ML v RL, 2014 ABQB 605

Court of Queen ’ s Bench of Alberta Citation: ML v RL, 2014 ABQB 605 Date: 20141030 Docket: 4813 004624 Registry: Ft. McMurray Between: ML Plaintiff - and - RL Defendant Corrected decision: A corrigendum was issued on November 21, 2014; the corrections have been made to the text and the corrigendum is appended to this Reasons for Judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L. Kenny _______________________________________________________ Introduction [ 1 ] The parties were married on May 4th of 2005 and separated on January 28, 2009.

They were divorced on April 4, 2011. Both parties had been married before. The husband is currently age 63 and the wife is currently age 62. Issues

[ 2 ] There are two issues before the court. The first one is whether the wife is entitled to continued spousal support. An interim order was granted on April 12, 2011 directing that the husband pay to the wife the sum of $3500 per month in spousal support. [ 3 ] The second issue is the division of matrimonial property. The parties generally agree on the assets and their values. The issue is whether property acquired by the husband after the separation should be shared with the wife and if so, in what proportion.

Spousal Support [ 4 ] The wife was working fulltime in Nova Scotia as a ward clerk at the hospital earning approximately $30,000 per annum plus benefits at the time she married the husband. She owned her own home with a mortgage against it. She was self-sufficient. The husband was working for a helicopter company out of Canada which works all around the world usually flying for oil companies. At the time the parties got together, the husband was working a rotation of six weeks in the Philippines and six weeks back in Canada. [ 5 ] After the marriage, the husband had the opportunity to take a position in Nigeria.

He wanted the wife to go with him. The position would mean that the husband would not have to travel, the parties could be together full time, and it provided for an increased income and no taxes so the opportunity was there for them to save more money. The wife was unable to work in Nigeria. The wife maintained her home in Nova Scotia but left her position at the hospital so they could move to Nigeria. [ 6 ] The wife acknowledges taking substantial cash assets on separation and also receiving spousal support since the date of the court order in April of 2011.

Subject to comments I will make later, the wife has received spousal support for over five and a half years. She seeks continued spousal support indefinitely. She says that she has PTSD from her time in Nigeria and cannot work and therefore needs continued spousal support. [ 7 ] The wife says that they lived in a compound in Nigeria with armed guards at the gates along with about 50 other families. She says she was fearful for her safety and worried about break-ins and kidnapping when she was in the home alone. She developed panic attacks and required medication.

She says she still gets panic attacks here in Canada from time to time. She says she cannot think straight, and has major anxiety. She has not looked for employment since the separation. [ 8 ] She saw a counsellor regularly in 2009 and on an as call basis in 2010 to 2013. In 2012 and 2013, she would see the counsellor maybe once a month and sometimes once every two to three months. In 2014, she has seen the counsellor twice. [ 9 ] The husband says that the wife is not suffering from PTSD, she has not been diagnosed with such by a doctor and her own family doctor specifically says she does not have PTSD.

The wife was taking medication and seeing a counsellor before the parties married for other issues in her life. There is no reason, says the husband, that the wife should not be employed. She simply chooses not to be since she is receiving more in income from spousal support from the husband than she ever did from working fulltime. Decision on Spousal Support [ 10 ] The most compelling evidence in my view with respect to the issue of PTSD comes from the wife’s family doctor who specifically says she does not have PTSD.

The wife has limited contact with a counsellor at this stage and only when so desired by the wife. She suffers from anxiety which she suffered from prior to the marriage. She did not miss any time at work before the marriage as a result of her anxiety. She has not sought out any employment. [ 11 ] The wife did suffer a disadvantage by giving up her position to move to Nigeria. For that she should be compensated. She left her employment in October of 2005 and the parties separated in January of 2009. She was out of the workforce therefore for approximately three years and three months.

She has now received support for close to 6 years. Any obligation for compensatory support has long since been fulfilled. [ 12 ] I am not satisfied that the wife is entitled to any non-compensatory support. I am not satisfied on the evidence before me that the wife is not able to work at some position. I have reviewed the medical records entered as exhibits in the trial.

The only thing in all of the records which supports the wife’s claim that she cannot work is a letter from a psychologist in 2011 and repeated in 2013 which says that the wife has symptoms of post-traumatic stress disorder, depression and anxiety and that she cannot work at this time. Continued counselling is recommended. A letter from her family doctor in 2012 confirms a history of stress and anxiety with a recommendation to counselling prior to the marriage. There is a further note that says the wife was suffering from depression in 2008 and, was given medication for it which resulted in improved mood.

Finally there is a note that says the wife does not have any symptoms consistent with post-traumatic stress disorder. Rather the symptoms are consistent with anxiety exacerbated by stress and menopausal symptoms. I also take into consideration the parties ages, the length of co-habitation, and the length of time they have been separated. Spousal support shall end effective December 31, 2014. Spousal Support and Property [ 13 ] There was no spousal support paid by way of court order after the separation in January of 2009 until the court order of April 2011.

However, at the time of separation, the wife withdrew $171,000 from a joint bank account. In addition to that, the husband made several payments on behalf of the wife after separation which should properly be reflected as spousal support. These include: a) $20,813 paid with respect to the wife’s home in Nova Scotia b) $750.00 being the wife’s one half share of the accounting fees on the Mexico bare land property

c) $7,850 being the husband’s half share of the account receivable from the wife’s daughter These total $29,413. [ 14 ] There was a period of 26 months between the time of the separation and the court order for spousal support. At $3,500 per month which was the amount set forth in the court order, the husband would owe to the wife the sum of $91,000 in spousal support for that period of time. Since that sum would be taxable to the wife and tax deductible to the husband as spousal support, I have reduced the amount owing by 20% which leaves $72,800 owing. The husband paid $29,413 set out above and therefore owes a further approximately $43,387. Property

A) To be Sold [ 15 ] The parties agree that the bare land property in Mexico and the Vacation Village timeshare shall be sold and the net proceeds divided equally between them.

B) Exempt Property [ 16 ] The parties agree that the wife’s home in Nova Scotia which she owned before the marriage is exempt. I will deal with the line of credit against that home later. [ 17 ] The husband also argues that the timeshare which he owned for approximately 20 years before the parties got together (Orange Lake) should be exempt. I agree. There is no increase in value to that timeshare. [ 18 ] The husband also argues that the property he purchased in Mexico after the separation should also be exempt as it was purchased using the proceeds from his pension that he cashed in.

He held that pension for many years prior to the marriage and eventually cashed it in, in April of 2010. He paid a significant penalty in withholding tax. He netted almost the identical value as the value of the plan at the date of marriage. While there was a slight increase in the value of the pension from the date of marriage to the date of separation (approximately $20,000), the value when cashed in did not exceed the value at the date of marriage. The Mexico property purchased with the proceeds of the pension plan is therefore exempt.

C) Property Subject to Division [ 19 ] The property subject to division is set out in “Schedule A” a attached hereto. I have left off

Schedule A property that will be sold, property that is exempt and property that has been deemed to be spousal support. The

schedule sets out the value of the property at separation and the value as at the date of trial. The issue before this court is whether, considering the factors in sections 7 and 8 of the Matrimonial Property Act, RSA 2000, c M-8 (MPA): ...the property as at the date of trial should be divided equally between the parties. [ 20 ]

Schedule A shows that the wife would receive between $77,370 and $178,206 as an equalization payment in addition to her home, which is exempt, and her one half share of the net sale proceeds of the timeshare and the Mexico bare land property as set out above. The Law [ 21 ]

Section 7 of the MPA directs the court to divide the property as the court considers just and equitable taking into consideration the factors in

section 8 . Section 7(3) (

c) also directs the court to consider property acquired after a divorce. In this case, the parties were divorced in April of 2011. [ 22 ] The factors in

Section 8 which would be of some relevance in this matter are 8(c), the financial contribution by a spouse to the acquisition of the property; 8(d), the financial resources that each party had at the time of marriage and at the time of trial; 8(e), the duration of the marriage; and 8(f), whether the property was acquired when the spouses were living separate and apart. Position of the Parties [ 23 ] The wife says that she is entitled to an equal division of all property as at the date of trial regardless of the fact that she did not contribute financially to property acquired after the separation and divorce.

This is because she is unable to work and the husband has a much better future financially than she does. [ 24 ] The husband argues that all property acquired after the separation has come from the income he has earned while employed. He has not used assets from before the separation to bootstrap the acquisition of other assets. In addition to that, he has been paying spousal support for close to six years now for a relationship which lasted just under 4 years. [ 25 ] When the wife entered the relationship, she was earning approximately $30,000 per annum and owned her house in Nova Scotia with a mortgage on it.

Since the separation, she has chosen to live in Fort McMurray rather than back in Nova Scotia in her home.

Her cost of living, therefore, is much more than it would be in Nova Scotia. She has been receiving just under $1,000 per month as rent from her home and in addition has been receiving $3,500 per month from the husband. This is in excess of anything she was earning before the marriage. She will also receive a distribution from property acquired during the marriage which significantly increases the assets she had before the marriage. There are no children of the marriage, the parties married later in life and the marriage was of a short duration.

Decision on Property [ 26 ] I am satisfied that it would not be just and equitable to equally divide all of the property acquired to the date of trial. I take into consideration the fact that the parties have been divorced for over 3 years, the husband has been paying appropriate support to the wife for an extended period of time, and much of the property of the parties has been acquired after the separation from income earned by the husband from his employment.

The husband has not used matrimonial property for the purpose of acquiring other property- it has all come from income. [ 27 ] I am going to set the equalization payment to be made by the husband to the wife at $125,744. The wife already has $91,500 of this representing the net amount realized from the money taken from the account at separation and accounting for her assumption of the line of credit on the home. This leaves a balance due and owing to her of $34,244.

She will also retain her home in Nova Scotia and will receive one half of the net proceeds from the sale of the timeshare and the Mexico bare land property. [ 28 ] The husband shall retain all other assets listed in

Schedule A as well as the Mexico property and the timeshare which are exempt. He shall receive his share of the net proceeds of the timeshare and the bare land in Mexico to be sold. He shall pay to the wife the sums of $34,244 for her share of the matrimonial property and the sum of $43,387 representing the arrears in spousal support by December 31, 2014.

Costs [ 29 ] Although the results of this matter are mixed such that each party would normally pay their own costs, I am satisfied that a nominal payment of costs should be made by the husband to the wife as a result of the efforts she made to obtain the financial information she required for this trial and the fact that the disclosure of such was much later than it should have been. I will award costs in the sum of $4,000 inclusive of disbursements. Heard on the 2 nd day of October, 2014. Dated at the City of Ft. McMurray, Alberta this 30th day of October, 2014. C.L. Kenny J.C.Q.B.A. Appearances: Mr.

Cyril Bright for the Plaintiff Mr. Timothy Snyder for the Defendant

Schedule A

Asset Separation Value Current Value Generali 3670 Break fee 61,983 (13,636) 61,983 (13,636) 48,347 48,347 Generali 3472 0 26,886 [1] Generali 3235 0 84,862 RBC RRSP (approx.) 60,000 0 Fidelity Mutual 11,096 46,977 RBC Canada 3457 5,300 10,669 RBC (Net) 0794 Line of Credit 171,000 (79,500) 171,000 (79,500) Net 91,500 91,500 Boat 0 20,000 Car 0 22,000 Friends Provident 0 66,672 Totals: 216,243 ÷ 2 = 108,121 417,913 ÷ 2 = 208,956 _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice C.L.

Kenny _______________________________________________________ Paragraph 14, Line 6: Delete: $61,500 Replace With: $43,387. Paragraph 14, Last Sentence: Delete: I will set off $61,500 from the $171,000 taken by the wife at separation as spousal support and the balance, $109,500 shall be dealt with as matrimonial property. Paragraph 27, Line 2: Delete: $90,000 Replace With: $125,744 Delete: $30,000

Replace With: $91,500 Paragraph 27, Line 4: Delete: $60,000 Replace With: $34,244 Paragraph 28, Last Sentence: Delete: sum of $60,000 by December 31, 2014 Replace With: sums of $34,244 for her share of the matrimonial property and the sum of $43,387 representing the arrears in spousal support by December 31, 2014.

Schedule A, Second Column under “Separation Value”: Delete Line 9: 109,500 Replace With: 171,000 Delete Line 11: 30,000 Replace With: 91,500 Delete Line 15: 154,743 ÷ 2 = 77,370 Replace With: 216,243 ÷ 2 = 108,121

Schedule A, Third Column under “Current Value”: Delete Line 9: 109,500 Replace With: 171,000 Delete Line 11: 30,000 Replace With: 91,500 Delete Line 15: 356,413 ÷ 2 = 178,206 Replace With: 417,913 ÷ 2 = 208,956