Metcalfe v Metcalfe, 2013 ABQB 356

Court of Queen ’ s Bench of Alberta Citation: Metcalfe v Metcalfe, 2013 ABQB 356 Date: 20130702 Docket: 4801 103223 Registry: Calgary Between: Donald Gordon Metcalfe Plaintiff/Applicant - and - Debra Ann Metcalfe Defendant/Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L. Kenny _______________________________________________________ Introduction [ 1 ] The Respondent wife seeks a review of ongoing spousal support pursuant to an agreement between the parties.

That agreement provided for spousal support payments of $5,000 per month from January 1 st , 2008 to and including December 31 st , 2012. The wife was entitled to seek a review after December 31 st , 2012 as to her further entitlement to spousal support, if any, and if entitlement was found either party could argue for a higher or lower amount to be paid. The wife brought an application to continue support after December, 2012 pending a review before the court. This is that review. [ 2 ] The Applicant husband, seeks to terminate ongoing spousal support or in the alternative, reduce the support gradually over

two years so that support would end in December, 2014. Background [ 3 ] The parties were married in 1979 and separated in September of 1999. At the time of separation, the wife was 44 years of age. There are two children of the marriage. They are adults now. The youngest child is currently 25 years of age and will finish her degree in June of 2013. At the time of signing the agreement, the oldest child was no longer a child of the marriage.

The agreement provided that the husband would pay $3,406 per month as child support with respect to his youngest daughter as well as one half of her expenses for tuition, fees and books at University. [ 4 ] The husband has always paid spousal support although it has been in different amounts over the years. He estimates that he has paid approximately $654,000 over 13 years in spousal support. The wife estimates it to be approximately $550,000.

Litigation background and wife ’s employment and training. [ 5 ] The husband, currently 60 years of age, is a urologist having obtained his medical training before and during the marriage. The wife was a nurse during the marriage although she took time off when the children were young. Just prior to the separation, she took a six month retraining course and was re-licensed as a nurse. After separation the wife decided she did not want to continue on in nursing and so the husband funded a three year degree between 1999 and 2002 for her to retrain in public relations and communications.

Throughout this period of time, the wife worked on a casual basis as a nurse with the Calgary Health Region. In July of 2003, the wife obtained employment in communications with Alberta Children’s Services. She stayed in that position until 2006 when she voluntarily left to take a position as a contractor in health care public relations with the Calgary Health Region where she stayed for approximately 18 months. Due to a reorganization, her contract work there was no longer available. She was unable to find immediate re-employment in the field.

As a result, the government offered to fund her nursing refresher program which she completed in 2010. She says there was then a hiring freeze and so she could not find employment as a nurse. She says that a casual position opened in 2010 and she took it. She also started her own retail business around that time which she continues to pursue while working casual shifts as a nurse. She has not earned any income from this business to date as she reinvests her earnings into the business. [ 6 ] The parties started a very long and protracted arbitration in 2005.

The arbitrator’s decision was released in April 2006, it was appealed and four issues were returned to arbitration. The decision on those issues was released in June of 2007. Rather than face further appeals, the parties agreed to mediation which resulted in a settlement evidenced by a Support and Property Agreement dated March 25, 2008. [ 7 ] Since separation, through completion of her communications degree and throughout the arbitration and the mediation, the wife was employed, sometimes on a casual basis and at other times, in a full time position.

She also received spousal and child support payments. [ 8 ] The wife’s concern now is that child support will stop in June of this year and if spousal support ends, she will not be able to support herself. She says there are no part time or full time positions for nurses in the Calgary area which do not require a degree (she has a nursing diploma, not a nursing degree) and that shifts as a casual nurse are very limited. She says that she has also applied for many positions in communications and public relations using her education and experience in that area, without success.

The wife concedes that if she were able to find a full time position as a nurse, she would earn approximately $71,000 per year and be entitled to benefits. [ 9 ] The husband has a professional corporation through which he draws his income. His income, as found in 2006 by the arbitrator, was $430,451 for 2004 and $380,380 for 2005. There is no indication in the mediated agreement signed in March of 2008 of the income of either party for 2006 or 2007 although the agreement indicates that each party had full disclosure prior to signing the agreement.

For this application, the husband’s income as reported at line 150 of his tax returns is $404,646 for 2009, $333,327 for 2010, and $343,936 for 2011. The wife takes issue with this income as reported saying it is actually much higher as shown by the dividends declared in his corporate financial statements. Dividends are however reported as income on his tax returns. Issue

[ 10 ] The issue before me is whether the wife is entitled to further spousal support and if so entitled, then the quantum and duration of that support. Positions of the Parties [ 11 ] The husband argues that any entitlement to compensatory support that may have existed has long ago been satisfied and was certainly satisfied by the time of the last payment under the mediated agreement.

The agreement acknowledges as much in clauses therein which confirm that the five years of spousal support payments addresses any economic advantages or disadvantages arising from the marriage and it’s breakdown, apportions the consequences of child care, relieves any economic hardship arising from the breakdown of the marriage and provides the wife with the opportunity and ability to become self sufficient.

On the issue of non compensatory support, the husband argues that the wife has education and skills which she has used to work full time in the past, and that any unemployment at the present time is as a result of choices that she has made. The consequences of those choices, including continuing to reside in a very expensive home, lie with the wife, not the husband.

Although the husband does not believe the wife is entitled to further support, he is prepared to pay to the wife decreasing monthly payments for a further two years to terminate at the end of December 2014 or a $50,000 lump sum payment. [ 12 ] The wife argues that she needs support as she is currently unable to look after herself. She is only working casual shifts as a nurse and her retail business is not providing her with an income. She says that the husband has underpaid her spousal support for years and that if he had paid the appropriate amount she would now be able to look after herself.

She has a great deal of debt that she is servicing, she has a mortgage to pay on her home and she does not have enough money to meet her day to day needs let alone put away funds for her retirement. She seeks $13,000 per month for another five years to be reviewed at that time or when the husband actually retires, or, in the alternative, that the husband pay off her mortgage and all of her debts and pay to her $6,000 per month for a period of five years to be reviewed at that time or when the husband actually retires.

She bases the $13,000 per month on the high end of the Spousal Support Advisory Guidelines (Guidelines) for an income of $343,000 which was the line 150 income for the husband in 2011. Analysis [ 13 ] The husband can afford to pay spousal support. He is currently 60 years of age. He expects he will only have two to three years left of surgical time as he is considered a senior surgeon. His current wife has had serious health challenges recently and he would like to slow down and spend more time with her while he can. [ 14 ] The wife currently has limited income outside of child and spousal support.

The question is whether that entitles her to further spousal support from the husband. [ 15 ] There are two bases for entitlement to spousal support. One is compensatory support - to compensate a spouse for the economic disadvantages arising from a marriage and it’s breakdown such as a loss in earning capacity resulting from child care obligations. The other basis is simply need - non-compensatory support.

These latter cases often arise in situations where a spouse becomes disabled or suffers from medical issues whereby they would be unable to work. [ 16 ] Counsel for the wife concedes that a claim for compensatory support is not her strongest argument. While the wife continues to argue that all of her current problems relate to the breakdown of the marriage, it is difficult to reconcile that with the evidence. Prior to the separation, the wife upgraded her nursing qualifications. She finished that in August of 1999 and started work right away in a casual position as a nurse.

At the same time, she was also accepted into the communications course at Mount Royal (then) College. [ 17 ] Not only had she requalified to begin employment in her original field of training, but she chose to enter a new field, financed by the husband, which she completed. She then worked full time for a number of years. She left one full time position so that she could work as a contractor in another position. When Alberta Health Services decided to reorganize, she lost her contract position.

Since then, she has continued to work as a nurse, after again upgrading her qualifications, and has started a retail business which she hopes will be successful. She acknowledges that she could earn over $70,000 per year as a full time nurse but says there are no positions in the Calgary area for full time or part time nurses with a diploma. She also says that she has tried to find positions in public relations and communications using her degree and work experience in that area without success. It appears from the exhibits to her affidavit, that the

last time she sought employment was in 2010. Since that time she has focussed on her new business and working casual shifts as a nursein the Calgary area. Decision [18] I am satisfied that there is no further entitlement to compensatory support.

In coming to this decision, I consider the followingfactors: the age of the wife at the time of separation; that the matrimonial property was equally divided at that time; that there is nolonger a need for child care and in fact has not been for over eight years since the youngest child turned 18; that spousal support has beenpaid for over 13 years already; and that the wife has reached a degree of self sufficiency consistent with her education and work skills.The fact that she is not currently working to her full potential is not related to the economic consequences of the marriage and it’sbreakdown, including child care, but related to choices she has made and the state of the economy during the separation.

Shields v.Shields,2008 ABCA 213. [19] I also take into consideration that the wife acknowledges in the agreement entered into between the parties in 2008, that thepayments of $5,000 per month for a period of five years adequately and properly met the factors and objectives set out in sections 15.2and 17(7) of the Divorce Act during the period up to December 31, 2012. [20] The next question then is whether the wife is entitled to continued spousal support on the basis of need. The wife argues thatshe cannot support herself without continued spousal support as her own income is nominal.

She relies almost completely on the currentspousal and child support to meet her needs. The child support ends this month and therefore, her income will be reduced by a further$3,406 per month. She has a high debt load because of the prolonged litigation and she still has a mortgage on her home and significantexpenses related to the home. The mortgage was approximately $167,000 in 2008 (it’s current value is unknown) and I am advised thatthe home has a value in excess of one million dollars.

The wife argues that she needs to pay off her debts and mortgage and put awaysignificant funds in order to finance her retirement. She says that she could have done this if the husband had paid significantly morespousal support than he did, in particular, the amounts set out in the Guidelines. She argues that his underpayment is what has caused hercurrent hardship. [21] It would be unwise for this court to now engage in revisionist history with respect to the quantum of spousal support paid overthe last 13 years. This litigation started in 1999. Both parties had counsel throughout.

There are consent orders on file, two arbitrationsand a mediation. There are many factors that go into determining what is appropriate support in light of all of the other issues betweenthe parties and their current needs and obligations.

To say now, that the Guidelines say I should have received X, and I only received Y,and that therefore this court should now award an amount on the high end of the Guidelines for an indefinite length of time to make upfor the past, is simplistic in the extreme after 13 or 14 years. [22] Unfortunately, the superior courts in Canada have not provided a clear roadmap for trial courts in dealing with issues of non-compensatory support.

Professors Carol Rogerson and Rollie Thompson, authors of the Spousal Support Advisory Guidelines andprolific writers in the area of spousal support have identified a number of issues which confuse the matter. The factors for non-compensatory support often overlap with factors for compensatory support. Entitlement is often merged into discussions of quantum andduration such that the former gets lost in a discussion of the latter.

That is problematic as the court must first determine whether there isentitlement before embarking on the discussion of quantum and duration. [23] The leading case on non-compensatory support is Bracklow v. Bracklow (SCC), [1999] 1 S.C.R. 420. Thecase seems to say that compensation is the main basis for spousal support but that there may be cases where there is need such as illhealth or no work within the receipient’s skill set. The basis of needs based support originates with the theory that a spouse, as opposedto the state, should support a spouse who is in need.

Bracklow looked at non-compensatory support as another option, not an alternativeto compensatory support. Therefore, where there is or was an interdependence and compensatory support is no longer applicable, theremay still be a need which gives rise to an entitlement to spousal support. Factors to consider would be the duration of the marriage,whether there was a drop in standard of living after separation, and economic need. [24] This is a review and so we are looking at current circumstances.

I have dealt with the compensatory claim and found that thespousal support paid has compensated the wife for any economic consequences arising from the marriage and it’s breakdown includingthe care of children. [25] This was a 20 year marriage. The wife was 44 and the husband 47 when they separated. The children were 11 and 15 at that

time. The parties equally divided their matrimonial property. The husband financially supported the children and the wife although the wife argues about the extent of that support. The children both finished school and university. The wife has upgraded her education and qualifications and worked at something continually since the separation. She has continued to live in the matrimonial home which has increased in value. She has retirement funds as well. She runs her own small retail business which continues to earn more revenue each year but not enough yet to pay her an income.

She continues to work as a nurse. [ 26 ] The wife’s standard of living is not that of the husband’s in large part because of his increased earning capacity. She does however still live in the same home they lived in together and she does have her own assets. [ 27 ] Although we do not have clear guidance on when there is entitlement to non-compensatory support, a review of the facts here in light of the basic premise for this type of support is helpful. The first of these is the duty of a spouse to support the other spouse rather than the state.

This is true need or hardship - a spouse who is impoverished with no skills at all or a spouse with an illness that prevents them from working. That is not the case here. The wife has assets which she may need to reorganize to assist her with her expenses and income. She is working currently but not to her full potential. That may entail a need to shift direction in terms of type of work or hours worked or a need to relocate to find work in her area of expertise. While the marriage was of a long duration, the parties were still relatively young when they separated and the children no longer needed hands on care.

The parties were able to separate their lives and move on in their respective career paths. [ 28 ] It would also be an error in determining entitlement to simply say that the husband can afford it and the wife currently has a need given her reliance on the support to maintain her current living and business needs.

There is not entitlement simply because one party earns more money than the other. [ 29 ] I am satisfied, in the circumstances of this case, that there is no further entitlement to spousal support on a non-compensatory basis. [ 30 ] The husband has offered to continue to pay the wife support for a further two years in a decreasing amount in order that she may adjust to the transition of a loss in child support, and the need to rearrange her affairs and employment situation to accommodate her future needs. He has continued to pay $5,000 per month since January 1 st , 2013.

I order that he pay the following amounts at the following times: 1) $5,000 per month from January, 2013 to August of 2013, 2) $4,000 per month from September, 2013 to December of 2013, 3) $3,000 per month from January, 2014 to April 2014, 4) $2,000 per month from May 2014 to August 2014. 5) $1,000 per month from September 2014 to December 2014. [ 31 ] Spousal support will end after the last payment is made. COSTS [ 32 ] There will be no costs of this application to either party. Heard on the 31 st day of May, 2013. Dated at the City of Calgary, Alberta this 2 nd day of July, 2013.

C.L. Kenny J.C.Q.B.A. Appearances: Anthony G. Young, Q.C. for the Plaintiff/Applicant Cyndy Morin for the Defendant/Respondent