Benson v Benson, 2013 ABQB 515

Court of Queen ’ s Bench of Alberta Citation: Benson v Benson, 2013 ABQB 515 Date: 20131004 Docket: 4804 007198 Registry: Grande Prairie Between: Deborah Leah Benson Plaintiff - and - Gary Edward Benson Defendant _ ________________________________________ ______________ Memorandum of Decision of the Honourable Mr. Justice C.M. Jones _________________________________________ ______________ [ 1 ] This matter was heard between January 15 and January 18, 2013. Both parties were self-represented. The trial was adjourned for a day while Mr.

Benson drove back to Edmonton to retrieve information which he had been ordered to produce, neglected to produce, and left behind in Edmonton when he journeyed to Grande Prairie for the trial. [ 2 ] The issues initially presented for determination were:

a) retroactive and ongoing

section 3 child support;

b) retroactive and ongoing

section 7 child support;

c) retroactive spousal support; and

d) division of matrimonial property. [ 3 ] At the conclusion of the trial, the parties were able to agree to the terms of an Interim Order which they requested I make. I gave that Interim Order on January 18, 2013.

The parties sought the Interim Order so that funds from the sale of the matrimonial home which were held in a solicitor's trust account could be deployed by the parties in partial settlement of their outstanding issues. [ 4 ] I cautioned the parties that, while it may be desirable get access to monies otherwise held in trust, any allocation of such funds which they asked me to reflect in the Interim Order might be very different from the final disposition of such funds which I might direct upon rendering judgment. The parties understood that concern.

Recitals D., E. and F. of the Interim Order provided that: UPON: … D. The Presiding Justice explaining to the parties that whatever Interim Order he gave would be without prejudice to his final decision with respect to the issues argued at Trial; E. The Presiding Justice explaining to the parties that his final decision with respect to the issues argued at Trial could require one or both of the parties to make payments to the other and that one or more of such payments may operate to alter the rights and obligations of the parties as set forth in this Interim Order; F.

The parties acknowledging their understanding of the limited scope of this Interim Order; [ 5 ] Paragraph 6. of the Order provided that: This Interim Order is without prejudice to a final determination by the Presiding Justice of the issues addressed at Trial, including, without limiting the generality of the foregoing, ongoing child support, child support arrears, retroactive and ongoing

Section 7 expenses, spousal support arrears and division of matrimonial property. [ 6 ] Paragraph 6 of the Interim Order therefore identified the issues which required determination after conclusion of the trial. Background [ 7 ] The parties were married on December 4, 1982. They separated on August 25, 2004 and were divorced in February, 2006. They have four children. [ 8 ] Custody and access are not issues before me. Retroactive

section 3 support is an issue in respect of two of the children (Josiah and Zach). Ongoing

section 3 support is an issue in respect of Zach. [ 9 ] Retroactive

section 7 support is an issue in respect of the parties’ sons Caleb, Josiah and Zach. Retroactive and ongoing

section 7 support is an issue in respect of Zach. At the time of this Judgment, none of the children are minors, the youngest, Zach, having turned 18 in February of this year. [ 10 ] Mr. Benson remarried in November, 2006 and Mrs. Benson (now Ms. Owen) remarried in March, 2011. [ 11 ] The following earlier Orders, as they relate to the specific matters noted, are relevant to the issues before me:

a) Interim Without Prejudice Consent Order of Justice S. LoVecchio dated December 7, 2004 - ongoing

section 3 child support of $1,150 per month in respect of two children (Josiah and Zach) based on income for Mr. Benson, determined to be $73,000 per annum; and

b) Interim Order dated February 1, 2005 - Justice J. Topolniski - ongoing

section 3 child support continuing in the amount of $1,150 per month in respect of Josiah and Zach and ongoing spousal support set at $750 per month. [ 12 ] There have been no orders to date addressing

section 7 child support or division of matrimonial property. Mr. Benson consented to the LoVecchio Order, which noted that the Court had been advised that Mr. Benson's guideline income was $73,000. [ 13 ] Mr. Benson had accumulated child and spousal support arrears. Those arrears were discharged on or about April 14, 2009. He has made very few payments since that time, accumulating further arrears which amounted to $81,146.15, inclusive of principal and interest, as of January 1, 2013, as reflected in Exhibit 5 – Maintenance Information Management System Debtor Statement of Account. Ms.

Owen advised that she managed to secure some money through garnishment proceedings which took place in 2012. [ 14 ] The parties' recollections of where Josiah and Zach lived at various times were vague and differed. The best determination I could make from the evidence provided is as follows: Josiah Zach Living with Ms. Owen (

i) August 2004 to September 2008 (ii) March 2009 ending March 2011 (Ms. Owen remarries) August 2004 to date of trial except as described below

Living with Mr. Benson September 2008 – March 2009 Living at Adams Ranch July 2012 – August 2012 Living in matrimonial home with siblings, without parents, subsidized by Ms. Owen March 2011 – August 2011 March 2011 – August 2011 Living with his grandmother, subsidized by Ms. Owen August 2011 – December 2011 Living with his brother Josh, subsidized by Ms. Owen February 2012 – June 2012 [ 15 ] It must be emphasized that these determinations are somewhat fluid, each of the parties’ recollections differing from that of the other and evolving from their earlier recollections as the trial progressed. [ 16 ] Mr.

Benson has a blasting and welding business conducted through a corporation. Evidence was led in respect of two corporations through which Mr. Benson appears to have carried on his businesses, namely B. Blasting & Welding Services Ltd. and Benson Drilling & Blasting Ltd. It was not clear from the evidence which corporation was in operation during what time. [ 17 ] At first it appears that Mr. Benson carried on his blasting and welding businesses through B. Blasting & Welding Services Ltd., of which he and Ms. Owen's brother, James Bidne, were shareholders.

He claims that corporation was in existence from approximately 1980 to 2002. [ 18 ] I have some difficulty with this assertion. Financial information directed by Justice Bast to be produced, not provided by Mr. Benson in accordance with her Order and only provided upon his return to the trial from Edmonton, included a T2 corporation income tax return for B. Blasting & Welding Services Ltd. for the taxation year ending June 30, 2008, as well as a set of financial statements for the period ending June 30, 2008.

It also included financial statements for Benson Drilling & Blasting Ltd. for the period ending October 31, 2008. It seems odd that financial statements for both corporations would be required, especially if, in the case of B. Blasting & Welding Services Ltd., as advised by Mr. Benson, its operations ceased in 2002. [ 19 ] I acknowledge that the financial statements for B. Blasting & Welding Services Ltd. for the periods ending October 31, 2007 and 2008 show that it had no revenue. However, financial statements for B.

Blasting & Welding Services Ltd. for the period ending June 30, 2006, show that it had revenue of $47,175, while financial statements for Benson Drilling & Blasting Ltd. for the period ending October 31, 2006, show that it had revenue of $98,686. [ 20 ] Perhaps the explanation of why both corporations have revenue for overlapping periods is that B Blasting & Welding Services Ltd. was being wound-down in the summer of 2006, with "Drilling & Blasting" continuing operations formerly carried on by “B Blasting & Welding Services Ltd.". In any event, Mr.

Benson was not able to reconcile his assertions that "B Blasting & Welding Services Ltd." ceased to exist in 2002 with the financial statements referred to above. [ 21 ] Until shortly before the trial, Mr. Benson had worked for Jacobs Industrial Services Ltd. in Fort McMurray (“Jacobs”). His T4 for 2011 depicts income from employment with that corporation of $58,996.76. A Statement of Earnings and Deductions, provided by Jacobs indicates that his income for substantially all of 2012 was $170,067. Evidence [ 22 ] Ms. Owen went to a great deal of effort to assemble material in support of her claims. Mr.

Benson, however, had some difficulty complying with case management Orders issued by Madame Justice Bast directed at disclosure. Those Orders included:

a) January 11, 2012, directing Mr. Benson to provide copies of his tax returns for 2006 to 2010, inclusive, together with applicable notices of assessment;

b) March 6, 2012, directing Mr. Benson to provide Ms. Owen with a copy of any reassessments relating to his tax debt to the CRA;

c) November 14, 2012, directing Mr. Benson to provide an updated Statement of Income, Assets and Liabilities; tax returns and notices of assessment for 2002 to 2011, inclusive; tax returns, notices of assessment and financial statements for Benson Drilling and Blasting Well Services Ltd. [which I take to mean Benson Drilling & Blasting Ltd.] for fiscal periods commencing October 31, 2004 to and including October 31, 2011; pay stubs for 2012; Statement of Assets and Liabilities for October 15, 2004, October 15, 2012 and December 31, 2012; a budget; and

d) November 14, 2012, directing Mr. Benson to provide details of pipeline leases on his farm; farm rental income for the period 2007 to 2012;

summary of grain sales for the period 2007 through to 2012; Notices of Assessment for the period 2002 to 2012. [ 23 ] Justice Bast also ordered some disclosure from Ms. Owen. Ms. Owen appears to have substantially complied with these directions. At the start of the trial, it became evident that Mr. Benson had not provided Ms. Owen with the required information. Indeed, after Ms. Owen had presented her evidence, Mr. Benson advised that he had left the information in Edmonton which Justice Bast had ordered be provided. When we reconvened the trial a day later and Mr.

Benson tendered this information, it was incomplete. Request for Retroactive Child Support [ 24 ] In respect of Josiah, Ms. Owen requests enforcement and confirmation of Mr. Benson’s

section 3 child support from mid- April, 2009 (when arrears were brought up to date) to August 2011, whereupon, depending on which version of events is accepted, Josiah, who earlier attained the age of eighteen, moved out of the matrimonial home. She acknowledged that Mr. Benson should not have had to pay child support for Josiah while Josiah lived with Mr. Benson from September, 2008 until March, 2009. She further acknowledged that she did not pay child support to Mr. Benson in respect of Josiah during this period. I determine that Josiah ceased to

be a child of the marriage when he finished school in March, 2011. [ 25 ] Ms. Owen requested that

section 3 child support in respect of Zach at the rate of $575 per month, as ordered by Justices LoVecchio and Topolniski, continue in effect until he finished school in June, 2013. I note that Mr. Benson’s

section 3 support obligation in respect of Zach for 2012 and beyond would be $623 per month instead of $575 per month, had Ms. Owen requested that current tables be applied.

Section 7 Expenses [ 26 ] Earlier orders of this Court did not deal with

section 7 expenses. Ms. Owen acknowledged that she had never asked for contribution to these expenses until June, 2010, when she believes that her counsel at the time communicated her request to Mr. Benson. [ 27 ] Ms. Owen's materials depict total

section 7 expenses of $21,677.83 from 2004 to and including 2012 (Exhibit 1, Tab IV).

Section 7 expenses appear to include:

a) dental expenses;

b) prescription expenses;

c) tuition and books for their son, Caleb, at Grande Prairie Regional College;

d) tutoring;

e) computer;

f) karate classes;

g) driver training;

h) tuition for their son, Josh, at NAIT;

i) skis;

j) other educational costs;

k) chiropractic treatment;

l) safety course;

m) counseling; and

n) Zach's car repairs. [ 28 ] Ms. Owen believes that Mr. Benson has been intentionally underemployed. She points to the decision in Kurkut v Kurkut , 2007 ABQB 25 in support of her assertions regarding this Court's authority to impute income to Mr. Benson to reflect his alleged underemployment. [ 29 ] Ms. Owen points to Mr. Benson's ownership, together with his current wife, of a one-half

section parcel of land near Claresholm, Alberta. Ms. Owen speculates that Mr. Benson generates income from this property. Mr. Benson inherited this property from his father after the relationship with Ms. Owen ended, and he claims he arranged for title to be placed into his name and the name of his current wife for estate planning purposes. [ 30 ] Both parties eventually agreed that

section 7 expenses should be shared equally; however, as discussed below, Mr. Benson subsequently qualified his position in that regard. I am therefore required to make a determination of

section 7 expenses. Retroactive Spousal Support [ 31 ] Ms. Owen requested confirmation that amounts depicted at Exhibit 1, Tab V accurately reflect Mr. Benson's spousal support arrears. She indicated that there had never been any discussion with Mr. Benson about a change to the monthly figure of $750 to reflect changes in his income or changes in her income. [ 32 ] Mr. Benson, for his part, points out that Ms. Owen remarried in March, 2011, whereupon he believes any spousal support obligation he might otherwise have had should cease. Ms.

Owen observes that, even though she remarried in 2011, she and her new husband maintained separate residences for much of the ensuing period until the matrimonial home was sold in February, 2012. [ 33 ] Ms. Owen supported herself by painting houses. She went back to school in the fall of 2010 to upgrade her education. In 2011, she worked part time. She was required to cash in a life insurance policy in order to secure funds to live on. [ 34 ] Ms. Owen's total income, as assessed by the CRA, averages $21,566.00 per annum over the period 2004 to and including 2011. Ms.

Owen's budgets for the years 2004 to and including 2011 indicate that her annual expenses, in all years except for 2004, exceed her average income by a significant amount. In 2012, her budgeted expenses were approximately equal to her average income, as described above. Matrimonial Property

[ 35 ] There was some initial discussion relating to Mr. Benson's debt to the Canada Revenue Agency. That amount ($58,694.32) was discharged from proceeds of sale of the matrimonial home. [ 36 ] My Interim Order reflected the parties' agreement that this amount should be considered Mr. Benson's debt alone, should not be considered a matrimonial debt, and would not fetter my discretion to determine Ms. Owen's entitlement to matrimonial property. [ 37 ] Ms. Owen believes that she should receive an award of matrimonial property to reflect her contribution to the value of Benson Drilling & Blasting Ltd.

She contends that she contributed to the success of that corporation’s predecessor business (B. Blasting & Welding Services Ltd.) by running errands, answering the phone and providing some bookkeeping services. [ 38 ] The net sale proceeds from the sale of the matrimonial home were $175,554.58. The parties' respective share of that would be $87,777.29 each. However, $58,694.32 was paid to the CRA on account of Mr.

Benson's income tax liability, leaving $116,860.26 in a solicitor's trust account. [ 39 ] My Interim Order, reflecting the parties' agreement on the disposition of the $116,860.26 held in trust, directed immediate payment to Ms. Owen of $87,777.29, representing her half of the net sale proceeds of $175,554.58. The balance of $29,082.97 remaining in trust ($116,860.26 - $87,777.29 paid to Ms. Owen) was directed to be paid to the Maintenance Enforcement Program (“MEP”) to be applied to Mr. Benson's arrears. [ 40 ] My Interim Order therefore had the effect of placing funds in Ms.

Owen's hands immediately through a presumptive division of some matrimonial property and directing additional funds to MEP which would, in turn, be paid to Ms. Owen, without prejudicing my ability to make a further determination and division of matrimonial property. Restated, I allowed Mr. Benson to make a payment to MEP from his share of house sale proceeds, in partial discharge of his arrears without fettering my discretion to later find that the monies paid to MEP should have been awarded to Ms.

Owen on account of her entitlement to matrimonial property and to make a further order reflecting this determination. Mr. Benson's Income Pattern [ 41 ] Mr. Benson's income appears to have fluctuated.

Evidence, which he presented at trial and which I accept, shows the following income: 2003 - $58,201 (though $52,500 of this was a taxable dividend which should be adjusted downward to reflect actual dividends as provided for in the Child Support Guidelines); 2004 - $74,734 (though $62,500 of this was a taxable dividend which should be adjusted downward to reflect actual dividends, as provided for in the Child Support Guidelines); 2005 - $37,277; 2006 - $45,147; 2007 - $10,237; 2008 - $36,802; 2009 - $446; 2010 - $1,621; 2011 - $59,046; and 2012 - $170,067 (Statement of Earnings and Deductions provided by Jacobs Industrial Services Ltd.) [ 42 ] I note that for substantially the same period, Mr.

Benson's two corporations had the following pre-tax corporate income or loss: B. Blasting & Welding Services Ltd. Benson Drilling & Blasting Ltd. 2003 $192,872 2004 $152,879 2005 $23,533 2006 $19,133 $31,717 2007 ($10,368) $16,711 2008 ($6,951) $459 2009 ($67,770) 2010 ($6,879) 2011 ($6,563) [ 43 ] Ms. Owen provided evidence of typical welder's wages. She also provided information which appears to have been compiled by Agriculture Alberta depicting that average cash rents for cropland in the Claresholm area were $49.46 per acre in 2011. I understand that Mr. Benson inherited 320 acres from his father.

Had he been able to rent out the entire 320 acres in 2011 at that rate, he would have received almost $16,000 in revenue to fund his support obligations.

[ 44 ] In some of these years, Mr. Benson reported gross farming income but was not required to include any net farming income in arriving at his line 150 income for tax purposes. Presumably, he had expenses which offset gross farming income. I cannot, based on the information he provided, determine the legitimacy of those expenses. However, the fact that Mr. Benson’s farming expenses exceeded his farming income suggests to me that Mr.

Benson could have made better use of this land, possibly by renting it out, in order to fund his support obligations. [ 45 ] He claims he injured himself in a fall in 2008. [ 46 ] Mr. Benson indicated that he stopped working in Fort McMurray on December 18, 2012. He advised that he has not been looking for work. I asked him why he could not obtain further work in Fort McMurray. He was not able to provide a satisfactory answer, other than to assert that his formal education in English was deficient.

It appears that he is qualified as a welder and a blaster and could earn in the neighborhood of $43.00 per hour. [ 47 ] He stated that he wanted to engage in a blend of farming activity and non-farming activity during 2013. Mr. Benson's Position on Various Matters [ 48 ] It appeared that Mr. Benson was misinformed about the nature of the proceedings we were engaged in as he tabled an unfiled binder entitled “Judicial Dispute Resolution Brief of the Defendant Gary Edward Benson”. It set forth his position regarding retroactive and ongoing

section 3 child support, retroactive and ongoing

section 7 expenses and retroactive spousal support. This proceeding was a trial, not a Judicial Dispute Resolution, and Mr. Benson’s binder was, in effect, his argument. It was not properly filed with the Court. [ 49 ] His positions on various issues, and my observations from the testimony at trial, are as follows:

a) Mr. Benson claims he was denied access to the use of his garage at the matrimonial home, which precluded him from switching the configuration of his truck quickly from welding to blasting and vice versa, thus causing a loss of revenue. The evidence established to my satisfaction that Mr. Benson never seriously pursued access to this equipment in the garage.

b) Mr. Benson claims that his income for child support purposes should be imputed at $26,552, which he believes is likely high. For reasons set forth below, I consider income of $73,000, as requested by Ms. Owen and as reflected in previous orders, to be the appropriate amount upon which child and spousal support obligations should be based.

c) Mr. Benson is prepared to pay one half of reasonable agreed

section 7 expenses, but only in respect of children of the marriage. By that he seeks to avoid any retroactive award of

section 7 expenses for Caleb or Josiah, even though Caleb incurred educational expenses to attend Grande Prairie Community College and Josiah was clearly a child of the marriage until March, 2011 when he finished school.

d) Mr. Benson claims that Ms. Owen is as capable of earning a living as he is, and that no support should accrue for the period after she remarried and no retroactive support should be ordered before 2007, when her income allegedly exceeded his income. Decision

Section 3 Child Support [ 50 ] Arguably, Mr. Benson's child support obligations should be based on much higher income than the figure of $73,000.00 per annum requested by Ms. Owen. Having reviewed the financial statements for his two corporations, most importantly, that for Benson Drilling & Blasting Ltd., I have concluded that it would be reasonable to apply

section 18 of the Child Support Guidelines to adjust Mr. Benson's income for child support purposes to a higher level, in light of what I have determined the corporation's pre-tax income to be and which expenses I would be inclined to add back in computing that pre-tax income. [ 51 ] For example, considering the financial statement for Benson Drilling & Blasting Ltd. for the period ending October 31, 2006, it is evident that Mr. Benson used approximately $10,000 of corporate funds to pay for trips and entertainment for his sons. Mr.

Benson also acknowledged that the amount of $13,746, shown as automotive expense, was related to personal use of his vehicle. This corporation also made over $16,000 in donations in 2009. [ 52 ] Based on my review, I have concluded that it would be appropriate to impute an additional $20,000 per annum to Mr. Benson's line 150 income for each of the years in question, being 2004 to 2012. [ 53 ] I also believe that Mr. Benson is intentionally underemployed, as contemplated in

section 19 of the Child Support Guidelines. He was unable to provide a clear articulation of why he could not find work in the occupation for which his corporation was formed and for which he is skilled. [ 54 ] I believe that his 2012 experience in Fort McMurray demonstrates that he is capable of making approximately $170,000 per annum. I also believe that he could be generating additional income from his farmland near Claresholm. [ 55 ] However, in light of Ms. Owen's request, I impute income to Mr. Benson of $73,000.00 per annum. [ 56 ] I find that Josiah ceased to be a child of the marriage in March of 2011. There will be an adjustment, described below, to Mr. Benson's

section 3 child support to reflect expiration of this obligation in that regard, effective March 31, 2011. There will be no adjustment to Mr. Benson’s arrears in respect of Josiah to compensate for the fact that Josiah apparently lived with Mr. Benson from September 2008 to March 2009. If Mr. Benson had wanted to challenge arrears for that period, he should have done so in conjunction with bringing his total arrears up to date in mid-April of 2009. [ 57 ] Zach turned 18 years old in February of this year, but, as I understood the parties, was expected to remain in school until June, 2013.

I do not know what Zach's status currently is as of the date of this Judgment, however, the parties agreed that Zach would continue

to be a child of the marriage at least until he finished school in June. [ 58 ] Mr. Benson's child support obligation in respect of Zach could be recalculated upwards for periods after 2011 to reflect changes in the Child Support Guidelines. However, Ms. Owen requested that Mr. Benson’s

section 3 support obligations in respect of Zach be maintained at the $575 per month previously awarded. Adjustment to Arrears in Respect of Josiah [ 59 ] Given my determination that : i. Josiah ceased to be a child of the marriage effective March 31, 2011; ii. Ms. Owen has been denied the use of funds otherwise required for child support; and iii. Mr. Benson has had the use of these funds, I find that it would be appropriate to reduce Mr. Benson’s child support obligations in respect of Josiah by $13,000.00, inclusive of principal and interest. I consider this reduction generous in light of what I believe Ms.

Owen could have sought by way of income imputation to Mr. Benson. Adjustment to Arrears in Respect of Zach [ 60 ] With respect to Zach, I make no adjustment to Mr. Benson's support obligations or to any arrears accumulated in respect of Zach. Spousal Support [ 61 ] The issue to be determined is what adjustment, if any, is appropriate in respect of spousal support arrears which accumulated from mid-April 2009 to March 31, 2011, the date upon which I have determined Mr. Benson’s spousal support obligations should cease. Mr.

Benson brought his obligations up to date on April 14, 2009. [ 62 ] I have determined that there will be no adjustment to spousal support arrears accumulated to March 31, 2011. Any spousal support arrears accumulated after March of 2011 are to be extinguished in the amount I set forth below, for the various reasons given. In arriving at this decision, I have taken the following into account:

a) Ms. Owen's income for that 23-month period $29,265;

b) Mr. Benson's (reported) income for that 23-month period is approximately $16,679;

c) In addition to my comments above regarding the 2009 taxation year for Benson Drilling & Blasting Ltd., I would add a further $23,473 to his line 150 income for all of 2011, or $5,868.25 for January to March of that year, (the date I have determined his spousal support obligations ended), in light of entertainment, health club and other personal expenses incurred by this corporation on Mr. Benson’s behalf;

d) I consider Mr. Benson to have been intentionally underemployed during this 23-month period;

e) In my view, Mr. Benson’s income earning capacity is reflected in his gross income for 2012 of $170,067.93;

f) I find that a more appropriate estimate of what his income for this 23 month period is $313,629;

g) Applying the Spousal Support Advisory Guidelines on a "with child support" basis, results in individual net disposable income (“INDI”) of $164,864 for Mr. Benson and INDI of $24,876 for Ms. Owen;

h) Combining the two INDI ($189,740) and allocating 40% of that to Ms. Owen results in an allocation of $75,896 to her for that 23- month period, or $3,299 per month; and

i) I have no difficulty determining Ms. Owen’s entitlement to spousal support on both a compensatory and non-compensatory basis. This was a long-term marriage and I believe Ms. Owen was disadvantaged financially by staying home to raise the parties’ four children. I also find that she demonstrated need. [ 63 ] Under the circumstances, I believe that Ms. Owen’s request for spousal support arrears accumulated to the end of March, 2011 (the date I have determined spousal support obligations ended), based on payments of $750 per month ordered by Justice LoVecchio, to be a significant concession granted by Ms.

Owen to Mr. Benson. [ 64 ] Ms. Owen based her request for spousal support on the MEP statement found at Exhibit 1, Tab V, Sub-Tab 3, entitled “Maintenance Enforcement Program Creditor Statement of Account”. It shows an enforceable balance of $80,045.98 as of January 8, 2103. She did not base her request on Exhibit (Maintenance Information Management System Debtor Statement of Account). That document showed an enforceable balance owing of $81,146.15 as of January 1, 2013. [ 65 ] Spousal support arrears from April of 2011 until the end of January of 2013 are $16,500. I have used the MEP statement relied upon by Ms.

Owen and rounded the total arrears to $80,000.00. Adding the $16,500 that should not have accrued to the amount of $13,000.00 in respect of Josiah, which I indicated above should be extinguished, results in total arrears still owing by Mr. Benson, as of January 8, 2013, of $50,500. I make no further reduction for interest accruing after March, 2011. Mr. Benson has already been the beneficiary of a meaningful concession by Ms. Owen.

[ 66 ] I find it appropriate to fix child arrears at $33,667. Therefore, total arrears of $50,500 are allocated between child support and spousal support arrears as follows:

a) Child support arrears - $33,667

b) Spousal support arrears - $16,833 Retroactive

Section 7 Expenses [ 67 ] I accept Ms. Owen's assertions that Mr. Benson had effective notice that he would be asked to contribute to

section 7 expenses in June of

Section 7 expenses which Ms. Owen claims for 2007 to 2012 inclusive total $13,118.26. The evidence provided by Ms. Owen co-mingles expenses for the parties’ sons, Caleb and Josh, who I believe had ceased to be a child of the marriage at the time the parties separated, with other expenses which I determine to be appropriate

section 7 expenses. Under the circumstances, I believe it would be equitable to award two-thirds of the amount claimed by Ms. Owen, or $8,745. Matrimonial Property Award [ 68 ] I make no award in favour of Ms. Owen in respect of Benson Drilling & Blasting Ltd. [ 69 ] I make the following findings regarding Benson Drilling & Blasting Ltd. • Based on the most recent financial statements provided to me (October 31, 2011), I note the corporation incurred a loss in operations. I acknowledge that depreciation represents a significant expense item and that it is a non-cash item; • I also recognize that Mr.

Benson appears to be accessing corporation funds for personal use; • It is difficult to value this corporation, given that its assets are depicted on its financial statements at book value and it appears to have a history of incurring operating losses. [ 70 ] These findings, together with the fact that Ms. Owen was not able to provide any evidence that the value of this corporation, such it may be, is in any way attributable to her contributions during the course of the marriage to the previous operating corporation, B.

Blasting & Welding Services Ltd., convinces me that it would be inequitable to make any award in favour of Ms. Owen in respect of this entity. Conclusion [ 71 ] In the result:

a) Mr. Benson's support obligations in respect of Zach continue until he ceases to be a child of the marriage at $575 per month, together with interest applicable in respect of any arrears which may be accumulating;

b) Mr. Benson shall pay Ms. Owen $8,745 in respect of retroactive

section 7 expenses. Any additional

section 7 expenses to which Ms. Owen seeks contribution from Mr. Benson which he refuses to make will be determined on application to this Court;

c) Mr. Benson has the following arrears, inclusive of principal and interest, outstanding as of January 18, 2013, i.

Section 3 child support arrears - $33,667; ii. Spousal support arrears - $16,833 Applying the sum of $29,082.97 (rounded down to $29,082), which I directed be paid to MEP from Mr. Benson's share of the net house sale proceeds held in trust, I direct that Mr. Benson's total arrears, as of January 18, 2013, are $21,418 allocated as follows: iii. Child support arrears - $14,099; and iv. Spousal support arrears - $7,319. [ 72 ] In total, Mr. Benson shall pay Ms. Owen $30,163 in arrears and retroactive

section 7 expenses as set out in

b) and

c) above ($8,745, $14,099, $7,319). Interest shall accrue on this total in accordance with the Judgment Interest Act , RSA 200, c J-1, from the date of this Judgment until paid. [ 73 ] No costs shall be awarded. Canada Pension Plan credits will be split in accordance with the law otherwise applicable thereto. I shall remain seized with this matter to the extent further submissions may be required to effect the directions contained in this Judgment. Heard on the 15th day of January, 2013 to the 18th day of January, 2013. Dated at the City of Calgary, Alberta this 30 th day of September, 2013.

C.M. Jones J.C.Q.B.A. Appearances: Deborah Leah Owen Self Represented Gary Edward Benson Self Represented