JMH v THH, 2014 ABQB 639

Court of Queen ’ s Bench of Alberta Citation: JMH v THH, 2014 ABQB 639 Date: 20141029 Docket: 4803 158667 Registry: Edmonton Between: JMH Plaintiff - and - THH Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.P. Marceau _______________________________________________________ Table of Contents Introduction . 3 1. The date for division and valuation of the matrimonial property and exemptions . 3 2. The value of the matrimonial property and the exemptions at the date of valuation . 5

a) BP . 5

b) Appendix “A” and “B” . 6

c) Assets Appendix “A” . 7

d) Real Property . 8

e) Line 27 – The defendants’ Red Deer home . 11

f) Interim Advance – Line 28 . 11

g) Line 30 – Major contents – items acquired . 11

h) Line 31 – Furniture at cost 11

i) Vehicles/shop equipment 11

j) Debts . 12

k) Exemptions . 12 3. Equalization Payment 13 4. The items of matrimonial property to be auctioned off . 13 5. Child support, including calculation of arrears of s 3 and s 7, respective Guideline Incomes; ongoing child support 14 6. Ongoing Custody and Access for B .. 15 7. Spousal Support for the plaintiff (only a retrospective order in favour of the plaintiff has been applied for) 17 Mechanics . 18 8. Costs will be dealt with on application by either party . 19 Appendix “A” . Error! Bookmark not defined. Appendix “B” . Error! Bookmark not defined. Appendix “C” . Error! Bookmark not defined.

Introduction [ 1 ] JMH (the plaintiff and the mother) and THH (the defendant and the father) were married on the 6 th day of June, 1998. It was the second marriage for both parties. There are two children of the marriage. Z was born 1994 and is now 20 years old. He is the mother’s biological son and was adopted by the father. B was born in 1999 and is now aged 14; he is the biological child of both parties. To protect B’s interests, the parties and their children are identified by initials in this judgment.

The parties separated on November 2, 2011 and were divorced by Order of Justice Pentelechuk on May 20, 2014. The trial commenced on October 6, 2014 and continued until October 10, 2014. Judgment was reserved. [ 2 ] There are several issues to be decided: 1. The date for division and valuation of the matrimonial property and exemptions; 2. The value of the matrimonial property and the exemptions at the date of valuation; 3. Whether the plaintiff will be allowed to purchase the farm at 4-23-37- 27-NW, and the mechanics of transfer; 4. The items of matrimonial property to be auctioned off; 5.

Child support, including calculation of arrears of s 3 and s 7, respective Guideline Incomes; ongoing child support; 6. Ongoing custody and access for B; 7. Spousal support (only a retrospective order in favour of the plaintiff has been applied for); and 8. Costs will be dealt with on application by either party.

1. The date for division and valuation of the matrimonial property and exemptions [3] Generally speaking the rule is that the valuation is at the date of trial. The Court in Hodgson v. Hodgson, 2005 ABCA 13 atpara 10, referring to Mazurenko v. Mazurenko (1981), 1981 ABCA 104 , 30 AR 34 (CA) stated: The fact that this rule was not stated in absolute terms has led to the suggestion that it is only a “strong presumptive rule” that can bedeparted from in special circumstances. We do not agree.

In our view, other provisions in the statute, as well as the overall statutoryscheme, support the view that valuation and division must take place as of the date of trial. (Emphasis added.) [4] There is one recognized exception, referred to in De Winter v. De Winter, 2014 ABCA 311 at para 31: While assets are valued at a trial, the dissipation here allowed the trial judge to make an unequal allocation of assets by valuing theinvestment accounts prior to dissipation. He did not err by, in effect, adding the dissipated assets back into the husband’s statement ofproperty.

In fact, by selecting the date chosen for valuation of the particular assets, the husband gained some advantages by not havingto share all of the increases from the date selected until date of trial. This is not a question of a trial judge erring in law by selecting thewrong date for valuation. Rather, it is a case of a trial judge selecting a date before dissipation to ensure a fair and equitabledistribution of assets between the parties.

He did not make a reviewable error and his decision was reasonable. (Emphasis added.) [5] In this case, while there has been some dissipation because the defendant has sold matrimonial assets (contrary to a CourtOrder not to do so) and has cashed in his RRSP, taken $17,000.00 from the corporate account and put it into his MasterCard account,valuing them at the date they were taken by distributing at date of trial results in the same situation as De Winter v De Winter, supra: thehusband gained some advantage since he does not have to share in any increase in value.

He does, however, have to share in the increasein value of his Red Deer home, even though the down payment was made from exempt funds.

The defendant should share with theplaintiff any increase in the value of the Red Deer home he purchased using exempt property (a gift from his father) as the downpayment. [6] The Matrimonial Property Act, RSA 2000, c M-8 provides for presumptive equal division of property in s. 7(4) which reads: If the property being distributed is property acquired by a spouse during the marriage and is not property referred to in subsections(2) and (3), the Court shall distribute that property equally between the spouses unless it appears to the Court that it would not be justand equitable to do so, taking into consideration the matters in

section 8. (Emphasis added.) [7] Thus for property to fall under this

section it must both be: 1. property acquired during the marriage, and 2. not property that falls within subsections 2 and 3. [8] Under subsection 2, the market value at the time of marriage of property acquired before the marriage (in this case bothparties owned houses before the marriage), referred to as the “original property”, is exempt from distribution. However, in this case theRed Deer home was acquired by the defendant using exempt property for the down payment, so it is not property acquired under ss 2. [9] Subsection 3 describes property that is to be distributed in a manner the Court considers just and equitable. That includesproperty acquired: (

i) as a result of an exchange for the original property, or (ii) from the proceeds, whether direct or indirect, of a disposition of the original property. [10] The Red Deer house was not acquired from originally exempt property owned by a party before the marriage.

Rather, it wasacquired using exempt property for the down payment, but during the marriage, not before the marriage. [11] Therefore, the increase in value of the Red Deer home is presumptively to be divided equally in accordance with s. 7(4) of theMatrimonial Property Act and that is the determination of the Court. [12] That brings us to the question how should the increase in the value of the matrimonial home and farm property be distributedamong the parties. [13] Referring to Appendix B, there are two payments into the matrimonial home which have been documented as coming fromthe parties from assets owned pre-marriage, the proceeds from the defendant’s premarital home $75,247.00 (Line 74) and proceeds fromthe plaintiff’s premarital home $42,657.19 (Line 78).

There is also the gift from the plaintiff’s parents of $75,000.00 in 2000, which wentto renovations on the matrimonial home which burnt in 2010. I have allowed an exemption to the party contributing same of one-half,because the contribution was made to a home and farm whose title was held in joint tenancy by the parties. (See Jackson v.

Jackson(1987), (AB KB), 54 Alta LR (2d) 143 (QB), affirmed (1989), 1989 ABCA 197 , 21 RFL (3d) 442 (CA): The Judge found that the exempted property had, as to a one-half interest, been given to the wife and [the Court] could find no error infact or law in the conclusion that it thus lost its exempt status.

See also Harrower v. Harrower (1989), (AB CA), 97 A.R. 141 (CA), where the Court stated that one-half of theexemption was, in effect, given to the wife when put into her name. [14] The land itself appreciated in value. The parties constructed buildings and improved the yard, which added value. The houseburnt down, but insurance proceeds of $498,000.00 were used to build a new house. Other insurance monies were used for otherpurposes.

Those funds were matrimonial property which was available, not because of the exemptions, but because the parties togetherhad paid for replacement insurance from their common resources. The increase in value is in part traceable to “original property” ownedbefore marriage.

The increase in value as contributory to the present value is mostly because the new house was built with insuranceproceeds, partly because other improvements which did not burn in the fire were added to the land. [15] Therefore, the increase where traceable to original pre-marriage property is to be distributed as the Court finds just andequitable. The increase that is related to the investment from other sources made by the parties during marriage are presumptively to bedistributed one-half to each party.

To the extent the presumption does not apply, I find the parties contributed what they could andequally to the increase in value and it is, therefore, just and equitable the division of the increase in the matrimonial home and farm landbe equal. 2. The value of the matrimonial property and the exemptions at the date ofvaluation

a) BP [16] BP, Chartered Accountant, Chartered Business Valuator, is the principal of a valuation services firm and a partner in a firm ofchartered accountants. She provides business valuations, litigation support services, determination of income for support purposes, andother related services. Her qualifications are that she obtained her Bachelor of Commerce from the University of Alberta in 1986. Shebecame a Chartered Accountant, Alberta, in 1990 and a Chartered Business Valuator in 2000.

She practiced as a partner in the firm ofGardiner, Karbani, Audy and Partners LLP, Chartered Accountants from 1998 to 2005, then as a partner in Tejpar LLP, CharteredAccountants from 2006 – 2010; and as a partner in her present firm from 2011 to the present time. Her curriculum vitae is found underExhibit 65. She has prepared many valuations.

The litigation support she has provided in many other cases, but also in this case, isdetermination of income pursuant to the Federal Child Support Guidelines, present value calculations including lump sum spousalcalculations, statements of matrimonial property, tracing of exempt property, and determination of child support and spousal support. Asa Chartered Accountant, she prepared the personal Income Tax Returns for both parties and their Corporation from the time of theirmarriage until the separation.

She has access to the personal income information of both parties and a new Corporation started by thedefendant after the separation. I find her to be well qualified as an expert Chartered Accountant, Chartered Business Valuator and assuch, she was permitted to give opinion evidence. However, most of her work was not so much opinion evidence, but rather finding thepaper trail to establish exemptions, values of exemptions and the calculations of Guideline Income. The defendant did not challenge herqualifications. She is the plaintiff’s sister. She has been very involved with the parties.

She prepared their Income Tax Returns andCorporate Financial Statements without charge from the time they were married until the separation. Certain of the assets, a Case tractorfor instance, which are on the farm, were purchased by her and owned by her. She assisted the parties by loaning them money to assist inthe building of the new home. That loan was repaid from insurance proceeds.

She has spent countless hours finding out the financialfacts to refute the outrageous statements about how poor the defendant was, and is, and how her sister, the plaintiff, has stolen fundswhich should be matrimonial property She is not independent in this case and I do not treat her evidence as that of an independent thirdparty professional. Having said that, I have concluded that the documentation she has prepared is of very high quality as I havepersonally seen in at least one other case in which she testified before me as an expert.

Because almost all she did in this case is findingthe financial facts, the paper trail for many of the assets, documenting and presenting these facts to the Court in understandable form sothey speak for themselves, rather than employing a more analytical approach, I have by and large accepted her findings as fact, despitethe fact she is in an admitted conflict of interest.

b) Appendix “A” and “B” [17] The plaintiff has placed in evidence a document titled “JMH and THH Matrimonial Property Statement December 31, 2013”. That statement was revised a couple of times during BP’s testimony. The defendant gave evidence and as a result of his proving theprice he received for certain chattels he sold, and other evidence, the plaintiff conceded that certain amendments should be made.

I alsomade some findings with respect to value and those matters should have been brought up at the trial and it is now too late to do so.Finally, in argument, I asked that BP make certain revisions to the statement and send them to me. That revised document is attached asAppendix “A” to this judgment. [18] In the course of the trial, evidence was presented of the personalty which was left on the farm. Certain of the chattels wereretained by the defendant and their value as an exempt item, or matrimonial property, is shown in Appendix “A” with either agreedvalues, or the value I decided to put on them.

The non-exempt items were charged to the defendant in the defendant’s column ofAppendix “A”. Certain other chattels the plaintiff wished to retain. The plaintiff put a price on these items she wished to return andwhere the defendant agreed to the value, those items were added and show up in the plaintiff’s column as matrimonial property sheretains on Appendix “A”.

The exempt chattels are placed in the respective parties columns and the exemption claimed is shownbetween columns 72 and 89 of Appendix “A”. [19] I indicated at trial that those chattels which the plaintiff wished to retain, but the defendant would not agree was worth whatthe plaintiff has claimed, were to be sold at public auction. The net proceeds, after expenses of moving and auction, were to be splitevenly between the parties. I asked BP to compile a list and send it to me. That list is Appendix “B” to this Judgment.

To this listshould be added the meat grinder, as I heard evidence from the defendant that the meat grinder and meat saw were items for which heand the plaintiff could not agree upon the value. The defendant sent a memorandum to Associate Chief Justice Rooke’s assistantclaiming that a number of other chattels on the farm, like some sheds and fuel tanks, were moveable property and should also go toauction. Ms. Cochard, counsel for the plaintiff, apparently, received a copy of this document and replied that the case was closed and

those matters should have been brought up at the trial and it was now too late. The history of these proceedings is that the plaintiff, through counsel, was forced to obtain court orders for disclosure, never did get much of the disclosure, and at trial was surprised that so many novel claims were made. There has to be some finality, although the defendant seems to think the arguments should continue forever.

The list in Appendix “B” is the list which will be auctioned off subject to the following additions and deletions: Item 40 350 gallons of diesel Item 42 400 gallons of orange gas, referred to fuel which the defendant claims was left in the tanks. I have no idea whether any of this fuel remains and, therefore, those two items will be deleted. [ 20 ] To this list must be added: Item 28 Industrial 26” SS meat band saw and meat grinder. [ 21 ] All other items on the farm are the plaintiff’s property.

I note that in practice, where chattels such as sheds and fuel tank stands are transported to an auction site and then have to be transported to the buyer’s home or farm, the net proceeds of the auction is close to nil. The defendant’s attitude throughout the trial was that he was prepared to cut off his nose to spite his face. He does not care that the items put up for auction yield practically nothing to himself and the plaintiff, so long as the plaintiff cannot retain these chattels at the price she values them at.

c) Assets Appendix “A” [ 22 ] I will only comment on those items which I consider require an explanation, with particular emphasis on items with which the defendant does not agree, or were questioned and adjusted during the trial. (

i) Lines 1 - 14 [ 23 ] BP explained that item 13 represents the BMO mutual fund which was closed and put in a Toronto Dominion tax free savings account for the plaintiff and appears in her column, so the defendant receives credit for half of this item. (ii) Lines 15 – 24 [ 24 ] RRSPs and pensions lines 16 and 17: The plaintiff was not able to obtain a more current statement from the defendant, so the latest available figure is used. [ 25 ] Line 19 – The defendant’s 2013 tax return showed that he had cashed in $54,823.00 of his RRSPs. [ 26 ] Line 24 – This is the plaintiff’s Alberta Teachers Retirement Fund.

In the earlier versions of Appendix “A” the value at August 31, 2011 of $10,213.08 was shown. The plaintiff conceded that since the Court was of the view that a value as close to trial should be used, this sum was adjusted to $30,526.00 to reflect contributions to August 31, 2014.

d) Real Property [ 27 ] Line 26 – Matrimonial Home – Heartland Appraisal: Gregory Wade Henderson is a certified appraiser who has lived in the area where the matrimonial quarter

section and home are located since 1990. He obtained his bachelor of science in agriculture degree in 1986 and a post-graduate certificate in property valuation (honours) at the University of British Columbia. He is a certified agrologist and worked as a lending officer for the Alberta Agriculture Financing Corporation from 2000 to 2005. He worked as an agricultural policy agrologist at Alberta Treasury Branches for 6 years. He was employed as lead agricultural appraiser at Howard and Company Real Estate Appraisers and Consultants Inc. from January 2006 to July 2007.

He has done rural farm appraisals since the late 90s. In 2007 he started his company, Heartland Appraisal and Consulting Inc. He has done several hundred appraisals since that time. He is a farmer himself. His farm is a little farther from Red Deer than the matrimonial home, which is 26 kilometres from Red Deer. His business is located in Stettler, Alberta. He is a certified appraisal reviewer.

I found him to be an expert appraiser, qualified to give opinion evidence with respect to rural farms and farm homes and buildings generally in the area from north of Calgary to Leduc, Alberta. [ 28 ] His first appraisal is dated November 10, 2011, one year after separation. The background is that in November 2010 the home on the home quarter burnt to the ground.

By November 2, 2011, the parties were to move into the new home they had built (which is the current home) when the defendant advised the plaintiff he would be moving into the new home alone and she and the two children could continue to live at her parents’ home. When Mr. Henderson did his first appraisal November 10, 2011, the deck was not completed as is clear from the photographs of the house. The deck was later completed, but little turns on this, as Mr. Henderson’s first appraisal was based on the value once completed including, of course, that the deck would be completed.

The first appraisal found the market value of the property to be $645,000.00. The appraisal and the updates are Exhibits 62A, Tab 1 of the plaintiff’s exhibits. In this first appraisal, he found the contributing value of the improvements to be as follows: Residence and attached garage $262,325.00 Shop $23,240.00 Steel Barn $18.897.00 Miscellaneous – Yard Site $38,250.00 Total Contributory Value of Improvements Rounded $343,000.00

[ 29 ] He appraised the land alone at $305,000.00, this being a weighted calculation based on the comparables he chose of $1,950.00 per acre for 156.31 acres, rounded off to $305,000.00. Thus, the total value using the cost approach was $305,000.00, plus $343,000.00, for a total of $648,000.00. [ 30 ] That appraisal was updated on December 31, 2013, using $313,000.00 as the value of the land and $371,000.00 for the contributory value of the improvements. His final value was $689,000.00. [ 31 ] He further updated his appraisal as at September 29, 2014.

He arrived at a fair market value of $699,000.00, with the land valued at $2,100.00 per acre, rounded to $328,000.00 and the contributory value of the improvements at $371,000.00.

These two figures total $699,000.00. [ 32 ] It became apparent that the defendant, who had spent $754,650.00 since separation between employment income, disability insurance and Workers’ Compensation payments an advance of $110,000.00, gifts from his father totalling $118,000.00, collapse of his $54,823.00 RRSP and sale of matrimonial property of $196,584.00, all as set out in Exhibit Binder 62A, Tab 6, would be in no financial position to purchase the matrimonial home and farm.

Despite having spent these sums, he remains with precious few assets; the equity in his home in Red Deer, perhaps $150,000.00 (see lines 27 and 60, Appendix “A”), the contents of his home, $41,000.00 for guns, paintings and miscellaneous (line 30). I will later find he underpaid child support in the sum of $24,842.00 since separation. He also said at the trial that he had borrowed money from his family, including his son from his previous marriage. [ 33 ] It is the plaintiff’s wish to purchase the matrimonial home and farm.

Obviously it is in the defendant’s best interests in these circumstances to argue that the property is worth more than $699,000.00. That the defendant sought to do. The defendant cross- examined Mr. Henderson about why he had excluded two sales of land in the general area. One was the sale of 16 parcels (I take that to be quarter sections of land) at $4,000.00 per acre. This was a ranch purchased by persons or corporations from New York City. Mr.

Henderson clearly felt the size of the parcel, its suitability as a ranch, and special reasons the buyer may have had, make this parcel a non-comparable. [ 34 ] The defendant brought to his attention another parcel of unimproved, but cultivated farm land, which had recently sold for around $3,000.00 per acre. Mr. Henderson was familiar with that land and said that it could be farmed as one large piece of cultivated land, which would be a special attraction to a farmer with large equipment living nearby.

It was not comparable to the parties’ land, which had a yard, fences, some bush and some low-lying land, which would not be attractive to a farmer with today’s large equipment. I agree that parcel is not a good comparable. I also find Mr. Henderson justified his use of the comparables he chose. [ 35 ] The defendant’s second line of attack of the appraisal was that the replacement cost of the house, contents and farm outbuildings were currently insured at a guaranteed replacement cost of $1,011,600.00, so that must be their current value. Mr.

Henderson’s answer was that the factors considered by the insurance industry in arriving at replacement cost are not the same factors as an appraiser seeking to establish market value uses. Of course, replacement cost does not factor in depreciation. In fact, it factors in the opposite. It takes cognizance of the increases in costs of construction, or purchase price of construction materials and contents.

Replacement cost does not pay attention to what similar homes in similar locations are selling for. [ 36 ] It became apparent that construction materials used by the parties in the new home were of the highest quality. I heard evidence of bamboo flooring, triple glazed windows, a masonry chimney, special lighting, a $6,500.00 tub. Mr. Henderson explained that the cost of construction is often not reflected in what the building will sell for.

Obviously, building a million dollar house on a rural property, some 26 kilometres from the City of Red Deer will not usually sell for the same price as a million dollar (at cost) home in a prestigious district in Red Deer, and that will again be different from a home in a high-priced residential district in Edmonton, and different again in Calgary. [ 37 ] The defendant also argued (I say “argued” because he never led any evidence to prove this) that they had spent over $700,000.00 on the house.

BP performed an in-depth analysis, forensic accounting, to determine the cost of the new house by going through invoices, cheques, credit card payments, etc. She determined $498,000.00 (rounded off) had been spent on the new home. [ 38 ] In coming to my conclusion that the $699,000.00 estimate of value from the Henderson appraisal is the most reliable estimate of the market value of the land and improvements on the matrimonial property. I also take into account the document headed “Statement of Facts from the plaintiff’s perspective”. This four page document is practically a

summary of the evidence led by the plaintiff, including read-ins from Questioning of the defendant. I indicated that if I referred to any of the many Exhibits for Identification, I would consider they should now constitute an exhibit.

This refers to Exhibit V (the current Procom Insurance Policy) and the Statement of Facts (Exhibit A for Identification). [ 39 ] The defendant obtained his own appraisal of the farm property in 2012 pursuant to the Order of Nielsen, J. on August 12, 2014. [ 40 ] Counsel for the plaintiff explained more than once to the defendant during the trial, as did I, that if he wished to rely on the appraisal he had done, he would have to call the appraiser. He chose not to do so.

Under these circumstances, it is fair for me to draw the adverse inference that the appraisal he had done would not have assisted the defendant in attacking the Henderson appraisal. [ 41 ] Mr. Henderson also explained, when questioned, that usually pipeline right-of-way income is not factored in to add value to farm land. I think it is obvious that payments for right-of-way are largely to compensate the farmer for disturbance and inconvenience and costs to deal with the right-of-way.

I note in passing that the defendant claimed that the sum was $9,000.00 per year when BP proved it was about a third of that. [ 42 ] Evidence was presented of a letter dated February 6, 2014 (Exhibit 98) from Barb Mundy, at Sutton Landmark Realty, that she was not prepared to entertain a listing for the farm property in the area of 1.4 million dollars, as she felt the fair market value was between $750,000.00 and $775,000.00, a figure much closer to $699,000.00 than the 1.4 million dollars proposed by the defendant. [ 43 ] The defendant brought up a bit of a red herring.

On the recommendation of the plaintiff’s brother, DP, who is a building

contractor and farmer, the parties engaged a person to construct a chimney for a wood stove they bought. According to the defendant, the bricklayer knew the stove’s pipe was 8” in diameter. He says a ceramic insert 6” in diameter was installed by the bricklayer. Then the building inspector refused to approve the chimney unless a metal pipe was installed inside the 6” ceramic, so that the hole is now 4” in diameter and cannot accommodate the 8” pipe from the stove. The defendant testified he asked someone for a quote to fix the problem and it would cost about $100,000.00.

No one was called by the defendant to verify that quote and the quote itself was not produced. There was no evidence led about what other measures could be taken. If there was satisfactory evidence this was a $100,000.00 problem, it would result in $100,000.00 being taken off the purchase price for the plaintiff, which I am sure the defendant would not want to have happen. The plaintiff says a wood stove was the reason their house burnt in 2010, and she has no wish to have a wood stove in her home. The defendant took the wood stove away from the house. Mr.

Henderson did not know about this chimney problem and he was not asked whether the problem would diminish the value of the house. The evidence that there is a $100,000.00 problem to remedy is not satisfactory. I am not reducing the value of the house on that account. [ 44 ] For the above reasons, I conclude the land and improvements on the matrimonial farm are worth $699,000.00.

e) Line 27 – The defendants’ Red Deer home [ 45 ] This property was purchased for $532,500.00, with an initial mortgage of $460,418.00, so the down payment was $72,000.00 (rounded), as per the certificate of title dated 18 September, 2012, Tab 51 Agreed Exhibits. No appraisal has been conducted. BP relied upon a publication from the Central Alberta Realtor’s Association, which showed the percentage of changes over the years since the defendant has owned the home.

This document, Tab 7A in Exhibit 62A (the plaintiff’s exhibit binder), showed the annual price increases and BP established a current value of $582,000.00, being an increase over 2 years of $49,500.00. The defendant opined it was worth considerably less, but led no evidence at all, not even a current municipal assessment, to counter. BP’s evidence. He also led no evidence as to the amount owing on his mortgage, information readily available to him, but only available to the plaintiff by way of a court order if the defendant refused to obtain the information.

BP estimated the balance owing on the mortgage in Tab 7B of the plaintiff’s binder, Exhibit 62A. She prepared an amortization

schedule and calculated the mortgage had been reduced by $25,602.55 to $434,816.20, line 60. The defendant disagrees with the amount owing on the mortgage, but this figure of $434,816.20 was in evidence at the trial. He chose not to question it and it is not time after the trial to bring forth further evidence which, except for his e-mail comment, he has not done. The defendant indicated he wished to sell the Red Deer home and it would cost him 6% of the first $100,000.00 and 3% of the balance for real estate fees, which at a selling price of $582,000.00 would be $20,460.00.

I requested Appendix A reflect this, and it does, as a minus in the defendant’s column. Nothing has been deducted for legal fees for the sale, but the plaintiff will have to pay legal fees to register title to the matrimonial home, so those costs will probably offset each other.

f) Interim Advance – Line 28 [ 46 ] $110,000.00 was advanced from insurance proceeds to the defendant, as per Nielsen J’s order dated August of 2012.

g) Line 30 – Major contents – items acquired (

i) Guns, Paintings, Wood Stove, etc. [ 47 ] BP established the value of the guns and other items from MasterCard purchases made by the defendant since separation. These are detailed in Exhibit 105. The total of $41,000.00 is supported. This is placed in the defendant’s column.

h) Line 31 – Furniture at cost [ 48 ] This is supported, as the plaintiff’s contents to the extent of $39,103.58 in Exhibit 105. BP has rounded these off to $40,000.00. Under Exemptions, BP estimated the contents of the defendant’s home to be about the same as the plaintiffs. No sum was claimed for the contents of the defendant’s Red Deer home.

i) Vehicles/shop equipment [ 49 ] The items charged to the defendant in lines 35 – 56 are either substantiated by exhibits, or were agreed upon at trial. With respect to the camper placed in the plaintiff’s column at $1,250.00, I received a memorandum from the defendant stating that it was determined at trial to be $2,500.00. That is not what my notes indicate, so it will remain at $1,250.00.

j) Debts [ 50 ] Line 60, Mortgage on Red Deer home, has been discussed. Lines 60 – 67 are substantiated as indicated in the margin. With respect to line 68, a 20% deduction is made from the value of RRSPs and pension values. It is the same for both, and seems from other cases I have heard, a rough tax calculation that will eventually have to be paid. I agree with this estimate. BP’s estimate in line 69 of taxes to be paid by both is well within BP’s expertise.

k) Exemptions [ 51 ] When they married, the plaintiff and the defendant each owned a home. [ 52 ] Line 74 – the defendant sold his home and received a net cheque of $75,247.00 from the lawyer who handled the sale. While the paper trail is on the weak side, the plaintiff conceded this sum found its way into the matrimonial farm property when it was acquired by both parties as joint property; hence the defendant’s remaining exemption is $37,624.00.

[ 53 ] I am not sure the defendant ever clearly understood that when exempt property is placed in the joint ownership of a husband and wife, only one-half of the exemption remains. [ 54 ] Line 76 is conceded by the plaintiff. [ 55 ] Line 77 – the defendant was able to show gifts from his father totalling $118,000.00. At about the same time, the defendant purchased the Red Deer home, putting $80,000.00 as a down payment, according to BP. My calculations show $72,000.00, but unless I am asked to correct this, I will allow $80,000.00 as the exemption to the defendant.

The defendant has not traced the remaining $38,000.00 into any existing asset, so any exemption related to it has been lost. [ 56 ] Line 78 – the value of the utility trailer is equal to the Bill of Sale produced. [ 57 ] Line 79 – refers to the plaintiff’s premarital home. Its net proceeds were $42,657.19. This sum was used towards the original purchase of the matrimonial farm home, which was purchased in joint tenancy. So one-half of that exemption remains. [ 58 ] Line 80 – is a gift of $75,000.00 received from the plaintiff’s parents in 2000.

It was placed in the joint account and used to build the Quonset still on the property. Again, one half of the exemption has been lost. [ 59 ] Lines 81, 83, 84 – less the tax at 20%, is documented as a premarriage asset and the exemption is agreed to for the plaintiff. [ 60 ] Line 87 – was explained at trial and the defendant retains, as an exemption, its original value. [ 61 ] Line 88 – the contents at date of marriage, taken from both premarital homes, are taken to be equal.

There is no evidence to support an unequal distribution, particularly since the original contents were practically all destroyed in the fire. [ 62 ] The defendant does not agree with not receiving an exemption for lines 30, totalling $41,000.00. His contention is that he had at least $41,000.00 in guns, paintings, etc. These items were insured and the insurance was received. From the proceeds of insurance he replaced the guns, paintings and other items. He wishes to trace that exemption through the insurance proceeds. In my view, the proper

interpretation is that argued for by counsel for the plaintiff. The goods to the extent of $41,000.00 that the defendant had in the home were destroyed by fire. That ended the exemption. The insurance proceeds were an asset paid for by the insurance premiums, and therefore, are matrimonial property.

Their salaries were used to pay the premiums, so the asset (the insurance proceeds) are joint property. [ 63 ] Line 31 – proves that the plaintiff has acquired $40,000.00 of contents in the farm home and she must share that equally with the defendant, just as the defendant must share the $41,000.00 in guns etc. that he has acquired since the marriage. [ 64 ] Line 32 – Exhibit “A” refers to the contents of the Red Deer home in the name of the defendant. It is left blank. These contents were also acquired during the marriage and their value should be put in the defendant’s column, to be shared with the plaintiff.

The plaintiff has no specific information as to its value, and abandoned at trial any request that any sum be placed in the defendant’s column for his contents in the Red Deer home 3. Equalization Payment [ 65 ] The next sum owed to the defendant by the plaintiff, if the plaintiff obtains title to the matrimonial home and farm property, is $212,024.00. The only other adjustment may be to the down payment of $72,000.00 instead of $80,000.00 on the Red Deer home, but I may not have properly accounted for the financed insurance premium (See Tab 7B of Exhibit 62A). [ 66 ] The plaintiff is given credit for:

a) Corporate taxes to be remitted by the plaintiff; and

b) BMO line of credit costs of $11,545.00. [ 67 ] The history is that legal proceedings were taken by BMO on its line of credit against both parties. The defendant contested the debt, which the plaintiff did not question. In the result, Master Schlosser awarded $43,140.00, plus costs of $11,545.00. As between the plaintiff and the defendant he specified the costs were to be charged to the defendant. The plaintiff paid the amount of the Judgment. She is given credit for half of that in line 62 of Appendix “A”. She seeks credit for the full costs of $11,545.00 against the equalization payment.

I have no reason to disturb Master Schlosser’s court order and, given the often very wrong contentions of the defendant at the trial of this action, I can understand Master Schlosser’s reasons for the order. I grant the plaintiff’s request. Costs of $500.00 were ordered on an application before Justice Pentelechuk. I doubt they should be called costs in the cause. They will be deducted from the equalization payment. [ 68 ] Child support arrears of $24,842.00 are dealt with later in this judgment, but I agree that figure is to be deducted.

The defendant decided to quit paying child support and is in arrears to October 31, 2014 of $4,221.00. In the end result, the plaintiff shall be granted title to the matrimonial home and farm upon payment to the defendant of the equalization payment of $165,490.00, less or plus any adjustments made to line 77 and line 52 of Appendix “A”.

4. The items of matrimonial property to be auctioned off [ 69 ] This has already been dealt with earlier in the Judgment. 5. Child support, including calculation of arrears of s 3 and s 7, respective Guideline Incomes; ongoing child support [ 70 ] Exhibit 62A, Tab 27 (the plaintiff’s binders) documents a total of $2,805.76 expended by the plaintiff, which are extraordinary expenses for the children. The defendant agreed to these expenses at trial, and he will pay his portion of in accordance with the Guidelines. On the same Tab 27 are details of tuition paid for Z’s post-secondary education.

These were paid out of the Registered Education Savings Plan the parties had paid into. The parties plan to use the RESP for each of the children to pay tuition for post- secondary education as long as the funds last. There is a possibility that at a later date unused RESP funds may revert to the parties. I simply declare those funds in each account, for each child, are to be split equally between the parties if they revert to the parties. [ 71 ] Exhibit 62A, Tab 32 is attached as Appendix C. It details the defendant’s income, including projecting 2014 income.

I find it to be accurate and it shows that the defendant, to the end of July 2014, is in arrears of s 3 child support of $24,842.00. In addition, he has not paid any child support for August, September and October 2014. Given his Guideline Income for 2014 I find is $98,891.00, his monthly support for 2014, and until further order, is set at $1,407.00 per month. He is, therefore, in arrears from October 31, 2014 of a further $4,221.00.

In addition, the plaintiff should make the necessary calculation to determine arrears with respect to s 7 expenses. [ 72 ] The defendant requested the child support be bi-weekly, as he receives funds from disability insurance and WCB bi-weekly. Therefore, he will pay the sum of $703.50 on the 14 th and 28 th day of each month, commencing with the 14 th of November, 2014. [ 73 ] The defendant disagrees with this calculation.

His reasoning is that when he was injured in February 2013, although paid the usual salary of $134,000.00 per annum until approximately June 24, 2013, then his income dropped to $5,861.00 per month (this is the salary which was a combination of WCB and disability insurance of $5,861.00 per month, $7,332.00 before gross up). He believes he should pay support for the first six months of 2013 based on an annual salary of $134,000.00 per year, and for the last six months of 2013, based on an annual salary (grossed up) of $98,891.00.

I agree with BP’s conclusion that because WCB and disability payments are not taxable, there should be a gross up, which she has calculated. [ 74 ] In February of 2014, Justice Pentelechuk found on an interim, without prejudice basis, that the defendant’s Guideline Income was $90,000.00 and ordered the defendant to pay $1,284.00 per month. What the defendant does not understand is that when the Court reviews child support (in this case from date of separation), he will be required to pay child support in accordance with the proven income he has had for child support purposes, calculated on an annual basis.

In other words, he cannot benefit from fixing of his Guideline Income month-by-month, and then a month-by-month calculation of his child support [ 75 ] Z attended Red Deer College for the 2012/2013 and 2013/2014 terms. He lived at the farmhouse with the plaintiff, so it is fair that monthly support for B and Z be paid to the end of August 2014. In September 2014, Z enrolled at Lethbridge College, and for the term will be living in Lethbridge. His budget includes paying rent in Lethbridge, and I was told that the plaintiff is paying this rent.

On that basis, I ordered support to continue on the basis of two children. Of course, the obligation in the future to pay child support to the plaintiff for Z will depend upon his tuition needs (which are and will continue to be met for a time from the RESP), his book expenses and his other expenses, less any sums he may receive from employment or scholarships. [ 76 ]

Section 7 expenses for the children shall be shared in proportion to the parties’ Guideline Incomes, the plaintiff at $82,070.00 and the defendant at $98,891.00. 6. Ongoing Custody and Access for B [ 77 ] B has been diagnosed with Asperger’s Syndrome, Autism and Attention Deficit Hyperactive Disorder (ADHD). In evidence, Exhibit 62B, Tab 30, the plaintiff’s exhibit binder, is a confidential psychological education report prepared by a registered psychologist, who has a Bachelor of Arts degree, a Bachelor of Education degree and a Master of Science degree.

The psychologist outlines that B is having a very difficult time coping with the school environment and the learning expectations. The testing took place January 29 and February 2, 2012. [ 78 ] The psychologist’s recommendations are: 1. Occupational Therapy a. B needs to be assessed by an Occupational Therapist for strategies on dealing with his environmental sensitivities. The school is able to provide an OT assessment through the Student Health Outreach Services. 2. Psycho-Social Therapy a.

It was recommended at the time of this assessment that B and his mother become involved with a therapist to address concerns about anxiety and social interaction. This was done. He is currently seeing Dr. Bonnie Moshenko-Mitchell, psychologist. Dr. Moshenko-Mitchell is well respected in the central Alberta community as knowledgeable about both Asperger syndrome and anxiety so ongoing consultation with her would be beneficial. She has indicated that she would be interested in attending some of the Learning Team meetings.

3. Recommended Reading for Strategies: a. “Social Rules for Kids: The Top 100 Social Rules Kids Need to Succeed” by Susan Diamond. 2011. www.aapcpublishing.net. b. “Navigating the Social World: A Curriculum for individuals with Asperger’s Syndrome, High Functioning Autism and Related Disorders: by Jeanette McAfee, 2002. www.Fhautism.com. c. “Social Skills Training: for Children and Adolescents with Asperger Syndrome and Social-Communication Problems” by Jed Baker 2003. www.asperger.net . d. “Supporting Positive Behaviours in Alberta Schools” published by Alberta Education.

There are on-line versions. http://education.alberta.ca/admin/special/resources/behavior.aspx. e. “The Explosive Child” (for parents) and “Lost at School” (for educators) – both written by Ross Greene. f. Refer to Alberta Education Resource: “Teaching Students with Autism Spectrum Disorder” –

Chapter 9. http://education.alberta.ca/admin/special/resources/autism.aspx. 4. Medical a. Continue with psychiatric involvement. 5. School a. Continue to provide a safe place for B to go when he feels stressed. b. Continue to focus on prevention rather than reaction. c. Specific decisions about adapting his environment and curriculum should be made by a learning team consisting of a combination of the following: B’s parents, teachers, school administrators, special education liaison, EA, psychologist, social worker, occupational therapist, counsellor, behaviour consultant.

The Learning Team should meet regularly to provide recommendations and evaluate results. d. Focus on helping B to see multiple perspectives. For example, make statements like, “that’s one way of solving that problem, what’s another?” e. It will be important for the Learning Team to support one another so people on the team need to keep an open mind and not criticize others on the team, particularly in front of B. He needs to know that he has a secure base of people caring for him and that they are working together. 6. Family a.

Consider becoming involved in the Autism Society for Central Alberta http://www.autismcentralalberta.ca/. b. Even though the marriage is dissolving and conflictual it is vitally important that B have both parents and believe in both parents. So, parents need to be careful not to talk critically of the other within B’s earshot. If one parent disagrees with the other, resolve it without B’s involvement or awareness. [ 79 ] The plaintiff testified that B’s condition is related to being born six weeks premature. He ended up in an incubator in ICU. In Grade 3, he ran away from school.

He was then taken to Mental Health and since then has been treated for the conditions from which he suffers. He is an anxious boy and his mother has many times had to attend to situations where he has coping problems. His mother has basically been responsible for almost all the medical appointments in Red Deer and at school. B is going to school in the small town near his home, but his mother teaches school in Red Deer. She described occasions when in order to attend to B’s anxiety problems, or his medical appointments, she has had to pay for a substitute teacher. [ 80 ] B has improved a lot.

He was quite stressed after the 2010 fire. It appears he will be able to get through high school, but not necessarily in an academic program. Of course, the breakup of the marriage caused extra stress for B. Since his injury in February 2013, his father has chosen not to be involved with his son, B. Given the current academic goals which he is reaching, it may be the separation from his father has been helpful, given the strained relationship between his parents. The defendant asserted at the trial that he wishes to have access to B.

The plaintiff agrees this could be a good thing, but B requires structure in his life and she believes the defendant should see a psychologist to assist him in reacquainting himself with his son. I agree. [ 81 ] Secondly, the plaintiff says both the son and the father should see a psychologist, eventually together, to assist in the reestablishment of a father/son relationship. I agree. [ 82 ] Finally, the plaintiff believes this counselling should be at the defendant’s cost. In this respect, I direct that any such counselling be arranged between the parents and the counsellor.

Payment should first be made by accessing any insurance coverage for counselling available through the parties’ employment and/or government assistance. Any shortfall should be paid for by the defendant. Until counselling is in place, the defendant’s access to his son shall be at the plaintiff’s sole discretion. [ 83 ] The Court’s order is that the plaintiff be granted sole custody and decision-making power with respect to B. The defendant’s access shall be as arranged through psychological counselling and any other access for the defendant shall be at the plaintiff’s sole discretion.

The plaintiff will keep the defendant fully informed of B’s medical situation, his extracurricular activities, and his progress at school. If the defendant wishes to communicate with B, that will be done through his mother.

7. Spousal Support for the plaintiff (only a retrospective order in favour of the plaintiff has been applied for) [ 84 ]

Section 15.1(1) of the Divorce Act , RSA 1985 as amended, provides: 15.2(1) Spousal support order – A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. …

(6) Objectives of spousal support order – An order made under subsection (1) or on an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 85 ] For 2014, the plaintiff’s Guideline Income is $82,070.00 and for the defendant, $98,891.00. The plaintiff for 2014 is almost as well provided for as the defendant, and no order for spousal support in favour of the plaintiff is made out. [ 86 ] The plaintiff argues that she is entitled to a compensatory retroactive spousal support payment.

It is true that while the defendant, until he was injured, earned very good income and was a good provider, and the fact is that his career advanced more rapidly than hers because she put her career on hold for a good part of the marriage. On the other hand, she was able to go to school and obtain qualifications as a teacher before the separation. I have concluded that she has not been economically disadvantaged by the marriage. [ 87 ] In 2011, 2012 and 2013 her income was limited by the fact she had only part-time work as a teacher.

Since the separation, the respective incomes for 2011, 2012 and 2013 were: 2011 Plaintiff $45,490.00 Defendant $220,888.00 2012 Plaintiff $ 43,877.00 Defendant: $162,087.00 2013 Plaintiff: $52,811.00 Defendant: $145,594.00 [ 88 ] At the same time on her income, the plaintiff attended with B since separation to October 3, 2014 no less than 100 medical and school appointments as set out in Exhibit 62B, Tab 29 of the plaintiff’s exhibits. She also paid the insurance premiums on the farm home and outbuildings of over $5,000.00 per year, paid municipal taxes of $3,500.00 per year, as well as all of the utilities.

It is true that during this time she lived rent free in the home and shared revenue from the farm with the defendant. [ 89 ] She has shouldered much more of the care and feeding of the two children than the defendant during the separation. Finally, the discrepancy in income, his more than three times than hers in 2012, and almost three times as much in 2013, justifies an order that recognizes the disadvantages to the plaintiff arising from the breakdown of the marriage.

This disadvantage should be limited to the two months after separation in 2011, all of 2012 and then the first six months of 2013, when the defendant’s income from employment ended and he was limited to WCB and disability insurance. That period is 20 months and I direct that she receive a lump sum for spousal support of 20 months x $750.00, for a total of $15,000.00. That sum will also be deducted from the equalization payment, as well as any costs which may be awarded against the defendant. Mechanics

[ 90 ] The co-ownership of the home and quarter

section is forthwith terminated. The Defendant’s beneficial and legal interests are extinguished. The adjustment date for land rental and pipeline right-of-way compensation is December 31, 2014. Municipal taxes and utilities having been paid by the plaintiff since date of separation they will not be adjusted between the parties. They are the sole responsibility of the plaintiff since date of separation. [ 91 ] Once the net payment of $165,490.00, less $15,000.00 lump sum support, and less s. 7’s as calculated, and less any costs awarded against the defendant, has been deposited with the Clerk of the Court, the following shall occur: 1. The defendant’s interest in the farm home and quarter

section shall be extinguished by the Registrar of Lands Titles, and a new title shall issue in the name of the plaintiff alone. The defendant’s dower consent is dispensed with. 2. The lis pendens filed against the Red Deer home in the defendant’s name shall be discharged and there will be an order dispensing with the plaintiff’s dower consent. 3. The amount of the defendant’s income tax refund garnisheed by the Director of the Maintenance Enforcement Program shall be returned to the defendant. 4.

The usual clauses requiring payment of child support to the Director of Maintenance Enforcement, and the exchange of financial information, shall also be part of the order. 8. Costs will be dealt with on application by either party [ 92 ] The parties may speak to costs by appointment. Heard on the 6 th to the 10 th days of October, 2014. Dated at the City of Edmonton, Alberta this 29 th day of October, 2014. R.P. Marceau J.C.Q.B.A. Appearances: Ms.

Renée Cochard, QC (Cochard Johnson) for the plaintiff The defendant appeared on his own behalf Appendices have been omitted from the unofficial electronic version of the judgment. They are available from the Court file.