwise to deal with her family’s needs. [ 53 ] Having considered the matter at length, I am satisfied that the Wife did have funds on hand and did sporadically receive child support payments in January and February 2012 such that she in effect “received” the $2,020 child support for the months of November 2011, December 2011, January 2012 and February 2012.

Imputing Income [ 54 ] The Wife however observes that the 2011 yearly income of $144,000 was really only for 10 months - up to October 2011 when the Husband was fired for operating his employer’s vehicle while impaired by alcohol. [ 55 ] The Wife argues that the Husband is solely responsible for the predicament he found himself in and that I should impute his income for 2011 on a full 12 month basis and impute his income for early 2012 to also now include what he would have earned had he not been fired. [ 56 ] In support of her position the Wife relies upon the following decisions: Jean-François v.

Barnes , 2012 ONCJ 124 , Aboagye v. Sakyi , 2012 ONCJ 56 . [ 57 ] I am not persuaded by those authorities.

The Husband - given his drunk driving charges, drunken participation in a hotel room being destroyed coupled with the need to go to a one month alcohol rehabilitation programme - clearly reveals himself to be (at least by October 2011) as an out of control alcoholic who had not learned from his earlier drunk driving charge in 2010 and, worse, became a repeat offender but this time while operating his employer’s motor vehicle. [ 58 ] Alcoholism is a health problem and trying to deal with it requires a lifelong commitment. [ 59 ] That was/is the Husband’s problem.

He couldn’t control himself in his drinking notwithstanding that he had a wife and two little children counting on him as the sole breadwinner. He lost his job because he was unable or unwilling to deal with his problem. [ 60 ] When the Husband returned from his month-long rehab in November 2011, the Wife had obtained an ex parte Order for exclusive possession of the matrimonial home. [ 61 ] Thus the Husband was both jobless and, now, homeless.

In November 2011 he moved to the BC interior where he lived with his mother in order to look for work. [ 62 ] In all of the circumstances, I am not persuaded that it is either fair or appropriate to impute income to the Husband for the months of November, 2011, December 2011, January 2012 or February 2012 above the $144,00 amount.

[ 63 ] Accordingly the Wife’s application to impute income for those four months is denied. [ 64 ] On January 31, 2012 the Husband incorporated Direct Target Consulting Ltd. of which he is the sole owner, director and shareholder. [ 65 ] The fact of incorporation did not change the nature of the Husband’s work.

He still was planning on doing essentially what he had previously done before he was fired. [ 66 ] He was able to land some work in February 2012 and his company actually started to receive income in March 2012. [ 67 ] But, in short order, his company did exceedingly well. [ 68 ] In the financial statement up to year end October 2012 his company revenues were $177,475 (see Exhibit 26). [ 69 ] All of this corporate income was received from March 2012 to October 2012, i.e. in eight months.

This works out to $22,184.38 per month in income. [ 70 ] At the end of the corporate year the Husband had received a total income from his company of $52,407 in director’s fees and $56,100 in dividends, for a total of $108,507. The Husband asserts that this should be the basis upon which child support should be calculated. [ 71 ] Not surprisingly, the Wife disagrees. Her submission is that many of the “business expenses” which have been deducted in the financial statement of this solely owned corporation, should be added to the Husband’s income. [ 72 ] The Wife relies upon

Section 16, Section 17(1) and Section 18(1)(

a) of the Federal Child Support Guidelines which are as follows: 16. Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III. 17.

(1) If the court is of the opinion that the determination of a spouse’s annual income under

section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. ... 18(1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s income as determined under

section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in

section 17 and determine the spouse’s annual income to include (

a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or

... [ 73 ] I am persuaded to the Wife’s point of view having regard to the legislation and the case law she cites - none to the contrary being cited by the Husband. [ 74 ] The Husband takes the position that his company’s Financial Statement prepared by his accountant properly listed all appropriate corporate expenses - which total $85,114 - and that the Court should follow along and not even consider adding back any of these expenses to the Husband’s income due to any benefit that he would have personally received. [ 75 ] The Husband’s position suffers from a number of deficiencies. It has the effect of tending to wholly ignore Section 18 (1)(

a) of the Guidelines. It presumes that an accountant’s work dictates the result a Court is otherwise expected to reach on its own, based on considerations foreign to the accountant’s task, who is responding to tax statutes. [ 76 ] It also presumes that the accountant’s determination of appropriate expenses would automatically be shared by the C.R.A. Here, the Husband has deliberately chosen not to even file a corporate tax return until after this trial is completed. [ 77 ] As a general response to the Husband’s submission, the Court relies on the following remarks contained in (Wilcox) Snow v. Snow ,

(1999) N.S.C.A. 163 at para 22: [22] In the case of a self-employed businessman, like the respondent, there is very good reason why the Court must look beyond the bare tax return to determine the self-employed businessman’s income for the purposes of the Guidelines . The net business income, for income tax purposes, of a self employed businessman, is not necessarily a true reflection of his income, for the purpose of determining his ability to pay child support.

The tax department may permit the self employed businessman to make certain deductions from the gross income of the business in the calculation of his net business income for income tax purposes.

However, in the determination of the income of that same self employed businessman, for the purpose of assessing his ability to pay child support, those same deductions may not be reasonable. [ 78 ] When asked to explain the rationale of attributing all of the expenses in the Financial Statement as purely corporate expenses with no possible ‘spillover’ benefit to him personally, the Husband was wholly unable to do so. [ 79 ] He deferred these questions to his mother who did his books.

However, when she testified, she advised that she wasn’t responsible for drawing up the Financial Statement - it had been done by a ‘certified accountant’ who was never called as a witness. [ 80 ] In this case, the Husband has essentially incorporated himself and on a gross revenue basis easily exceeded his income in 2010 and 2011 when he was doing the same type of work.

Yet, by taking advantage of the tax laws to properly arrange his business affairs, the husband is now heard to claim that his income for child support calculation purposes has plummeted. [ 81 ] I am not prepared to simply accept his bold submission. Instead, I adopt the following comments from the Snow decision at paragraph 26 as offering a reasonable approach to the matter: ... As a self-employed businessman he cannot, simply, file with the court a copy of his most recent income tax return, and expect that his net business income for tax purposes will be equated with his income for child support purposes.

That is what the respondent did in this case. It is not enough. The businessman must demonstrate, among other things, that the deductions which were made from the gross income of the business, in the calculation of his net business income, should, reasonably, be taken into account in the determination of his income for the purpose of calculating his obligation to pay child support. [ 82 ] This makes sense. Only the businessman could be reasonably expected to explain his tax position. [ 83 ] I agree with the Wife that there was not much evidence provided by the Husband or his mother to help assess the situation. I

also agree with the Wife that, presumably, some of the expenses are purely business expenses and should not be attributed as part of the Husband’s personal income. [ 84 ] The Wife has assessed the evidence regarding all of these expenses and has drawn certain conclusions. Based upon those conclusions, i.e. either the expense qualified 100% as a business expense or as a 0% business expense, or as a 50% business expense (i.e. partial business expense, partial personal financial benefit), the Wife submits that the true business expenses should be reduced from $85,114 to $19,140.50 - see paragraphs 21 and 22 of the Wife’s brief and

Schedule B to the Wife’s brief. [ 85 ] Having considered the evidence and counsel’s submissions I find that I agree completely with the Wife’s analysis and conclusions and adopt them as part of my decision. [ 86 ] Accordingly, the $19,140.50 in business expenses accumulated over nine months in 2012 would work out to $2,126.72 per month in expenses. However, since the corporate monthly revenue of $22,184.38 was only earned from March 2012 to October 2012, i.e. in eight months, I will, in fairness to the Husband, also divide the $19,140 in allowable business expenses by the same eight months.

The result is $2,392.50 in business expenses per month. Subtracting those monthly business expenses from the monthly gross income of $22,184.38, leaves a difference of $19,791.88 per month. This works out to an imputed yearly income of $237,502.56 for the purposes of child support calculation. [ 87 ] Effective March 1, 2012 the ongoing monthly child support would therefore be $3,271.53. The total child support obligation up to and including February 1, 2013 (the trial commenced February 4, 2013) i.e. over a period of 12 months, amounts to $39, 258.36.

Deducting the amount of money characterized by the Husband as “Child Support Payments” in Exhibit 23 and paid to the Wife during this period, i.e. $23,750, leaves a total amount “owing” by the Husband of $15,508.36 for the period March 1, 2012 to the date of trial, subject to my conclusion reached at paragraphs 91 et seq .

Section 7 Expenses [ 88 ] Having reviewed the record and counsels’ submissions I am satisfied there are no outstanding

Section 7 expenses owed by the Husband. [ 89 ] Firstly I disallow any

Section 7 claims for the time period up to March 1, 2012. I am satisfied there were sufficient funds available to the Wife to cover all of these expenses. See my earlier comments in this regard. [ 90 ] That leaves a total

Section 7 expense claim of $3,618.03. The Husband’s proportionate share would be 95% of that, which equals $3,256.23. Conclusions Regarding Child Support [ 91 ] I add the outstanding

Section 3 claim of $15,508.36 to the outstanding

Section 7 claim of $3,256.23, which totals $18,764.59. [ 92 ] The total payments made by the Husband as detailed in Exhibit 23 for the time period March 1, 2012 forward - excluding those titled “Child Support Payments” - amounts to $21,216.58. [ 93 ] Rawlins, J.’s Order directed that in regard to certain of these payments, it was left open to this Court to characterize those payments. [ 94 ] From the total of $21,216.58 I characterize the past payment amounts of $18,764.59 as

Section 3 and

Section 7 child support.

[ 94 ] From the total of $21,216.58 I characterize the past payment amounts of $18,764.59 as

Section 3 and

Section 7 child support. [ 95 ] In the result, I find there is no retroactive

Section 3 or

Section 7 child support owed by the Husband. [ 96 ] As an adjunct to this finding, the Court directs that on a go-forward basis, no

Section 7 expense is to be incurred without the prior consent of the other parent, which consent should not be unreasonably withheld. If consent is not obtained, then the parent who chooses to incur the cost will, subject to further Court Order, be wholly responsible for its payment. Spousal Support [ 97 ] This is one of the few cases where entitlement to spousal support is not admitted. [ 98 ] Interestingly, the Wife’s Application for Interim Spousal Support was not granted by Rawlins, J.

Specifically, the Wife’s Application was adjourned “pending further and better evidence”. [ 99 ] The Wife claims entitlement for this short term marriage on two bases - compensatory and non-compensatory. [ 100 ] The Wife’s argument for compensatory entitlement is detailed in paragraphs 39-43 of her Brief.

I am not persuaded that the Wife has made out the claim that “The Plaintiff must be compensated for these sacrifices she made to advance the Defendant’s career” (paragraph 42), nor the claim that “the Plaintiff is entitled to spousal support by way of transition” (paragraph 43). [ 101 ] The “sacrifices she made to advance the Defendant’s career” must be carefully examined. [ 102 ] The Wife testified that when she started co-habiting with the Husband she worked as a nanny while also attending Mount Royal University.

She then took on full-time employment for four months as a member of the “morning wake up staff” followed by full- time employment for six-eight months as a behavioural therapist. [ 103 ] When she was seven and a half months pregnant with their first child she went on early maternity leave.

She also testified that during weeks eight to twenty of her pregnancy she did not work due to sickness. [ 104 ] Thereafter she became a “stay at home mum” by her own choice, albeit with the full blessing of the Husband. [ 105 ] Counsel submits that the Wife’s employment paid her $13-$14 per hour - remuneration that counsel asserts made the Wife “reasonably well compensated”.

Unfortunately, the Wife never provided me with any indication of the number of hours she was working or the amount of income she had been earning when she left the workforce. [ 106 ] So I have nothing to indicate what income she had actually sacrificed. [ 107 ] Her counsel submits that the Wife cannot return to her previous employment. Furthermore it is submitted that the previous role now requires a degree or certification that the Wife does not have. [ 108 ] With respect, that’s not quite the evidence.

[ 109 ] The Wife was cross-examined on a behavioural therapist job offered by her previous employer that did pay approximately $35,000 per year plus benefits but which required a degree or certification. But the sense that I received from the Wife’s testimony was that the posted job description wasn’t quite the same job that she had done previously. [ 110 ] Secondly, she did testify that she had not returned to the field of a behavioural therapist because the hours weren’t conducive to looking after her children. But then she admitted she had discussed this with only one person.

She conceded that she hadn’t really thought much about the matter. She said that she would put this off until the children were in school full-time. [ 111 ] This is not proof of sacrifice of a career, let along sacrifice of an opportunity to resume that career as is alleged by counsel. [ 112 ] When the Wife returned to the workforce in January 2012 it was to become a yoga instructor. She is clearly desirous of obtaining certification in this field.

She is 10 hours short of the 400 hours needed for certification - plus an additional three-four hours for testing. [ 113 ] She presently works Monday to Thursday for 24 hours a week at $10 per hour. [ 114 ] When asked what her income level would be once she achieves her certification, she admitted that it would be “peanuts”. [ 115 ] She has an uncertain and ill-defined goal of doing yoga with children at some point in the future but she could offer no idea what income this would generate. [ 116 ] It is clear to the Court that the Wife is really only interested in pursuing a yoga instructor career.

I note, for instance, that from the date of separation until May 23, 2012 the cost of babysitting and daycare (see Exhibit 4) was due either to time the Wife needed to train as a yoga instructor or for her to go out. [ 117 ] Notwithstanding that she is earning little money as a yoga instructor and that her future earnings will be “peanuts” and that there is no certainty of what the future will hold for her in this field of endeavour, she willingly pursues this vocation. [ 118 ] This is no “sacrifice”.

This is the product of a willing choice. [ 119 ] I found it telling that the Wife is unwilling to pursue other or more lucrative employment, even with the Husband paying significantly more for child care to permit her to do so because she wants to be the children’s daily caregiver. [ 120 ] That is commendable and would be a reasonable course to follow if the Husband and Wife were still in a marriage. But they are not. Reality dictates a change in life’s expectations and plans. [ 121 ] I find that the Wife has done little that is reflective of the need to change and to become self-sufficient.

For no compelling reason the Wife apparently prefers not to do anything that could possibly be seen as signalling an interest in change in order to advance her towards self-sufficiency. [ 122 ] In such circumstances, there is no demonstrated “entitlement to spousal support by way of transition”. [ 123 ] Nor am I satisfied that there is merit to the submission that the Husband advanced his career and earnings “at the Plaintiff’s expense” (see Plaintiff’s Brief, paragraph 41). [ 124 ] While married and then when separated up to October 2011, the Husband’s income was relatively static at $144,000 a year. His

2012 income, which I have imputed to be $237,502.56, was only earned after he had been separated from the Wife for some time. In such circumstances it is difficult to conclude that the Husband’s income increase has anything to do with the wife. [ 125 ] The Wife’s claim for spousal support on the non-compensatory basis is detailed at paragraphs 44-47 of her Brief.

It is focussed solely on a claim of “needs” in order to maintain a standard of living enjoyed by the spouses during the marriage. [ 126 ] Unfortunately, I have little evidence to demonstrate the reduction in the standard of living or lifestyle post-separation. [ 127 ] While married, this couple spent money about as quickly as it came in but, outside of an increase in the equity in the matrimonial home, I am quite unable to identify where all the money went.

There is no vacation property purchased, no habitual or even occasional holidaying at resorts or on “hot holidays” that were paid for from money earned by the Husband. No specific activities or events or holidays previously enjoyed during the marriage are provided. [ 128 ] There may have been more meals consumed at restaurants than there are now, but that is hardly an indicator of “lifestyle”. It is more suggestive of people who didn’t particularly care to make all their own meals at home. [ 129 ] The “budget” prepared by the Wife for Rawlins, J. was relied on before me.

Some of those budget items are reflective of the cost to run the matrimonial home, which will no longer be a concern for the parties as they now agree that it should be sold. I am given no indication of what costs for residence might be expected for the Wife and the two children. [ 130 ] There are a number of her budget items with which the Husband registers disbelief. I find myself in a similar position. To be clear, I find that some of these monthly expenses are inflated.

For example, food costs for the Wife are $600; for her two small children (ages 5 and 3) their food cost is separately tallied at being $400; restaurants are tallied at $80 and $60 respectively and school lunches at $50. This totals almost $1,200 per month. I cannot accept such numbers as being even remotely accurate. [ 131 ] The claim of $500 per month for furniture repair and replacement is unbelievable; ditto $500 per month for new clothes; ditto $80 per month in auto servicing i.e. exclusive of $160 per month in fuel and oil; $250 per month in gifts, etc, etc.

In sum, I have very little confidence in the validity of this budget. [ 132 ] Having considered the Wife’s submissions in light of the record before me, I find that there is no demonstrated entitlement to non-compensatory based spousal support on the basis of “need”. [ 133 ] In conclusion, the Application for Spousal Support is dismissed. The Matrimonial Property [ 134 ] The Husband claims an $83,500 exemption from the value of the matrimonial home.

The Husband and his father testified that when the latter provided $83,500 for the down payment on the purchase of the matrimonial home, it was in fact a gift from the father to the son. The Wife testified that it was gift to both her and the Defendant. [ 135 ] I am satisfied that the Wife’s version is the correct version for a number of reasons. [ 136 ] The Husband and his father’s position is that the $83,500 was a gift pursuant to an agreement that the Husband would receive some amount of the equity in a condo once it was sold.

The Wife and Husband had lived in that condo prior to the purchase of the matrimonial home. The condo was owned by the Husband’s father’s company. The Wife and Husband paid rent - but only sporadically - indeed, not enough to even cover the father’s expenses. The father paid the insurance and upkeep on the condo. Clearly the Wife and Husband were equal beneficiaries of the father’s largesse.

[ 137 ] The $83,500 down payment was arrived at as being the amount required to prevent the parties from having to pay mortgage default insurance premiums on the matrimonial home. Again, there is equal benefit to the two litigants. [ 138 ] The condo was sold some time after the matrimonial home was purchased. Clearly then, at the time the down payment was paid, the Husband’s father would have no idea what profit - if any - might be realized from its future sale.

No evidence was led to show this information or how the precise figure of $83,500 might figure in to the future final sale price of the condo. [ 139 ] Last, I note that when the marriage was on the rocks in October 2011, the Husband’s father met with the parties to assess their financial situation. He testified that he would have been ready to make up any financial shortfall.

Again, a demonstration that he was treating both parties equally. [ 140 ] Thus the father’s suggestion that the down payment on the matrimonial home was really only a gift to his son runs counter to all the other evidence that his generosity - both prior to and after the down payment was made - was directed equally at both of the parties. [ 141 ] On balance, I am not persuaded that the down payment was anything but a gift to both litigants.

Accordingly, the claim by the Husband for the $83,500 exemption from the matrimonial home value is denied. [ 142 ] The Husband claims a $21,500 exemption representing the value of a 2006 Tacoma truck used as a down payment on the parties’ van. The Wife submits that some but not all of this value should be exempt. [ 143 ] The Tacoma was purchased prior to the Husband and Wife’s relationship. The truck and its loan were both in the Husband’s name. In 2007 the loan was paid out by the Husband’s father.

The litigants then paid back the Husband’s father by way of 31 payments of $500 each for a total of $15,500 from the parties’ joint account. All payments were made during co-habitation. [ 144 ] Having regard to

Section 7(

c) of the Matrimonial Property Act I am satisfied that the $15,500 in payments were made jointly by the parties for the acquisition of matrimonial property and the exempt value of the Tacoma should be one half of that amount, i.e.$7,750. The result is that the Husband is entitled to a $13,750 exemption for the Tacoma. Reimbursements [ 145 ] At paragraph 77 of the Wife’s Brief, the Wife submits she should be required to re-imburse the Husband for various things.

The Husband’s Brief is silent on this offer from the Wife. [ 146 ] I am satisfied that one half of the unaccounted for transfers of $6,667 of matrimonial property (see paragraph 34) should be offset against the Wife’s entitlement to matrimonial property. Accordingly the Wife has to reimburse the Husband $3,333.50. Property Removal [ 147 ] The Wife seeks re-imbursement from the Husband of one half of the value of items taken by him which the Wife valued, in her written submissions, at $2,000.

My notes of her evidence put the value at $2,400. [ 148 ] Regardless of which number is used, I am unwilling to give effect to this submission. Nowhere in her evidence did she explain how she came to her numbers. The Husband wasn’t cross-examined on this issue, so there is no evidence to consider from him.

[ 149 ] In the result, the Wife’s claim in this regard is denied. Selling and Listing of the Matrimonial Home [ 150 ] The Husband applied in January 2012 to have the house listed and sold. The Wife opposed this application. She had previously received an ex parte Order for exclusive possession. Her grounds for doing so, I am satisfied, were “a bit of a stretch”. A claim of a threat to her safety was an overstatement.

Her ignorance of the Husband’s whereabouts was only because she didn’t try to find this out from his parents with whom she was in contact. [ 151 ] Now she agrees - 13 months later - that the house should be sold. [ 152 ] The Husband fears unnecessary delay in that occurring.

In fact, the Wife now asks for a 60 day delay from the issue of this Decision to permit her to find alternative accommodations prior to a purchaser taking possession. [ 153 ] In all of the circumstances her request for that 60 day delay is granted. [ 154 ] However, to help expedite the sale process, I direct that the Husband has sole decision making authority regarding the sale of the home and the selection of a listing agent, unless he wishes to buy the home himself. Applications to Hold the Wife in Contempt [ 155 ] The proof offered in support of each application does not support any findings of contempt.

Proof beyond a reasonable doubt is required. It is not present in any of these cases. [ 156 ] What I do find is that confusion and misunderstandings and stubbornness help explain what occurred in all cases. [ 157 ] Contempt is not proven on any of the Applications and all such Applications are, accordingly, dismissed. Costs [ 158 ] On balance I find that the parties have each enjoyed mixed success. Accordingly each will bear their own costs. Heard on the 4 th to the 7 th day of February, 2013. Dated at the City of Calgary, Alberta this 8 th day of April, 2013.

E.C. Wilson J.C.Q.B.A. Appearances: Tyler S.L. Fric for the Plaintiff Danilo A. Aburto for the Defendant