Doege v Doege, 2015 ABQB 802

Court of Queen ’ s Bench of Alberta Citation: Doege v Doege, 2015 ABQB 802 Date: 20151216 Docket: 4803 132775 Registry: Edmonton Between: Audrey Ann Doege Plaintiff - and - Lawrie Allan Leo Doege Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ Introduction

[ 1 ] The Plaintiff, Audrey Ann Doege, (“Audrey” or “Mrs. Doege”), and the Defendant, Lawrie Allan Leo Doege, (“Lawrie” or “Mr. Doege”), were married on August 31, 1974, and separated on August 23, 2001. Mrs. Doege filed a Statement of Claim for divorce and corollary relief in 2004, and Mr. Doege has filed a Statement of Defence and Counterclaim. The trial of this matter started in August of 2014. [ 2 ] The divorce was severed from the corollary relief matters during trial. Therefore, this judgment concerns: (

a) the division of matrimonial property, (

b) spousal support, both retroactive and ongoing, and (

c) retroactive child support. Background Facts The Marriage [ 3 ] The parties met when Mrs. Doege was 16, and Mr. Doege was 24. They married shortly thereafter in Saskatchewan in 1974, when Mrs. Doege was 17. Mrs. Doege had not completed high school, and Mr. Doege had been working in the oil field and as a carpenter. [ 4 ] The parties had four children born between 1977 and 1985: Jennifer, Jason, Gary and Tammy. Throughout the marriage, Mrs. Doege largely took on the role of mother and housewife while Mr. Doege, who acquired his provincial certification as a carpenter, built up his construction business. Mr.

Doege never incorporated, but operated his carpentry business under the trade-name Doege Construction. As the children grew older, Mrs. Doege became more active within Doege Construction, doing odd jobs for the business, including painting, as well as doing the business’ bookkeeping. [ 5 ] Early in their marriage, Mr. Doege and Mrs. Doege moved throughout western Canada, building or renovating houses and selling them, until finally moving to Alberta to start a cattle operation in 1995.

The parties purchased a ranch in Wildwood, Alberta for $136,000 which included an 1100 square foot house. [ 6 ] Throughout the years, the Doeges renovated the matrimonial home, and added a number of out buildings to the farmland. According to an appraisal done in 2014, the property is now worth approximately $450,000. The Marriage Breakdown [ 7 ] Nearing the end of the 1990’s, the parties experienced some marital problems. They held a farm auction in 1999 to dispose of some equipment and began separating their assets. They then officially separated in August of 2001 and Mr.

Doege moved out of the matrimonial home. The Doege’s then held a second farm auction in September of that year. They used the proceeds from both auctions to pay off matrimonial debt, and then divided the remainder equally. Out of his share, Mr. Doege paid Mrs. Doege for half the value of two work trucks, concrete forms and a trailer hitch that he took with him when he moved out. [ 8 ] At the time of separation, the parties also divided their interests in Doege Construction, and closed the joint account associated with that business. Circumstances after separation A. Mr. Doege [ 9 ] After separation, Mr.

Doege moved into a motor home located on the matrimonial farm with his new partner, Ms. Joanne Lagace. In 2002, Ms. Lagace cashed in a portion of her RRSP to purchase a lot in Lobstick, Alberta. Mr. Doege then renovated a shack that was already on that property (“Lobstick #1”), and he and Ms. Lagace moved in shortly thereafter. The property was purchased solely in Ms. Lagace’s name and it was sold in 2012. [ 10 ] In 2003 the Doeges’ matrimonial home was destroyed by a chimney fire. The insurance company hired Mr. Doege to do the reconstruction.

It was at this time that he began working under a second trade name, D7 Construction. For his share of the contents of the matrimonial home, Mr. Doege received $6,738.86, after signing a statutory declaration waiving his right to claim any of the other contents for insurance purposes. [ 11 ] Ms. Lagace purchased a second lot in Lobstick in 2007 (“Lobstick #2”). She mortgaged the property in order to purchase building materials for Mr. Doege to build a cabin. That property was purchased in Ms. Lagace’s name only. Mr. Doege was added to the title prior to its sale in 2012. [ 12 ] In 2011, Mr. Doege and Ms.

Lagace purchased a property in Maricopa, Arizona. In 2012, after the sale of Lobstick #2, the two purchased an empty lot in Evansburg for $47,000. They took out a joint line of credit to finance the building of a house on that property, which is not yet completed. [ 13 ] In 2012, the parties also purchased a cabin on Laclu, Ontario. It was sold in 2014, and the net sale proceeds were used to purchase a house for the two in Ontario.

[ 14 ] Mr. Doege continued his work as a carpenter after separation. From 2001 until 2013, his gross business income has averaged around $166,000 per year, maxing out at $530,994 in 2003. With the exception of one or two years, Mr. Doege and Ms. Lagace have spent a portion of each winter in Arizona since 2001. [ 15 ] In 2007, Mr. Doege had two heart attacks, which reduced his ability to do the physical work for the construction business. However, he was still able to supervise his labourers and do the planning for each contract. He now has contracted COPD and other respiratory difficulties.

He testified that the labourers he normally hires, his nephew and his son, have not been able to work due to drug addiction, and therefore that he has not been able to acquire any new contracts since October of 2014. His 2014 Notice of Assessment states that his net income is approximately $7,089. B. Mrs. Doege [ 16 ] After the separation, Mrs. Doege remained on the farm and has continued to maintain it. Mr. Doege paid half of the property taxes and insurance in 2002 and early in 2003 but never contributed to any mortgage payments for the matrimonial home after his moving out. Since 2003, Mrs.

Doege has made all required payments to the matrimonial farm including mortgage payments, taxes, utilities and insurance. At separation, the mortgage on the matrimonial farm was $116,704. As of March, 2015, the remaining principal balance on that mortgage is $56,403.74. [ 17 ] In September of 2002, Mr. Adelard Roberge began living with Mrs. Doege as a boarder in the matrimonial home. From 2002 until 2005 Mr. Roberge did not pay monetary rent for his accommodation but apparently paid by work in kind on the matrimonial farm. From 2005 until the present, Mr. Roberge has paid monthly rent to Mrs.

Doege for his accommodations, the amount ranging from $600 to $1600. [ 18 ] After the house fire in 2003, the insurance company paid Mrs. Doege $107,245.23 to replace the contents of the house. She testified that $11,000 of that money went towards replacing items belonging to Tammy and Gary, who periodically lived with her at that time. She also assisted Mr. Doege with the re-construction of the matrimonial house and was paid for her labour. [ 19 ] In addition to rental income from Mr. Roberge, Mrs. Doege has received rental income from other tenants.

She has also earned money by renting her pasture, and selling hay bales. Her annual income from farming has averaged $18,391 since 2001. Between 2009 and 2013, she claimed approximately $15,000 per year in rental income. [ 20 ] Mr. Doege has not paid Mrs. Doege any spousal support but made some support payments directly to Tammy immediately following separation. [ 21 ] In 2004, Mrs. Doege filed a Statement of Claim seeking retroactive and ongoing spousal support, retroactive child support, a division of property, and a divorce.

As stated above, I granted leave to the parties to apply for a desk divorce during the course of trial, which has since been granted. Positions of the parties Mrs. Doege [ 22 ] Mrs. Doege submits that all matrimonial property, including the property acquired by Mr. Doege and Ms. Lagace after separation, is subject to equal division. She therefore proposes that it is just and equitable to grant her sole title to the matrimonial home, and then divide Mr. Doege’s remaining after acquired property on a 60-40 basis: 60% to Mr. Doege and 40% to Mrs. Doege. Mrs.

Doege further submits that she is also entitled to a 50% share of all other property which Mr. Doege acquired since separation. [ 23 ] Mrs. Doege also claims retroactive and continuing spousal support on compensatory and non-compensatory grounds. Mrs. Doege argues that the length of the marriage and her role as a caregiver deprived her of the benefit of upgrading her education and bettering her employability. [ 24 ] Mrs. Doege argues that she attempted to mitigate her position since separation and become self-sufficient by selling hay bales, renting her pasture, and renting her home to earn income.

Aside from that, she submits that she had to move money from credit card to credit card, and loan money from Mr. Roberge in order to survive. [ 25 ] In order to calculate spousal support, Mrs. Doege asks this Court to impute Mr. Doege’s income at $200,000 per year. Based on that calculation, she argues that she is entitled to $8,209 per month since the time of separation, for a total award (until the end of 2015) of $1,411,938. She also submits that ongoing spousal support payments for the same monthly amount are justified. [ 26 ] Mrs. Doege further maintains that Mr.

Doege owes retroactive child support for a total of 21 months, representing the period after separation when their only remaining child of the marriage, Tammy, lived on the matrimonial farm. Mrs. Doege calculated the amount owing to be $26,891. Mr. Doege [ 27 ] Mr. Doege argues for a 50-50 distribution of the matrimonial property. He concedes that Mrs. Doege should get credit for 50% of the value of the principal reduction on the mortgage from the date of separation to the date of trial. However, he contests Mrs. Doege’s claim to a share in any property he and Ms. Lagace acquired after separation. Mr.

Doege argues that the real properties were financed by Ms. Lagace, and therefore were not fruit of the Doege marriage tree. For this reason, Mrs. Doege has had no tie to any of these after acquired properties.

[28] Mr. Doege argues that the parties wanted a clean break at the time of separation, and therefore it would be unjust andinequitable to award Mrs. Doege any share of these properties. [29] Mr. Doege further submits that he does not owe retroactive or ongoing spousal support. He submits that the marriage did notimpair Mrs. Doege’s economic prospects, but that in fact, she prospered from the marriage. Further, he submits that he is in very poormedical health, and that he is currently unable to work, and therefore has a limited ability to pay. [30] Because Mrs.

Doege retained use of the matrimonial home, received half of the farm auction proceeds, and left the marriagedebt free, Mr. Doege contends that she was not economically disadvantaged from the breakdown of the marriage. He submits that shehas been able to sustain her lifestyle without any assistance from him, and has significantly delayed in her application for spousalsupport, each of which makes any retroactive award unfair. If the Court does find that retroactive spousal support should be ordered, hesubmits that he has a set-off claim for occupation and actual rent received by Mrs.

Doege during her time of exclusive occupation of themarital home. [31] Finally, Mr. Doege contests any retroactive child support award. He submits that Mrs. Doege’s application is time-barred, asit was brought well past the time when Tammy ceased to be a child of the marriage: DBS v SRG; LJW v TAR; Henry v Henry;Hiemstra v Hiemstra, [2006] 2 SCR 231, 2006 SCC 37 [DBS]. Analysis A. Witness Testimony [32] Five witnesses testified during this trial: Mrs. Doege, Mr.

Doege, Adelard Roberge, Walter Gatzke, and Marvin Doege. [33] Rather than recount all of the evidence given by each of these witnesses at trial, I will instead provide my impressions of eachof them generally – providing specific details as appropriate. [34] Evaluating witness credibility requires the consideration of many factors. Estey J noted some of the things that are taken intoaccount in the credibility assessment in White v The King, (SCC), [1947] SCR 268 at 272: …It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration.

The generalintegrity and intelligence of the witness, his powers to observe, his capacity to remember and his accuracy in statement are important. Itis also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he isbiased, reticent and evasive. All these questions and others may be answered from the observation of the witness’ general conduct anddemeanour in determining the question of credibility. Lawrie Doege [35] I find the testimony of Mr. Doege to be both credible and reliable.

He was forthcoming with his testimony and presented aneven account of both the parties’ relationship, and his activities since separation. Audrey Doege [36] I find the testimony of Mrs. Doege to have certain short-comings. With respect to credibility, Mrs. Doege seemed somewhatevasive at times. For example, she refused to admit that she and Mr. Roberge had both taken the cattle to the Edmonton Stock Yards in2001, despite the fact that Mr. Roberge admitted that they did: Trial Transcript, October 2, 2014, p 36. [37] Mrs.

Doege changed her testimony with respect to the proceeds of that sale; testifying in her initial cross examination that shedid not know what happened to the proceeds, and then in her rebuttal evidence that the proceeds had been split equally and used to paybills: Trial Transcript, September 30, 2014, p 114, ll 38-41; p 115, l 1, and August 19, 2015, p 40, ll 5-8. [38] Finally, I find that Mrs. Doege often over emphasized feeling as though she was wronged by Mr. Doege both during themarriage and since separation. In that regard, her evidence was unreliable due to its one-sided nature.

She remained focused on thenegative aspects of her relationship with Mr. Doege, and refused to admit that he had contributed financially after the dissolution of themarriage. Adelard Roberge [39] I find the testimony of Mr. Roberge to be both credible and reliable. He was forthcoming in his evidence, and came across ashonest and believable. His testimony did not reveal any bias toward one side or the other. Walter Gatzke [40] Walter Gatzke was called by the defence to support the assertion that Mr. Roberge and Mrs. Doege were now in a commonlaw relationship. I find that his testimony was credible.

However, with respect to reliability, I find that his testimony tended to includespeculation about the relationship that was based on his own personal assumptions. For example, Mr. Gatzke testified that witnessing

Mr. Roberge’s truck driving down the road between the Doege farm and Mr. Gatzke’s house meant that Mr. Roberge had moved in with Mrs. Doege as early as 2001: Trial Transcript, October 2, 2014, p 55, ll 33-39. [ 41 ] Therefore, I find that his evidence does not discredit any of Mr. Roberge’s evidence, and where there is a conflict, I accept the testimony of Mr. Roberge. Marvin Doege [ 42 ] I find that Marvin Doege was both credible and reliable, except with respect to his speculative assertions about the relationship between Mr. Roberge and Mrs. Doege.

For example, he once referred to them as “man and wife”: Trial Transcript, October 2, 2014, p 77, l 41. I further find that he tended to exaggerate his evidence when it came to the frequency that Mrs. Doege called Mr. Roberge, as well as the content of those conversations: See for example: Trial Transcript, October 2, 2014, p 77, ll 24-37. [ 43 ] Again, where there is a conflict between the evidence of Marvin Doege and Mr. Roberge, I accept that of Mr. Roberge. B. Division of Matrimonial Property [ 44 ] Distribution of matrimonial property is governed by the Matrimonial Property Act , RSA 2000, c M-8, (“MPA”).

That act creates three categories of property to be distributed: property that is exempt (s 7(2)); property that is divisible on a “just and equitable” basis (s 7(3)); and property that is presumptively equally divided (s 7(4)). [ 45 ] In Hodgson v. Hodgson , 2005 ABCA 13 , 361 A.R. 190, the Alberta Court of Appeal described the four-step process for the division of matrimonial property that is set out by the MPA : 1. Determine all property owned at the date of trial. 2. Discern the property that is exempt from distribution under section 7(2).

The exempt property under section 7(2) is valued at the date of acquisition or the date of marriage. 3. Determine what property falls under section 7(3), which is then distributed between the parties in a manner that is just and equitable taking into consideration the factors set out in

section 8. 4. Divide the balance of the remaining property valued at the date of trial equally, unless it would be unjust and inequitable to do so considering the factors set out in

section 8: (paras 18-22). I. Matrimonial property at the date of trial [ 46 ] At issue in this trial is the distribution of Mr. Doege’s post-separation properties, as well as the matrimonial home and contents. II. Property exempt from distribution (s 7(2)) [ 47 ] Neither party claims that any disputed property is exempt under s 7(2). III. Property falling under s 7(3) [ 48 ] Mrs. Doege argues that the real estate purchased by Mr. Doege and Ms. Lagace after separation was acquired “by income received by a spouse during the marriage” and is therefore subject to just and equitable division. First, I have doubts as to whether that

section is applicable to this property, as a plain reading of s 7(3) leads to the conclusion that this

section deals with property acquired through income received during the marriage from exempt property . [ 49 ] Section 7(3) of the MPA reads:

(3) The Court shall, after taking the matters in

section 8 into consideration, distribute the following in a manner that it considers just and equitable: (

a) the difference between the exempted value of property described in subsection (2), referred to in this subsection as the “original property”, and the market value at the time of the trial of the original property or property acquired (

i) as a result of an exchange for the original property, or (ii) from the proceeds, whether direct or indirect, of a disposition of the original property; (

b) property acquired by a spouse with income received during the marriage from the original property or property acquired in a manner described in clause (a)(

i) or (ii) [Emphasis added].

[50] Second, it is not necessary to make a finding on this point as I find it would be unjust and inequitable to give Mrs. Doege ashare in this property, whether it falls under s 7(3) or 7(4), having regard to the factors in s 8(a)-(

m) of the MPA. a. Mr. Doege’s post-separation property [51] At the date of trial, Mr. Doege owned the following real properties jointly with Ms. Lagace: • The Maricopa property in Arizona purchased jointly in 2011 for $53,000. The value on the date of trial is $60,993.00. • The Evansburg, Alberta lot and half-constructed house purchased and financed jointly in 2012. • A house in Ontario purchased in late 2014. [52] Mr. Doege has also acquired personal property since separation, including: • Property Solely in Mr.

Doege’s name o a 2011 Ford Fusion, o a 1995 Jet Ski o a 2010 Ford F150 o a 1999 Ford F250 • Property Co-owned with Ms. Lagace o 1998 Motorhome o 2005 Skid Steer Bobcat o 2001 Lund Boat o 2000 Mustang o 2012 Cargo Mate Trailer [53] According to the statement produced by Mr. Doege at trial, Mr. Doege’s interest in the value of these assets adds up to$34,010. [54] As a preliminary note, Mr. Doege asks to value the parties’ assets on the date of separation rather than trial, which wouldeffectively remove all of this property from consideration.

I reject this proposition, as our courts have consistently held that the date forvaluation of matrimonial property is the date of trial: Hodgson at para 29. Therefore, this property is still subject to distribution. [55] Mrs. Doege submits that there is no reason to depart from the presumption of equal distribution of all property owned by bothparties at the date of trial. [56] Mr. Doege, on the other hand, argues that all property he acquired after separation is not fruit of the Doege marriage tree, andtherefore that it would be manifestly unjust and inequitable for Mrs. Doege to acquire any interest in them.

Mr. Doege points to thelengthy period between separation and trial, as well as the fact that it appears that the Doeges intended to make a clean break, citing Karyv Kary,

(1997) AR 194 (QB) and Unser v Unser, 2002 ABQB 634 , [2002] AJ No 941 in support. [57] As previously stated, whether the property falls under s 7(3) or s 7(4) of the MPA, it is the factors listed in s 8 that governwhether any distribution is just and equitable. I recognize that there is a presumption of equal distribution for property under s 7(4), andthat no such presumption exists if the property falls under s 7(3). With that in mind, I find that regardless of the presumption, aconsideration of the s 8 factors has lead me to the conclusion that it would not be just or equitable for Mrs. Doege to share in theseproperties. [58] In considering ss 8(a), (

b) and (e), I acknowledge that Mrs. Doege made significant contributions to the marriage as well asthe operation of Doege Construction. These contributions were all the more significant given the 27 year period of cohabitation. Undoubtedly Mrs. Doege’s involvement allowed Mr. Doege to pursue his carpentry business and enhance those skills. [59] However, in my mind, the most salient factors are ss 8(

f) and (c).

Section 8(

f) sets out that a court may consider whether theproperty acquired by the parties was acquired when they were living separate and apart. Courts have, on occasion, treated post-separation assets differently when there have been lengthy periods between separation and trial or where the parties’ financialrelationship was totally severed: Mancini v Phelan, 2012 ABQB 536 at para 82. [60] For example, in Thompson v Thompson, 2006 ABQB 796, Read J held that neither spouse had a claim to the propertyacquired by the other spouse after separation, in part due to the lengthy period between separation and trial. Read J explained: [44]

Section 8(

f) of the Matrimonial Property Act specifies that one of the factors to be taken into account in the exercise of judicialdiscretion is whether the property acquired by the parties was accumulated when they were living separate and apart. In my view, itwould not be just or equitable to enable either party to share in property acquired by the other during the long separation period that

occurred after this marriage broke down. After a marital separation, spouses must eventually get on with their financial lives just as they must get on with other aspects of their lives. The partnership is broken, including the financial partnership created by the marriage.

As time goes on, the presumption that even after-acquired property will be shared equally becomes less and less apt and more likely to create a hardship on one or the other if it is invoked . [Emphasis added] [ 61 ] Similarly, where neither spouse has made a contribution to the after separation assets, and none of those assets were purchased with marital assets, this Court has found that it is unjust and inequitable to order equitable distribution of this property: Gardner v Gardner , 2008 ABQB 527 . [ 62 ] I also consider

section 8(

i) relevant in this regard. The parties had two farm auctions of their property prior to their formal separation. They then used the proceeds of those auctions to pay off matrimonial debts, and then divided the remainder equally. Mr. Doege argues that this demonstrates an agreement between the parties that they would make no future claim to each other’s subsequently acquired property. [ 63 ] While this evidence may not rise to the level of a formal agreement, I agree that the evidence corroborates Mr.

Doege’s assertion that the parties’ distribution of the majority of their assets upon separation evidences their intent to make a clean break, and separate themselves both physically and economically. [ 64 ] I therefore find that it would be unjust and inequitable to grant Mrs. Doege a share in Mr. Doege’s after acquired property. Each of the properties was acquired while the parties were living separate and apart. The parties have essentially lived separate economic lives since 2001, when they sold a large portion of their marital farm assets and divided their interest in Doege Construction. [ 65 ] Although Mrs.

Doege’s contribution to Doege Construction was significant, there is no continuity between that business and Mr. Doege and Ms. Lagace’s ability to acquire these properties. The evidence does not support the contention that Mrs. Doege’s contribution to Doege Construction during the marriage permitted Mr. Doege to acquire these post-separation assets. The Lobstick properties were purchased and financed solely by Ms. Lagace. The subsequent properties were then acquired through funds earned through those investments, as well as Mr. Doege’s income with his new company. [ 66 ] Further, Mrs.

Doege’s contribution to Doege Construction was recognized when the parties divided the assets and funds related to that business upon separation. Although Mrs. Doege’s contribution to the marriage allowed Mr. Doege the freedom to continue working and enhance his skills as a carpenter, I find that there was no evidence that any of Mr. Doege’s after acquired property was attained from any property attributed to the former business, or owned during the marriage.

Rather, I am satisfied that the parties severed their economic ties after separation, thereby making any claim to the post-separation property by either party unfair. [ 67 ] For all of the above reasons, I conclude that it would not be just and equitable for Mrs. Doege to receive an interest in Mr. Doege’s post-separation property. b. Division of the matrimonial farm [ 68 ] Mrs. Doege asks for sole title to the matrimonial farm. This is based on her assertion that she is entitled to half of Mr. Doege’s share in his post-separation properties, including real estate.

She proposes to set-off her interest in that property to keep the matrimonial home. [ 69 ] As I have already determined that it is unjust to grant Mrs. Doege a share in that property, I must now determine whether there exists any reason to depart from the presumption of equal distribution with respect to the matrimonial farm under s 8 of the MPA . [ 70 ] The parties cohabited in the house for 27 years, and both parties contributed significantly to its increase in value, as well as its maintenance.

Despite the long period between separation and trial, I nonetheless find that there is reason to depart from the presumption of equal distribution, with the exception of a credit to Mrs. Doege for the payments she made towards the mortgage since 2001. [ 71 ] At separation, the parties owed $116,704.00 on the mortgage. The most recent evidence presented to court was current as of 1 March 2015. A significant period of time has passed since that date. I trust the parties will be able to agree on the amount paid, based on the most recent mortgage statement, and credit Mrs.

Doege with half of the reduction in principal that she has paid since 2001. i. Value of the matrimonial farm [ 72 ] In my view, the current value of the farm is only relevant if the parties choose not to sell it and distribute the proceeds. At trial, Mrs. Doege did not indicate whether she wished to remain on the farm, although her request that it be put entirely into her name might indicate her intention to stay on the property. Obviously, if she wishes to stay on the property, she will have to pay out Mr.

Doege’s half interest, subject to any set-offs resulting from the award of spousal support, described below. [ 73 ] A 2014 appraisal of the matrimonial farm places its value at $450,000. Mr. Doege argues that this appraisal does not take into account the fact that the land can be subdivided into parcels and sold for a higher total value. He did not present any cogent evidence on this point at trial and therefore I find this assertion somewhat speculative. [ 74 ] Be that as it may, Mr.

Doege is entitled to 50% of the market value of the matrimonial farm, and it is in both parties’ interests to appraise the house as accurately as possible. Further, I do not wish for one party or the other to receive a windfall, should it be possible to subdivide the matrimonial farm, and sell it for more. [ 75 ] I therefore order that a new appraisal of the matrimonial farm be commissioned based on the matrimonial farm’s highest and best use. This will take into account the possibility of subdivision, if applicable. The parties will equally bear the costs of the appraisal.

The parties will then list the matrimonial farm for sale, and upon such sale, the net proceeds shall be divided equally, subject to any credit to either party as stated in this Judgment.

[76] If the parties are unable to accomplish this process by agreement, I grant them leave to bring the matter back before me forfurther direction. ii. Occupation Rent [77] Mr. Doege argues that Mrs. Doege should be charged occupation rent because she had the benefit of occupying thematrimonial farm from the date of separation to the date of trial, and Mr. Doege had to obtain his own accommodation, and incur thatexpense. [78] Marceau J in Seeman v.

Seeman, 2010 ABQB 30, stated that an occupation rent claim is generally only applicable in responseto a claim by the property occupier for expenses incurred in maintenance of the property: at para 13, citing Busenius v. Busenius, 2006ABQB 162 at paras 45-46, 156 A.C.W.S. (3d) 159. Slatter J (as he then was) in Kazmierczak v.

Kazmierczak, 2001 ABQB 610, 292A.R. 233, aff’d 2003 ABCA 227, also stated that Courts should only award occupation rent in the family law context with great caution:at para 90. [79] Slatter J went on to say: The spouse in occupation will generally not be entitled in the matrimonial property proceedings for any credit for the mortgage paymentsand taxes paid by him or her. Those payments should be a part of the support equation.

The only possible exception is with respect to theportion of the mortgage payment that actually goes to reduce principal, as notionally one-half of that payment is made on behalf of thenon-occupying spouse. See Balzar v. Balzar [(1990), (MB KB), 67 Man. R. (2d) 196]. However, if the party inoccupation has not adequately maintained the property, and has essentially eroded its capital value, a set-off for the excessive wear andtear might be called for: at para 95. [80] In this case, Mrs. Doege has not claimed for contribution towards the expenses she incurred while maintaining thematrimonial home since separation.

I therefore reject Mr. Doege’s counterclaim for occupation rent. Moreover, I find that it is just andequitable to credit Mrs. Doege for half of the principal mortgage reduction since separation: Kazmierczak. c. Other matrimonial assets Contents of the House [81] The matrimonial home and its contents were destroyed by a fire in April of 2003. The evidence suggests that Mrs. Doege waspaid $107,245.23 to replace the contents. Mrs. Doege submits that she was entitled to all of that money because she had to replace thecontents of the house that belonged to both her and her children. She also testified that when Mr.

Doege left, he had already takeneverything that he wanted from the matrimonial home, and therefore that the rest of the contents belonged to her [Day 1: p 20, ll 15-17].Moreover, Mr. Doege signed two statutory declarations for the insurance company which waived his rights to the contents. [82] Mr. Doege testified that he only received $6,738.86 from those insurance proceeds, representing a television, table and chairs,and a couch. He thus submits that the amount of the insurance proceeds should be equalized between the parties. [83] Mr. Doege signed the first statutory declaration on April 11, 2003.

It stated: I, Lawrie Doege of Wildwood, Alberta, do solemnly declare, that I release interest in the dwelling contents that were destroyed in thefire, - except for the following: 1 Dinette Set (7pc) 60” Toshiba Projection screen TV with Surround Sound. One living room couch and chair.

I further release my interest in the additional living expenses as provided by our insurance policy. [84] The second statutory declaration, signed August 5, 2003, stated: I, Lawrie Doege of Wildwood, Alberta, do solemnly declare, that I release interest in the dwelling contents and contents of all outbuildings on NE 9-53-10-W5 on Wawanesa Insurance Policy #F4247881 Edmonton. I further release my interest in the additional living expenses as provided by our insurance policy. [85] These documents are evidence that Mr.

Doege clearly waived his claim to any of the contents of the home and that heintended to allow Mrs. Doege to keep the contents of the matrimonial home.

Section 8(

g) of the MPA allows me to consider an oral orwritten agreement between the parties. Mr. Doege’s declarations are evidence that he and Mrs. Doege agreed that the contents wouldremain with Mrs. Doege. [86] Upon consideration of the other s 8 factors, I find that it would not be just and equitable for the parties to divide the value ofthese contents. They were technically purchased after the spouses were living separate and apart. Mr. Doege received compensation forthe property belonging to him that was damaged in the fire.

Given the length of time since separation, and the lack of any evidence as tothe current value of these contents, I find that Mr. Doege is no longer entitled to a share in this property.

Cattle sale and REA payment [87] In August of 2001, before the second auction, Mrs. Doege sold all of the Doege’s remaining cattle to Edmonton Stock Yardsfor approximately $15,786.11. Mr. Doege testified that he only received $1,000 out of those proceeds [Trial Transcript, March 9, 2015,pp 20-21], while Mrs.

Doege asserts that the proceeds went into the joint account and used for paying matrimonial debt: Trial Transcript,August 19, 2015, p 41. [88] While the entirety of the sale proceeds was apparently divided equally for tax purposes, there is no record of where thatmoney was actually deposited, as it does not appear on the statements for the Doege’s joint bank account for August or September, 2001.Mr.

Doege accounts for this adjustment in his statement of matrimonial property, however it appears as though this sale occurred beforeseparation. [89] I find that it is likely that the parties agreed to use the cattle sale proceeds to pay off matrimonial debt prior to separation. Itherefore find that the amount should not be taken into account in the division of property calculation. [90] Mr. Doege also argues that Mrs. Doege received a cheque from the Wildwood REA for $10,082 in 2007. He argues that thismoney should have been split by the parties. Mrs.

Doege apparently spent that money to pay off bills and debt. [91] This cheque represents a reimbursement of the costs of placing utilities on the matrimonial farm, and I therefore find that it isa matrimonial asset. Mr. Doege is therefore entitled to be credited for half of $10,082. C. Spousal Support I. Did Mrs. Doege and Mr. Roberge enter into acommon law relationship? [92] Before conducting the spousal support analysis there is a preliminary issue to be addressed. Mr. Doege alleged that Mrs.Doege is now in a common law relationship with Mr.

Roberge, and for that reason is not entitled to spousal support. [93] In order for a claimant to prove that a former partner has entered into a common law marriage or relationship, that claimantmust show the intention of the former partner to enter into such a relationship. Gillham v Gillham, (1993) (AB CA),11 Alta LR (3d) 153 (ABCA).

This requires “...some evidence of their intention to establish a “common law” marriage or relationship orevidence that they lived in the community and held themselves out as being husband and wife”: Gillham at para 7. [94] Finding a common law relationship involves a consideration of a number of factors including living arrangements, sexualbehavior, social and societal factors and economic ties: Wright-Watts v Watts, 2005 ABQB 708 at paras. 17-19, citing Molodowich vPenttinen (1980), (ON SC), 17 R.F.L. (2d) 376 at 381-382, 2 A.C.W.S. (2d) 486 (Ont. Dist.

Ct.) [95] Each relationship is established on its own facts, and the considerations may vary from case to case: M v H, (SCC), [1999] 2 SCR 3 at para 59. [96] I conclude that there was no common law relationship between Mr. Roberge and Mrs. Doege. They were landlord and boarderas well as friends. I accept their testimony that sleeping arrangements were separate and reject hearsay evidence to the contrary.Furthermore, while Mr. Roberge was a tenant of Mrs. Doege there were various others who also paid rent to her.

I find that theirrelationship was an arrangement of mutual benefit or convenience, rather than as an extension of a romantic relationship. There is noevidence that these two operated as an economic unit, shared bank accounts or otherwise supported each other beyond the exchange ofmoney for room and board and bookkeeping, and occasional errands to the bank. [97] Further, there is no evidence that Mrs. Doege and Mr. Roberge held themselves out as being a couple in the community. Iaccept that their relationship was purely platonic and friendly. Their arrangement was one that arose out of mutual necessity.

Eachcontributed what they could but not in the same way as a romantic couple contributes to the economic well-being of their unit. For thesereasons, I find that Mrs. Doege and Mr. Roberge were not in a common law relationship. Entitlement [98] Mrs. Doege submits that she is entitled to retroactive and ongoing spousal support because her role in the marriage and inDoege Construction deprived her of the benefit of upgrading her education and increasing her employability.

She argues that she hasattempted to mitigate her position and become self-sufficient by selling hay bales, renting her pasture, and renting her home to earnincome. Despite these efforts, she has had to move money from credit card to credit card, and loan money from Mr. Roberge in order tosurvive. [99] Mr. Doege submits that the marriage did not impair Mrs. Doege’s economic prospects, but that in fact, she prospered from themarriage, due to Mr. Doege’s hard work. Further, he disputes that Mrs. Doege endured any economic hardship from the breakdown ofthe marriage.

He states that she left the marriage debt free and has been able to sustain her lifestyle without any assistance from him.

Moreover, he argues that Mrs. Doege’s application for spousal support was significantly delayed, and therefore it would be unfair togrant a retroactive award. If the Court does find that retroactive spousal support should be ordered, Mr. Doege submits that he has a set-off claim for occupation and actual rent received by Mrs.

Doege during her time of exclusive occupation of the marital home. [100] Finally, he submits that he is in very poor medical health, and that he is currently unable to work, and therefore does not havethe ability to pay any significant amount. [101] Spousal support is a statutory remedy enabled by s 15.2 of the Divorce Act, RSC 1985, c 3. According to s 15.2(4), whenmaking a spousal support order, a court must take into consideration “the condition, means, needs, and other circumstances of eachspouse, 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 related to spousal support of either spouse.” [102] The objectives of any spousal support order are laid out in s 15.2(6). That provision sets out that these orders 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 anyobligation 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. [103] The leading cases on spousal support are Moge v Moge, (SCC), [1992] 3 SCR 813, Bracklow v Bracklow, (SCC), [1999] 1 SCR 420 and Miglin v Miglin, 2003 SCC 24. These cases dictate that the objectives in s 15.2(6) of theDivorce Act can overlap and that no objective is paramount: see Miglin at para 40, Bracklow at para 35, and Moge at para 52. [104] Entitlement to spousal support is based on three conceptual grounds: compensatory, non-compensatory and contractual:Bracklow at para 15. Mrs.

Doege’s claim for support is based on both compensatory and non-compensatory grounds. [105] Compensatory support focuses on the first two objectives set out in s 15.2(6) of the Divorce Act. In Corbeil v Corbeil, 2001ABCA 220, 286 A.R. 330 at para 45, Conrad JA explained: Essentially, compensatory support intends that both spouses profit from the joint venture of marriage. The question is not whatthe disadvantaged spouse would have achieved had he or she not entered the marriage.

Rather, the question is what was that spouse'scontribution to the marriage and was the other spouse advantaged by that contribution. [106] Compensatory spousal support is often ordered when “one spouse has a diminished earning capacity resulting from longinterruptions in employment to take on parenting or domestic responsibilities.” Bennett v. Bennett, 2005 ABQB 984, 57 Alta. L.R. (4th)380 at para 16. [107] The concept of non-compensatory support is reflective of the third and fourth objectives set out in

section 15.2(6) of the DivorceAct: relieving any economic hardship of the spouses arising from the breakdown of the marriage, in so far as practicable, promoting theeconomic self-sufficiency of each spouse within a reasonable period of time. [108] Even absent contractual or compensatory objectives, a spouse with the capacity to pay may have an obligation to assist theirformer spouse, as [n]eed alone may be enough: Bracklow at para 43. [109] As stated by Poeleman J in Mancini: While not determinative, comparison of a spouse’s post-separation standard of living with the one enjoyed during the marriage and theone enjoyed by the former spouse may be “a revealing indication of the economic disadvantages inherent in the role assumed by oneparty.”: at para 120 citing Moge.

A. Condition, needs and means [110] As outlined in s 15.2(4) of the Divorce Act, I must consider the condition, needs and means of each spouse. “Condition”includes age, health, needs, obligations, dependants and station in life. The term “needs” is relative and often determined by comparingthe lifestyle enjoyed during the marriage and the payor’s entitlement to have a reasonable standard of living: Moge at paras 84-85.

Theterm “means” includes all financial resources, capital assets, income from employment or earning capacity and any other source fromwhich benefits are received: Strang v Strang, (SCC), [1992] 2 SCR 112 at para 15. [111] The objective of self-sufficiency has been held to be relative to the standards enjoyed during the marriage. Our Court of Appealin Corbeil at paragraph 47 stated, "[s]elf-support is also a relative term.

A long-term spouse who has enjoyed a high standard of livingbecause of a high earning spouse need not work and live at minimum wage." Further, self-sufficiency may not be realistically achieved,given the length of the marriage and interdependency of the relationship: Moge at para 36. [112] The parties cohabited for 27 years, which is a significant period of time. [113] Both parties contributed to a reasonably comfortable lifestyle during that time. Mrs. Doege was largely a stay-at-home motherand looked after the children, while Mr. Doege devoted his time to his construction business and cattle ranching. Mrs.

Doegeperiodically worked full time or part time jobs to contribute financially to the marriage, and also assisted with the construction businessby way of painting, insulating, dry walling, and other duties. She also helped tend to the cattle when Mr. Doege was working out oftown.

[ 114 ] The evidence suggests that the Doege family lived a comfortable but not extravagant lifestyle which was supported by the combined efforts of both parties to the marriage. For example, during the marriage, the parties also went on a number vacations, including to Mexico, Cuba and Arizona. [ 115 ] The dissolution of this relationship has left both with less than they enjoyed while the marriage was ongoing. [ 116 ] Mrs. Doege is 58 years old, and in relatively good health aside from her rheumatoid arthritis. There are no longer any children of the marriage. Since separation, Mrs.

Doege has gone on a trip paid for by her church to Belize, and then gone to visit her mother in Saskatchewan, and a trip to Oregon. However, I find that she has generally not been able to afford the same type of lifestyle as she had during the marriage, given her income and expenditures. [ 117 ] Except for the income Mrs. Doege derives from the matrimonial farm, odd jobs and occasional employment with Mr. Doege, her sources of income are somewhat limited. She has not had steady employment since the date of the marriage.

Further, she does not have any post-secondary education and her only training would be as a quasi-bookkeeper. Accordingly, her future employment prospects are not bright. Based on the evidence it appears that Mrs. Doege encounters a shortfall of at least $1,500 month. [ 118 ] Mr. Doege is now 65, and suffers from poor health including respiratory and cardiac issues and a hernia. His skills as a carpenter, along with some assistance from Ms. Lagace, have allowed him to purchase, renovate or build, and sell properties. However, he is no longer working at this time, and he and Ms.

Lagace live off of their pensions and old-age income supplements. [ 119 ] Since the date of separation, Mr. Doege has had income from his construction business but it has been somewhat limited. While the business has taken in significant income it also requires significant expenses to operate. Much of the property that Mr. Doege holds has come from the work that he and his partner have put into those properties. [ 120 ] While Ms.

Lagace also has an income that is expected to continue into the future, the two have lived a modest lifestyle in order to get by, although the pair is able to travel to Arizona almost every year, for three to six months at a time. That being said, I recognize that Mr. Doege currently has somewhat limited means, given his inability to work. Although Mr. Doege did testify that it is possible for him to pick up more contracts, if he is able to find suitable labourers to supervise. [ 121 ] Based on a consideration of ss 15.2(4) and (6), I find that Mrs. Doege has been entitled to spousal support since separation.

However, there are other considerations I must take into account when determining whether retroactive spousal support should be ordered. Considerations for Retroactive Spousal support [ 122 ] Retroactive spousal support orders involve other special considerations. The Supreme Court of Canada in Kerr v Baranow, 2011 SCC 10 , stated that the considerations taken into account in the context of retroactive child support in DBS are also suitable and necessary factors to consider for retroactive spousal support orders.

Those factors are: • the needs of the recipient, • conduct of the payor, • reason for delay in requesting support, and • any hardship a retroactive award would have on the payor: Kerr at para 207 . [ 123 ] The Court also noted that care must be taken when making these considerations as the background legal principles to spousal support are different from those of child support. Notably, there is no right to spousal support, whereas children have a right to support.

For this reason the concerns regarding notice, delay and misconduct can carry more weight in spousal support claims: Kerr at para 208 . [ 124 ] Where there is delay in requesting support, the payor’s interest in certainty regarding legal obligations is engaged. Further, there should be an incentive for the receiving spouse to make a claim promptly: Kerr at para 209 . Making an application for support will be notice of a claim but occasionally support is requested that predates the date of filing.

In such cases it is to the discretion of the judge determining support in light of the circumstances to make the determination, however, the late notice will be a significant factor in how the considerations are balanced out. a. Needs of Mrs. Doege [ 125 ] As I have canvassed above, I recognize Mrs. Doege’s need for some spousal support. Because she was married at such a young age and never finished high school, her employment prospects are not good.

Any income that she has been able to secure over the years has been almost exclusively through the matrimonial farm; namely, rental income, rented pasture space, and selling hay bales. She has also worked some odd jobs to earn income. However, she has accrued debt over the years. Not including the mortgage, Mrs. Doege testified that she had approximately $57,000 in debt. [ 126 ] I do, however, recognize that the farm auctions in 1999 and 2001 allowed Mrs. Doege to leave the marriage debt free, except for the mortgage. She also continued to live in the matrimonial home, and earn income off of that property.

However, the evidence is that, due to her reduced employment opportunities after this long term marriage, Mrs. Doege has largely operated at a shortfall.

b. Conduct of Mr. Doege [ 127 ] As stated in Kerr , the Court must focus on conduct broadly relevant to the support obligation, for example, concealing assets or failing to make appropriate disclosure: at para 212. I find that Mr. Doege has been forthright with respect to his assets at the time of trial. Counsel for Mrs. Doege suggested that Mr. Doege has failed to provide all disclosure at times throughout this lengthy litigation. However, the parties have switched counsel on a few occasions, and I am not aware of any concrete evidence in this regard.

I therefore find that there has not been any blameworthy conduct on the part of Mr. Doege. c. Reasons for Delay in Requesting Support [ 128 ] Mrs. Doege maintains that she verbally requested support from the very beginning, but is only requesting retroactive support commencing in 2004, when she filed the Statement of Claim: Trial Transcript, August 19, p 45, ll 23-26. Mr. Doege, on the contrary, testified that Mrs. Doege consistently told him that she did not want any support from him and that she and Mr. Roberge were fine without his help.

He stated that the first time he was made aware of the claim for support was in 2013 when Mrs. Doege made an application for interim support: Trial Transcript, March 10, 2015, p 13, ll 12-15. [ 129 ] The best evidence of when the claim for spousal support originated is the Statement of Claim filed in 2004. In it, Mrs. Doege included a claim for spousal support and other corollary relief. Mr. Doege filed a Statement of Defence and Counterclaim in 2004 which directly addressed Mrs. Doege’s claim for spousal support. [ 130 ] In my view, Mr.

Doege cannot claim he did not have notice of the spousal support claim, given the specific reference to the claim for spousal support in his Statement of Defence. However, I note that between 2004 and 2013, no interim spousal support was claimed by Mrs. Doege. d. Potential Hardship of a Retroactive Award [ 131 ] Mr. Doege is not well-off. While he co-owns some properties with his partner, these properties do not have significant value.

The Evansburg property is not yet inhabitable, and the evidence is that he will not be able to continue constructing that building without paying off the line of credit, or taking on more debt. Further, I accept that Mr. Doege is not physically able to work, and that he and Ms. Lagace are relying solely on their Canada Pension and income supplement payments at this time. [ 132 ] However, with the above distribution of the matrimonial property I find that it will be possible for Mr. Doege to make a lump sum retroactive payment out of his equity in the matrimonial farm. [ 133 ] In light of the reduced need of Mrs.

Doege, due to her ability to use the matrimonial farm as income, the good conduct of Mr. Doege, and the anticipated hardship, I conclude that limited retroactive support is appropriate in this case. Quantum and Duration [ 134 ] While there is discretion for a judge to make an order for the period of time that is fitting, courts have generally made orders retroactive to the period of time when the claim was made to the court: see Lawlor v Lawlor 2012 ABQB 723 at para 100 , Mew v Mew 2011 ABQB 531 at paras 125-126 , Pinksen v Barritt 2012 ABPC 41 at para 65 , McKenzie v Perestrelo 2014 BCCA 161 at para 110 .

I do not see any reason to make a retroactive order for any time prior to the filing of the claim for support. [ 135 ] I therefore find that Mrs. Doege is entitled to an award of retroactive spousal support starting in 2004. I will deal first with the quantum of this award before moving on to whether ongoing support is warranted. [ 136 ] The Spousal Support Advisory Guidelines (the “Guidelines”) , while not mandatory, are a useful tool to assess quantum of spousal support: Yemchuk v Yemchuk , 2005 BCCA 406 , 16 R.F.L. (6th) 430 at para 64 ; Lust v Lust , 2007 ABCA 202 .

These Guidelines outline a range of monthly amounts based on the incomes of both parties. [ 137 ] Mrs. Doege argues that, for the purposes of support, I should impute Mr. Doege’s income at $200,000 per year. She bases this on Mr. Doege’s gross business income. I find that $200,000 per year is excessive, given that his gross business income has only averaged approximately $166,131 from 2001 to 2013. Moreover, the Guidelines mandate using the Line 150 income (or “total income”) as a baseline for the calculations. [ 138 ] I recognize Mr. Doege’s line 150 income is significantly reduced by “business expenses”.

However, so is Mrs. Doege’s, due to farming and rental costs. Therefore, I find that it is fair and equitable to use the disparity in the parties’ line 150 incomes to calculate a range of spousal support. [ 139 ] Mrs. Doege did not provide income information for 2014 or 2015. I therefore base her 2014 and 2015 income on the evidence from 2013. Further, her line 150 income was greater than Mr. Doege’s in 2008 and 2011.

Taking this into account, the Spousal Support Advisory Guidelines formula results in the following amounts: Year Line 150 Disparity Low end monthly payment High end monthly payment Mid-range Monthly payment 2004 $ 25,453.94 $ 848.46 $ 1,060.58 $ 954.52 2005 $ 15,316.28 $ 510.54 $ 638.18 $ 574.36 2006 $ 36,972.91 $ 1,232.43 $ 1,540.54 $ 1,386.49

2007 $ 10,075.67 $ 335.86 $ 419.82 $ 377.84 2009 $ 30,222.12 $ 1,007.40 $ 1,259.26 $ 1,133.33 2010 $ 51,261.25 $ 1,708.71 $ 2,135.89 $ 1,922.30 2012 $ 12,859.72 $ 428.66 $ 535.82 $ 964.48 2013 $ 11,213.06 $ 373.77 $ 467.21 $ 420.49 2014 $ 7,341.84 $ 244.73 $ 305.91 $ 275.32 2015 $ 7,341.84 $ 244.73 $ 305.91 $ 275.32 [ 140 ] These figures, adjusting for the years where Mrs. Doege’s line 150 incomes was greater than Mr. Doege’s amounts to a lump sum payment of approximately $100,234.04. [ 141 ] As I have noted, however, I do not believe it is wholly appropriate for Mrs.

Doege to receive full support for this period as she has largely been able to support herself by deriving income from the use of the matrimonial farm. Moreover, I take into account the delay between when Mrs. Doege initially claimed spousal support and when she made an interim claim. I also consider both Mr. Doege’s reduced ability to pay, and his potential payout from the sale of the matrimonial home. [ 142 ] I recognize, as stated by our Court of Appeal, that the Guidelines “do not and should not truly fetter a trial judge’s discretion”: Sawatzky v Sawatzky , 2008 ABCA 355 at para 16 , 440 AR 267.

All that is required is a consideration of the statutory factors set out in s 15.2 of the Divorce Act : De Winter v De Winter , 2013 ABCA 311 , [2013] AJ No 972. [ 143 ] Further, lump sum spousal support orders need to be adjusted to account for tax implications, given that lump sum retroactive payments are not tax deductible by the payor, and not taxable income for the payee. Neither party provided argument with respect to the tax implications of such an award.

I also recognize that there is no exact method for making tax adjustments to these types of retroactive awards: Mancini at para 194 . [ 144 ] Given the objectives of spousal support orders, and the above considerations, I find that it is appropriate to award a lump sum payment of $75,000 representing retroactive spousal support. I find that this amount can be paid out of Mr. Doege’s interest in the matrimonial home. Ongoing Spousal Support [ 145 ] In long term marriages, the Guidelines generally advocate for unlimited duration of support.

However, as already stated, I am only bound by the considerations in the Divorce Act , and not by the Guidelines. [ 146 ] In this analysis I must also consider the economic impact of the current matrimonial property division, and the order for retroactive support, in assessing Mrs. Doege’s ongoing needs. Mrs. Doege has equity in the matrimonial farm, as well as entitlement to the retroactive support award. [ 147 ] Moreover, I find that Mr. Doege does not have a continuing ability to pay spousal support.

I accept his evidence that he is no longer working, and I am cognizant of the fact that he is already 65 years old. The above considerations lead me to the conclusion that ongoing spousal support should not be ordered. Retroactive Child Support [ 148 ] With respect to child support, Mrs. Doege maintains that Mr. Doege owes retroactive child support with respect to the 21 months that Tammy resided with Mrs. Doege after separation, as she was only 16 when the parties separated. She provided to the court a calculation of child support owing based on Mr.

Doege’s stated income during those months, for a total award of $26,891. [ 149 ] Mr. Doege argues that he owes no retroactive child support for Tammy for several reasons. First, he argues that he made several payments of $350 per month directly to Tammy after the parties separated. Secondly, Tammy did not live with Mrs. Doege after the separation, but was splitting her time equally between her boyfriend’s house in Evansburg, as well as Mr. Doege’s house. Finally, Mr.

Doege submits that in any event, this application is time-barred, as it was brought well past the time when Tammy ceased being a child of the marriage: DBS v SRG; LJW v TAR; Henry v Henry ; Hiemstra v Hiemstra , [2006] 2 SCR 231, 2006 SCC 37 [ DBS ]. [ 150 ] I find that Mrs. Doege’s application for retroactive support is out of time. Mrs. Doege bears the burden of proving that Tammy remained a child of the marriage at the operative time. I accept that she was 16 at the time of separation.

However, no party is asserting that Tammy was a child of the marriage after she turned 18 in 2002. [ 151 ] The material time for determining entitlement to retroactive child support is the time of the application: DBS at paras 86, 89-90 . This court does not have jurisdiction to award retroactive support if the child was not a “child of the marriage” pursuant to the Divorce Act at the time of application: see for example W (RD) v W (TL) , 2007 ABQB 285 , Selig v Smith , 2008 NSCA 54 , and Caldwell v Caldwell , 2008 ABQB 719 . Mrs.

Doege’s first application for child support was done in 2004, well after her daughter turned 18. I have no evidence before me suggesting that Tammy was a child of the marriage in 2004. For this reason, Mrs. Doege’s claim for retroactive support must fail.

Summary [ 152 ] In

summary, I order as follows:

1. The matrimonial farm shall be appraised at its highest and best use. This will take into account the possibility of subdivision, if applicable. The parties will equally bear the costs of the appraisal. The parties will then list the matrimonial farm for sale, and upon such sale, the net proceeds shall be divided between the parties, taking into account the following credits: a. Credit to Mr. Doege for $5,041.00 representing one half of the Wildwood REA payout. b. Credit to Mrs. Doege for one half of the principal mortgage reduction from the time of separation until the date of sale. c.

The remainder will be divided equally between the parties. 2. Mr. Doege shall pay Mrs. Doege $75,000 in retroactive spousal support, payable out of the sale proceeds from the sale of the matrimonial farm. 3. Mr. Doege will not pay ongoing spousal support. 4. Mrs. Doege’s application for retroactive child support is dismissed. Costs [ 153 ] If the parties cannot agree on costs, they can be spoken to within 30 days of the date of this Judgment. Dated at the City of Edmonton, Alberta this 15 th day of December, 2015. Don J. Manderscheid J.C.Q.B.A.

Appearances: Pareza Kanji Kanji Law Office for the Plaintiff Christopher J. Skrobot Jomha Skrobot LLP for the Defendant