McNeill v McNeill, 2013 ABQB 564

Court of Queen ’ s Bench of Alberta Citation: McNeill v McNeill, 2013 ABQB 564 Date: 20130927 Docket: 4801 122549 Registry: Calgary Between: Janine Denise McNeill Plaintiff/Respondent - and - Robert Ross McNeill Defendant/Applicant _ ________________________________________ ______________ Memorandum of Decision of the Honourable Madam Justice C.S.

Anderson _________________________________________ ______________ [ 1 ] This was an application brought by the Defendant/Applicant, Robert Ross McNeill, seeking to vary spousal support on the basis that there had been a change in circumstances of the Respondent. [ 2 ] The Plaintiff/Respondent, Janine Denise McNeill, argues that this is a hearing de novo and not a review of spousal support: the June 2008 Order provided a provision that it was to be reviewed in 2011.

The Respondent seeks a determination that she is entitled to both compensatory and non-compensatory spousal support and a determination of the appropriate quantum of ongoing spousal support.

Background [ 3 ] In June, 2008 the parties attended a binding JDR before Justice McDonald.

From that JDR, an order was issued on June 9, 2008, in which the equity in the matrimonial home was divided disproportionately (in the Respondent’s favour) to take into account retroactive spousal support owing to the Respondent and to provide that spousal support of $2500.00 per month be paid from the applicant to the Respondent commencing July 1 st , 2008 and continuing on the first day of each month thereafter. [ 4 ] The Order provided that the spousal support shall be reviewed on or before June 30 th , 2011. [ 5 ] Further it provided that: in the event that the Plaintiff receives any pension income, the spousal support shall be reduced dollar for dollar of pension income received. [ 6 ] The June 9, 2008 Order noted that the Defendant/Applicant had an annual income of approximately $130,622 and the Plaintiff/Respondent had a gross annual income of approximately $12,001.

Marital History [ 7 ] The parties were married in 1985 and separated in 2001. They were married for 16 years. The parties have two children, Kyle McNeill born June 9, 1986 and Shayna McNeill born December 9, 1989. The Respondent was 42 years of age to the time of the separation, and their children were approximately 15 and 12 years of age. [ 8 ] The Respondent’s affidavit states that after the children were born she stayed out of the workforce until 2011, when she found work at the University of Calgary.

The Respondent’s affidavit refers to her son being born premature (in 1986), and delves into marital problems that go back to the 1980s. For this application, the Respondent filed copies of emails between the parties that date back to 2002. [ 9 ] The Respondent deposes that that she greatly assisted the Applicant with his career and that he was only able to advance his education and career because he had a stay at home wife that took care of everything.

She alleges she gave up her career to care for the Applicant’s children and home. [ 10 ] The majority of the evidence filed by the Respondent focuses on her past marital problems and seeks to find fault with or blame the Applicant for all of her ills and medical problems. Presumably this is to support her claim for both compensatory and non- compensatory spousal support. [ 11 ] I did not find that the majority of her evidence was particularly helpful or relevant in deciding the issues before me. [ 12 ] Other evidence was lacking.

In the Respondent’s affidavits filed before me, there is limited evidence referencing her attempts at finding employment.

The March 8, 2013 affidavit provides as follows at paragraph 26: After many attempts to find employment since 2004, I was lucky to get offered a position as an administrative assistant at the University of Calgary in 2011. [ 13 ] This same sentence is repeated in the July 26, 2013 affidavit. [ 14 ] The July 26, 2013 affidavit also states that: I looked for work sending out hundreds of resumes but my prospects were bleak. [ 15 ] The Respondent alleges that she has significant health issues that arose from a motor vehicle accident in 2001, stressors created from the marriage and its breakdown, and more recently from a seizure.

The evidence with respect to her medical reports in large

part comes from her family physician, with whom the Applicant takes issue, alleging that the physician and Respondent have a personal relationship. [ 16 ] The Respondent alleges that her health is tenuous but she continues to work full time and is attempting to be self-sufficient. [ 17 ] The Applicant and Respondent’s version of marital events differ significantly.

Some of his evidence refers to events in the 1980s, presumably to rebut the Applicant’s evidence referencing that same time period. [ 18 ] Importantly from the Applicant’s point of view, in 2008, seven years after he separated from the Respondent, he was laid off from Telus where he had worked for almost 30 years. He deposed in his affidavit that he learned a new skill set and became an independent contractor. The position he currently holds is significantly a different position than that which he held at Telus.

His ability to earn a higher income was acquired long after the marriage was over and with no assistance from the Respondent, he alleges. Current Situation [ 19 ] The Respondent’s income from her employment at the University of Calgary is $39,800 per year. [ 20 ] The Applicant submits that he did not know that the Respondent was employed and brought this application for a review only upon finding that she had been employed at the University of Calgary. [ 21 ] The Respondent continues to reside in the matrimonial home, which has an assessed value by the City of Calgary for 2013 of

$396,000 and is not encumbered by debt. [22] The Applicant also submits that the Respondent is to receive the amount of $1,925 per month in October commencing,October 2013 from her portion of the Applicant’s Telus pension which was transferred to her. [23] It is the Applicant’s position that the net income of the consulting company, of which he is 50% shareholder, in 2009 was$144,501, in 2010 it was $127,864 and in 2011 it was $134,600.

This income is shared with the Applicant’s common law spouse. [24] As an independent contractor the Applicant does not get any vacation pay, sick days or health benefits, disability insurance orpension. He indicated that he does not have any job security, that when he completes one contract he will have no income until he findsanother one. [25] Any retained earnings in the company are for the Applicant’s retirement. [26] The Applicant also deposes that his income is $5000 per month from dividend payments from the company and $2,910.11from pension for a total of $94,921.32.

In 2011, his income, including pension was $112,500. Analysis [27] The Respondent relies upon the case of Judd v Judd, 2010 BCSC 153 (BCSC) for a finding that she is entitled to furtherspousal support. The facts of that case however are considerably different. In Judd, the children’s ages were 14 and 17. Here the childrenare grown adults and have been for many years. Further, and the Court in Judd indicated this was very significant, the wife had moved tothe Sunshine Coast prior to the separation so that the children could live in a small town environment.

The Court noted that, despite herefforts, there were limited employment opportunities for the wife in this smaller town environment. [28] In Judd, the Court in determining an entitlement to spousal support, looked at the issue of how much time had elapsed fromthe date of separation and any subsequent increase in the husband’s income and also whether or not his employment had changed sincethe separation and how long after it had changed. [29] The Applicant relies on Sigurder v Wright, 2008 MBQB 191, the facts of which also differ significantly from the case beforeme.

Like the Sigurder case however, the Applicant deposed that he had no knowledge of the Applicant’s injuries in the 2001 accident.He deposed that there was little if any damage to the vehicle as a result of that accident.

The Applicant’s evidence raises a doubt aboutthe extent of the Respondent’s injuries arising from the accident, [30] I refer to the case of Sigurder which refers to the judicial discretion in a determining any spousal support obligation.Following the Supreme Court of Canada decision on Moge, the Court stated that such determination demands a complex and, in manycases a difficult analysis. [31] In the matter before me, the facts are as follows: i. this was a 16 year marriage, the separation of which took place 12 years ago; ii. there was a change in employment of the Applicant and importantly into a less secure independent contractorrole; iii. the Applicant is making less income than he was in 2008 at the time of the June 8, 2008 Order; iv. the Respondent’s income significantly increased by her employment with the University of Calgary from$12,001 in 2008 to almost $39,800 today; v. the Respondent’s income to increase by $1925 per month (from pension income) commencing in October2013; vi. an Order by Justice McDonald in which he stated that the support was to be decreased “dollar for dollar uponthe wife receiving pension income”; vii. the Respondent filing significant irrelevant evidence with this Court in this application regarding theApplicant’s alleged faults and limited evidence relating to relevant issues, such as the efforts she made to find employment and whetherthe employment she has found is to her full potential; viii. the Applicant’s evidence that she has serious health issues based upon an accident that took place in 2001,seven years prior to Justice McDonald’s order in 2008 and a medical record with respect to a seizure that occurred in 2012 from theRespondent’s family physician.

No medical records were put forward by her neurologist or NeuroPsychologist, whose care she is under. [32] Compensatory spousal support is to compensate a spouse for the economic disadvantages arising from a marriage and itsbreakdown, such as a loss in earning capacity resulting from child care obligations. I am satisfied that there is no further entitlement tocompensatory support. As stated earlier, there is no need for child care, the parties’ children are adults and have been for some time. Theparties separated 12 years ago, when the Respondent was 42 years of age.

Spousal support has been paid (either in lump sum ormonthly) for the past 12 years and as there is limited evidence before me regarding the Respondent’s earning capacity or attempts atfurthering her education or finding employment, I am unable to find that the Respondent has not reached a degree of self-sufficiencyconsistent with her education and work skills.. [33] Non-compensatory spousal support is based on true need or hardship. This latter case often arises in situations where a spousebecomes disabled or suffers from medical problems rendering them unable to work.

The leading case on non-compensatory support isBracklow v Bracklow, (SCC), [1999] 1 S.C.R. 420. Bracklow found that there may be cases where a spouse, as opposed

to the state, should support a spouse who is in need. There is, however, no entitlement simply because one party earns more money than the other. [ 34 ] In October, the Respondent can obtain her portion of the Respondent’s pension in the amount of $1925 per month and with her annual income of $39,800, the Respondent is today in a better position than she had been at the time of the June 2008 Order.

I cannot find the same for the Applicant. [ 35 ] The evidence put before this court is limited regarding the Respondent’s medical problems and does not support a finding for non-compensatory support. [ 36 ] It was submitted that the Respondent may not receive her pension payments in October, that it may take one to two months for the payments to commence. [ 37 ] I am therefore ordering that Applicant’s spousal support payments of $2500 cease as of December 1, 2013. Costs [ 38 ] The parties have not had an opportunity to speak to the issue of costs.

Should they wish to do so, they should arrange to appear before me. Heard on the 9 day of August, 2013. Dated at the City of Calgary, Alberta this 27 th day of September, 2013. C.S. Anderson J.C.Q.B.A. Appearances: Heidi G MacIntosh for the Plaintiff/Respondent Jolene Lalonde for the Defendant/Applicant