Cushnie v. Cushnie, 2013 ABQB 690

Court of Queen ’ s Bench of Alberta Citation: Cushnie v. Cushnie, 2013 ABQB 690 Date: 20131126 Docket: 4801 158561 Registry: Calgary Between: Robert William Cushnie Plaintiff/applicant - and - Deirdre Stanlea Cushnie Defendant/respondent _ ________________________________________ ______________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _________________________________________ ______________

Summary [ 1 ] In a morning chambers application, Ms. Cushnie - who married the respondent 5 years ago when she was 46 years old - asks for monthly interlocutory support in the amount of $1,255.00 for a period of two to three years. Mr. Cushnie opposes that application on the grounds that full financial disclosure has not yet been made. [ 2 ] Mr. Cushnie asks for the sale of the Calgary matrimonial home on the grounds that Ms. Cushnie can neither afford to remain in that home nor buy out his interest in that home. Ms.

Cushnie opposes that application on the grounds that the matrimonial property dispute has not yet been settled. [ 3 ] On this application, the court has not been able to make a determination concerning Ms. Cushnie’s entitlement to spousal support: need does not equal entitlement. Where, as here, the parties were married for a relatively short period of time and have no children together and where the applicant is self-represented, at best a special chambers hearing is necessary to ensure that application can be dealt with fairly; it may become necessary to order a trial of that issue.

In the meantime, however, what has become clear is that Mr. Cushnie is not contributing to the expenses of the matrimonial home on which he is making a claim. Assuming that Ms. Cushnie can bring a special chambers application for spousal support between now and April 30, 2014, Mr. Cushnie will, from December 1, 2013 to

and including April 1, 2014, pay Ms. Cushnie $1,000.00 per month by way of interlocutory spousal support which amount can be adjusted either up or down at the special chambers application. [ 4 ] While it does indeed appear that Ms. Cushnie can neither afford to stay in the matrimonial home nor buy Mr. Cushnie’s interest in it, it is premature to order the sale of the matrimonial home until an opportunity has been given to the parties to have the issue of spousal support resolved at a special chambers hearing. Should Mr. Cushnie be required to pay spousal support, Ms.

Cushnie’s current accommodation cost of approximately $2,000.00 appears to be a relative bargain compared with Mr. Cushnie’s accommodation cost of $2,200.00 per month; that apparent bargain should not be abandoned until the court has a clearer picture of the spousal support claim. Mr. Cushnie’s application to list the matrimonial home for sale is therefore adjourned until the special chambers hearing or April 30, 2014, whichever is the later. 1. Background [ 5 ] The parties married in 2008. Ms.

Cushnie was approximately 46 years old at the time, owned a home in Cochrane and commuted from there to her employment as a paralegal in Calgary, earning somewhat over $80,000.00 a year. She met Mr. Cushnie online and travelled to Britain, where he was employed, to meet him. They married in Britain. The parties have no children together. Ms. Cushnie obtained employment in a law office in Scotland but was terminated, she believes, because of her lack of familiarity with Scottish legal terms and because of her difficulty with Scottish accents.

She remained, however, employed during most, if not all, of the parties’ time in Britain. No information is provided about the arrangements made for Ms. Cushnie’s Cochrane home when she went to Britain. [ 6 ] At the beginning of 2010, the parties came to Canada. Ms. Cushnie states that she could not find work in Calgary and so the parties went to Edmonton. Ms. Cushnie mortgaged the equity in her Cochrane home to purchase a home in Edmonton. Ms. Cushnie advises that the Edmonton home is now rented and, more or less, pays for itself.

For 17 months after they arrived from Britain, including the whole of the time they lived in Edmonton, Mr. Cushnie was not able to be employed because he was not a Canadian citizen; he maintains that he lived on savings during that period and that his savings contributed to the couple’s living expenses. [ 7 ] Approximately one year ago, the parties moved from Edmonton to Calgary and bought a home. Ms. Cushnie is employed on a contract basis through her wholly owned company; that company’s gross income is approximately $85,000.00.

The company does not need office space or administrative support of that type, but Ms. Cushnie must pay her own WCB contributions and buy her own protective clothing. The parties made a $100,000.00 down payment on the Calgary home, $50,000.00 of which was contributed by Ms. Cushnie from the equity in her Cochrane home and $50,000.00 of which was contributed by Mr. Cushnie from a loan he obtained from a friend, which loan he is servicing. The monthly mortgage and real property tax payments on the Calgary home amount to approximately $2,000.00 per month. Ms.

Cushnie indicates that the Cochrane home is now fully leveraged. Ms. Cushnie has exclusive possession of that home; one of her adult daughters lives with her in that home. [ 8 ] The parties separated on September 13, 2013 when, without notice, Ms. Cushnie changed the locks on the Calgary home denying Mr. Cushnie access. Since then, Ms. Cushnie has had exclusive possession of the matrimonial home where she lives with her adult daughter who is the youngest of Ms. Cushnie’s four children from a prior relationship. Mr. Cushnie obtained rental accommodation for himself for approximately $2,200.00 per month. Mr.

Cushinie earns approximately $160,000.00 per year from employment; it is not clear what his monthly debts are. [ 9 ] Ms. Cushnie brought this application for interlocutory spousal support in October, 2013. [ 10 ] In November, Mr. Cushnie brought an application for financial disclosure and for the sale of the matrimonial home. The application for financial disclosure is returnable in morning chambers on December 13, 2013. [ 11 ] Mr. Cushnie opposes the application for interlocutory support until Ms. Cushnie has made full financial disclosure; he asks for an adjournment of her application.

As a back-up position, he offers to pay $600.00 monthly as a contribution towards the cost of the matrimonial home. [ 12 ] Ms. Cushnie opposes the sale of the matrimonial home on the grounds that matrimonial property has not yet been divided. 2. Has Ms. Cushnie proved that she is entitled to spousal support and, if so, what amount should be awarded for what period of time? [ 13 ] As a self-represented litigant, Ms. Cushnie unfortunately appears to have assumed that financial need constitutes an entitlement to support.

Canadian case law has established that there are three reasons why, in this society where married couples are able to divorce at will, one spouse should pay support to the other on the breakdown of the marriage: the other spouse has contracted to pay support in the event of a breakdown and that spouse should be held to their promise; the requesting spouse has given up something because of the marriage and should be compensated by the other spouse for what has been given up; or, there is a social contract between the parties that they will pay support to the other on the breakdown of the marriage. [ 14 ] Here, there is no actual pre- or post-nuptial contract between the parties, so there is no contractual basis for a claim for spousal support. [ 15 ] Ms.

Cushnie has presented no evidence as to why she should reasonably expect that her husband should support her after the marriage breakdown: there is no evidence that they made some particular marriage promises to that effect, or that in their joint cultures there was an expectation to that effect. Given the parties’ ages at the time of marriage, and Ms. Cushnie’s presumed familiarity with the easy availability of divorce in Canada, it is not clear on this application that, as between these parties, there is a social contract for

ongoing spousal support once the marriage has broken down. [ 16 ] Therefore, Ms. Cushnie’s claim is apparently based on compensation. Because she is currently earning almost as much as she was earning when she left Canada to marry Mr. Cushnie, and because there is no evidence that Mr. Cushnie asked her to give up her home in Cochrane and her job in Calgary to marry him, that he asked her to buy a home in Edmonton and to make renovations to it, or that he asked her to buy a matrimonial home in Calgary and to make extensive renovations to it, Ms.

Cushnie’s strongest compensation argument appears to be her role in supporting Mr. Cushnie during the 17 months when Mr. Cushnie was unable to be employed in Canada. [ 17 ] Mr. Cushnie asks the court to adjourn Ms. Cushnie’s application for interlocutory spousal support until after December 13, 2013 when his application for financial disclosure is returnable in morning chambers.

With respect, that is not a sufficient reason to adjourn a spousal support claim: in Alberta, it is a common practice to make pre-disclosure, without prejudice, support orders which can then be adjusted up or down when full financial disclosure has been made. That could be done here. [ 18 ] However, realistically, the court concludes that even once Ms. Cushnie makes financial disclosure, because Ms.

Cushnie is self-represented, there will likely have to be a special chambers hearing to determine whether she is entitled to spousal support and, if so, how much that support should be, and for how long. (The application in morning chambers, which should be limited to a total of 20 minutes, took over one hour and even then all of the basic information could not be put before the court.) A special chambers application may not be able to be booked until April, 2014. [ 19 ] Another problem with dealing with Ms. Cushnie’s application now is that Mr.

Cushnie states that he has been unable to provide financial evidence of his actual financial independence from Ms. Cushnie for the 17 month period during which he was unemployed because Ms. Cushnie has control of the parties’ financial records living as she does in the matrimonial home. It is somewhat difficult to fully credit that argument since it seems likely that Mr. Cushnie could arrange to get duplicate bank records for his own, or joint, bank accounts even at some additional cost to him. Moreover, I have concluded, on the sparse material available on this application, that Mr.

Cushnie could not have had sufficient savings when he immigrated to Canada to fully support himself during his 17 months of unemployment because, when the parties moved to Calgary, Mr. Cushnie was unable to make any direct financial contribution to the couple’s new matrimonial home. [ 20 ] On the other hand, an adjournment of Ms. Cushnie’s application for a minimum of 5 months may not be fair to her. There are other problems. According to Ms. Cushnie, she is totally tapped out financially: in other words, if she were overpaid on interlocutory support, she would not be able to repay that overage to Mr.

Cushnie from her income or her assets when matters were finally resolved between them. Moreover, from the information Ms. Cushnie herself has provided, it seems unlikely that more than $50,000.00 will be produced as net proceeds from what appears to be the inevitable sale of the matrimonial homes. A relatively short pre-disclosure without prejudice order for spousal support would ensure that any over-compensation to Ms.

Cushnie under that heading could be adjusted on the division of matrimonial property. [ 21 ] The only fact which is undisputed on this application is that the Calgary home is in the joint names of the parties, and that Mr. Cushnie is making a claim to the equity in that home. On that basis, he should be paying his joint ownership share of the basic expenses connected with the property rather than having Ms. Cushnie making ongoing payments that will eventually be to Mr.

Cushnie’s benefit. [ 22 ] Therefore, on an interim, pre-disclosure basis only, in the expectation that these payments can be adjusted up or down after full disclosure has been made by each party and on the condition that Ms. Cushnie immediately arrange for a special chambers date for the hearing of her spousal support application, Mr. Cushnie will pay to Ms. Cushnie $1,000.00 per month in spousal support from December 1, 2013 to April 1, 2014. The court expects that a full hearing on spousal support can be heard prior to April 30, 2014. 3. Application to sell the matrimonial home [ 23 ] Mr.

Cushnie’s application to sell the matrimonial home is adjourned to morning chambers on April 30, 2014. [ 24 ] Ms. Cushnie’s objection to selling the Calgary matrimonial home is as baseless as Mr. Cushnie’s objection to a pre-disclosure support order: it is clear that Ms. Cushnie is unable to maintain the Calgary home on her own and that she is unable to buy out Mr. Cushnie’s interest in the home and that, in the ordinary way, it would be perfectly appropriate to make an order now for the listing for sale of the matrimonial home. [ 25 ] However, if Ms.

Cushnie were entitled to spousal support, the cost of her living accommodation would undoubtedly feature large in any such award. Here, we happen to have information about accommodation costs in Calgary as a result of Mr. Cushnie’s position. He is paying more for accommodation for himself than Ms. Cushnie is paying for herself and her adult daughter in the family home. In other words, if Mr. Cushnie were found to be liable to pay spousal support to Ms.

Cushnie, her continuing residence in the Calgary home may be at least as cheap as, and maybe cheaper than, providing her with rental accommodation and would therefore be in the interest of both parties. [ 26 ] For that reason, Mr. Cushnie’s application to sell the matrimonial home is adjourned until April 30, 2014, to await the outcome of the special chambers application that Ms. Cushnie is required to bring prior to that date. Heard on the 13 th day of November, 2013.

Dated at the City of Calgary, Alberta this 25 th day of November, 2013. J.B. Veit J.C.Q.B.A. Appearances: Mark Lancaster, Dunphy Best Blocksom LLP for Mr. Cushnie Ms. Cushnie, on her own behalf