Desreux v Desreux, 2015 ABQB 739

Court of Queen ’ s Bench of Alberta Citation: Desreux v Desreux, 2015 ABQB 739 Date: 20151123 Docket: 4801 154279 Registry: Calgary Between: Florimond Joseph Desreux Plaintiff - and - Dawn Marie Desreux also known as Dawn Marie Frizzell Defendant Corrected judgment: A corrigendum was issued on November 23, 2015; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.S.

Anderson _______________________________________________________ [ 1 ] This action arises out of the dissolution of a seventeen year marriage. [ 2 ] The issues in dispute relate to the division of matrimonial debt and whether spousal support is payable (and if so, how much).

Background [ 3 ] The parties commenced co-habitation in 1993 and married in July of 1995. They separated in June 2012. There are two children of the marriage: MJD, born in 1998; and CWD, born in 2003. [ 4 ] Dawn Marie Frizzell (referred to herein as either mother or wife) and Florimond Joseph Desreux, (referred to herein as the father or husband) were married when they were relatively young, in their early to mid 20’s. At the time of cohabitation, the mother was attending Mount Royal College (social work program) as well as working part-time.

Upon completion at Mount Royal College, she attended the University of Calgary and obtained her social work degree in 1996. In 1997, the wife commenced full time employment with Calgary Child and Family Services. [ 5 ] The husband attended SAIT to become an EMT (in 1998) and continued to work full time. In 1999, the parties moved to Prince Edward Island where the wife’s mother resided and could provide support.

The wife began full time employment with Child and Family Services, Charlottetown, PEI and the husband began employment as an EMT in PEI. [ 6 ] In PEI, the parties purchased the wife’s family’s home at some price below market value (there was no evidence before me as the amount of the reduction). [ 7 ] In 2003, the husband began his Bachelor of Science degree at the University of Prince Edward Island.

During that time he continued to work full-time as an EMT and the wife continued to work with Child and Family Services in PEI. [ 8 ] After the husband’s third year and then fourth year of his Bachelor’s degree (that he completed in 2008), he applied to medical school in Canada, but unfortunately was not accepted. [ 9 ] The parties then decided to move to Saba Island in the Caribbean, where the husband was accepted into medical school.

The wife obtained a leave of absence from her employment of approximately 20 months (the length of time that the husband was initially scheduled to complete medical school). [ 10 ] Prior to departing for the Caribbean, the parties sold their home for a profit or gain of $28,000.00 and at the end of 2008, the family moved to the Caribbean. The sale proceeds were used to finance the parties’ move and lifestyle in the Caribbean. [ 11 ] The parties’ problems began with the move to the Caribbean.

MJD, the oldest child, who suffers from mental illness and learning challenges (and in 2004 was diagnosed with Tourette’s Complex, which includes anxiety and OCD), did not do well in the Caribbean school system. The school in which he was initially placed used corporal punishment, which did not work well with MJD. [ 12 ] The other significant problem that the parties encountered was the exorbitant cost of living in the Caribbean including the cost of tuition. Neither party had paid employment.

The parties obtained a $120,000.00 line of credit from the RBC to finance their lifestyle and cost of medical school. [ 13 ] In June 2009, the wife and children returned to PEI for the summer as MJD needed medical treatment. [ 14 ] By the fall 2009, the parties decided to transfer to a bigger island, Nevis. The husband transferred to the Nevis Island medical school (for academic reasons, he was required to repeat another semester) and both children were enrolled in a private school.

MJD did not do well at the private school either and the parties then sent him to another school, this time in Saint Kitts. [ 15 ] The high cost of living in the Caribbean resulted in the parties amassing a large amount of debt. In addition to the RBC line of credit, in 2009, the husband’s sister began loaning the parties approximately $5000 per month. At the time of trial, this loan was $195,747. [ 16 ] In August 2010, the wife returned to PEI (with the two children) to her employment with Child and Family Services. MJD continued to have significant problems.

The husband returned to PEI in April 2011 and wrote his US medical exams. [ 17 ] MJD’s troubles continued in PEI. To his Grandmother, he threatened suicide. The parties then decided that the husband would move to Oklahoma City (where he was accepted to do a rotation) and the wife would move to Calgary, a city that provided better treatment and support for MJD. The wife resigned from her permanent employment in PEI and cashed in her pension. [ 18 ] By the fall of 2011, MJD required significant treatment.

He was placed in a psychiatric ward at the Alberta Children’s Hospital for seven weeks followed by approximately two months in a residential treatment centre. The wife testified that she begged her husband to return to Calgary: to help her and to visit MJD. She begged him to quit medical school. He refused, in part, no doubt, because he had invested, by that time, so much in becoming a physician. [ 19 ] At Christmas 2011, the parties attended marriage counselling. After Christmas, the husband returned to Oklahoma City. The wife continued to cope with MJD.

When his rotation in Oklahoma City was finished, in May 2012, the father returned to Calgary. By then however the marriage was over. [ 20 ] The parties separated in June 2012. [ 21 ] The wife concedes and I so find that initially she supported her husband becoming a physician. Her husband’s sister was a physician as was his brother-in-law. It was the husband’s dream to become a physician. The wife acknowledged that she would have benefitted as well from her husband becoming a physician.

[ 22 ] The wife testified and I accept that at the time the husband completed his Bachelor of Science, the parties, while living in PEI, were getting ahead financially. The husband was making approximately$65,000.00 a year as a teacher at Holland College and the wife was making approximately $60,000.00 as a social worker. They were living in her family home which they had purchased and they had also purchased a boat. [ 23 ] Prior to leaving for the Caribbean, the wife had applied for a Master’s program in Social Work at Memorial University.

She was accepted and her acceptance letter was entered at trial as an exhibit as well as the deferral letter she received when the parties decided to move to the Caribbean. The wife had hoped to work on her Master’s degree while in the Caribbean, but that did not happen for a number of reasons, including the difficulty she had with MJD. I accept the wife’s evidence that a Master’s degree in Social Work would have allowed her to work in private practice, which had the potential to greatly increase her income.

She led evidence that she could earn with a Master’s degree approximately $160,000. [ 24 ] After the separation, the father moved to Edmonton, PEI, then Ottawa for his residency program. MJD went with him to PEI and Ottawa. The wife continued to work in Calgary. At the end of 2013, the wife returned to PEI and began working again with Child and Family Services.

MJD then moved back with the mother to PEI. [ 25 ] Although perhaps not relevant to the outcome of these proceedings, it is noteworthy (in part because it is so unusual to witness) that both the husband and wife were very respectful and courteous to each other during this trial. The wife, who was self- represented, cross examined the husband and both displayed incredible respect and professionalism throughout.

No doubt there are some hard feelings between the parties, but one wonders what would have become of this kind, respectful, hardworking, and ambitious couple if they had not had the pressure from a large mounting debt load and a son which special and high needs. Jurisdiction [ 26 ] At the time of separation the parties were ordinarily resident in Alberta and had been for one year prior to the commencement of these proceedings. Both parties agree that Alberta is the correct jurisdiction to hear this action.

Custody, Access and Spousal Support [ 27 ] There is no issue with respect to custody or access. [ 28 ] Both children reside with their mother in Cornwall, Prince Edward Island. The father resides in Ottawa. [ 29 ] The parties seek a final Order regarding joint custody of the children; primary care to the mother with liberal and general access to the father. The father has been paying child support in accordance with the Guidelines and shall continue to do so.

As this is not in dispute, there will be an Order to that effect without further discussion. [ 30 ] With regard to retroactive child support and disability tax credits, I accept that the father did not receive child support while MJD lived with him. The amounts owing between the parties are negligible. No amounts shall be owing for retroactive child support. [ 31 ] There was an issue with regard to

section 7 expenses. MJD needs counselling and greater treatment however at this stage neither party can afford to pay for private services. Given the parties’ limited resources, both parties must agree in advance to any

section 7 expenses being incurred for the children and such expenses will be divided proportionately between the parties. Spousal Support [ 32 ] The wife is seeking spousal support on the basis that she has been economically disadvantaged because of the marriage and its breakdown. [ 33 ] The husband argues that the wife is not entitled to spousal support. He argues that she is economically self-sufficient and that at the date of trial, the wife earns a higher income than the husband. [ 34 ] I find that the wife has been economically disadvantaged because of the marriage and its breakdown.

I rely upon the evidence at trial, including the following: • This was a long term relationship with two children; • The wife sacrificed her own career advancements for the purposes of supporting her husband’s education and career and for the purposes of seeking treatment and support for the parties’ son with special needs; • The wife did not pursue her Master’s Degree, which I find she intended to do, which would have significantly increased her earning potential; • The wife continues with Child and Family Services; but lost her seniority by moving to Calgary, the reasons for which were discussed above; • The wife cashed out her pension with Child and Family Services, the proceeds of which were used to support the family’s lifestyle; and • The wife sold her family home (which was purchased at some price below market value) and the proceeds were used by the family to live in the Caribbean. [ 35 ] As a result, I find that the wife is entitled to spousal support. [ 36 ] At the time of trial, the wife’s annual income (line 150 for 2014) was $72,105.

The husband’s income is approximately

$64,000 and not likely to increase substantially until he completes his residency in 2018. Both parties submitted a budget and neither is extravagant by any means. I accept the husband’s evidence that he is only able to stay above water financially, including making his child support payments and servicing the interest on the debt, because he lives with his girlfriend and she subsidizes his modest lifestyle.

He currently pays $940 monthly to service the interest on the parties’ debt. [ 37 ] The husband’s counsel argues that in accordance with Hodgson v Hodgson , 2005 ABCA 13 , I can only look at the husband’s income at the date of trial, not his future income. It was thus argued that in considering spousal support at trial, I can only consider the husband’s current income as a third year medical resident, which is less than the wife’s income.

As a result, regardless of entitlement, no spousal support should be payable. [ 38 ] The husband’s potential income earning capacity at the date of trial, although the future amount is currently unknown, is significantly higher than his income at the date of trial. The wife has set out potential income amounts and asks that I order spousal support based upon a potential future income. The wife seeks closure.

However, the husband future income is unknown (and there is a broad range, depending on where he works). [ 39 ] The wife’s future income (although currently capped) could increase significantly: she has expressed a continuing desire to pursue a Master’s degree which would significantly increase her earning potential. [ 40 ] The parties likely have many years yet in the workforce: the husband is 42 years of age, the wife is 44. [ 41 ] While I find that the wife is entitled to spousal support, because, at this time, the wife earns more than the husband, I am not ordering any spousal support payable.

I am reserving the amount of spousal support to a review to take place in September 2018, after the husband has completed his education and residency.

Division of Matrimonial Property [ 42 ] There are no matrimonial assets to divide between the parties. [ 43 ] The following debts are at issue in this trial: • Line of Credit with TD ($35,487) (sent to collections) • Line of Credit with RBC ($129,966) • Loan from the husband’s sister ($195,747) • Husband’s Student loan (Federal and Provincial) ($51,560 + $16,665) • Joint Credit Card with RBC ($10,069) [ 44 ] The wife admits that the debt is matrimonial debt but argues that it should not be divided equally.

The wife submits that the husband should bear the responsibility for all or most of the debts because these debts were incurred so that the husband could obtain a medical degree, a very valuable asset, from which the wife now will not benefit. [ 45 ] The wife does not take issue with the amounts owing to the husband’s sister. The wife agrees that the debt was used to fund a lifestyle that both parties enjoyed and consented to (see Ros v Ros

(2007) ABQB 167). [ 46 ] The husband submits that the debt should be divided equally between the parties because the debt supported a lifestyle that both enjoyed and agreed to and as at the date of trial, the parties enjoy a similar level of income. [ 47 ]

Section 8 of the Matrimonial Property Act sets out the factors that I can consider in distributing property, including the father’s earning capacity. Counsel for the father argued that I can only consider the father’s earning capacity, at the date of trial, in accordance with the reasoning in Hodgson . This argument confuses, however, the father’s income with his earning capacity.

Section 8 distinguishes between the two. The father’s earning capacity as of the date of trial (where he is 2-3 years from being an anesthetist) is significant (as opposed to his current income as a resident). [ 48 ] I cannot accept the husband’s argument that I should neither award spousal support nor divide the debt unequally because his income is less than the wife’s at the date of trial.

This would not recognize his potential earning capacity and it would fail to recognize the wife’s contributions to and disadvantages from the marriage. [ 49 ] The husband’s counsel alternatively argues that any unequal division of matrimonial debt should offset spousal support: the wife’s spousal support claims hinges on how this debt is divided. I agree that an unequal division of the matrimonial debt will impact the amount of spousal support. [ 50 ] The husband has been making the interest payments on the joint credit card and the joint lines of credit.

Interest or payments are not due on his student loans or to his sister until he completes his residency in 2018. The husband proposes, as an alternative to an equal division of matrimonial debt, that responsibility for the TD line of credit (~$35,000), the debt to the sister (~$197,000) and a portion of the RBC line of credit (~$130,000) be apportioned to him.

The wife would then take responsibility for the RBC credit card ($10,000) and a portion of the RBC line of credit. [ 51 ] Neither party wants to declare bankruptcy. [ 52 ] An issue with apportioning the debt between the parties is that regardless of any order I make, the parties will remain jointly liable to RBC and TD for the two lines of credit and the credit card. If either defaulted or went bankrupt, the banks would look to the other for payment, regardless of any order I grant.

[ 53 ] Similarly, I must assume that the full amount of the debt owing to the sister (including interest) is due and will be paid at some time after the husband completes his residency in 2018. I did not hear argument on this, however, I note that the loan agreement is only between the husband and the sister’s professional corporation. The wife did not sign the loan agreement.

Further, $28,441 of the debt was incurred after the parties separated. [ 54 ] I acknowledge that the wife wants disclosure but there are too many unknowns for this court to make an order that would be just and equitable in the circumstances. I strongly recommend that the parties seek financial advice regarding this debt. [ 55 ] Until this matter can be reviewed in 2018, and assuming both parties remain liable for their debt, the parties shall take equal responsibility for the interest payment of the RBC line of credit.

The wife shall be responsible for payment of the credit card ($10,069) and the husband, the TD line of credit ($35,000). An order regarding the division of the matrimonial debt will be addressed in 2018, as an unequal division will impact the amount of future spousal support granted. [ 56 ] The parties are to appear before me in September 2018 or sometime thereafter at which time I will hear further evidence regarding the parties’ income, debt and financial circumstances at that time. Heard on the 21 st day and 22 nd day of September, 2015. Dated at the City of Calgary, Alberta this 10 th day of November, 2015.

C.S. Anderson J.C.Q.B.A. Appearances: Enrique Dubon-Roberts of Matkovic Allan LLP Counsel for the Plaintiff Dawn Marie Desreux also known as Dawn Marie Frizzell Self-Represented Litigant Defendant _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice C.S. Anderson _______________________________________________________

Style of Cause was changed to show the Plaintiff as “Florimond Joseph Desreux” as well as Florimond’s name in para 4. Para 2 removed text “in this action are the division of matrimonial debt and the issue of whether or not spousal support is payable” and replaced it with “relate to the division of matrimonial debt and whether spousal support is payable (and if so, how much). Took para 3 out completely. Para 3 removed the month and date of each child’s birthday and removed the names of the children and replaced them with initials. Para 4 The parties commenced co-habitation in “1992” was changed to “1993”.

Para 45, line 3 bolded and italicized case name “ Ros v Ros ”. P 7, under appearances, Mr. Desreux is represented by Counsel, Mr. Enrique Dubon-Roberts of Matkovic Allan LLP.