Linke v Linke, 2014 ABQB 668

Court of Queen ’ s Bench of Alberta Citation: Linke v Linke, 2014 ABQB 668 Date: 20141105 Docket: 4803 166877 Registry: Edmonton Between: Jerry Paul Linke Plaintiff - and - Valerie Wynn Linke Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C. Read _______________________________________________________ [ 1 ] Jerry Paul Linke and Valerie Wynn Linke were husband and wife. After they separated they were unable to agree respecting division of their matrimonial property and whether Ms.

Linke was entitled to retroactive and ongoing spousal support and, if so, in what amount and for what duration. These questions had to be decided at trial. [ 2 ] The parties also sought a divorce. This was granted during the trial. Counsel for Mr. Linke is hereby directed to draft a form of divorce judgment and provide it to the Court after review by counsel for Ms. Linke.

[ 3 ] The Divorce Act , RSC 1985, c. 3 (2nd Supp.) as am provides that in making an order for support, the court shall consider the “condition, means, needs and other circumstances of each spouse”: s. 15(4) . Since these factors will undoubtedly be affected by how their matrimonial property is divided, I will deal with matrimonial property division first. [ 4 ] Matrimonial Property division is governed in Alberta by the Matrimonial Property Act, RSA 2000, c. M-8.

Section 7(4) of that Act establishes a presumption that matrimonial property accumulated during the marriage is to be distributed equally except in certain circumstances. None of those circumstances apply here. Therefore, I will distribute the property equally. [ 5 ] The parties have managed to accumulate four rental properties during the marriage. As well, they have sold the former matrimonial home and these funds are held in trust. In addition, they own a time share and each has a vehicle. There are various investments and funds held in bank accounts.

Each claims exemptions and each claims that the other has dissipated or used matrimonial property or incurred matrimonial debt for their sole benefit since the separation. Each has expressed an interest in maintaining certain assets. The House Money: [ 6 ] The parties married in April, 1983 and physically separated in September of 2012, when Mr. Linke left the matrimonial home and went to live in a home owned by his parents. Ms. Linke remained in the matrimonial home until it was sold, effective April 30, 2013.

After payment of debts and expenses associated with the sale, the sum of $239,520.39 was placed in a lawyer’s interest bearing trust account where it remains. The interest rate is only 0.8% so the accumulated interest will not be a large amount. The parties agree that these funds will be divided equally. The Rental Properties: [ 7 ] The couple owns four rental properties. All are condominiums located in Edmonton. The rental properties were appraised and values obtained as of December, 2013. Three of the four properties have mortgages registered against them. Mortgage values were obtained as of that same date.

For the purposes of this litigation, the parties have agreed that the numbers provided in the various charts and spread sheets they worked with during the trial, will be the valuation numbers for these properties notwithstanding that given Edmonton’s current real estate market, the actual values of these properties are likely to be greater now. As well, the mortgages have continued to be paid since then and so, the principal owing will have decreased at least somewhat. [ 8 ] Two of the rental properties are located in a complex located on South Terwilligar Drive.

They will be referred to in these reasons as 1121 and 1207, the unit numbers of the two units. Unit 1121 is valued at $195,000 by agreement. There is an outstanding mortgage valued at $125,790 by agreement, registered against unit 1121. [ 9 ] Unit 1207 is valued by agreement at $197,000. The mortgage registered against title to Unit 1207 is valued at $108,906 by agreement. [ 10 ] A third rental property is located on Simpson Drive. Its value by agreement is $204,000. This property does not have a mortgage registered against it. [ 11 ] The fourth rental property is located on Hanna Crescent.

It is valued at $242,000 by agreement. It is encumbered by a mortgage valued at $144,056 by agreement. [ 12 ] Mr. Linke wishes to keep all four rental properties as his own separate property. He argues that they were really his projects during the marriage: he was the most interested in them and put the lion’s share of the work into them. Ms. Linke wants to have two of the properties transferred to her and suggests that 1121 and 1207 are the ones she should have. She agrees that Mr. Linke can keep the other two. [ 13 ] Mr.

Linke’s evidence was that he did a lot of the work associated with the rental properties in terms of advertising and showing the suites, signing leases, collecting damage deposits and rent money, and doing repairs. Ms. Linke’s evidence was that she also did some of the work – fielding phone calls and, on one occasion, spending the day cleaning one of the suites so it could be re- rented. Neither contradicted the evidence of the other and I accept their testimony. [ 14 ] It is clear that Mr. Linke did do more work on these properties than did Ms. Linke. However, that alone does not give him priority over Ms.

Linke in terms of distribution of these matrimonial assets, nor does it entitle him to more than half of their value. [ 15 ] When the Linkes married, they were both very young. All of the assets they now have were accumulated during the marriage through the efforts of both parties. As in most other marriages, the parties took different roles and did different tasks during their relationship. Some efforts may be more directly tied to the accumulation or improvement of a particular asset. Some, like child care, cooking, and housekeeping are less tied to accumulation or improvement of a particular asset.

However, all of these efforts are necessary in order for the couple to live and prosper and no role is valued higher than another for the purpose of property distribution. [ 16 ] Joint funds were used to buy, improve and maintain these assets. Joint efforts were made to permit the accumulation of assets generally. During the trial, I expressed concern about the fact that the values used by the parties were somewhat dated.

If one party takes all of the rental properties, the advantage of any increase in value of the properties themselves and the decrease in the principal of the mortgages, will accrue only to that one party. The principle I must follow is to divide matrimonial property equally. I conclude that I can best achieve this by giving each of the spouses two of the properties. [ 17 ] Ms. Linke would like to retain 1121 and 1207. Mr. Linke has not expressed a preference. I conclude, therefore that Ms. Linke will have 1121 and 1207 as her separate property and Mr.

Linke will have Simpson Drive and Hanna Crescent as his separate property. [ 18 ] Mr. Linke suggested that the amount of the damage deposits should be deducted from the equity in each of the rental properties.

[ 19 ] The evidence in respect to the damage deposits was as follows. Damage deposits were collected by Mr. Linke and originally were kept by him in a separate bank account as required by law. However, sometime later, because of money pressures, he transferred these funds into his own personal chequing account. He then spent the damage deposits on various repairs and expenses for the properties. In cross-examination, he clarified that the damage deposit funds were transferred back and forth between his ATB account and his TD personal chequing account at various times over the years.

The amounts of the damage deposits are as follows: For 1121 - $1,195 For 1207 - $1,300 For Simpson Drive - $1,350 For Hanna Crescent - $1,500 Total - $5,345 [ 20 ] I reject Mr. Linke’s suggestion that the damage deposit amounts be deducted from the net principal amounts of each property before division. This would be wholly inappropriate and unfair to Ms. Linke. Mr. Linke had the use of the damage deposit funds. While he says he spent this money on repairs and expenses associated with the rental properties, he provided no evidence to show that this was so.

Some receipts were provided but these were not totalled and other than a hand written notation on the receipt that it was for ‘rental’, there is no evidence that the expenses were for the rental properties. Nor am I satisfied that the repairs and expenses were necessarily paid from damage deposit money. Once funds are intermingled in one bank account, it becomes impossible to trace the use of any particular dollar into any particular expense. As well, the receipts Mr. Linke provides were almost exclusively paid by credit cards.

Credit card payments may or may not have been made from the same account that the damage deposits were deposited or transferred into. Mr. Linke has not proven that the damage deposit funds were used for rental property repairs or expenses. Nor was there any evidence that the repairs and expenses Mr. Linke says were paid actually increased the values of any of the rental properties.

It cannot be said, therefore, that the damage deposit funds were used to increase the equity in the four properties and that the value of the damage deposits is reflected in the value of the properties. [ 21 ] There was no evidence about when the various damage deposits were collected, but I assume they were collected at various times as tenants moved in and out.

If any of the damage deposits were collected before the marriage broke down or during the early part of the separation when both parties were still paying expenses out of the joint account, then both parties could be said to have benefitted from the use of these damage deposits. However, if any of these damage deposits was collected and spent after the couple separated their financial affairs when the house was sold, then only Mr. Linke benefitted from their use. As Mr. Linke had control of the funds, he could easily have provided evidence to show that the damage deposits were used to benefit both parties.

He has not done so. I conclude therefore that these funds may not have not been used to the benefit of both parties. [ 22 ] Although the money has been spent, the damage deposits will have to be repaid to the tenants when they depart. I direct that each party has the sole responsibility to repay the damage deposits on the property he or she is taking. This will make Mr. Linke’s liability to his tenants $2,850 whereas Ms. Linke’s liability will be somewhat less at $2,495. However, in my view, that slight discrepancy is justified given that there is a good chance that Mr.

Linke had the sole benefit of the use of at least some of this money. [ 23 ] Mr. Linke suggested also that a further amount of $1,500 should be deducted from the equity in each of the rental properties. He estimated it would cost at least that much in legal fees to transfer title to the properties into his sole name and to do any necessary refinancing. In argument, it became apparent that he intended to refinance the rental properties in order to pay out to Ms. Linke the equalization payment that would be owed to her on his calculations. [ 24 ] Again, I conclude that this is a wholly inappropriate deduction.

Costs associated with transfers of title and mortgages to enable payment of an equalization payment in a matrimonial property settlement or trial are quite normally and appropriately borne by the party who incurs them. They are not a joint expense.

In any event, as both parties will have to ensure that their respective properties are transferred into their own names and deal with the financial institutions in order to make any necessary changes to the mortgages, having each party pay their own legal, refinancing and transfer fees is appropriate. [ 25 ] Although it may take some short period of time to actually physically transfer the two rental units Ms.

Linke is to receive, I direct that she should start collecting the rent on these two properties as of November 1, 2014. [ 26 ] I have used a matrimonial property division chart, similar to that used by the parties to summarize my various matrimonial property valuation and division findings. That chart is attached as

Schedule A to this judgment. Hawaiian Time Share: [ 27 ] The parties own a two week time share in a one bedroom unit in the Hawaiian Princess, a vacation rental in Hawaii. Mr. Linke would like to retain it and Ms. Linke has no objection to this. They are unable to agree on the value. Rather than obtain an appraisal, both parties emailed Penny Dumont, a manager of timeshare sales at the Hawaiian Princess requesting an estimate of the value. [ 28 ] In an email dated May 8, 2014, Ms. Dumont told Mr. Linke that the last few one bedroom, one week time share slots in the complex had sold for between $1,500 and $1,600.

Based upon this information, Mr. Linke’s position is that the couple’s interest should be valued at between $3,000 and $3,200. [ 29 ] In an email dated August 29, 2014, Ms Dumont replied to Ms. Linke, telling her that timeshare interests were “listed for sale” at $4,500 per week. Based on this, Ms. Linke’s position is that the timeshare should be valued at $9,000. [ 30 ] The information set out in the two emails cannot be reconciled and there is no better evidence. In its absence, I will value the

Hawaiian time share at the average of $3,000 and $9,000 or $6,000. Vehicles: [ 31 ] At separation, Mr. Linke owned an older model Trailblazer which he sold. He thinks he got about $2,000 for this vehicle. In May 2014, Mr. Linke purchased a 2011 Ford truck at auction for $19,000 plus GST at a total cost of $20,155. Mr. Linke also purchased a 2008 Ram truck on July 25, 2013 for $14,000. Mr. Linke purchased both vehicles from funds he removed from his RRSP account. He values both the Ford truck and the Ram at $20,000, his estimate based upon sales of similar vehicles in the Auto Trader.

He says that he overpaid for this Ford because he later determined it had fire damage. [ 32 ] Ms. Linke argues that Mr. Linke made a bad decision when he purchased the two vehicles at a time when he was unemployed. She speculates that Mr. Linke purchased at least one of the trucks for use when he was building his brother’s lake cottage. She questions the value he has placed on the vehicles, pointing out that there is no evidence other than Mr. Linke’s say so that the Ford was fire damaged.

She argued that the poor deal he made and the fact that he took the funds from an RRSP really amounts to dissipation of property. [ 33 ] There is little doubt that Mr. Linke made a poor deal when he purchased the vehicles, effectively converting an asset increasing in value to two that are depreciating. He also admitted that he paid too much for the Ford. Nonetheless, the case law is clear that matrimonial property is valued at the date of trial. Mr. Linke did make a foolish deal for the vehicles and the timing of the transactions is questionable. Nonetheless, mere foolishness is not dissipation, without more.

I conclude that Mr. Linke’s two vehicles should be valued at $20,000 as he asserts. [ 34 ] The $2,000 Mr. Linke says he obtained from sale of his previous vehicle was not used to pay for the replacement vehicles. It was matrimonial property, however and Mr. Linke must account for it. [ 35 ] Ms. Linke owns a Hyundai vehicle which she says was a gift from her brother given for Christmas of 2012. She provided a bill of sale in this regard showing a price of $1.00. Mr. Linke is suspicious that the vehicle was a gift because Ms. Linke first raised the gift issue only a few weeks before trial.

He believes it should be included as part of matrimonial property. Ms. Linke’s evidence is that if the value of the Hyundai is included as matrimonial property, her brother will be so upset that he will demand its return. [ 36 ] I find that the Hyundai was a gift to Ms. Linke. There is no evidence of a withdrawal from any asset which could have been used to purchase the Hyundai. Nor does Ms. Linke have sufficient income to permit her to do so for cash, nor I doubt even to finance it. Aside from Mr. Linke’s suspicion therefore, there is no evidence that the Hyundai was anything but a gift. As it was a gift to Ms.

Linke alone and made after the separation, its value as of the date of transfer is exempt from distribution as matrimonial property: s. 7(1) (

a) Matrimonial Property Act . I heard no evidence that the Hyundai has increased in value and, indeed, vehicles tend to depreciate. Therefore I conclude that the value of the Hyundai is exempt in Ms. Linke’s hands. [ 37 ] Ms. Linke sold the vehicle she had at separation, a 2005 Chevy Blazer, to the couple’s daughter for a dollar. Mr. Linke’s position is that either the Blazer or the Hyundai should be valued at $10,000. He does not give any reason for this. I decline to do so. There was no evidence before me of the value of a 2005 Blazer. In any event, the gift was to their daughter.

I do not regard this as dissipation, inasmuch as were the couple still together, I suspect they would both have agreed to this transaction. Bank Accounts: [ 38 ] The parties are agreed that each will maintain the values of their own bank accounts valued as of February 2014. Ms. Linke has a chequing account at TD although I heard no evidence of its value and nothing was included in any of the charts utilized by the parties at trial. I assume the value is nil. Mr. Linke has two accounts: a TD chequing account and an ATB account. These are accounted for in the values set out in

Schedule A Investments: [ 39 ] Ms. Linke has accrued WestJet shares which were worth $6,375 in February 2014. She would like to retain these and Mr. Linke has no objection to this. At separation, the WestJet shares were worth more than they are now. Part of the reason for this may have been market changes but the major reason was that Ms. Linke cashed in a number of these shares because she needed the money for living expenses. In cross examination, she was shown a statement indicating that her WestJet shares were worth $15,825 in October of 2012. [ 40 ] Mr.

Linke seeks to use $15,825 as the correct value for the WestJet shares or to otherwise require Ms. Linke to account for the fact that she cashed in these shares. I decline to do so. This was not dissipation, in my view, given her circumstances. She was not being paid spousal support and had few resources at her disposal. Her evidence was that she had extensive legal fees to pay as well as her living expenses. The valuation date for matrimonial property is normally the date of trial. The parties here have chosen February 1, 2014 for the valuation of most other assets.

There seems no principled reason to make an exception for the WestJet shares even though they have since increased in value to over $9,000, mostly the result of ongoing investments made by Ms. Linke from her earnings, which are matched by her employer if she buys WestJet shares. I conclude that the WestJet shares should be valued at $6,375. [ 41 ] In addition the parties have a number of RRSP accounts. Account 073Y455 at TD Waterhouse is in Ms. Linke’s name and was valued at $100,911 in February 2014. An account with Great West Life in Mr. Linke’s name was valued at $92,288 in December 2013. Mr.

Linke also has a Royal Bank RRSP valued at $2,666. It was not clear to me if the numbers the parties used in their various charts for these values took into account the tax ramifications of withdrawals. If they did not, then it would be appropriate to reduce the value of these accounts by 25% so that their approximate after tax values are used in the matrimonial property division. [ 42 ] Ms Linke has a TFSA valued in the charts at $18,573 as of March 2014 and a US dollar account at TD Waterhouse valued at $39,518 in Canadian dollars, as of February 2014.

In respect to the TFSA, however, I note that the total of $18,573 includes $9,678.83 in WestJet shares (See Exhibit 29). It is not clear if these are further WestJet shares or the same as those already dealt with in paragraph 40

above. I will assume for the purpose of these reasons that they are different WestJet shares and not previously accounted for and, on that basis will value the TFSA at $18,573. If I am wrong, and the value of the WestJet shares has been double counted, then the value of the TFSA should be $10,195.00 [ 43 ] Both parties made a number of other unilateral withdrawals from joint matrimonial property or incurred debt during the course of the separation. Mr. Linke took particular exception to Ms. Linke’s decision to purchase gift cards from Costco on their joint Costco Amex card. Ms. Linke agrees she did this.

She bought gift cards totalling $9,000 in March 2013 and a further amount of $14,000 in November 2013. She then sold these gift cards to her family at face value so as to obtain cash. For his part, Mr. Linke kept for himself the cash rebate in the amount of $402 received from Costco and kept the remaining funds in the joint bank accounts when he closed these. These balances amounted to $4,300 in the joint chequing account and $561 for another. Both parties removed funds from joint lines of credit at various times. As was indicated earlier, Mr. Linke also collapsed an RRSP.

He used part of these funds to purchase the two trucks he bought in the summer of 2013. The remaining funds were not accounted for. [ 44 ] The evidence about and the calculation of these various transactions was confused and confusing. The parties cannot agree as to the totals. Ms. Linke provided some details of what she included in her calculations in oral evidence but this evidence was difficult to reconcile with the totals she provided in her chart. Some items included in Mr. Linke’s calculations seem clearly to be payments of various expenses, such as payments for surveys or utilities.

I question why these are included at all. Mr. Linke has also included income tax refunds received by both in his calculations. I question why these are included. Some amounts testified to are not included on the various charts the parties used. Ms. Linke values the amounts Mr. Linke took out of joint property at $51,222 and $58,701 for her. This number does not include Mr. Linke’s cashing of his RRSP in the total amount of $53,977 which she accounts for separately. Mr. Linke values the amounts he removed from joint assets at $70,222 and the amounts Ms.

Linke removed at $41,065. [ 45 ] I have tried to reconcile the charts with the exhibits and the evidence. It has been difficult. What is clear is this. Mr. Linke removed $19,000 from an RRSP which he did not use to purchase vehicles. This amount should be accounted for and I have included it in

Schedule A separately. Further the amounts Ms. Linke took as a result of the Costco transactions are also clear and she agrees they should be accounted for. I will not add any further amount to cover interest charges or over limit fees on these. While Ms. Linke was wrong in doing what she did, she bought these gift cards at a time when she had little income and large expenses, to Mr. Linke’s knowledge. He should have been paying spousal support during 2013, as will be evident below. I have included this amount in

Schedule A. [ 46 ] Aside from the above noted amounts, I have totalled the amounts each removed from mortgage lines of credit according to Mr. Linke’s evidence and included, as well, those amounts which Mr. Linke retained when he closed the chequing accounts and that he received from Visa as a credit connected with Ms. Linke’s car insurance. In addition I have included the amount he received for the Costco rebate. I have not included amounts that either party paid for what may or may not have been joint expenses nor any amounts received by either party as tax refunds. By my calculations, as detailed in

Schedule B, the total amount Mr. Linke has received is $58,392.65. The total amount received by Ms. Linke is $33,809.90. I have included these totals in

Schedule A. [ 47 ] Mr. Linke also has a very new provincial pension. He has not worked long enough for this pension to vest so were he to quit, he would only be entitled to return of his contributions. This is valued at $2,146. Ms. Linke does not seek division of this as all of it was earned post separation. Debts: [ 48 ] The parties are now agreed that each will retain their own separate post-separation credit card debts. [ 49 ] There are no remaining joint debts.

Spousal Support: [ 50 ] Before considering the issues in this case related to the quantum and duration of spousal support, it is useful to set out the factors and objectives of spousal support, in sections 15.2(4) and 15.2(6) of the Divorce Act , which read: 15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. 15.2(6) An order made under subsection (1) or 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. [ 51 ] The first issue for me to consider is entitlement to spousal support. This was a marriage of long duration. Much evidence was

provided about the roles the parties took during the marriage. Roles of the Spouses During the Marriage: [ 52 ] When they married in April 1983, both were very young. Mr. Linke had just turned 22; Ms. Linke was 19. Both had a high school education; neither had any real work experience although Ms. Linke had worked as a part time cashier at Safeway and kept this job after the marriage. After their marriage, Mr. Linke worked at a number of low paying jobs, including as a security guard at the airport but very quickly, decided that he should go back to school.

He entered NAIT in 1984 and graduated two years later in 1986 with a diploma in telecommunications engineering technology. [ 53 ] After graduating, Mr. Linke worked for several small telephone and security companies until 1991 when he started at EdTel. When that company was sold to Telus, Mr. Linke continued to work with the amalgamated company until 2000 or 2001, when he, in his words, “took a package”. I understand this to mean he voluntarily left the company. He was then unemployed for two years until he obtained a position with Bell, working there until 2006. When he left Bell, Mr.

Linke thought he was earning about $60,000 per year. Again, he left his position voluntarily. This time he says it was because he and Ms. Linke had decided to build a new house and had agreed he would act as the general contractor. His evidence was that it was not possible to work full-time while acting in this role. [ 54 ] There followed another gap in his employment, although he did work on a temporary contract with the Government of Alberta for a nine month period in 2008 and 2009. In January 2011, however, Mr.

Linke became employed full-time again working as an electrical estimator at Mogo Electric, a company owned 50% by Ms. Linke’s brother, Lloyd Klatt and 50% by Gordon Bond. Mr. Linke remained at Mogo until August 2012, earning $70,000 at his departure. Mr. Linke said that he left, because Ms. Linke had told their families that he wanted a divorce. He said he found it too uncomfortable to remain at Mogo in the circumstances. Mr. Linke left Mogo quite suddenly giving no notice. [ 55 ] After leaving Mogo, Mr. Linke was again unemployed for about a year.

During that year, he says he searched unsuccessfully for full-time employment. He also helped his brother to build a lake cottage. [ 56 ] Mr. Linke is now employed as a telecommunications service coordinator with the Government of Alberta. [ 57 ] Mr. Linke testified that he was an active parent and, recalling their daughter’s illnesses, says he was the one that drove Amber to the hospital when she had a health crisis.

He also helped with the housework and recalls vacuuming and doing other household chores during the marriage. [ 58 ] He also testified that he was the one who took care of the couple’s rental properties. He did not employ a property manager and so all of the work associated with renting, managing and repairing the properties fell to him. [ 59 ] Mr. Linke is now 53 years of age. He has no health issues. He testified that it was always his intention, shared with Ms. Linke that he would retire at age 55. [ 60 ] As I indicated earlier, Ms. Linke continued to work as a cashier at Safeway after the marriage.

In 1984, she obtained a full time position with Wardair, but only a week after beginning this job, she discovered she was pregnant. She said the pregnancy was unexpected. [ 61 ] Ms. Linke continued to work at Wardair during her pregnancy, taking maternity leave from July 1985, when their daughter Amber was born, until December of that year. Because Amber was born by Caesarean section, Ms. Linke’s recovery was somewhat more complicated than it would have been had she been able to have a vaginal birth. She returned to work in December of 1985 following her maternity leave.

Unfortunately, within five or six weeks of Ms. Linke’s return to work, Amber began to develop serious respiratory symptoms. What they thought at first was only a very bad cold turned out to be asthma, so serious that Amber had to be admitted to hospital. [ 62 ] This was the first of what turned out to be many hospital admissions for Amber. Her condition was very serious. Ms. Linke’s evidence was that she stayed at the hospital when Amber was admitted and, even when Amber was able to be at home, Ms. Linke was the parent who got up with the baby at night.

She testified that she does not remember more than a handful of nights when she was able to sleep through the night without getting up with Amber. She does not recall any instance where Mr. Linke slept at the hospital or got up at night with their child. [ 63 ] Ms. Linke called their marriage very traditional. She said she took care of Amber and Mr. Linke took care of work. She did acknowledge that Mr. Linke drove her and Amber to the hospital in the middle of the night when that became necessary but otherwise said that she looked after the house, the laundry, the cooking and, of course, the baby. [ 64 ] Ms.

Linke testified that she quit her job at Wardair in 1986 because their child was so ill. [ 65 ] For the next few years, she stayed home but in 1989 when Amber was four years old, Ms. Linke again started to work outside the home, aided by Mr. Linke’s parents who cared for Amber. She got a part time job selling shoes at Woodwards. Unfortunately, Woodwards was in financial trouble by then and her job was phased out. Then Amber contracted meningitis and Ms.

Linke did not work outside of the home for a further two years. [ 66 ] She went back to work again in 1992, and from 1992 to 1996 worked part time at a job that was flexible enough that she could leave quickly if she had to in order to attend to an emergency with their daughter. In 1993, Ms. Linke had to have knee surgery and was off work for some time as a consequence. [ 67 ] By 1998, Amber was 13 and doing better physically. Ms. Linke contacted a temporary agency for work and that agency ended up hiring her as an employee. Thereafter, she worked full time with them, in a “head hunter” type position.

This company paid well and for a time Ms. Linke earned as much as or even slightly more than Mr. Linke. Unfortunately, the company went bankrupt.

[68] Ms. Linke got another position. However, in 2006 her mother was diagnosed with cancer and Ms. Linke gave notice at herjob. Her mother passed away on Ms. Linke’s last day of work. Ms. Linke then did not have a salaried position outside the home for afew years while she and Mr. Linke built what she said was to be their dream home. [69] Ms. Linke said that working full time was very hard on their marriage. She was expected to do all of the work at home andcontinued to do all that was necessary for Amber. She said that it put such a strain on their marriage, they had to go to marriagecounselling.

She acknowledged that one of the results of the counselling was that Mr. Linke began to help more around the home, withcleaning and general upkeep. [70] During this time period, as well, she started a small business called Your Valuable Assistant. This was a home organizationbusiness and made little income. It was short lived. [71] Ms. Linke began to work at WestJet in about 2008 after a suggestion by her sister-in-law. She was hired part time as a guestservice ambassador, which position entails working with the public, giving directions, and helping with things like luggage andwheelchairs. Again, Ms.

Linke suffered from health problems and contracted something called Valley Fever, which caused her to be offwork for ten weeks in either 2009 or 2010. In 2011, she had to have a hysterectomy after receiving a diagnosis of endometriosis. [72] When a casual position became available at WestJet, Ms. Linke says she discussed taking it with Mr. Linke and they decidedthat it would be preferable. [73] Unlike part time work, casual work gives Ms. Linke more control over her hours.

She says she normally works three days aweek but, because she is casual, can bid only for shifts that are evenings and does not need to take the early morning shifts, that wouldrequire her to get up at 2:30 am. [74] Ms. Linke was again away from work when she went on stress leave from work from April 13 to July 18, 2013. [75] Ms. Linke’s physician, Dr. Maguire, provided a letter giving an opinion that Ms. Linke should not be working more than threedays a week. Dr. Maguire was not called to give evidence but his letter was made an exhibit by agreement. Ms.

Linke testified that shehas an ongoing health concern because she has a mass in her right ear which is currently being investigated. [76] Ms. Linke is presently almost 51 years old. Although she graduated from high school, Ms. Linke does not have a seniormatriculation. Her evidence was that she would need a minimum of two years of upgrading before she could attend a post-secondaryinstitution. She also suffers from health concerns. She has recently started another small business, again using her skills in organization. [77] Happily, the couple’s daughter Amber now has much improved health.

She has recently married and is financiallyindependent. Conclusion re Entitlement to Spousal Support: [78] Though this marriage cannot be described as "traditional", it is clear that Mr. Linke was the main breadwinner for most of themarriage and that Ms. Linke worked a reduced

schedule and assumed more responsibilities in relation to their daughter and thehousehold. [79] I conclude that the parties came out of this marriage with considerable disparity in earning capacity and that a substantialreason for that disparity is the roles each played in the marriage. While Ms. Linke took jobs which were in the main part-time andflexible, Mr.

Linke obtained post-secondary education and then worked in his field, honing his business skills. [80] Considering the evidence, I am satisfied, based on the principles outlined in Moge v Moge, (SCC), [1992] 3S.C.R. 813, and Bracklow v Bracklow, (SCC), [1999] 1 SCR 420 (at para 15) that Ms. Linke in entitled to spousalsupport on both a compensatory and non-compensatory basis. Mr. Linke does not seriously dispute this and has, in fact been paying$1,850 per month since July 1, 2014 on the order of Topolniski, J. Retroactive Spousal Support: [81] Ms.

Linke seeks retroactive spousal support from the date of separation. [82] Mr. Linke argues that spousal support should be payable only after he became re-employed in September 2013. He arguesthat before then, he was unemployed and, further, that Ms. Linke did not request support until she brought the application which resultedin an interim order made by Justice Topolniski. [83] After their separation, Mr. Linke moved into a home owned by his parents. Ms. Linke remained in the matrimonial homeuntil it was sold effective April 30, 2013, at which point she moved into a basement suite.

Until the house sale closed, the partiesmaintained their joint bank accounts and the expenses for the matrimonial home, as for the rental properties, continued to be paid fromthe joint accounts. Each of them took an equal amount of money from the account each month for expenses. [84] During the early part of their separation, Mr. and Ms. Linke attempted collaboratively to divide their assets but this processwas unsuccessful. They used a private service and neither had legal counsel during the collaboration process.

Under the circumstances,neither may have understood issues of entitlement to spousal support and it is perhaps for that reason that Ms. Linke made no demand forit. [85] Given the sharing of expenses until the matrimonial home was sold, I conclude that no spousal support should be payableuntil May 1, 2013. Until that time, they both had equal use of the assets of the marriage, including the income from the rental properties.

[ 86 ] However, once the home was sold and Ms. Linke had to move, the situation became very different. [ 87 ] By then, the collaboration process had broken down and both parties sought legal advice. Ms. Linke was forced to move and incurred expenses for the move and to rent new accommodation. As well, Ms. Linke had recently gone on stress leave from her casual position with WestJet. I heard no evidence that she continued to be paid while on stress leave. I conclude, therefore, that she had no income. [ 88 ] Mr. Linke was still not working.

However, he retained all of the income from their rental properties and did not share any of it with his wife. As well, and in contrast to Ms. Linke, he did not have high living expenses after the separation. He continued to live in the home owned by his parents, where he had moved in September of 2012 and remained there until September 2013. Because his only obligation was to pay one-half of the utilities, his costs of accommodation were very low. He agreed in cross-examination that his housing costs totalled only $125 per month. [ 89 ] Ms. Linke said she did ask for spousal support but Mr. Linke refused. Mr.

Linke denies this. [ 90 ] Likely, money was tight for both of them but Ms. Linke had nothing and her living expenses were higher than were those of Mr. Linke. It should have been clear to Mr. Linke even without a demand, that Ms. Linke required spousal support. [ 91 ] I conclude that spousal support should have begun to be paid to Ms. Linke beginning May 1, 2013. Should Income be Imputed: [ 92 ] The next issue for me to consider is this: is it appropriate to impute income to either Mr. or Ms. Linke, retroactively when considering quantum of spousal support? [ 93 ] Ms. Linke argues that Mr.

Linke was intentionally under-employed after he left his job at Mogo and that he made no real effort to become re-employed because he was helping his brother to build his cottage rather than looking for work. She also questions whether Mr. Linke was, in fact, paid by his brother for his work on the cottage, notwithstanding that Mr. Linke’s evidence was that he was not. [ 94 ] Mr. Linke argues that the Court should impute income to Ms. Linke.

He relies on the line of authority stemming from s. 19 of the Federal Child Support Guidelines, and the objectives of spousal support set out in s. 15.2(6) the Divorce Act , particularly s. 15.2(6) (d). Issues Related to Mr. Linke’s Unemployment: [ 95 ] The circumstances of Mr. Linke’s departure from Mogo Electric were an issue at trial because Mr. Linke argued his lack of income for the time period August 2012 to September 2013 made it impossible for him to pay spousal support and so no retroactive spousal support order should be made.

For the same reason, his efforts at obtaining re-employment and his activities aiding his brother in construction of the cottage were also at issue. [ 96 ] Mr. Linke agreed in cross-examination that no one at work, including Lloyd Klatt, Ms. Linke’s brother, mentioned anything to him about his impending divorce from Ms. Linke or otherwise made him feel they even knew of it. [ 97 ] He refused to agree in cross-examination that he worked mainly under Mr. Bond and only rarely with Mr. Klatt but on the evidence of Gordon Bond, I find this to be so. Mr.

Bond testified that he was the president of Mogo and in charge of the administration of the company as well as the office. He is responsible for getting the work and estimating it. Mr. Klatt’s responsibility was in actually completing the work at the various job sites. I accept this evidence. [ 98 ] As an estimator, Mr. Linke worked in the office and under the direct supervision of Mr. Bond. It was not a part of Mr. Linke’s job to have much direct contact with Mr. Klatt nor anyone else in the field. Mr. Bond did say that it might have been necessary for Mr. Linke to speak to Mr.

Klatt, particularly during the time period when he was tasked with determining what software to purchase for estimates. However, Mr. Bond said there was also another person in the office, also called Jerry, who would have been able to supply this information as well. [ 99 ] Mr. Bond did see Mr. Linke and Mr. Klatt interact from time to time on the job but testified he never saw anything to lead him to believe there was any discomfort or tension between the two. Again, I accept this evidence. [ 100 ] Physically, Mr. Linke’s desk was a long distance from Mr. Klatt’s office and although Mr.

Klatt briefly came into the office each day, his main work was at the job sites. [ 101 ] Little of what Mr. Bond testified to was cross examined upon and none was contradicted by Mr. Linke’s evidence. I conclude from the evidence, that Mr. Linke did not need to have much to do with Mr. Klatt during the course of his duties and could have avoided him almost completely in his day to day work if he felt uncomfortable. [ 102 ] From Mr. Bond’s point of view, Mr. Linke’s email submitting his resignation, came out of the blue. Mr. Bond testified that when he got Mr.

Linke’s email indicating his decision to quit, it came without warning. He could see by its electronic signature that the email must have been sent from work on a weekend but he had no advance notice of this. When he went into work the next day, all of Mr. Linke’s personal effects were gone from his office space. There had been no discussion. [ 103 ] Mr. Bond considered Mr. Linke to be a valued employee. He tried twice in the next week or so to contact Mr. Linke to ask him to reconsider his decision to resign and to offer accommodation for any discomfort that Mr. Linke had in interacting with Mr. Klatt.

He was unsuccessful. Mr. Linke refused to meet with him and told Mr. Bond that his decision was irreversible.

[104] Based upon Mr. Bond’s evidence, I conclude that Mr. Bond was prepared to accommodate Mr. Linke and to do whatever wasnecessary to allow Mr. Linke to continue to work. He was aware of the potential for difficulty and discomfort between his partner Mr.Klatt and his employee Mr. Linke but valued Mr. Linke as an employee and wanted to keep him working. [105] Considering that Mr. Linke first broached the issue of divorce with Ms. Linke in March 2012, it should not have been a surpriseto him that this could not remain a secret forever. Thus, when Ms.

Linke spoke with his family about the impending split in August of2012, it is difficult to understand Mr. Linke’s shock. [106] If he was uncomfortable remaining in a position where he would have to work with his brother-in-law, Mr. Linke could havecommenced a job search in March of 2012, when he told his wife of his intention to divorce, or even in December of 2011, when on hisevidence, he considered the marriage over. Alternatively, in August 2012, when the intention to divorce became public, he could alsohave decided to leave as soon as he found a new job and left as soon as he had other work.

He did none of these things. [107] Instead he simply quit without notice and rebuffed all attempts by his employer to have him reconsider, refusing even to speakwith his employer. In all the circumstances, I conclude that Mr. Linke’s decision to leave his job was precipitous and unreasonable. [108] After leaving his position, Mr. Linke began what appears to have been a rather leisurely search for work. He admitted in cross-examination, that he might have become employed in retail at an entity such as Rona but agreed that he did not take the position offeredbecause it was part time and did not pay enough.

It appears he was in no hurry to become re-employed. Perhaps this is because he hadagreed to help his brother build a rather expensive cottage. [109] Mr. Linke aided in the construction of his brother’s cottage from June to August 2013. The term cottage is a bit of a misnomer,however, since Mr. Linke confirmed that the total cost to build the cottage was $300,000. He agreed in cross-examination that his aid tohis brother in building the cottage was so extensive that he could be termed the general contractor for the project but denied in re-directthat was his role.

Nonetheless, he met with sub-contractors, accepted estimates and took these back to his brother. He purchased largeamounts of materials, often on his own credit card. He also purchased a truck in July 2013. His evidence was that he did not do so forthe purpose of the cottage project but he admitted he used the truck in the cottage project and it came in very handy. [110] A deposit of $90,000 was made into Mr. Linke’s bank account on February 20, 2014. It is then shown as being a “returnedcheque” withdrawn on February 25, 2014. Ms. Linke suspects this amount was payment to Mr.

Linke from his brother for his work inacting as general contractor on the cottage project. Mr. Linke denies he was paid for this work and testified that he was only repaid hisexpenses. He said the $90,000 deposit was a bank error, quickly corrected. [111] Mr. Linke did not provide any written confirmation from the Bank that the deposit was an error. His evidence was that he askedbut was refused details about this deposit because it did not belong to him. This begs the question, however, as Ms. Ramos pointed out incross-examination. Mr. Linke asked for details about the deposit.

He did not ask for written confirmation that the deposit was made inerror. Undoubtedly, had he done so, the Bank would have provided that much confirmation without breaching the privacy of anothercustomer. [112] However, the onus is on Ms. Linke to prove on a balance of probabilities that the deposit funds were income and she has notdone so. While the deposit is suspicious, Ms. Linke did not seek to question Mr. Linke’s brother as a witness. Nor did she provide anyevidence to link the $90,000 to the cottage construction nor to trace the $90,000 into any other account or asset belonging to Mr.

Linkeafter its withdrawal from the TD account. [113] On the other hand, the fact that the deposit was withdrawn almost immediately afterwards is consistent with it being a bankerror. So also is the fact that the transaction was some months after the work done on the cottage and after Mr. Linke had recommencedsalaried work. One would have thought that had his brother wanted to pay Mr. Linke for the work he did on the cottage, it would havebeen much more appropriate to have done so while he was still working on the cottage, particularly given that Mr. Linke did notapparently then have another source of income.

In fact, as has been indicated above, Mr. Linke withdrew funds from his RRSPs in orderto finance the purchase of two vehicles in the spring or early summer of 2013. This action is inconsistent with any expectation that hewould be paid a significant lump sum at some point in the foreseeable future. [114] I conclude that the $90,000 deposited into his bank account was not income to Mr. Linke. Should Income be Imputed to Mr. Linke: [115] Mr. Linke relies upon the Court of Appeal’s decision in Taylor v.

Taylor, 2009 ABCA 354, in support of his argument that noincome should be attributed to him in the circumstances of his quitting a job where his brother-in-law was the boss. [116] In Taylor, as in Hunt v. Smolis-Hunt, 2001 ABCA 229, the Court had to determine income for child support purposes. As aconsequence, it had to consider s.19(1)(

a) of the Child Support Guidelines. In the case at bar, these Guidelines are irrelevant becauseonly spousal support is at issue. The basis for spousal support orders lies in the

interpretation of s.15.2 of the Divorce Act. [117] After determination of the question of imputation of income for child support purposes, the Court in Taylor elected to use thesame income for the payor spouse in considering spousal support and did not do a separate analysis considering the s.15.2 factors andobjectives. [118] This approach is similar to that adopted by the Newfoundland and Labrador Court of Appeal in Myers v. Hawco (2005), 2005NLCA 74 , 262 D.L.R. (4th) 719. That Court said at para. 42: There is no specific provision regarding the imputing of income for purposes of spousal support.

However, if income is imputed for thepurposes of determining child support, there is no basis in principle for using a different income to ascertain spousal support. [119] The approach in Myers and in Taylor makes sense where there might be an inconsistent outcome if two different incomes are

ascribed to a payor spouse in the course of the same application or trial. However, this approach does not take into consideration thatthe objectives of a child support order differ from those of a spousal support order, as statutorily recognized in s. 15.2(6) of the DivorceAct. [120] As was pointed out by Yungwirth, J., in Gordon v Gordon, 2014 ABQB 596, the underlying rationale for a child support orderis one of policy: the children of the marriage should not be worse off as a result of the marriage breakdown and both parents must bear the responsibilityof child-rearing despite the marriage breakdown.

Under the Guidelines entitlement to child support is automatic for a child of themarriage. Quantum is mandated by the Guidelines, which set out a "hard and fast" number for child support, once the payor spouse’sincome is determined.

There is no room for judicial discretion. [121] As Yungwirth, J. points out and I agree, this is the likely explanation for the strictness and severity of the imputation provisionsfound in s. 19 of the Guidelines, particularly as they relate to the payor spouse's underemployment or unemployment. [122] By contrast, the Divorce Act provisions provide for considerable judicial discretion and the condition, means, needs and othercircumstances of each spouse, which must be considered under s. 15.2(4), will necessarily affect the quantum of spousal supportawarded, if any, as explained by the Alberta Court of Appeal in Corbeil v.

Corbeil (2001), 2001 ABCA 220 , 286 A.R. 330,2001 ABCA 220 at para. 47: In exercising its discretion and in considering the totality of the circumstances, in particular the "means" factor in s. 15.2(4) of theDivorce Act, a court can consider the payor spouse's employment situation. The "means" factor was described in the following terms byLangston J. in Bennet v. Bennet (2005), 57 Alta. L.R. (4th) 380, 2005 ABQB 984 at para. 28: ...'means' includes all financial resources, capital assets, income from employment or earning capacity and any other source from whichbenefits are received ...

In determining what spousal support, if any, should be paid, the court should consider the income earningcapacity of each spouse, their income from investments, and their net worth generally. [123] I agree with Yungwirth, J. that, unlike the situation where s. 19 of the Child Support Guidelines must be considered, s. 15.2(4)of the Divorce Act allows the court to attribute to the payor spouse an amount of income that is based not only on his or her actualincome, but also his or her earning capacity, regardless of whether he or she is unemployed or underemployed.

This inquiry necessarilyinvolves an assessment of whether the payor spouse's actions, as they relate to his or her employment situation, are reasonable in thecircumstances. [124] In contrast to Taylor, I have concluded that Mr. Linke’s decision to leave his employment in September, 2012 wasunreasonable. I conclude as well, that his decision not to become re-employed for a year was also unreasonable in the circumstances. The effect of his decisions was to cause Ms. Linke to have to bear a much heavier burden of the economic consequences of the marriagebreakdown.

She had no source of income until she could get back to work with WestJet after recovering from the stress that caused herto take leave. Even then, her income earning ability was much less than that of Mr. Linke. She worked on a ‘casual’ basis, choosingshifts from those offered on an employee website. Her continued health problems made it impossible for her to choose too many. At thesame time, she had accommodation and other living expenses which were much higher than those of Mr. Linke. Ms.

Linke had toendure real economic hardship. [125] I conclude in the circumstances that it is appropriate to impute income to Mr. Linke. I consider that $50,000 per annum wouldbe an appropriate amount to impute to him, including the income from the rentals. This is certainly less than he was earning when he leftMogo and less than what he earned when he recommenced employment in September 2013. I consider it a reasonable approximationhowever, of what he could have earned had he sought other employment before leaving his position at Mogo. How Much is Owed for Retroactive Spousal Support: [126] Mr.

Linke did not seriously argue that income should be imputed to Ms. Linke for the pre-trial period. In any event, I woulddecline to do so. Ms. Linke was 50 years old. She had just separated from her spouse in what had been a long term marriage. She hadpart time work but was on stress leave as a consequence of the marriage breakdown. None of the matrimonial property had been dividedand she had control of very little of it. There is no basis upon which to impute income to her. [127] I conclude that based upon the income I have imputed to Mr. Linke, and considering the advisory Spousal Support Guidelines,Mr.

Linke ought to have paid Ms. Linke $1,800 per month in spousal support while she was on stress leave beginning May 1, 2013 anduntil July 2013. [128] Ms. Linke did go back to work in July 2013 but likely did not get a pay cheque for at least another month. Because she wasagain receiving a paycheque, thereafter, it would be reasonable to reduce the amount of spousal support she was entitled to and Iconclude $1,000 per month was reasonable beginning September 1, 2013. [129] However, that month was also the month that Mr.

Linke went back to work and so his actual income should be used todetermine appropriate spousal support beginning October 1, 2013. According to his 2013 notice of assessment, Mr. Linke earned$17,541 in employment income in 2013. Mr. Linke estimates that his employment income is $58,000 per year. I agree with his estimate. [130] In addition to his employment income, however, Mr. Linke retained, as well, all of the rental income which the parties have

agreed totals $19,000 per year. Thus, his income for spousal support purposes beginning October 1, 2013 should be $77,000 ($58,000 + $19,000). In 2013, Ms. Linke earned $19,681. Again, having reference to the advisory guidelines, I conclude that Mr. Linke ought to have paid $2,250 per month in spousal support beginning October 1, 2013. [ 131 ] On June 12, 2014, on application by Ms. Linke, Topolniski, J determined that Mr. Linke should pay $1,850 in spousal support commencing July 1, 2014. This order is based upon a finding that Mr.

Linke’s income was $77,000 per year, including in this total $19,000 in income from the rental properties. Ms. Linke’s income was found to be $23,000. [ 132 ] Mr. Linke argues that he has overpaid spousal support pursuant to this order because the rental income estimate was too high. I disagree. In fact, Mr. Linke has now agreed through his counsel that $19,000 is a reasonable amount to estimate as rental income on an ongoing basis for all four properties. If anything, Justice Topolniski over-estimated Ms. Linke’s income since her actual income for 2013 was less. [ 133 ] As well, it appears that Mr.

Linke’s employment income was under-estimated. At trial, Mr. Linke’s evidence respecting his income was incomplete. He has provided pay stubs but only until February 28, 2014. From this evidence, it appears that by the end of February 2014, two months into the year, he had gross earnings of $10,425.54. From this evidence, I would estimate his ongoing income somewhat higher than he does. I conclude his 2014 employment income is $62,553 per year. [ 134 ] I conclude, however, that $2,250 remains a reasonable amount to pay for spousal support in 2014 and I find that amount should continue to have been paid by Mr.

Linke until trial. [ 135 ] The June, 2014 order was interim only and the parties have governed their affairs since it was made based upon it. As I understand it, Mr. Linke has paid spousal support pursuant to this order since July 2014. My assumption is that he has continued to pay this amount for October 2014 pending receipt of this judgment. [ 136 ] If that assumption is correct, then by my calculations, Mr.

Linke owes $30,050 in retroactive spousal support calculated as follows: May 1- August 31, 2013 @ $1,800 x 4 months $ 7,200 September 1, 2013 @ $1,000 $ 1,000 October 1, 2013-June 30, 2014 @ $2,250 x 9 mos $20,250 July 1, 2014 – October 31, 2014 $2,250 less $1,850 = $400 x 4 months $ 1,600 Total $30,050 [ 137 ] Ms. Linke wishes to have retroactive spousal support paid as a lump sum. She does not trust Mr. Linke to pay this, citing evidence that Mr. Linke hid assets during the separation. She said that Mr. Linke had a safety deposit box in which he hid stock shares worth more than $20,000.

She said that once she found out about the shares, Mr. Linke told her he was saving the value for their daughter’s wedding. However, she said, she had to get lawyers involved before he would actually give their daughter the money for the wedding. As a second example, Ms. Linke testified she found money hidden in the garage about eight months after they separated. She had no idea that this money existed prior to finding it and was shocked that Mr. Linke would hide it from her. [ 138 ] Mr.

Linke did not dispute this evidence. [ 139 ] Based upon this evidence, I am prepared to order that retroactive spousal support be paid as a lump sum from Mr. Linke’s share of the matrimonial property. Ongoing Spousal Support: [ 140 ] As I have already said, I find Mr. Linke’s employment income for 2014 to be $62,553 per annum. He will continue to earn rental income, as well, but the amount of this income will be reduced beginning November 1, 2014 because I have directed that Ms. Linke will begin to collect the rents on her two rental properties as of that date. Ms.

Linke’s income will correspondingly increase. [ 141 ] Mr. Linke suggested that the rental income be divided equally between the two parties in the event that I concluded that each was to receive two of the rental properties. Ms. Linke seemed to assume that Mr. Linke would continue to own all four properties in her spousal support calculations. [ 142 ] I have concluded that each party should retain two of the rental properties. However, one of the two properties Mr. Linke will retain has no mortage whereas both the properties Ms. Linke will retain are encumbered by mortgages.

The property without a mortgage will have lower expenses than those that are encumbered. Thus, in my view, an equal division of the ongoing rental income will over- estimate Ms. Linke’s income and under-estimate Mr. Linke’s. In the absence of good evidence respecting the expenses of each property, I must estimate their respective future rental incomes. They agree that the total for all four will be $19,000. I will assume that $10,000 of this income will accrue to Mr. Linke and $9,000 to Ms. Linke. [ 143 ] I conclude, therefore, for spousal support purposes on an ongoing basis that Mr.

Linke’s 2014 income is $72,533. Should Income be Imputed to Ms. Linke? [ 144 ] Mr. Linke argues that Ms. Linke is capable of working full time or, at least, is capable of taking on other positions with her current employer, both of which would increase her income from what it is now. Ms. Linke says that there are limited positions available

for her with her current employer and gives evidence of having applied unsuccessfully for a position as a flight attendant. [ 145 ] She also gave cogent reasons for remaining in her present position as a ‘casual’ worker rather than taking a regular part time position that would increase her salary somewhat. Her position involves physical labour in that she must lift heavy pieces of luggage for customers. She said this physical work takes a toll on her body.

In addition, there are different requirements for part time and she would have to work a minimum of 25 hours per week and would have less choice in shift times. She does not think that she could sustain this work over time and the letter she provides from her physician seems to substantiate her position. [ 146 ] At the end of July 2014, Ms. Linke started another business doing similar organization work that she did in her previous short lived business. So far she has earned little from this business but she hopes to be more successful in the future.

In the meantime, however, the business costs have exceeded the income. [ 147 ] The objectives of spousal support are to: (

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

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

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

d) promote, as far as practicable, the economic self-sufficiency of each spouse within a reasonable period of time. [ 148 ] Ms. Linke is 51 years old. She intends to continue to work at WestJet for the next year and a half because, if she does so, she will be entitled to life time free flights on WestJet provided she pays only the taxes and the airport improvement fees. These flights are on a stand-by basis and subject to availability but, even so, this is a substantial benefit.

It makes sense that she would stay around to obtain it, particularly given that the present uncertainty in her health makes long term planning difficult. [ 149 ] Under these circumstances, I decline to impute income to her. She is as fully employed as she can reasonably be at present. Decision re Spousal Support: [ 150 ] I conclude, therefore, that Ms. Linke’s employment income for spousal support purposes should be her actual income. Her 2013 income tax return shows employment income of $19,681. To this I will add $9,000 in rental income commencing November 1.

Therefore I find her income for spousal support purposes to be $28,681. [ 151 ] Considering the factors and objectives set out in the Divorce Act and the advisory Spousal Support Guidelines, I have concluded that $1,400 is an appropriate amount to pay for spousal support. Having regard to the length of the marriage and the respective roles taken during its duration, something close to equalization of the respective incomes of the spouses is appropriate. I direct this amount to be paid commencing November 1, 2014. [ 152 ] This was a long-term marriage. While Ms.

Linke has an obligation to try to become economically self-sufficient, that goal may be elusive for her. Accordingly, I will not put an end date on Mr. Linke’s obligation to pay spousal support. [ 153 ] I do direct, however, that both parties must exchange income tax returns each year by no later than June 30. Either party may make an application to vary spousal support if they choose to do so, based upon their reported incomes, provided there has been a change in circumstances to justify such an application. [ 154 ] Costs may be spoken to if required. Heard from September 23-25, 2014.

Dated at the City of Edmonton, Alberta this 4 th day of November, 2014. D.C. Read J.C.Q.B.A. Appearances: Rebecca Bell Sharek Logan van Leenen LLP

for the Plaintiff Ning Ramos Ning Ramos Professional Corporation for the Defendant

Schedule A Matrimonial Property Statement Valerie Linke Sept 24/14 Assets Comments $ Value, Source of Information, Present Title or Possession Total Joint Jerry Linke Valerie LInke Reference Property #1 Mat Home Trust Monies $119,764.70 $119,764.70 $239,529.40 + interest 1121 1121, 7339 Terwill Dr. $195,000.00 $195,000.00 1207 1207, 7339 Terwill Dr. $197,000.00 $197,000.00 Simpson Drive 1234, 9363 Simpson Dr. $204,000.00 $204,000.00 Hanna Crescent 34, 2565 Hanna Cres. $242,000.00 $242,000.00 Hawaii Timeshare 2 weeks in Oahu $ 6,000.00 $ 6,000.00 Withdrawn Monies Withdrawal from LOC/Mortgage and bank accounts $ 58,392.65 $ 33,809.90 $ 92,202.55 Withdrawn Monies From RRSP’s $ 19,000.00 $ 19,000.00

Withdrawn Monies from Costco cards $ 24,000.00 $ 24,000.00 TD Waterhouse SDRSP 073Y455 $100,911.00 $100,911.00 TD Waterhouse US 073Y45F $ 39,518.00 $ 39,518.00 TFSA TD Waterhouse 073Y45J $ 18,573.00 $ 18,573.00 TD Value Chequing Acct $ 6,439.00 $ 6,439.00 CIBC Mellon ESP WestJet Shares $ 6,375.00 $ 6,375.00 TD Chequing $ 11,109.00 $ 11,109.00 ATB Chequing $ 2,500.00 $ 2,500.00 RBC RRSP 25% reduction to all investments $, 2,666.00 $ 2,666.00 Liabilities Comments Value Jerry Linke Valerie Linke Reference TOTAL Great West Life 25% reduction to all investments $ 92,288.00 $ 92,288.00 Vehicles – Mr.

Linke $ 20,000.00 $ 20,000.00 Proceeds of Sale of Trailblazer $ 2,000.00 $ 2,000.00 Total Assets Before Exemptions $779,720.35 $741,390.60 $1,521,110.95 Exemptions Val’s Inheritance ($ 24,646.00) Jerry’s Inheritance ($ 25,000.00) Total Exemptions ($ 25,000.00) ($ 24,646.00) ($ 49,646.00)

Total Assets After Exemptions $ 754,720.35 $ 716,744.60 $1,471,464.95 Mortgage on 1121 ($125,790.00) ($125,790.00) Mortgage on 1207 ($108,906.00) ($108,906.00) Mortgage on Hanna Crescent ($144,056.00) ($144,056.00) Total Liabilities ($144,056.00) ($234,696.00) ($378,752.00) Net Property $610,664.35 $482,048.60 $1,092,712.95 ½ Matrimonial Property $546,356.45 $546,356.45 Equalization Payment ($ 64,307.90) $ 64,307.90 Resulting Assets $610,664.35 $610,664.35

Schedule B DATE Asset Jerry Linke Valerie Linke 24/01/2013 Mortgage on 5208 $ 10,000.00 31/01/2013 Mortgage on 5208 $ 2,637.92 26/02/2013 Mortgage on 5208 $ 4,000.00 01/02/2013 Mortgage on 1121 $ 11,809.90 25/03/2013 Mortgage on 5208 $ 27,346.00 24/01/2013 Visa Credit-Car Insurance $ 383.00

22/05/2013 Mortgage on 1207 $ 12,000.00 22/05/2013 Mortgage on 1207 $ 19,323.78 03/05/2013 Joint Chequing Account $ 4,299.95 03/05/2013 Costco Amex Rebate $ 402.00 TOTAL $ 58,392.65 $ 33,809.90