Mickels v Mickels, 2013 ABQB 457

Court of Queen ’ s Bench of Alberta Citation: Mickels v Mickels, 2013 ABQB 457 Date: 20130809 Docket: 4806 015687 Registry: Lethbridge Between: Darlene Mickels (Reedman) Plaintiff - and - (Respondent) Warren Mickels Defendant (Applicant) _______________________________________________________ Written Decision of the Honourable Mr. Justice R. A. Jerke _______________________________________________________ Introduction [ 1 ] This is an application by Warren Mickels to vary the December 18, 2006 Divorce Judgment to terminate his obligation to pay spousal support.

His obligation to pay $4,200.00 per month arises from the parties’ Minutes of Settlement (the “Settlement”) and was incorporated into the Divorce Judgment.

[ 2 ] Darlene Reedman and Mr. Mickels were both represented by counsel at the time they signed the Settlement and agreed to the support amount and terms related to payment of support. [ 3 ] In October 2009 an application by Mr. Mickels to reduce spousal support and a cross application by Ms. Reedman to increase spousal support were both dismissed. [ 4 ] The relevant clause in the Settlement states: In any event, spousal support may be reviewed upon [Mr. Mickels] retirement as a Certified Financial Planner with Investors Group if the Defendant’s income net of business expenses is less than $133,000.00.

The Defendant’s obligation to pay spousal support will continue for 30 months after his retirement as a Certified Financial Planner with Investors Group, or for such other period so long as he is receiving the Assured Value Program income. For purposes of determining spousal support after the Defendant’s retirement, his Assured Value Program income net of legitimate business expenses plus any other employment income the Defendant may have, shall be considered income for the determination of the quantum of spousal support.

Upon the Assured Value Program income ceasing, the Defendant’s obligation to pay spousal support shall, in any event, cease. With the exception of the Assured Value Program income less legitimate business expenses as set out below, the Defendant’s investment or pension income from any other source shall not be considered as a source of income for the determination of spousal support at any time hereinafter as the assets which may give rise to these sources of income have already been divided between the parties. [ 5 ] Three questions arise:

A) When did Mr. Mickels retire as a certified financial planner with Investors Group?

B) Does the cessation of the AVP income end Mr. Mickels’ spousal support obligations?

C) When will Mr. Mickels’ obligation to pay spousal support cease? [ 6 ] For the reasons which follow, I conclude that Mr. Mickels retired within the meaning of the Settlement on December 31, 2012. I do not find that the cessation of AVP income ended his spousal support obligations, but I do find that those obligations should cease on June 30, 2015. When did Mr. Mickels retire as a certified financial planner with Investors Group? [ 7 ] The Settlement provides that spousal support may be reviewed upon Mr. Mickels’ retirement as certified financial planner with Investors Group (“Investors”). I find that Mr.

Mickels retired as a certified financial planner with Investors on December 31, 2012. [ 8 ] Mr. Mickels started working for Investors in 1993, and has been a certified financial planner since about 1996 or 1997. [ 9 ] Mr. Mickels was a senior financial consultant and agent of Investors contracted under a consultant’s agreement between himself and Investors. In January of 2010, he provided notice to Investors that he would be relinquishing his responsibilities as senior financial consultant, which was made effective February 16, 2010.

On February 15, 2010 he was contracted by Randy Leavitt, senior executive consultant with Investors, under an Associate Agreement to which Investors was a party. The agreement confirmed that Investors appointed Mr. Leavitt, and Mr. Mickels as independent contractors for the purpose of canvassing for applications for products issued or distributed by Investors. He continued to service the same clients he had before and took on new clients, for which he received a portion of Mr. Leavitt’s commissions. Commission payments were made directly to Mr. Mickels by Investors.

The term of the Associate Agreement was one year. A nearly identical Associate Agreement was entered between the same three parties, for a second 365-day term, on March 7, 2011, and while there were no further written Associate Agreements, Mr. Mickels continued to work with

Mr. Leavitt until December 31, 2012. Mr. Mickels has not worked for anyone since then. He is not now employed. [ 10 ] Mr. Mickels contends that the phrase “retirement as a certified financial planner with Investors Group” should be interpreted as ‘triggering payments under the AVP’. The Settlement does not say that. [ 11 ] Payments under the AVP can be triggered without retirement as a certified financial planner with Investors. When the AVP payments were triggered the contract executed between Mr.

Mickels and Investors on February 18, 2010 recognized this and provided: The Former Servicing Consultant... is remaining with Investors Group and wishes to transfer servicing for a group of clients of Investors Group to another Sales Consultant with Investors Group; [ 12 ] This option was known before the parties agreed to the Settlement.

The September 7, 2006 expert report prepared for the divorce proceedings attaches material about the AVP which provides, “Assured Value compensation will be available to Consultants...when an active consultant would like to transfer client serving responsibilities for a group of clients to one or more new servicing Consultants”. [ 13 ] If the parties had intended the

interpretation proposed by Mr. Mickels, they could have stated it. Instead the Settlement specifically refers to retirement as a certified financial planner with Investors. The plain wording in the Settlement cannot be interpreted in the manner proposed by Mr. Mickels. [ 14 ] Ms. Reedman contends that Mr. Mickels is not yet retired because Mr. Mickels has intentionally chosen to quit work in 2013 at age 61 but reserves to himself the right to start working again. There are 3 flaws in this argument: 1. Pursuant to the Settlement, the question is not whether Mr.

Mickels is retired, but whether he is retired as a certified financial planner with Investors; 2. The Settlement contains no requirement that Mr. Mickels remain employed to a particular age; and 3. Employment beyond retirement is clearly anticipated and provided for in the Settlement. [ 15 ] In

summary Mr. Mickels relinquished his responsibilities as senior financial consultant but remained a certified financial planner and continued to work and earn income with Investors. He did not retire as a certified financial planner with Investors until December 31, 2012. Does the cessation of the AVP income end Mr. Mickels ’ spousal support obligations? [ 16 ] I find that in the circumstances the cessation of the AVP Income did not end Mr. Mickels’ spousal support obligations. [ 17 ] In most of the months from February of 2010 to February of 2013, Mr.

Mickels had income from two sources; he received monthly payments from Investors from the AVP program, and he continued to receive commission earnings paid by Investors pursuant to the Associate Agreements between Mr. Mickels, Mr. Leavitt and Investors. His gross payments throughout the period were as follows: -2010: -AVP payments: $92,689.00

-commission earnings: $94,696.45 -2011: -AVP payments: $111,226.80 -commission earnings: $186,879.58 -2012: -AVP payments: $111,226.80 -commission earnings: $129,824.00 -2013: -AVP payments: $18,537.80 -commission earnings: none [ 18 ] Mr. Mickels chose to accelerate the payments under the AVP and while he was receiving them he continued to earn employment income as a certified financial planner with Investors. When these two streams of income were combined and averaged, his income was far greater than the income he was earning at the time he agreed to the Settlement. [ 19 ] As of March 13, 2013, Mr.

Mickels’ certification as a financial planner had not yet lapsed, and Mr. Mickels had not yet definitively decided whether to renew it, stating that his decision depended on what happened in these proceedings. [ 20 ] On my reading of the support provisions in the Settlement, I find that the parties contemplated the two events - retirement as a certified financial planner with Investors and triggering of the AVP – to occur simultaneously. The Settlement provides that Mr.

Mickels’ obligation to pay spousal support continues for 30 months after his retirement as a certified financial planner with Investors, or for such other period so long as he is receiving the AVP income. When Mr. Mickels retired as a certified financial planner with Investors on December 31, 2012 the 30 month minimum period began. He cannot choose to trigger the AVP payments in 2010, remain with Investors, and avoid his spousal support obligations. The cessation of the AVP payments does not end his spousal support obligations prior to expiry of the minimum 30 month period. [ 21 ] Mr. Mickels accepts the

interpretation linking retirement and triggering of the AVP when he states at paragraph 11 of his affidavit: “…my retirement would trigger a minimum 30 month process, whereby I would receive a continued income under an Assured Value Program. Consequently, even though I was retiring from Investors Group, my obligation to continue to provide some form of spousal support to the Plaintiff would continue for at least 30 months or the duration of payments under the Assured Value Program.” [ 22 ] In the circumstances here, Mr.

Mickels chose to trigger the AVP payments without retiring within the meaning of the Settlement. He was entitled to do so, but not without consequence under the Settlement. [ 23 ] Mr. Mickels contends that the spousal support obligation must end in February 2013 because the Settlement provides “upon the AVP income ceasing, [Mr. Mickels’] obligation to pay spousal support shall, in any event, cease”.

I find that this phrase, when taken in the whole context of the Settlement and Divorce Judgment, does not have the claimed effect because: • the Settlement contemplates simultaneous retirement and triggering of the AVP payments, • review of spousal support can only occur upon retirement, and • spousal support payments are not for a specified term but continue indefinitely until further order of the court. When will Mr. Mickels ’ obligation to pay spousal support cease?

[4] I find that Mr. Mickels’ retirement date for the purposes of the Settlement was December 31, 2012, and that as of this date, he was then required to commence the minimum 30-month spousal support payment process set out in the Settlement. [5] In these circumstances Mr. Mickels should continue to pay spousal support in the amount of $4,200.00 per month, from March 1, 2013 onward. His support obligations shall cease on June 30, 2015 so his last payment is June 1, 2015. Conclusion [6] There will be an order that Mr.

Mickels’ spousal support obligations shall continue up to and including June 30, 2015 in the sum of $4,200.00 per month after which they shall cease. [7] Ms. Reedman is entitled to her costs and disbursements. If the parties are unable to agree on an amount costs may be spoken to. Heard on the 24 th day of June, 2013. Dated at Lethbridge, Alberta this 8 th day of August, 2013. R. A. Jerke J.C.Q.B.A. Appearances: T. Jesse Wilde, Huckvale Wilde Harvie MacLennan for the Defendant/Applicant R. G. Bissett, Stringam Denecky LLP for the Plaintiff/Respondent