Chaney v Chaney, 2015 ABQB 818

Court of Queen ’ s Bench of Alberta Citation: Chaney v Chaney, 2015 ABQB 818 Date: 20151221 Docket: 4803 171271 Registry: Edmonton Between: Catherine Veryl Chaney Plaintiff/Applicant - and - Dwayne Arthur Chaney Defendant/Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice J.S. Little _______________________________________________________ Introduction [ 1 ] This is a divorce action with a trial scheduled for April, 2016. In a case management meeting on December, 17, 2015, Ms. Chaney applied for a number of forms of relief: 1. Interim spousal support;

2. Payment of a $7,700 accounting invoice so that the corporation’s accountants will release accounting records to a forensic accountant; 3. An advance from matrimonial property to retain that forensic accountant; 4. The sale of a number of vehicles; and 5. Additional financial disclosure. [ 2 ] Mr. Chaney cross-applied for further disclosure. [ 3 ] Very briefly, this was a nineteen-year marriage that ended in 2014. Ms. Chaney is now 63 and Mr. Chaney is 52. During the marriage, they operated a landscaping business called Chaney and Sons (the Company). Mr. Chaney alleges that Ms.

Chaney withdrew some $235,000 from the Company towards the end of the marriage which caused the Company’s collapse and the end of his gainful employment. Ms. Chaney alleges that Mr. Chaney drew down the Company’s line of credit for personal purposes after separation which then required the sale of its assets and caused its eventual collapse. Spousal Support [ 4 ] Dealing first with Ms. Chaney’s entitlement, this was a long-term marriage. She participated in the Company during its entire operation. Before that, she mostly looked after the home.

She has health difficulties which a physician states would “make it very hard for her to be gainfully employed”. I accept Ms. Bell’s position that Ms. Chaney is entitled to spousal support on both a compensatory and non-compensatory basis. [ 5 ]

Section 15 obligates me to consider the condition, needs, and means of the parties. Mr. Chaney argues that he cannot pay because he is working only part time and that the reason for that is that Ms. Chaney’s actions caused the Company to collapse. Ms. Bell urges me to impute to him income of $85,000 on the basis that that is roughly what he was earning in the last four years of the Company and that what is critical for an interim spousal support award is his earning potential, not his actual income.

Imputation of income at $85,000 would result in payment of monthly support of between $1,900 and $2,600. [ 6 ] I accept that for the purposes of interim support, earning potential is key. It is not particularly relevant that currently he is underemployed. But I cannot ignore that Mr. Chaney’s previous earnings were from a corporation he and Ms. Chaney operated which, for whatever reason, is no longer in operation. [ 7 ] I will impute to him an annual income of $60,000. [ 8 ] Ms. Chaney’s income is approximately $6,500.

Despite her physician’s caution, I find that she too is underemployed and is capable of earning a further income in the $30,000 range for a total income of $36,500. [ 9 ] I award to Ms. Chaney monthly spousal support of $750 which is in the mid range of the spousal support guidelines. That amount shall be payable on the 1 st of each month from December 1, 2015 until and including April 1, 2016. Sale of Vehicles [ 10 ] I deviate from the order of the forms of relief requested.

There is no evidence that either party has much cash, so in order to deal with payment of the outstanding accountant’s invoice and a payment for further forensic expertise, there must be a source of cash. That is the only way that I see that the Court can have the information it will need at the trial to sort out the primary issue of who or what caused the collapse of the Company and who benefitted from the sale of its assets. [ 11 ] Mr.

Chaney currently owns a 2011 Crew Cab which he claims to require for work, a 2008 Gear Box Toy Hauler, a 2008 Arctic Cat ATV, another 2008 Arctic Cat ATV, and a 1981 Chevrolet pickup truck in the nature of a collector vehicle which he valued at $8,500US in 2014. He claims that that has been stolen or otherwise has disappeared. There may also be a Toyota Echo owned by him or purchased by him for a former girlfriend, but the evidence on that is murky. [ 12 ] I order that the two ATVs be sold together with the 1981 Chevrolet truck when found, and to that end I order that Mr.

Chaney make reasonable efforts to find it, those reasonable efforts being what the owner of a collector truck would make to retrieve that kind of vehicle. [ 13 ] I understand that the parties have agreed as well that Ms. Chaney sell the Nissan Murano and Wyoming trailer and that a person named Dustin will pick up another trailer from Ms. Chaney that was the subject of an earlier application. [ 14 ] Because of Mr.

Chaney’s claim that he is living in the Toy Hauler trailer, I will not order its sale. [ 15 ] The proceeds of sale of any assets are to be paid to the respective party’s solicitor to be held in trust for use only in connection with the payment of legal fees or the fees of experts engaged directly or indirectly in resolution of this matter, or as otherwise agreed by the parties. Each of the solicitors shall account to the other for the proceeds deposited to her trust account from these sales. Payment of Accountant’s Invoice [ 16 ] I order that Mr.

Chaney make payment of this outstanding invoice not later than January 15, 2016. I would anticipate that by

then he will have sold the two ATVs, but this order to make payment of that invoice is not conditional upon either or both of those sales. When the accounting records are released, both parties shall have access to them. Forensic Expert [ 17 ] I will not make an order at this time for an advance from Mr. Chaney of $15,000 for a forensic expert. At the end of the application, the parties discussed the possibility of retaining one who will provide a report for use by both parties, and that seems to me to be prudent. In any event, there are funds in trust in Ms.

Bell’s trust account which with agreement of the parties could be the source of those funds. If not, I expect that each party by selling its assets pursuant to this order will have sufficient funds to hire one or more experts. Further Disclosure [ 18 ] It is clear that both parties need further disclosure of the assets and cash used by each other. To that end, on the basis that it may be relevant at trial how funds from the Company were used even before separation, I order that Ms.

Chaney provide financial disclosure of her personal bank accounts, loans, and any Company accounts she controlled or managed back to December 1, 2013. [ 19 ] I order as well the disclosure by Mr. Chaney of any of the accounts including credit cards of his father to which he had access or over which he had control since the date of separation. I further order him to provide particulars of the purchase of the Toyota Echo or any financial assistance he provided in connection with that vehicle. Costs Because the parties have had mixed success, each will bear its own costs of this application.

Heard on the 17 th day of December, 2015. Dated at the City of Edmonton, Alberta this 18 th day of December, 2015. J.S. Little J.C.Q.B.A. Appearances: Rebecca D. Bell Sharek Logan & Van Leenen LLP for the Plaintiff/Applicant

Jennifer Lamarre Venture Law Group for the Defendant/Respondent