Lanski v Robinson, 2013 ABQB 712

Court of Queen ’ s Bench of Alberta Citation: Lanski v Robinson, 2013 ABQB 712 Date: 20131203 Docket: 4801 135762 Registry: Calgary Between: Christie Dawn Lanski Plaintiff - and - Adrian Elkins Robinson Defendant _ ________________________________________ ______________ Memorandum of Decision of the Honourable Madam Justice C.L. Kenny _________________________________________ ______________ [ 1 ] Mr. Robinson applies for a division of matrimonial property, in particular, matrimonial debt. [ 2 ] The parties separated in December of 2007. Mr. Robinson remained in the matrimonial home.

In 2008, when the wife says the situation became intolerable for her and their daughter, she arranged to purchase the husband’s interest in the matrimonial home in order to get him to move out. He received approximately $60,000 for that interest. He also took a number of items of matrimonial furniture from the home. The evidence of the wife is that she believed, with the taking of so much of the matrimonial furniture that they were done – all matters between them were finished and he would retain the credit card debt in his name. [ 3 ] That did not end matters between the two of them.

They attended mediation in an effort to try and resolve the debt in 2009 which was unsuccessful. The matter was then raised again by the husband in an application by the wife in 2011 to deal with access and

support issues. Finally the matter was set for trial. [ 4 ] The husband seeks an equal division of the debts he says existed at the date of separation and which debts he says were incurred from the date of marriage. He says these total about $48,000. He says as well that he has paid approximately $14,000 in interest on the wife’s share of those debts over the last 6 years based on credit card interest rates. [ 5 ] The documentary evidence at trial with respect to these debts is lacking. The husband asks the court to accept his oral evidence of debt where there are no documents to support his position. All credit cards and loans were in his sole name. He points to the following debts:

a) Scotia Bank – the husband says that in 2007, when the parties separated, he had approximately $13,200 outstanding on a Scotiabank credit card. He says the account stood at about $16,000 in June of 2013 when he transferred all of that debt to an RBC visa card to take advantage of a lower interest rate. At trial, he provided a copy of an RBC visa statement from October of 2013 in support of this debt. He says he contacted Scotiabank two days before trial to try and get statements for the account but was unable to do so. He says this court should simply accept his advice in this regard. I do not do so.

This matter has been outstanding since 2007 when the parties separated. Bank statements showing the debt in 2007 including documents showing the transfer from one credit card to another in June of 2013 are easily accessible. Claiming a debt for the last 6 years without ever offering evidence of that debt, particularly with a paper trail which would be easy to access, is unacceptable before this court. Any claim for a sharing of this alleged debt is dismissed.

b) CIBC visa card- the husband provided partial visa statements on this account from 2005 to December of 2007 when the parties separated. He says he was unable to obtain any statements from prior to 2005 and he says that he had no debt whatsoever on this credit card before the marriage in 2000. There is no way of course of verifying this as no statements were provided. A review of the partial statements shows that many expenses were for family purposes, many for the husbands own purposes and many for cash advances.

It is assumed that all expenses incurred during a marriage are for the purposes of the family as a whole – it is not up to the court to review them all. Absent evidence that funds or expenses were redirected for other purposes, they should be accepted as evidenced. The balance on this credit card at December of 2007 is $22,839.51

c) RBC visa card- the husband provided again partial credit card statements for this account from 2004 to December of 2007 (with several statements missing during this period). No statements were provided from before 2004 and no statements from the date of marriage. The husband says there was no balance on this credit card at the date of the marriage. A cursory review of the statements provided shows a similar pattern to the CIBC card. There is no reason to suspect that the credit card was used for other than family and personal items.

The balance on that credit card as at December of 2007 is $11,732.35. [ 6 ] The position of the wife is that she had no knowledge whatsoever about what the husband was using the credit cards for and had no access to the cards as they were solely in his name. She also pointed out that he took many cash advances from the credit cards and used them often for his own personal items. The wife acknowledges that she used the joint bank account to pay for all of the family expenses and her own personal expenses as that is all she had access to.

As indicated earlier, barring evidence that funds were redirected and used for other than personal and family expenses, there is no reason to look beyond the credit card statements themselves. The husband also argues that the wife was well aware of their credit card debt as she was the one who opened and paid the monthly bills and was also involved in the discussion of debt at the time the parties were negotiating a mortgage for their house.

It is clear that the parties lived beyond their means. [ 7 ] The husband also claims approximately $14,000 in interest for carrying the wife’s portion of the debt over the last six years. When he received from the wife his share of the matrimonial home in the approximate sum of $60,000 in 2008, he says he paid $15,500 to credit card debt in order to reduce his debt and thereby qualify for a mortgage to purchase his own home. He says he then made every effort to pay off his share of the credit card debt while maintaining interest only payments on the wife’s share over the last six years.

He calculates the wife owes him about $24,000 plus another $14,000 in interest at usual credit card interest rates. He says that he is still carrying about $35,000 in credit card debt to date. [ 8 ] His position in my view is unreasonable. The wife never had access to the credit cards, and was not even provided with evidence with respect to the debt outstanding until recently and even then, incomplete evidence. The matter then took six years to come to trial yet the wife paid the husband out his share in the matrimonial home approximately six to eight months after the separation.

As the wife indicated in her evidence, if she had had any idea at the time, that the payment for the house and the taking of the furniture had not fully finalized matters between them, she would never have paid him out for the house at that time or at least not in the amount that she did. All proper debts could and should have been dealt with at the time. Unfortunately for both parties, no separation agreement was done at the time of the payment.

I will attribute nominal interest only on the debt in the sum of $1000 given the circumstances. [ 9 ] There is a court Order pronounced June 17, 2011, wherein the Court ordered that $5,500 due and owing by the husband to the wife for retroactive

section 7 expenses not be paid by him until the issue of the matrimonial debt was determined. [ 10 ] I find that the total matrimonial debt outstanding as at December 2007 is $34,571.86. The wife is responsible for one half of this debt in the sum of $17,285.93 plus $1000 in interest for a total of $18,285.93. She is owed $5,500 pursuant to the June 17, 2011 order and therefore, the balance outstanding is in the sum of $12,785.93.

[ 11 ] The parties advise that there is an application before the court, which has been adjourned sine die, to adjust ongoing child support and

section 7 expenses for the last two years since the order of June 17, 2011. That order set support for 2011 based on the income of the parties for 2010 and therefore, further setoff as against this debt may be required once support for 2012 (based on 2011 income) and support for 2013 ( based on 2012 income) is determined. [ 12 ] There will be no costs to either party of this trial of an issue. Heard on the 28 th day of November, 2013. Dated at the City of Calgary, Alberta this 3rd day of December, 2013. C.L. Kenny J.C.Q.B.A. Appearances: Christie Dawn Lanski Self-Represented Plaintiff Michael Ghert for the Defendant