Zandbeek v Zandbeek, 2014 ABQB 749

Court of Queen ’ s Bench of Alberta Citation: Zandbeek v Zandbeek, 2014 ABQB 749 Date: 20141208 Docket: 4803 157318 Registry: Edmonton Between: Nancy Irene Marie Zandbeek Plaintiff - and - Frank Francis Zandbeek Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.E. Topolniski _______________________________________________________ I. Introduction [ 1 ] Marriage is a partnership; a joint venture of sorts. Typically, when one spouse succeeds financially, the other benefits. Conversely, where one fails, often so too does the other.

Mostly, this case is about financial failure and whether a spouse’s decisions on incurring and maintaining marital debt so denuded the matrimonial estate that he should bear sole responsibility for it. [ 2 ] This was a medium-term traditional marriage. The parties were married April 20, 1996 and separated on July 1, 2010. The

divorce was severed from corollary relief and a Divorce Judgment has been granted. They have two children, Colin age 17 and Jenna age 15. [ 3 ] After agreements made during the trial, the issues to be determined are: 1. retroactive and ongoing child support, 2. retroactive and ongoing spousal support, 3. division of matrimonial property, and 4. payment of occupational rent. [ 4 ] The parties’ agreed to joint custody of the children. The children’s primary residence is with Ms. Zandbeek and access is as arranged between Mr. Zandbeek and the children. [ 5 ] Since the separation, Ms.

Zandbeek has underreported her income to the Canada Revenue Agency [“CRA”], worked for cash, and kept limited records concerning her work. Mr. Zandbeek operates a one-person construction business, Golden Gate Homes Inc. He has never had financial statements prepared for his company and relied on an accountant to record his business finances and reporting to the CRA. Mr. Zandbeek professes to know very little about financial matters relating to his business. [ 6 ] Each party suspects the other makes more money than they report and wants income imputed to the other for calculating child support.

The other area of disagreement concerning child support relates to Federal Child Support Guidelines , SOR/97-175 [“the Guidelines ”], s 7 “special or extraordinary” expenses for horse boarding fees. Some other s 7 claims were disputed with little vigour. [ 7 ] Ms. Zandbeek wants retroactive and ongoing spousal support on an indefinite basis with a five year review. Mr. Zandbeek’s position is a bit confusing. He contends that although Ms. Zandbeek may be entitled to spousal support on a compensatory or needs basis, she has not been disadvantaged by the marriage and is getting by with what she has.

In any event, he cannot afford to pay her anything. [ 8 ] The parties have limited assets and many liabilities. Their matrimonial property dispute is focused squarely on the liabilities side of the ledger. They lived beyond their means for several years before the separation and Mr. Zandbeek looked to a non-conventional lender to fund his business and personal needs. Their financial state seems to stem from poor business management and a decision to build a workshop for a new business venture making custom moldings [“the Shop”]. Mr.

Zandbeek dedicated two years to building the Shop and sourcing equipment: a molder and dust collector worth $60,000.00. He did not track what the Shop itself cost. The new business venture never materialized. Since separation, the Shop has been used for storing tools. The equipment has gathered dust and is now worth 30% of the original cost. [ 9 ] Ms. Zandbeek purports to have limited knowledge or understanding of the debts accrued during the marriage. Pointing to Mr. Zandbeek’s failings, she seeks a finding of dissipation that would see Mr.

Zandbeek responsible for all debt excluding the mortgage on the matrimonial home. In turn, Mr. Zandbeek points to Ms. Zandbeek’s actual and inferred knowledge of the family’s financial woes, the debt incurred to stay financially afloat, her failure to contribute to debt servicing after the separation, and his ‘best efforts’ as the reasons for sharing net matrimonial property equally. II. The Onus of Proof [ 10 ] The onus of proof rests with the Plaintiff, in this case Ms. Zandbeek, to prove her case on a balance of probabilities.

This includes proving that a deviation from the presumption that matrimonial property should be equally divided is justified. [ 11 ] The outcome of a trial is based on the evidence and the reasonable inferences that can be drawn from it. Judges are not permitted to speculate about what the evidence might be. Further, the limits of judicial notice are many. The evidence in this 4-day trial is both wanting and challenging. At the end of the trial questions about Mr.

Zandbeek’s income and certain valuations remained unanswered, leaving the determination of the parties’ entitlements on a principled basis a perplexing task. III. A Snapshot of the Witnesses and Their Credibility [ 12 ] Mr. and Ms. Zandbeek testified on their own behalf. Mr. Zandbeek called two additional witnesses whose introductions were warranted at the outset to provide context. I also offer a snapshot of my assessment of the witnesses’ testimony and their credibility. [ 13 ] Described as a “brilliant carpenter who is not so good at billing and watching the money”, Mr.

Zandbeek refused to incur the expense of having financial statements prepared for this litigation, despite their being required by a Notice to Disclose and subsequent Court Order to comply with the Notice to Disclose. His credibility is plagued by his choice to lie in an Affidavit responding to his ex- wife’s 2011 application to sell the matrimonial home. In his bid to dissuade Ms. Zandbeek and the Court from the sale, he deposed that he needed the Shop (and hence the matrimonial home) to make money for child support [“the Perjury”]. The application was aborted on the advice of counsel who, together with Ms.

Zandbeek, understandably took what was said under oath to be true. It was not. Mr. Zandbeek never volunteered the truth. While the Perjury casts a pall on the veracity of Mr. Zandbeek’s uncorroborated evidence, I am nevertheless satisfied as to his veracity concerning the circumstances surrounding the loans made to him personally and to Golden Gate Inc. [ 14 ] For reasons unknown, Ms. Zandbeek chose to minimize her knowledge about her ex-husband’s business and borrowings. Apart from that, I found her to be an otherwise mainly honest witness.

[ 15 ] Mr. Todd is a long-time client of Mr. Zandbeek who, since August 2010 has with his business partner, Mike Koski, became Mr. Zandbeek’s main source of work. He became friendly with Mr. Zandbeek. He is clearly impressed with the quality of his work but also recognizes Mr. Zandbeek’s limitations concerning the money aspect of his business. Through a variety of companies [“ToddCo”], Mr. Todd loaned money to Mr. Zandbeek and his company at interest rates ranging from 8% to 14.4% per annum. The indebtedness to ToddCo currently exceeds $260,000.00. [ 16 ] Mr.

Todd was a forthright, credible and dispassionate witness. I accept his evidence concerning loans advanced by ToddCo and Mr. Zandbeek’s work for his joint venture. [ 17 ] Dale Jungwirth worked for Mr. Todd’s companies from 2001 to 2003 and again from 2007 to the present. He created the mortgage and promissory notes supporting the ToddCo loans and is responsible for record keeping. Like Mr. Todd, Mr. Jungwirth was a credible, forthright and dispassionate witness whose evidence I have no hesitation accepting. IV. The Issues 1. What are the parties’ incomes for child support purposes? 2.

What is the retroactive and ongoing base child support? 3. Are there any

section 7 “extraordinary expenses”? 4. What, if any, spousal support should be paid to Ms. Zandbeek? 5. What occupation rent, if any, should be paid by Mr. Zandbeek? 6. Should the net value of the matrimonial property be divided equally? Central to this determination is whether Mr. Zandbeek dissipated matrimonial assets through imprudent business decisions or otherwise. [ 18 ] Given the interplay between the parties’ incomes, assets and liabilities as they relate to the various issues, the evidence is not neatly compartmentalized. V. Analysis A. What are the Parties’ Incomes for Child Support Purposes? [ 19 ] Pursuant to the Child Support Guidelines , income is calculated in accordance with

section 16 but is subject to revision in accordance with s 17- 20. Sections 16 and 17(1) provide: Calculation of annual income 16. Subject to sections 17 to 20, a spouse's annual income is determined using the sources of income set out under the heading "Total income" in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III (SOR/2000-337, s 3). Pattern of income 17.

(1) If the court is of the opinion that the determination of a spouse's annual income under

section 16 would not be the fairest determination of that income, the court may have regard to the spouse's income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [ 20 ]

Section 16 of the Guidelines is the starting point for ascertaining income for child support purposes.

Section 17 requires the court to ensure that

section 16 is the fairest means of doing that and where it is not, to determine a fair and reasonable income. As noted in Ewing v Ewing , 2009 ABCA 227 at para 39 , 457 AR 238, leave denied [2009] SCCA No 386: … The principle of fairness, which guides the court in calculating income for the purpose of setting support, applies with equal strength to both prospective and retroactive orders, and there is nothing in the Guidelines that limits the application of

section 17 to prospective support orders. … [ 21 ] Regrettably, neither party was diligent about recording details of their work, their incomes, and their profits. As will be seen, their tax returns are of limited utility in determining income. [ 22 ] The parties’ (particularly Mr. Zandbeek) laissez-faire approach to money matters follows a pre-separation pattern of ‘work when you can, deposit what you get, spend it and hope for the best’. It did not work out very well for them during the marriage which saw them in a state of constant overdraft and borrowing to stay afloat. Their financial plight continues. B.

Ms. Zandbeek’s Income [ 23 ] I have determined that Ms. Zandbeek’s attributed income is: 2010 – $34,685.00

2011 – $41,382.00 2012 – $39,475.00 2013 – $41,778.00 2014 – $47,802.00 [ 24 ] Ms. Zandbeek is 45 years old. She has a grade 12 education. Before becoming a stay-at-home parent, her work experience was as a chambermaid, a server, a data entry clerk and a laundress. Since returning to the work force in 2004 her work has been in the cleaning service industry. Her post-separation income is underreported on tax returns. An analysis to ascertain her actual income is therefore needed. [ 25 ] Since separation Ms. Zandbeek worked at several cleaning jobs.

She worked 12 to 14 hour weeks for private clients at a seniors’ residence for which she was mostly paid cash. Initially Ms. Zandbeek charged $15.00 per hour and at some point (the evidence is unhelpful on when) she bumped her rate to $20.00 per hour. Ms. Zandbeek also did a small amount of work filling in for the person who cleaned the facility but what she made is unclear. Using a 13 hour/week average her monthly income from this source is $780.00/month (at $15.00/hour) to $1,040.00 (at $20.00/hour).

There are examples of short-term jobs, like a brief housecleaning stint in 2011 for which she earned $400.00 to $500.00. [ 26 ] Ms. Zandbeek also worked as a part time cleaner at a dance studio, for which she was paid by cheque and was issued a T4. At some point she cleaned for a realty company. Her earnings for that are unclear. More recently Ms. Zandbeek has done some sporadic cleaning jobs for a rental agency. She expects most of this work to continue. [ 27 ] Ms. Zandbeek claims ignorance of her reporting obligations to the CRA, estimating an average underreporting of income by $4,000.00 to $5,000.00 annually.

The limited evidence demonstrates that her estimate is too low. I accept the estimate calculated by Mr. Zandbeek as a conservative assessment of Ms. Zandbeek’s income. Suffice to say that I agree with the percentages applied for underreported income, the extrapolations and the overall figure of $14,560.00/year for private client work. [ 28 ] Ms. Zandbeek’s dance studio hours are reduced by her employer in the summer. Rather than the 100 hours/month she works in the “school months” she works 30 hours. Explaining that she cares for the children when they are on school break and pointing to the fact that Mr.

Zandbeek has never given any help in that regard, Ms. Zandbeek opted to not look for other work to fill the void. Mr. Zandbeek thinks she should have and wants income imputed to her to account for the reduced hours. [ 29 ] I disagree. Ms. Zandbeek has been solely responsible for the children during their summer breaks. Mr. Zandbeek has done nothing to alleviate the burden. Had Ms. Zandbeek opted to work more, she would have incurred child care or camp costs to ensure that the children were properly supervised. There is no cost-benefit analysis or evidence of any sort to show that such analysis would weigh in Mr.

Zandbeek’s favour. While Colin has been able to care for himself for some time, Jenna has not. That said, Jenna will be 15 years old next summer and able to be left alone. At that point Ms. Zandbeek will have to fill the work void created by the studio’s summer schedule. [ 30 ] The income attributed to Ms. Zandbeek does not account for her cost of doing business, which is mainly for automobile related charges and cleaning supplies. Ms. Zandbeek’s tax returns are unhelpful in ascertaining what those costs are and there was no evidence led to cast light on what a proper amount would be.

I decline the invitation to attribute something for those expenses in the abstract. C. Mr. Zandbeek’s Income [ 31 ] Mr. Zandbeek is 55 years old. He is a skilled carpenter who enjoys some success as a builder and construction project manager. Calculating how that success translates into income is a challenge because of inconsistencies in the evidence, the nature of his tax returns, evidentiary gaps, and credibility concerns. This regrettable situation places the Court in a precarious position for conducting a principled determination of his income. [ 32 ] Mr.

Zandbeek has worked in the construction business his entire adult life. During the marriage he did renovation and new construction work through his one-person company. This included new homes that the parties lived in for a period before moving on to another property that he built. Details of his other work during the marriage are few. [ 33 ] Mr. Zandbeek did little, if any, work outside of the matrimonial home in 2006 and 2007. At that point he built the Shop; a 4,000 square foot structure with heated concrete floors and an exterior mounted dust collector.

He also fenced the acreage on which the matrimonial home and Shop are situated. In 2008, Mr. Zandbeek started work on a job rebuilding a home that was destroyed by fire [the “Theroux Build”]. The cost to the homeowner was $400,000.00. Nothing is known about Mr. Zandbeek’s profit on the Theroux Build, why he chose not to apply profit to a $50,000.00 start-up loan from ToddCo or why he failed to report a $25,000.00 payment he received in 2011. [ 34 ] There is no evidence about the nature or extent of Mr. Zandbeek’s work in 2009 and the first half of 2010.

Presumably, he did something to warrant the gross $187,968 revenue shown on his in 2009 corporate tax return. [ 35 ] Mr. Zandbeek’s personal and corporate tax returns record the following incomes: 2009 – $1.00 personal and ($5,400.00) corporate 2010 – $1.00 personal and $12,671.00 corporate

2011 – $ 0 personal and $78,221.00 corporate 2012 – $62,500.00 personal and $35,521.00 corporate 2013 – $71,476.00 personal and $19,079.00 corporate [ 36 ] All of the 2012 and 2013 personal income is from dividends paid by Golden Gate Homes. [ 37 ] Mr. Zandbeek testified that he presently owes taxes of $25,000.00. This liability is not recorded on his matrimonial property statement nor is there any corroborating evidence to support the assertion. I give no credence to his unsupported evidence. [ 38 ] Mindful of the benefits of incorporation, it is impossible to reconcile Mr.

Zandbeek’s actual earnings with what is stated on his 2010 and 2011 tax returns. As will be seen, I have attributed income for those years by applying simple math. For 2012 to 2014, I have relied on the tax returns which better accords with the overall evidence of Mr. Zandbeek’s economic activities. [ 39 ] From the summer of 2010 to the present, Golden Gate was paid $7,500.00 monthly (net of expenses) for all but one month when half that amount was paid. The timing and reason for this part payment is unknown. [ 40 ] The $7,500.00 payments were consistently made. They are taxable in Mr. Zandbeek’s hands. Mr.

Zandbeek’s testimony that he somehow made less money is irreconcilable with the testimonies of Messrs. Todd and Jungwirth, which I accept. [ 41 ] The deposits noted in Mr. Zandbeek’s bank statements vary from month to month. Given his method of collecting disbursements, they are not helpful in ascertaining his true income. [ 42 ] Ms. Zandbeek contends that income should be imputed on three grounds: a tax gross up, better paying work being available elsewhere and extra earnings by utilizing the Shop. All three grounds fail for want of evidence. First, Messrs.

Todd and Jungwirth were clear that the $7,500.00 monthly payment was not net of tax. Second, a bare assertion that one can earn more money in another job invites speculation. Third, tempting as it may be to attribute some income to Mr. Zandbeek for building moldings in the Shop, there is no evidence to support it. No questions were put to Mr. Zandbeek about what he might earn from that work and no other evidence was adduced to shed light on the issue. All that is known is that, as he did during the marriage, Mr.

Zandbeek works long-hours, six to seven days a week. [ 43 ] Since Golden Gate is a one-person operation with no office, I questioned whether there was any basis for attributing income for taxable benefits. The only evidence is what may be deduced from Mr. Zandbeek’s tax returns. His pre-separation returns for 2008 and 2009 list deductions in the $1,000.00 to $2,000.00 range for utilities or bank charges and professional fees. Post-separation returns contain no such information.

The limited tax information is insufficient to impute an amount for taxable benefits on a rational basis. [ 44 ] In the result, based on the best evidence available, I attribute this income to Mr. Zandbeek: 2010 Income = $95,445.00 [ 45 ] Notwithstanding what the tax returns say, the evidence firmly establishes that Golden Gate, and hence Mr. Zandbeek, earned $7,500.00/month net of disbursements for the latter part of 2010. Mr. Zandbeek’s evidence as to when he started working for the Todd/Koski joint venture varied. Initially, he said it was in the summer but then said it was later in the year.

The incomplete corporate bank statements produced show deposits of about $34,000.00 between January and June comprised of sums ranging from $5,000.00 to $12,764.00. Unlike the deposits in later months, there are no large deposits. This coupled with evidentiary gaps makes it reasonable to attribute an annual income of $95,445.00 to Mr. Zandbeek. This amount is comprised of the money paid by the Todd/Koski joint venture ($90,000.00), a three year average of invoices for equipment leasing and other work ($4,845.00) [the “Extra Income”] and a small fee that might have been charged to Mr.

Zandbeek’s friend for storing his equipment at the Shop ($600.00) [the “Storage Fee”]. 2011 Income = $95,445.00 [ 46 ] As with 2010, the tax information for 2011 is unhelpful. A reasonable attributed income is the same as that for 2010.

The $25,000.00 received on the Theroux Build in April 2011 is treated as divisible property rather than income. 2012 Income = $93,932.00 [ 47 ] This is the corporate income amount described in the tax returns plus the Extra Income and Storage Fee. 2013 and 2014 Incomes = $85,097.00 [ 48 ] This is the amounts described in the 2013 tax return, adjusted for dividend income, the Extra Income, and the Storage Fee. Mr. Zandbeek expects his 2014 income to be the same as 2013. D. What is the retroactive and ongoing base child support? [ 49 ] Mr.

Zandbeek has paid $1,500.00/month child support pursuant to an interim, without prejudice Consent Order made on December 7, 2011. He is presently in arrears, having made his last payment in September, 2014. There was a prior default which he cured. [ 50 ] This is my calculation of Federal Child Support Guidelines , s 3 child support, both retroactive and ongoing:

2010 (Income = $95,445.00) The child support payable for 2010 is $1,364.00/month (6 months from July onward) or $8,184.00. Mr. Zandbeek paid $6,000.00 andtherefore owes ($2,184.00). 2011 (Income = $95,445.00) The child support payable is $1,364.00/month or $16,368.00. Mr. Zandbeek paid $18,000.00 and therefore has overpaid by $1,632.00. 2012 (Income = $93,932.00) The child support payable is $1,337.00/month or $16,054.00. Mr. Zandbeek paid $18,000.00 and therefore has overpaid $1,946.00. 2013 (Income = $85,097.00) The child support payable is $1,216.00/month or $14,592.00. Mr.

Zandbeek paid $18,000.00 and therefore has overpaid by $3,408.00. 2014 (Income = $85,097.00) The child support payable is $1,216.00/month (to December 31st) or $14,592.00. Mr. Zandbeek has paid $13,500 (to September) andtherefore owes ($1,092.00). [51] Mr. Zandbeek has overpaid s 3 child support in the amount of $3,710.00 to December 31, 2014. [52] Base child support for 2015 will continue and be recalculated after the parties exchange their income tax information andbusiness records on or before June 30, 2015. E.

What are the s 7 “Extraordinary Expenses”? [53] By the end of the trial, the main thrust of the parties’ disagreement related to Jenna’s horseback riding, school fees andColin’s tutoring expenses. The parties agreed that proper retroactive and ongoing s 7 expenses include the children’s medical and dentalcosts, their life insurance policies and Colin’s hockey fees. Mr. Zandbeek will pay his retroactive and ongoing proportionate share ofthese amounts. The potential deduction for 15% of the hockey fees as an adjustment for the ‘children fitness tax credit’ is discussedbelow. [54]

Section 7 of the Guidelines provides: 7.

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the followingexpenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests andthe reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern priorto the separation: ... (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child'sparticular needs; ... (

f) extraordinary expenses for extracurricular activities.

Section 1.1 (b) (i-iv) of Guidelines permits the Court to consider the amount of the expense in relation to the income of the spouserequesting the amount, the nature and number of educational programs and extracurricular actives, any special needs or talents of thechild or children, the overall cost of the programs and activities, and any other similar fact that the Court considers relevant. [55] The term “extraordinary” means that the expense must be exceptional by its nature or amount as compared to the expensesincurred ordinarily by a similarly situated household.

There is a conjunctive test which requires the expense to be necessary in relation tothe child’s best interests and reasonable having regard to the means of the spouses, the child and the family’s spending pattern (Miller vMcClement (1997), (SK KB), 160 SaskR 232 at para 19, 35 RFL (4th) 83 (Sask QB); CLE v BMR, 2010 ABCA187 at paras 55, 59, 320 DLR (4th) 142). [56] In assessing the issue, the Court should consider the parties’ combined income that they have to pay for two households, andthe percentage of the combined income represented by the expense.

The parties’ debts, the prospect for their means going up or down inthe future, whether the parent who paid the expense in the past will be able to continue to do so without the contribution of the other, andwhether there was consultation before the expense was incurred must also be measured (Bland v Bland, 1999 ABQB 236 at para 24, 239AR 301, cited in CJT v GAT, 2012 ABQB 193 at para 48, [2012] AJ No 333 (QL)). [57] With this backdrop, I turn to contextually assess the reasonableness and necessity of the disputed claims. 1. Las Vegas Hockey Tournament [58] Ms.

Zandbeek claims $500.00 for the cost of Colin’s trip to Las Vegas last year for a hockey tournament. This was doubtless agreat experience for Colin. However, there is no evidence of past discussion of or participation in such venues. Further, there was no

consultation before the expense was incurred. These considerations, coupled with the parties’ financial circumstance, results in the claimfailing. 2. School and Tutoring Fees [59] Ms. Zandbeek claims retroactive school fees as well as charges for school pictures and a fabric store purchase. School fees aretypically not considered to be an extraordinary expense but rather an ordinary expense that is a component of s 3 child support.

Schoolfees might qualify in circumstances where the parents’ incomes are so low that the payment would not leave enough money for thechild’s proportionate costs of accommodation and food (Plesuk v Kamuchik, 2010 ABQB 778 at para 5; CLE v BMR, at para 61). Suchis not the circumstance in this case. [60] Ms. Zandbeek also claims the cost of Colin’s tutoring from 2011 to 2013 and ongoing costs, if any. Mr. Zandbeek agrees withpaying his proportionate amount of the fee but contends that a 15% discount should be applied as Ms. Zandbeek can claim a subsidyunder the Children Fitness and Arts Tax Credit. Ms.

Zandbeek shall enquire as to whether the subsidy is available and inform Mr.Zandbeek of the result of her inquiry. Adjustments will be made to account for the subsidy if it is, in fact, available. 3. Horse Boarding Fees [61] Jenna is an avid horse rider. She has a horse that she boards at a nearby stable. Until August 2014 Ms. Zandbeek did cleaningat the stable in exchange for free board. She no longer does that. The boarding fee is $351.75 per month. [62] Mr. Zandbeek notes that before the separation, Jenna’s equestrian activity was limited to a relatively inexpensive series ofriding lessons.

She had a horse after the separation that was boarded at no charge at her uncle’s farm. Last but not least, he cannot affordthe expense. [63] While clearly desirable, this activity is not reasonable having regard to the parties’ means and their previous spending pattern.Ms. Zandbeek’s unilateral decision to board the horse constitutes a prohibited impact on Mr. Zandbeek’s financial condition (Richter vRichter, 2010 BCSC 1578 at para 9, 94 RFL 6205). F. Child Support - Conclusion [64] All s 7 expenses for the children shall be shared in proportion to the parties' Guideline Incomes as previously determined.

Theparties’ lawyers will calculate the proportionate sharing of retroactive Guidelines, s 7 expenses within 15 days of these Reasons. [65] All future Guideline s 7 expense claims will be accompanied by an invoice and proof of payment.

They will be paid within 30days of receipt, failing which interest will accrue at the Royal Bank of Canada’s prime rate plus 1%. [66] All amounts awarded are subject to enforcement by the Maintenance Enforcement Program. [67] The parties will exchange financial disclosure by June 30th each year commencing in 2015. [68] The parties will attend a child support resolution hearing before making application to vary child support. G. What, if any, Spousal Support Should be Paid to Ms. Zandbeek? [69] The right to spousal support is not automatic on marriage breakdown.

It is ordered in compliance with the provisions of theDivorce Act, RSC 1985, (2d Supp.), c 3, s 15.2. [70] On considering an application for spousal support,

section 15.2(4) of the Divorce Act requires the Court to consider thecondition, means, needs and other circumstances of each spouse, including: (

a) the length of time the spouses cohabitated; (

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

c) any order, agreement or arrangement relating to support of either spouse. [71] The term “condition” includes age, health, needs, obligations, dependants and station in life. The term “needs” is relative andcan partly be ascertained by reference to the lifestyle enjoyed by during the marriage and the payor’s entitlement to have a reasonablestandard of living (Moge v Moge, (SCC), [1992] 3 SCR 813 at paras 84-85, 99 DLR (4th) 456).

The term “means”includes all financial resources, capital assets, income from employment or earning capacity and any other source from which benefitsare received (Strang v Strang, (SCC), [1992] 2 SCR 112 at para 15, 92 DLR (4th) 762). [72] The Divorce Act also describes the objectives of spousal support as recognition of the economic advantages or disadvantagesarising from the marriage or its breakdown, apportionment between the spouses of financial consequences arising from the care of anychild of the marriage, relieving any economic hardship of the spouses arising from the breakdown of the marriage and insofar arepracticable, promoting the economic self-sufficiency of each spouse within a reasonable period of time (Divorce Act, s 15.2(6)).

No oneobjective prevails. Rather, they are contextually balanced. [73] In Bracklow v Bracklow, (SCC), [1999] 1 SCR 420 at para 37, 169 DLR (4th) 577, the Supreme Court ofCanada described the three bases for spousal support; compensatory, non-compensatory, and contractual. Contractual support is not atplay in this case.

[74] Ms. Zandbeek was a stay-at-home mother while Mr. Zandbeek worked at his business. Once Jenna started school, Ms.Zandbeek found part-time jobs cleaning and as a data entry clerk. After the separation, she continued with her cleaning jobs.

By piecingtogether several small jobs and combining that income with child support, she managed to make ends meet. [75] Compensatory support, premised on marriage being a joint endeavour seeks to alleviate economic disadvantage by taking intoaccount all the circumstances of the parties, including the advantages conferred on either spouse during the marriage (Corbeil v Corbeil,2001 ABCA 220 at para 29, (2001), 286 AR 330 (Alta CA). The question is not what Ms. Zandbeek would have achieved had she notentered the marriage but rather what her contribution to the marriage was and whether Mr.

Zandbeek was advantaged by it. Mr.Zandbeek was able to focus his energy on it while Ms. Zandbeek cared for hearth and home with his consent. Mr. Zandbeek derived abenefit from that. Ms. Zandbeek is entitled to support on a compensatory basis. [76] I need not review the parties’ budgets in great detail. Suffice to say that after deleting items that are properly a part of childsupport and her legal fees, Ms. Zandbeek’s stated needs exceed her income by a high of $2,450.00 to a low of $1,361.00 per month. Mr.Zandbeek’s stated monthly need is $5,956.00 per month. [77] From a needs assessment, Ms.

Zandbeek has managed to make ends meet by living economically and cutting out treats likedining out when money is especially tight. Mr. Zandbeek thinks that is good enough. The suggestion that Ms. Zandbeek had no unmetneeds is not an answer to her standard of living dropping as a result of the marriage breakdown. [78] Mr. Zandbeek also contends that Ms. Zandbeek could have earned more by working full time in the summer. Mr. Zandbeekneglects to reflect on his failure to help relieve the heavy child rearing burden borne by his ex-wife since the separation.

He also neglectsto appreciate his choices that negatively affected the parties’ financial health. [79] Mr. Zandbeek argues that he is financially strapped by the hefty costs of maintaining the matrimonial home and servicing theextensive debt load incurred during the marriage. Typically, if a supporting spouse has limited means there will be a reduction in whatthe recipient would otherwise be entitled to (Bracklow at para 53). This is not a typical case. [80] Mr. Zandbeek blames others for his troubles.

He blames his former lawyer for not having the child support payment changed.He blames his accountant for preparing incomprehensible tax returns. He blames his ex-wife for not stepping up to service debts. Theone person he does not put blame on is himself. [81] Mr. Zandbeek chose to stay in the matrimonial home for over four years despite that neither he nor his ex-wife could afford it.He lied in an Affidavit saying that he needed the Shop to support the children to ensure he could remain there. Clearly, Mr. Zandbeekwas not then using the Shop as a source of income. At no time did he volunteer the truth.

Inexplicably, Mr. Zandbeek chose to ignore thefiscal failings of clutching to a property that the parties could not afford to maintain. [82] In these circumstances it is just and reasonable to award retroactive spousal support and ongoing periodic sum.

The spousalsupport is the mid-range provided by the Spousal Support Advisory Guidelines. 2010 - $523.00 per month - total: $3,138.00 (July to December) 2011 - $372.00 per month - total: $4,464.00 2012 - $695.00 per month - total: $8,340.00 2013 - $411.00 per month - total: $4,932.00 2014 - $313.00 per month - total: $3,756.00 [83] To December 31, 2014 the total amount of spousal support owing is $24,630.00. [84] This was a mid-length marriage. Given that, a seven year term is reasonable. The support will therefore terminate on July 1,2017. As the parties accept their present incomes to continue, Mr.

Zandbeek’s obligation for 2015 remains at $313.00/month until it isrecalculated after exchange of financial information on or before June 30, 2015 and each year thereafter. [85] All amounts payable under this award are periodic payments that are tax deductible by the husband and taxable for the wife. [86] The parties are required to attend mediation before applying to vary ongoing spousal support. H. What Occupation Rent, if any, Should be Paid by Mr.

Zandbeek? [87] In light of the award for spousal support and adjustments for certain post-separation living liabilities addressed later, it isunnecessary to consider Ms. Zandbeek’s claim for occupancy rent. I. Should the Net Value of the Matrimonial Property be Divided Equally? [88] Alleging dissipation, Ms. Zandbeek seeks an unequal distribution of the parties’ matrimonial estate that would have Mr.Zandbeek bear sole responsibility for all of the ToddCo loans excepting the mortgage. Mr. Zandbeek wants an equal distribution of theproperty.

He also wants a $71,891.50 adjustment for half of the post-separation payments he made for the mortgage ($96,777.65), homeinsurance ($9,728.00), Shop and contents insurance ($26,424.00) and property tax ($10,854.00). [89] The Matrimonial Property Act, RSA 2000, c M-8 [the “MPA”] calls for the equal division of property (s 7) unlessconsideration of the factors described in s 8 make it unjust or inequitable. Importantly, the Court is only to deviate from an equal divisionof property in only the clearest of cases (Leblanc v Leblanc, (SCC), [1988] 1 SCR 217 at 222, 47 DLR (4th) 1; DRJ v

MJ , 2009 ABCA 272 at para 23 , 464 AR 16 (Alta CA) ). [ 90 ] The intention is that “net matrimonial property” is to be divided.

Accordingly, the Court must determine the assets, subtract the matrimonial debts and identify the net amount that is available for distribution ( Kazmierczak v Kazmierczak , 2003 ABCA 227 at para 58 , 17 Alta LR (4th) 205; Carmichael v Carmichael , 2007 ABCA 3 at para 21 , 404 AR 144; Busenius v Busenius , 2006 ABQB 162 ; Porochnavy v Scheie , 2014 ABQB 316 at para 3 ; Kretschmer v Terrigno , 2012 ABCA 345 at paras 20-21 , 539 AR 212, leave denied [2013] SCCA No 27). [ 91 ] What is just and equitable depends on how the factors described in s 8 of the MPA apply to the facts in each case.

The MPA does not accord priority or weight to those factors ( Mazurenko v Mazurenko , 1981 ABCA 104 at para 20 , 30 AR 34 (Alta CA), leave dismissed [1981] SCCA No 108. The factors relevant to this case are s 8(

l) regarding Mr. Zandbeek’s post-separation contributions to conserving property, s 8(

d) regarding alleged dissipation of property by Mr. Zandbeek and s 8(

m) which is a basket provision permitting the Court to consider any relevant fact or circumstance. [ 92 ] Before turning to a contextual application of these factors, I will first describe the parties’ agreements concerning excluded assets, the divisible assets and the parties’ liabilities. 1. The Exempt and Excluded Assets [ 93 ] The parties agree that: o Ms. Zandbeek is entitled to a $3,000.00 for pre-marriage RRSP holdings. o Mr.

Zandbeek is entitled to a $6,800.00 exemption for tools owned before the marriage. o RESPS and GIC’s held for the children’s benefit will be excluded from the matrimonial estate and that Ms. Zandbeek, who administers these investments, will not deal with them without Mr. Zandbeek’s consent. o Post-separation bank deposits will be excluded from property division. 2.

The Divisible Assets [ 94 ] The matrimonial assets available for distribution and their values are described below. o The matrimonial home valued at $450,000.00, of which $100,000.00 is attributable to improvements made with borrowed ToddCo money. o Lawn and garden equipment valued at $400.00. o Two vehicles ▪ Mr. Zandbeek’s 2008 truck valued at $12,000.00; and ▪ Ms. Zandbeek’s 2008 minivan valued at $8,500.00, which she bought using a pre-separation vehicle with a $5,000.00 trade-in value. o Ms. Zandbeek’s RRSP of $31,650.00 (after deduction of notional tax). o $15,781.00 in RBC accounts taken by Ms.

Zandbeek on separation. o Truck sold by Mr. Zandbeek post-separation for $14,500.00. o Skid steer valued at $14,000.00. o Shareholder equity in Golden Gate Homes, valued at $26,769.00. o Tools valued at $30,312.00. o The Theroux Build Account Receivable of $25,000.00. [ 95 ] The dispute concerning the valuation of Golden Gate Homes (a value of $80,936 by Ms. Zandbeek versus $7,386 by Mr. Zandbeek) is tied to the tool valuation. What can be gleaned from the limited evidence is that the company’s assets are comprised of tools and money on deposit. [ 96 ] In a sworn property statement made November 4, 2014, Mr.

Zandbeek valued the business at $57,111.00, which was said to include tools. In the company’s 2013 tax return, capital assets are listed as $50,000.00 and retained earnings as $26,769.00. Mr. Zandbeek contends that the $50,000.00 value must be ignored as it was a guesstimate designed to get a write-off for previously unclaimed tool acquisitions and that the real market value is $30,312.00. His evidence was unchallenged. [ 97 ] In argument, Mr. Zandbeek’s counsel explained that there is a mistake in the property statement.

The “real value” of the tools was added to the retained earnings per the tax return resulting in the $57,111.00 figure. Apart from that number being off by a small amount ($30.00) there is logic to the explanation. However, without input from a person qualified to explain the tax return, I cannot attribute a value of $7,386.00 for the retained earnings as urged by Mr. Zandbeek. The tax return lists $50,000.00 ascribed by Mr. Zandbeek for tools as one part of the corporate assets which total $65,330.00 and liabilities of $38,531, leaving $26,769.00 as retained earnings. That is the best evidence.

Accordingly, I fix the retained earnings at $26,769.00.

[ 98 ] Mr. Zandbeek made choices about how much he was prepared to do to further his cause in this litigation. He chose what documents to provide and what witnesses to call. This said it is not a one-way street. Ms. Zandbeek also made choices about what evidence to adduce and what evidence to challenge. [ 99 ] As to the tool valuation, I accept Mr.

Zandbeek’s uncontroverted evidence that the present market value is $30,312.00. [ 100 ] The parties’ pre-separation debts and what has been paid by who since separation are: o Mortgage on the matrimonial home (“Mortgage”) - $224,267.00 at separation; $184,759.00 at September, 2014 after payment of $96,777.65 by Mr. Zandbeek. o ToddCo Loan 13227 - $85,658.00 as at September, 2014, for which Mr. Zandbeek made interest payments of $32,595.00 at $615.00/month. o ToddCo Loan 13270 - $50,000.00 as at September, 2014 for which Mr.

Zandbeek made interest payments of $17,666.49 at $333.33/month. o ToddCo Loan 13283 - $126,213.00 as at September, 2014. (The indebtedness is comprised of $50,000.00 principal and $76,213.00 interest, the latter having increased by $55,863.72 since separation). o CIBC Visa debt - $14,283.00 paid by Mr. Zandbeek. o ATB MasterCard debt - $7,225.00 paid by Mr. Zandbeek. o RBC Visa debt - $65.00 paid by Mr. Zandbeek. o Canadian Tire MasterCard - $87.00 paid by Mr. Zandbeek. o ATB joint account overdraft - $3,105.00 paid by Mr.

Zandbeek. [ 101 ] A brief overview of the ToddCo loans referenced as Loans 13327, 13270 and 13283 (collectively the “ToddCo Loans”) is necessary. [ 102 ] Sometime in the early 2000’s ToddCo became Mr. Zandbeek’s personal financier. It loaned money for several houses built by Mr. Zandbeek that the parties lived in, always taking mortgage security. The matrimonial home was purchased in 2004 for $260,000.00 with 100% financing from ToddCo secured by the Mortgage. (The parties agree they should be equally responsible for Mortgage.) [ 103 ] ToddCo loans 1327 and 13270 were made to Mr.

Zandbeek personally, while loan 13283 was made to Golden Gate Inc. All are unsecured, supported only by a promissory note. [ 104 ] Loan 13227 is described by ToddCo as advances for the Shop and equipment purchases. The initial advance predates the Shop, dating back to December 2002 ($20,000.00) with several other advances in 2006 and 2007. The interest rate is 12% per annum. The only reduction to principal is by way of setoff for barter work valued at $63,440.99. Dale Jungwirth explained that the barter work was performed in 2006 but due to an accounting error was not recorded until October 2010.

I am satisfied from Mr. Jungwirth’s explanation that the delayed entry reflects a bartered “payment” for work performed prior to the separation. Otherwise, the loan has been serviced by interest only payments in the sum of $615.00/month. At the date of separation the indebtedness was $77,013.61 ($63,440.99/barter work + $13,572.62 per the loan statement). As at September 2014, the indebtedness stands at $85,658.00. [ 105 ] ToddCo describes Loan 13270 as an operating line of credit, which “although really part of Loan 13227 was tracked separately”. The $50,000.00 loan of 8% interest was advanced in July 2007.

Monthly payments of $333.33 have been made ever since to service interest alone. The total principal amount of $50,000.00 is outstanding. [ 106 ] Loan 13283 bears interest of 14.4% annually. The principal amount, $50,000.00 was advanced by three draws in the spring of 2008. No payments have been made on interest or principal. The indebtedness has ballooned to $126,213.21. Asked why he chose to pay interest on the lower interest loans, Mr. Zandbeek explained that he could get a tax benefit with this loan as it was to Golden Gate.

Here I note that there is no obvious reference in the corporate tax returns to this liability or any interest claimed against profit. [ 107 ] Ms. Zandbeek claims ignorance concerning the Loans and her ex-husband’s business dealings generally. Mr. Zandbeek says that she knew exactly what was happening. The truth, I find, lies somewhere in the middle. [ 108 ] Ms. Zandbeek paid all of the bills including the Visa used for business purchases. She also handled their joint account that was consistently overdrawn.

The records show that she typically paid bills immediately after a significant deposit was made to the joint account; sums of $15,000.00 dollars and more. This also happened in 2006 to 2007 when Mr. Zandbeek was not working. She knew that the Visa was being used to buy building supplies and, in the dying days of the marriage, tore it up to stop the practice. Ms. Zandbeek could also see what her husband was doing in the yard as he built the Shop. These facts lend credence to Mr. Zandbeek’s version of the events. I am not satisfied that Ms. Zandbeek knew about the promissory notes given by Mr.

Zandbeek or Golden Gate to support the Loans or perhaps the details of the interest charged. [ 109 ] I accept Messrs. Todd and Jungwirth’s evidence that there is no arrangement to forgive any portion of the indebtedness to ToddCo. Presumably, ToddCo is content to forgo enforcement in favour of watching its return on investment grow. I also accept that $95,000.00 advanced under one of the loans was “repaid” by Mr. Zandbeek doing renovation work for Mr. Todd in exchange for debt reduction and ToddCo funding the purchase of a $35,000.00 molder in accordance with arrangements made and recorded by Mr.

Jungwirth. [ 110 ] I will now apply the law to the facts as I have found them.

[111] Typically, the valuation of matrimonial property is the date of trial (Hodgson v Hodgson, 2005 ABCA 13 at paras 9-10, 361AR 190). An exception to this rule is where matrimonial assets are dissipated, the reasoning for which is that an earlier valuation datewill achieve a just and equitable distribution (De Winter v De Winter, 2013 ABCA 311 at para 31, leave refused [2013] SCCA No 457;Bauerfind v Bauerfind (1989), (AB KB), 94 AR 222, 19 RFL (3d) 375, (Alta QB)). [112] In Metz v Metz, 2004 ABQB 528 at para 37, 368 AR 35, Mahoney J described dissipation as this: Dissipation is another word for waste.

Merely disposing of property is not dissipation. It is well established that to show dissipation theremust be an element of bad faith or neglect. Foolish economic decisions, reckless or spiteful spending, pursuit of an illusory financialobjective or squandering money on addictions are all examples taken from Alberta cases. (See: Leonard Pollock, Q.C., “The Factors inSection 8(l)” in McLeod & Mamo, Matrimonial Property Law in Canada, (Toronto: Thomson-Carswell, 2004). [113] Cox v Cox, 1998 ABQB 987 at para 46, 233 AR 258 is often cited for Paperny J’s (as she then was) careful

summary of thelaw: 1. Section 7(4) creates a presumption of an equal distribution of non-exempt matrimonial property, unless it would not be just orequitable to do so.

Section 8(

l) provides one of the factors that can lead to an unequal distribution where one spouse dissipates assets to thedetriment of the other. 3. Dissipation does not necessarily result where an asset is worth less at trial than it was at separation. Dissipation requires a degreeof intent although that intent does not necessarily have to extend to intentionally depriving the other spouse of a fair distribution ofmatrimonial property. It is sufficient if one spouse intends to dissipate the assets (usually for their own enjoyment), and that dissipationarises in detriment to the other spouse. 4.

There must be actual detriment to the other spouse. 5. The law generally does not find dissipation if the reduction in assets was due to reasonable expenditures made on behalf of thefamily or to maintain existing matrimonial assets. However, the court will look to see if the spouse could have paid those expenses out ofincome rather than by depleting assets. Purely personal expenses which do not benefit the other party that are paid out of matrimonialproperty may also be considered dissipation (even though prior to separation they might … have been matrimonial expenses). 6.

If an asset is sold or otherwise reduced, the courts will not consider this dissipation if the proceeds can be traced to another asset.The replacement assets form part of the assets available for distribution. 7. If assets are sold for less than fair market value, the courts may determine whether the sale was done improvidently, hastily orfraudulently in deciding whether it was dissipation. If the sale is effected in accordance with pre-separation negotiations it may not beconsidered dissipation. 8.

The total amount actually dissipated "to the detriment" of the spouse is one-half of the amount by which the asset was reduced. 9. Ultimately it is in the discretion of the trial judge, based on the consideration of all the facts, to determine whether or notdissipation exists. [114] In Cox the alleged dissipation arose from improvident stock transactions, improper spending, and other business deals. JusticePaperny found an inordinate amount spent on gambling, traveling, dining, and on consumer goods to be dissipation.

In contrast, shefound the sale of an investment at a loss was not dissipation, mainly because the evidence failed to establish that the deal was donehastily. Money used to purchase a house and furniture was traceable and therefore not dissipated. Money from capital assets used to paychild support and taxes was dissipated since the payments ought to have been paid out of personal income.

Finally, the evidence wasinsufficient to conclude wilful dissipation of an asset in an importune and suspiciously timed shotgun share sale. [115] In Layden v Layden, [1996] AJ No 489 (QL), 63 ACWS (3d) 674, marital debt increased significantly and assets were lostlargely because of non-payment of interest after the parties separated. Their financial affairs were described as being “in reasonably goodshape at the date of separation, at least on a relative basis”. The wife had no control over the family assets during the separation.

Clark Jruled that the dissipation was due to the husband’s fault, neglect or mismanagement. [116] This case is not about ill-destined investments, extravagant or selfish spending as in Cox. It is about a pattern of borrowing thatdeveloped during the marriage to fuel a lifestyle. Ms. Zandbeek clearly derived a benefit from the Loans, including $100,000.00 that wasspent to increase the value of the matrimonial home.

Her choice to not press her ex-husband for their details does not relieve her ofresponsibility for their repayment. [117] One can readily envision scenarios where one spouse so intimidates or controls the other that engaging in a discussion aboutbusiness affairs would be unfathomable. Ms. Zandbeek presented as the opposite of this hypothetical spouse - a strong willed individualwho, although clearly annoyed with her ex-husband’s sometimes flippant answers to questions about his activities, does not present ashaving been dominated or intimidated by him. [118] But for Mr.

Zandbeek’s deceitful and reckless conduct, I would allocate responsibility for all marital debt equally. Support forthis proposition is found in Ross v Ross, 2007 ABQB 167 at para 85, 415 AR 119: With regard to division of matrimonial debts, the default position is that each spouse is equally responsible for all liabilities assumed bythe couple as a matrimonial unit. In most cases, how these liabilities were incurred and whether or not they were incurred in one spouse’sname or both is irrelevant. The result is that it will usually not be sufficient for one spouse to claim that because they took no

part in thefinancial decision from which the debt arose, they are not responsible for that liability. If a debt arises out of the marital compact, it will

not be attributed to one of the spouses standing alone unless there are circumstances that justify and necessitate doing so. [119] Mr. Zandbeek’s choices to commit the Perjury and withhold the $25,000.00 received on the Theroux Build for personalexpenditures (including paying child support) are game changers. His deliberate, reckless and deceitful conduct caused the parties’financial condition to worsen significantly. Ms. Zandbeek suffered a detriment. [120] In the summer of 2011, it ought to have been patently obvious to Mr. Zandbeek that he was on a sinking ship.

He could not paychild support or make ends meet without accessing capital and credit. He chose not to apply the $25,000.00 payment to the loanexpressly taken out for the Theroux Build, but rather allowed high-rate interest to pile up on it. [121] Mr. Zandbeek’s inexplicable need to clutch to the matrimonial home and Shop doubtless prompted his choice to commit thePerjury. It doubtless also prompted his choice to spend $6,000.00 a year on insurance for the Shop which was then nothing more than aglorified storage shed.

While there is no evidence to suggest that his choices were prompted by spite or malice, they were neverthelessbewildering, unreasonable and recklessly irresponsible. This is an exceptional situation that justifies an unequal distribution of thematrimonial debt and post-separation costs relating to the maintenance of the matrimonial home. [122] The most practical way to address dissipation arising from the Perjury is to terminate Ms.

Zandbeek’s liability for the ToddCoLoans and the costs relating to maintenance of the matrimonial home effective September 1, 2011 since, absent the Perjury, thematrimonial home would likely have then been listed for sale (and proceeds subsequently been available to pay the Loans). [123] According to the ToddCo statements, the total Loan indebtedness at September 1, 2011 is $210,150.22 comprised of: • Loan 13283 - $82,149.77 • Loan 13270 - $50,000 • Loan 13227 - $78,000.45 (which reflects the 2006 barter setoff) The parties will equally share this indebtedness, which is $210,150.22 ($105,075.11 each). Mr.

Zandbeek is solely responsible for thebalance due. [124] The parties will bear equal responsibility for post-separation interest payments of $12,328.29 ($333.33 + $615.00 x 13) on loans13277 and 13270 until September, 2011 ($6,164.45 each). Mr. Zandbeek is solely responsible for the balance of the interest paymentsmade by him. [125] Having agreed to share responsibility for the Mortgage, the remaining issue concerning post-separation costs is the$886.90/month paid for home and Shop insurance and property taxes.

The parties will also bear equal responsibility for these costs toSeptember 2011 which totals $11,529.70 ($5,764.85 each). Mr. Zandbeek is solely responsible for the balance of the costs. [126] Payment of child support by depleting capital assets can constitute dissipation (Cox at para 57; Reid v Reid (1993), (AB KB), 99 DLR (4th) 722, 37 ACWS (3d) 1250 (Alta QB)). Mr. Zandbeek admitted to using some of the $25,000.00 TherouxBuild receivable to fund child support. The evidence is, however, vague. He was not questioned on how much was used for thatpurpose. It was left hanging.

The Court cannot speculate and presume a figure. As it is unsafe to attribute anything more than onemonths’ support to dissipation, I find that $1,500.00 was dissipated in this fashion. [127] The final issue is Mr. Zandbeek’s bid to keep the tools worth $545.00 that he bought after the separation for himself. Section8(

f) permits the Court to consider assets acquired after separation. Mr. Zandbeek can have his tools. [128] A

schedule is attached setting out the assets, liabilities and resulting equalization calculation. VI. Cost [129] If necessary, the parties may speak to costs within 60 days of these Reasons. Heard on the 19th day of November, 2014. Dated at the City of Edmonton, Alberta this 8th day of December, 2014.

J.E. Topolniski J.C.Q.B.A. Appearances: Richard D. Smith Stillman LLP for Ms. Zandbeek Mark Demas Duncan & Craig LLP for Mr. Zandbeek

Schedule A STATEMENT OF PROPERTY DISTRIBUTION 4 Dec 14 ASSETS EX-HUSBAND EX-WIFE TOTAL Matrimonial Home 450,000.00 450,000.00 2008 Chevrolet 12,000.00 12,000.00 Golden Gate Homes Inc 26,798.00 26,798.00 2008 Dodge Caravan 8,500.00 8,500.00 RRSP (adjusted for tax) 31,650.00 31,650.00 Truck Sale Proceeds 14,500.00 14,500.00 Skid Steer 14,000.00 14,000.00 Tools (less $545 per s. 8(f) 29,737.00 29,737.00 RBC Account 15,781.00 15,781.00 Theroux Build Receivable 25,000.00 25,000.00 Lawn Tractor and Tiller 400.00 400.00 TOTAL ASSETS: 572,435.00 55,931.00 628,366.00 LIABILITIES EX-HUSBAND EX-WIFE TOTAL Mortgage 184,759.00 184,759.00 Indebtedness for Loans to Sept/11 210,150.22 210,150.22 Mortgage payments to trial 96,777.66 96,777.66 Home/Shop Insurance and Property Tax to Sept/11 11,529.70 11,529.70 Interest on Loans to Sept/11 12,328.30 12,328.30 CIBC Visa 14,283.00 14,283.00 ATB Mastercard 7,225.00 7,225.00 RBC Visa 65.00 65.00 Canadian Tire Mastercard 87.00 87.00 ATB Overdraft 3,105.00 3,105.00 TOTAL LIABILITIES: 540,309.88 0.00 540,309.88 TOTAL ASSETS LESS LIABILITIES: 32,125.12 55,931.00 88,056.12 EXEMPTIONS EX-HUSBAND EX-WIFE TOTAL Tools 6,800.00 6,800.00 RRSP 3,000.00 3,000.00 TOTAL EXEMPTIONS: 6,800.00 3,000.00 9,800.00 TOTAL ASSETS LESS LIABILITIES & EXEMPTIONS: 25,325.12 52,931.00 78,256.12 EQUALIZATION PAYMENT: 13,802.94 -13,802.94 EACH PARTY TO RECEIVE: 39,128.06 39,128.06 78,256.12

END POSITION EX-HUSBAND EX-WIFE Indebtedness for the Loans post Sept/11 -51,720.99 Spousal Support Arrears -24,630.00 24,630.00 Child Support Over Payment 3,710.00 -3,710.00 Dissipation of Theroux Build Receivable by funding child support -1,500.00 1,500.00 -74,140.99 22,420.00 PROPERTY EQUALIZATION: 13,802.94 -13,802.94 TOTAL -60,338.05 8,617.06