Grant v Grant, 2016 ABQB 198

Court of Queen ’ s Bench of Alberta Citation: Grant v Grant, 2016 ABQB 198 Date: 20160407 Docket: 4803 163459 Registry: Edmonton Between: Colette Adele Grant Plaintiff - and - Michael Edward Grant Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C. Read _______________________________________________________

Summary: The Grants separated after a long marriage and were unable to agree respecting division of their matrimonial property, spousal support and some issues related to child support, so had to take these issues to trial. Facts: [ 1 ] Michael and Colette Grant were married on July 28, 1990 in Edmonton. They did not reside together prior to their marriage. Their date of separation is contentious and I will deal with that issue below. [ 2 ] When they married, Michael Grant was employed as a plumber and pipefitter, and Colette Grant was working as a drafts person with Alberta Energy.

Their first child was not born for five years and during the early part of their marriage, both continued to work full time in their fields. [ 3 ] For most of their marriage, they lived in a home owned by Mr. Grant before the marriage. They moved into the home I will call the matrimonial home (“Matrimonial Home”) in 2012. [ 4 ] Michael and Colette Grant own three pieces of real property. The Matrimonial Home is registered in both parties’ names and is presently occupied by Ms. Grant. This is a new house built on land the couple previously owned and was under construction when the marriage broke down.

It has yet to be completely finished. It is located at 5108 108A Avenue and is legally described as Lot 2, Block 34, Plan 2442KS. [ 5 ] A second piece of real property is registered in the husband’s name alone and was purchased by him prior to the marriage. It is located at 7215 98 Avenue and is legally described as Lot 11, Block 18, Plan 6083KS (the “Husband’s Home”). [ 6 ] A third piece of real property is registered in joint names and was purchased by Ms. Grant before the marriage.

It is located at 10570 42 Street and is legally described as Lot 1, Block 77, Plan 4233KS (the “Wife’s Home”). [ 7 ] Both parties were still living in the Matrimonial Home on March 14, 2014, when Ms. Grant made an interim application, which became very important to the conduct of the parties and to what occurred before trial. [ 8 ] The order made March 14, 2014 required both parties to vacate the Matrimonial Home and that it be immediately listed for sale at the price recommended by the listing realtor. Mr. Grant was to live in the Husband’s Home and Ms. Grant would live in the Wife’s Home.

The order further required that Mr. Grant pay the mortgage, utilities, taxes and other normal expenses of the Matrimonial Home on an interim without prejudice basis. [ 9 ] Unfortunately, at about the same time as the order was made a flood occurred in the Wife’s Home, rendering it uninhabitable until it had been repaired. A claim was made to the property insurers and ultimately a pay-out for the damage was obtained. Because of the flood, the March 14, 2014 order, which had not yet been entered, had to be re-considered as Ms. Grant had nowhere to move to if she moved out of the Matrimonial Home.

Ultimately an amended order was entered in July 2014, which order stated on its face that it was made on March 14, 2014 and May 27, 2014. This order (the “March/May Order”) required only Mr. Grant to vacate the Matrimonial Home. The term requiring him to pay the expenses of the Matrimonial Home remained. [ 10 ] Ms. Grant has continued to live in the Matrimonial Home until the date of trial. [ 11 ] Mr. Grant moved into the Husband’s Home.

There are four children of the marriage: Cody Michael Grant, born March 1995 (now age 21); Ginelle Jordyn Grant, born July 1996 (now age 19); Danielle Gabrielle Grant, born April 1998 (now age 17); and Caley Ashley Grant, born September 2000 (now age 16). [ 12 ] Throughout most of the period of separation, all four children have lived with Mr. Grant. By the time of trial, Cody was living with Ms. Grant. [ 13 ] Ms. Grant has paid no child support since the separation. There has been no order requiring her to do so. It was a term of the March/May Order that Mr. Grant pay Ms.

Grant $1,000 per month in spousal support. He has done this. [ 14 ] At the end of 2014, Mr. Grant ceased making mortgage payments on the Matrimonial Home and a foreclosure action has been commenced by the bank holding the mortgage. Date of Separation and Divorce: [ 15 ] The parties cannot agree what date they separated. [ 16 ] Ms. Grant asserts that the date of separation is March 14, 2014, when she obtained an interim order for various types of relief.

Ms. Grant admits, however, that the parties had not shared a bedroom in the matrimonial home since January of 2013. [ 17 ] Mr. Grant asserts that they separated on January 18, 2013, although he also agrees that they continued to reside in the same home thereafter. [ 18 ] The parties argue that the separation date must be determined for reasons unrelated to the actual divorce. Most notably the date of separation is important, because there were some assets purchased and both parties incurred debt during the 2013-2016 time period, and one of the tasks I must undertake is to divide assets and debt.

The date of separation may also be important for the purposes of determining entitlement to retroactive spousal and child support. [ 19 ] On the evidence of either of the parties, by the date of trial, they had been separated for more than a year, so it has been established that the marriage has broken down pursuant to s 8(2)(

a) of the Divorce Act , R.S.C. 1985, c 3 , as am. They are therefore entitled to obtain a divorce and that was granted at trial on February 10, 2016 to be effective in the normal course on the 31 st day thereafter. [ 20 ] Separation is a question of what the parties intended. Pursuant to s 8(3)(

a) of the Divorce Act , spouses are deemed to have lived separate and apart during any period in which “they lived apart and either of them had the intention to live separate and apart from the other”. [ 21 ] The parties’ intention must be determined from the evidence as a whole. The following facts are not seriously disputed: 1. The parties continued to live in the matrimonial home with all four of the children from January 2013 to March 2014. 2. Mr. and Ms. Grant had separate bedrooms. 3. Unhappy differences had arisen between them. There was evidence that Ms.

Grant left the matrimonial home for a short period in November 2012, going to stay with her parents. There was also evidence of a fight of some sort in March 2014, during which Ms. Grant claimed she was assaulted. 4. Both appeared to want to continue to live in the matrimonial home and have the other move out. Mr. Grant asserts that this is the reason Ms. Grant penned two letters to the tenant then living in the Husband’s Home in March 2013. Both of these letters indicated that vacant possession of the house was required for June 30, 2013. Mr. Grant says he refused to sign the letter, because he thought Ms.

Grant wanted the Husband’s Home vacated so he could move out of the Matrimonial Home. Ms. Grant does not deny this. 5. By July of 2013, both parties had engaged divorce lawyers. 6. The parties continued to have a joint chequing account and continued to pay their bills from this account. Both Mr. and Ms. Grant continued to deposit their pay cheques into this account. 7. Mr. Grant alleges the parties reached an interim agreement, the terms of which were outlined in an email dated July 24, 2013, from Collista Coles, Mr. Grant’s then lawyer. Mr.

Grant says the parties agreed to each put $2,500 a month into the joint bank account to pay the mortgages on two of the properties, as well as three lines of credit. [ 22 ] It seems quite clear from this evidence that both parties had the necessary intention to separate in January 2013 and so, for purposes of the divorce, I conclude that they separated on that date. [ 23 ] However, from this evidence I also conclude that they did not immediately separate themselves financially and that, therefore, the date of separation for financial purposes was January 2014.

I say this for three reasons. [ 24 ] Firstly, after January of 2013, the parties continued to live in the same dwelling. The children lived there as well and continued to benefit from the support of both parents, both financially and otherwise. [ 25 ] Secondly, the parties purported to make an agreement to continue to share expenses. This so-called interim agreement is too uncertain to have been enforceable in any fashion. For example, the email from Mr. Grant’s then counsel to Ms. Grant’s counsel begins with this statement: “I have reviewed my notes.

Because of the amount each has the parties have they agreed to the following”. There is no question mark after this sentence, so perhaps it was not intended to be a question and was simply a poorly worded sentence. However, with this ambiguous sentence as the

preamble, it is not easy to interpret what follows as an agreement. Further, there are otherwise uncertain terms. For example, the mortgages to be paid are only identified as “mortgage #1” and “mortgage #2” although specific amounts to be paid are set out. Perhaps those are sufficient for the parties, themselves, to identify which mortgages are referred to but for me, it was unclear which mortgages were referred to. Likewise, the lines of credit are also only identified as LOC #1, LOC #2 and LOC #3. Again, specific amounts are set out to be paid for each.

These terms are so uncertain that unless the parties themselves otherwise agreed to what was meant, the terms could not be ascertained. [ 26 ] However, the email speaks to continued joint responsibility for debts and elsewhere in the email, continued joint responsibility for expenses. One numbered paragraph, for example, says this: The parties pay their pro-rata share on the groceries, utilities and any of the other required incidentals not noted above, but not including their personal expenses.

The reconciliation of the household expenses shall occur at the end of each month. [ 27 ] Thirdly, and most importantly, Mr. Grant’s evidence was that the parties lived up to the terms of this “agreement” until December 2013. Ms. Grant did not contradict this evidence. Therefore, whether it constitutes an enforceable agreement or not, it is clear evidence that the parties did not, in fact, begin to separate themselves financially until January 2014. [ 28 ] Because they did not separate themselves financially and continued to share expenses and responsibilities in their shared

residence after January 2013, I conclude that for the purposes of s 7(4) and s 8(

f) of the Matrimonial Property Act, RSA 2000, c M-8 as am, it is only debts incurred and assets purchased beginning in January 2014 that were incurred when the parties were living “separate and apart”. [ 29 ] Further, because they did not physically separate until March 2014 and the children continued to live with both parents until then, I conclude that for child support purposes, child support should not begin to be payable until April 2014. Child Support: [ 30 ] I move now to the issue of child support. [ 31 ] At present, only the oldest child, Cody, resides with Ms. Grant and only he is independent.

All of the other children remain children of the marriage, as this term is used in the Divorce Act . Although, Ginelle is now over 18 years of age, she has just commenced a course at NAIT and remains dependent. Danielle will soon be 18 as well, but she also remains in full time attendance at school. [ 32 ] All four children initially moved out with Mr. Grant in March 2014. Cody returned in September 2014 and Caley returned to live with her mother sometime after Thanksgiving in 2014.

She remained at her mother's until April of 2015, when she moved back to her father's. [ 33 ] While there is no doubt that Cody is no longer dependent, it is a bit unclear when he became independent. He finished high school in June 2013. [ 34 ] For the purposes of child support, I will assume that Cody has not been dependent since March 2014. The other three children have continued to be dependent throughout. [ 35 ] I conclude that Ms. Grant should pay child support beginning in April 2014 for three children until November 2014. From November 2014, Ms. Grant should pay child support for two children, and Mr.

Grant should pay child support for one child until May 2015, when Ms. Grant should again begin to pay child support for three children. [ 36 ] In order to determine what amount of child support was and is payable, I must next determine the parties’ incomes. [ 37 ] Mr. Grant argues that I should impute income to Ms. Grant but I decline to do so. I find that she was not deliberately unemployed or underemployed so as to avoid her responsibility to pay child support. There was simply no evidence before me to permit me to conclude her unemployment was deliberate, notwithstanding Mr. Grant's suspicions.

The evidence was as follows. [ 38 ] Ms. Grant did not leave her last drafting position voluntarily but instead was laid off in June 2013. [ 39 ] Throughout her working life during the marriage, Ms. Grant worked as a draftsperson but she provided evidence, made part of Mr. Grant's case by read-in, that by the time the parties separated drafting jobs were being outsourced to Asia by Alberta companies and the skill was becoming obsolete. [ 40 ] Mr. Grant provided Ms. Grant with a list of companies he thought employed draftspersons. Ms.

Grant’s evidence was that she did follow up with at least some of these companies but was never offered any position. [ 41 ] It is true that Ms. Grant has earned more in the past than she has since the separation but there are valid reasons for this. Her higher incomes in the past were earned as a draftsperson and since the separation, she has had to seek employment in other fields. [ 42 ] Ms. Grant did not work between her lay off in June of 2013 and the end of December 2013 and the evidence about her job search efforts in this time period was scant. However, in January 2014, Ms.

Grant’s ability to job search was interrupted because she had to have knee surgery after tearing a ligament playing soccer. After that, she was in a leg brace for two months and had to go to physiotherapy. She indicated that she had to continue taking physiotherapy until September 2014 and did not work during that time. There is, however, no medical evidence that she could not work. [ 43 ] The available evidence does not indicate deliberate unemployment. At most, it indicates a job search that may not have been as diligent as it could have been. [ 44 ] In September of 2014, Ms.

Grant took a position as a life insurance agent with an entity called World Financial Group. This has not proven to be a successful endeavor. Ms. Grant had to pay money for various courses and other expenses during her training period. Although she did take her exams in February 2015 and was then able to be certified as an insurance adviser in February 2015, Ms. Grant has earned little in this work.

On her evidence, she continued to work at World Financial Group throughout 2015 and, at least theoretically, until the date of trial, but earned only $2,200 in commissions in 2015. [ 45 ] Although her job with World Financial Group was not a successful endeavour, in my view, it cannot be termed an unreasonable attempt by Ms. Grant to become qualified in another field. There is nothing to suggest she took this position as a deliberate attempt not to earn income. As well, it is important to note that Ms.

Grant did not persist in relying on this work once it became clear it would not be lucrative employment. [ 46 ] In September of 2015, Ms. Grant took a contract position with the City of Edmonton as a quality assurance analyst. She works 37 ½ hours a week and earns $26 per hour. She is paid through her corporation SYT Consulting and so has no benefits. The contract expires in April 2016, although it may be renewed. [ 47 ] Ms. Grant’s income for child support purposes should be her line 150 income.

[ 48 ] In 2014, Ms. Grant's line 150 income was $87,418. This consisted of employment insurance benefits of $3,006, support payments of $7,000 and income from cashing an RRSP of $77,412.70. I realize this cashed RRSP was a one-time transaction. However, it still constituted income available to Ms. Grant for child support purposes and should be included in calculations. [ 49 ] At the trial, Ms. Grant had not yet filed her 2015 income tax return, so her income must be estimated.

I conclude that, in the interim, it should be based upon her income from her position with the City and so consider her income for child support purposes to be $48,750 ($26/hour x 37.5 hours x 50 weeks). I realize in making this calculation that Ms. Grant was not employed with the City for the entirety of 2015. I realize, as well, however, that she also cashed RRSPs in 2015 and, in addition, had the use of funds she borrowed from her parents. This estimate may be low or high. If it is high, Ms.

Grant will be motivated to provide her Notice of Assessment quickly so that the amount of arrears she owes can be corrected. If it is low, Ms. Grant must provide her Notice of Assessment to Mr. Grant by no later than July 1, 2016 so that adjustments can be made. If her income as shown on the Notice of Assessment is substantially different, either party can apply to vary the arrears of child support calculated pursuant to this judgment in the event they cannot agree to vary by agreement. [ 50 ] I have not considered Ms.

Grant’s rental income from tenants she has had in the Matrimonial Home in determining her income for child support purposes, as I propose to deal with it below when I consider Mr. Grant’s claim for occupation rent. [ 51 ] Mr. Grant has not filed income tax returns for either 2014 or 2015. However, he did provide evidence of his income in the form of T4s issued by his corporation, Ottewell Mechanical. In 2014 the T4 indicates Mr. Grant was paid $161,600. In 2015, the T4 issued indicated he was paid $175,550.

As this is the best evidence I have, I conclude these numbers are his income for those years. [ 52 ] Thus, based upon these numbers, in 2014, Ms. Grant should have paid $1,642 per month in child support from April to October 2014, and $1,248 per month for child support in November and December 2014. Mr. Grant should have paid $1,407 per month for November and December 2014. In 2015, Ms. Grant should have paid $685 per month for child support from January to April 2015, and Mr. Grant should have paid $1,533. Ms. Grant should have paid $917 per month for May to December 2015. [ 53 ] Ms.

Grant should continue to pay the amount calculated for December 2015 in 2016 until July 2016 by which time she should have received her 2015 Notice of Assessment. Continuing child support should be readjusted based upon her income as shown in her Notice of Assessment for the remainder of 2016. [ 54 ] By my calculations, child support arrears are as follows: April-October 2014 - $11,494; November-December 2014 - (-$319); January-April 2015 - (-$3,392); May-December 2015 - $7,336; January-March 2016 - $2,751. Total arrears payable by Ms.

Grant based upon these figures are $17,870. [ 55 ] In addition, there are a number of s 7 expenses which Mr. Grant has paid or must pay and these should be shared pro rata by Ms. Grant. These include the net amount paid or to be paid after insurance reimbursement for braces for Danielle and Caley, drivers education classes, hockey registration, and school fees. Payment of these s 7 expenses should be calculated based upon the parties’ incomes in the year they were incurred. Only those incurred after 2013 should be included as that was the date of separation for economic purposes. Ms.

Grant has paid some s 7 expenses too and these should be set-off in the relevant year. Any amount owed by Ms. Grant over and above the set-off should be added to the arrears. Any amount owed by Mr. Grant over and above the set-off should be deducted from the arrears. [ 56 ] A number of items listed by Ms. Grant in exhibit 21 are not s 7 expenses.

The following should not be used in calculating s 7 expense: gifts to the children, clothing purchased for the children, hotel, fuel and meal expenses incurred when taking children to sporting events or for vacations, entertainment expenses for children such as movie tickets, Netflix costs, or meals, or costs for haircuts, styling or other grooming costs for the children. These costs are not extraordinary but the normal costs a parent exercising access to a child or having a child in their care might incur. I also note some expenses listed by Mr. Grant which I do not consider s 7 expenses.

While teenaged children often convince their parents to purchase mobile phones for them, these are not s 7 expenses unless there is some bona fide reason a child needs one. [ 57 ] I will consider spousal support once I have considered matrimonial property division. Division of Matrimonial Property: Real property: [ 58 ] I will first consider division of the real property. [ 59 ] The current value of the Matrimonial Home is a bit difficult to determine since it is in foreclosure. An application for a final order of foreclosure was slated for February 18, 2016, immediately after the end of this trial.

The best evidence before me was that its current gross value is $899,000. This number is based upon the mortgage company’s alternative position in the foreclosure application: to reduce the sale price to this amount. What equity the parties have in this home is also open to question since what they actually realize will be determined not only by the ultimate purchase price but also by the amount owing on the foreclosure.

This is, of course, a moving target since accrued interest and the cost legal fees will be added to the amount owing once the sale is completed. [ 60 ] Additionally, and particularly with respect to the value of the matrimonial home, both Mr. Grant and Ms. Grant made what amounted to arguments that the other had dissipated the value of this property since the date of separation. [ 61 ] Mr. Grant argued that Ms.

Grant had delayed putting the property up for sale, delayed in making price reductions when these were suggested by the realtor, failed to keep the property neat and uncluttered so as to facilitate sale, and brought in renters whose presence has made the property more difficult to show. All of this, it was argued, resulted in few showings of the property and it has languished on the market for close to two years. Meanwhile, the price of houses in Edmonton may have dropped.

[ 62 ] Ms. Grant argued that Mr. Grant disobeyed the March/May Order by failing to pay the mortgage, thereby forcing the foreclosure and by failing to pay for costs of needed repairs and finishing in the Matrimonial Home or otherwise aid her in finishing it so as to make it more saleable. [ 63 ] The Matrimonial Property Act directs trial judges to divide matrimonial property equally unless they determine that it would be “just and equitable” to divide it unequally, after taking account of a number of listed factors: s 7(4)).

Among the factors to be taken into account in determining what would be just and equitable is dissipation of the property by one spouse to the detriment of the other: s 8(l). [ 64 ] The party alleging dissipation has the burden of proving it. [ 65 ] A series of emails between Paulette Maltais, the realtor chosen by Ms. Grant, and Mike Grant and/or Colette Grant, were made exhibits by Mr. Grant. [ 66 ] Mr. Grant had indicated he would call Ms. Maltais as a witness but near the end of trial decided not to do so. The series of emails had already been made exhibits through him at this stage. Of course, anything Ms.

Maltais said in these emails is hearsay and, strictly speaking, inadmissible. Ms. Grant made no argument, however, that I could not rely upon them and, the evidence is relevant. There is also no reason to consider the evidence unreliable. The evidence has already been admitted, without exception being taken and, therefore, I conclude it is necessary for me to consider it and I will do so under the principled exception to the hearsay rule.

From these emails I glean the following facts: - The house originally was listed and put on the market by the end of March 2014 for a price of $1.3 million. - By late May 2014, Mr. Grant wanted to reduce the price to $1.1 million, the appraised value for property tax purposes in the previous year. Ms. Maltais seemed to agree this would be appropriate. Ms. Grant was slow to respond to requests to reduce the price and by June 4, 2014 specifically refused to sign an amended listing agreement. - It was not until September 9, 2014 that the price was adjusted to $1.2 million. The recommendation from Ms.

Maltais to reduce the price to $1.1 million was resisted by Ms. Grant who said a “$1.1 million home will not sell better than a 1.2 million home if the exterior is unfinished”. Ms. Maltais seemed to be concerned about the unfinished state of the home and asked both parties whether either of them intended to finish the house and build a fence. - Ms. Grant finished the back deck by September 6, 2014 and sent photos to Ms. Maltais for inclusion in the virtual tour. - By November 19, 2014 Ms. Maltais was recommending a further price reduction to $998,000. [ 67 ] On this evidence, as well as that of Mr.

Grant, there is little doubt that Ms. Grant was slow to make decisions respecting reductions in purchase price and little doubt that she did not clean up and declutter the house as quickly as possible in order to allow the photographs to be taken for the virtual tour of the home. [ 68 ] Mr. Grant believes Ms. Grant deliberately tried to slow the sale process down because she wanted to remain in the Matrimonial Home. He gave evidence, as well, that Ms. Grant told him she would rather see the house in foreclosure than have him get it. Ms. Grant denied she has said this. [ 69 ] As well, in her evidence, Ms.

Grant provided an alternate explanation for the delay. She said she finished the deck, seeded the lawn and put rock into the flower beds because she understood from the realtor that the home would not attract potential purchasers because of its unfinished state. There is evidence in the emails that this was so. [ 70 ] In respect to Mr. Grant’s failure to pay the mortgage, Mr. Grant says he stopped paying the mortgage on the Matrimonial Home, because he simply could not afford to continue to do so.

He points out that he had all of the expenses for the children who, as teenagers, were at an expensive stage in their lives. As well, he testified that the cost of maintaining the various houses was very high, at about $7,000 per month. [ 71 ] In hindsight, it is clear that Ms.

Grant’s delays in doing some of what was requested by the realtor likely did delay a sale and likely did cause a loss in the value of the parties’ equity in the Matrimonial Home, because of the change in the real estate market from the spring of 2014 until the date of trial, caused by the collapse of oil prices in Alberta. [ 72 ] In my view, however, dissipation has not been proven by either party.

There is neither evidence of fraud, deceit, or profligate spending nor evidence that matrimonial property has been destroyed or wasted or that a party spent money lavishly or foolishly on finishing the Matrimonial Home or on things other than the mortgage. Mr. Grant has struggled to pay all of the expenses of the family and Ms. Grant’s delay is only foolish in retrospect, because of the changes in the housing market. [ 73 ] There is no reason not to divide the Matrimonial Home equity equally. Neither party can apparently afford to redeem the home, and both are content to allow the foreclosure to continue.

In my view, the best way of dividing the equity in these circumstances is simply to allow the foreclosure to be completed with each party to be paid one-half of the remaining equity at the end of the day. [ 74 ] I will now deal with the Husband’s Home. This home was purchased by Mr. Grant before the marriage and has never been put into joint names. The present value of this house as established by appraisal is $348,000. This property is encumbered by a mortgage registered in 2010. The present value of which is approximately $256,230 leaving an approximate current equity of $91,770.

None of this is contentious. [ 75 ] The parties disagree, however, as to the value of Mr. Grant’s exemption in this home. A historical search shows it was purchased on December 20, 1988 for $85,500, before the marriage. At the purchase date, there was a mortgage registered against title with an original principal amount of $47,000, as well as a caveat registered October 1988 protecting a second mortgage. Both of these

mortgages were discharged shortly before the marriage. However a new mortgage was registered in 1993, a home equity line of credit(“HELOC”), which was maximized very quickly at over $85,000 on the evidence of Ms. Grant, confirmed in cross-examination by Mr.Grant. The HELOC was discharged in June 2010 when the current mortgage with a face value of $260,000 was registered. Funds fromthe 2010 mortgage were used to finance the construction of the Matrimonial Home. [76] Ms. Grant has two arguments respecting Mr. Grant's claimed exemption in the Husband's Home.

She first argues that havingfailed to lead evidence of the value of the home at the date of marriage, Mr. Grant has failed to prove the value of his exemption andthereby failed to prove his exemption. She argues that I cannot infer the value of the home at the date of marriage from any of theevidence that was tendered. [77] I do not agree. Although no evidence was tendered as to the value of the Husband's Home in July 1990, that is not fatal to hisclaim for an exemption. Inferences can be made from evidence tendered. The home was, after all, purchased only approximately a yearand a half before the marriage.

Further, it was encumbered by a home equity line of credit of over $85,000 in 1993, less than two yearsafter the marriage. In my view, this evidence does permit me to infer that the Husband's Home was worth about $85,000 at the date ofmarriage. That was close to its value when it was purchased, and a bank was prepared to lend the Grants that much money within twoyears after the marriage based upon the security of the equity of the home. [78] I conclude based upon this evidence that the value of the Husband's Home on the date of the marriage was $85,000. [79] Ms. Grant’s second argument is that Mr.

Grant lost his exemption in the Husband's Home when the balance of the HELOCmortgage exceeded the value of Mr. Grant’s exemption in the Husband's Home. The HELOC funds were used to meet the couple’severyday expenses, to pay off credit card debt and to purchase another rental home on the evidence. Ms. Grant says that drawing downthese funds completely exhausted Mr. Grant’s exempt equity in the Husband's Home. Ms.

Grant says that because of this, the exemptfunds cannot now be traced into the present value of the home, notwithstanding that there is now equity in that home that exceeds theamount for which it was purchased. Alternatively, Ms. Grant says, even if the exemption survived the drawing down of funds in theHELOC, when it was discharged in 2010 and a new mortgage was registered against the Husband's Home to obtain funds to build theMatrimonial Home, any exemption that survived is traced into the Matrimonial Home. At most, Ms. Grant says $37,500 of the originalequity in the Husband's Home can be so traced.

She says as well that the maximum value of Mr. Grant’s exemption has been reduced to$18,750 because the Matrimonial Home is in joint names. [80] Mr. Grant disagrees. He cites Carmichael v. Carmichael 2007 ABCA 3 as authority for the proposition that it is the marketvalue of the property on the date it was acquired that is exempt from distribution. Thus, he says the value of the exemption is clear. It isthe purchase price. Further, he says this case makes it clear that encumbrances against the home are of no relevance since it is the‘market value’ of the home not the net equity that is exempt. [81] I agree.

Section 7(2) of the Matrimonial Property Act provides that it is the “market value” at the date of acquisition of aproperty that is exempt from distribution. Section 7(3) then provides that it is the difference between the exempt value of the propertyand the “market value at the time of trial” that may be distributed. [82] But the original value of the exemption is only half the equation. The second issue is whether the exemption has been lost.Mr. Grant's argument appeared to be that since it is the market value that is exempt, fluctuations in equity are irrelevant. [83] Ms.

Grant’s argument is premised on the proposition that as equity is eroded, so too is the exemption. There is case law thatappears to support her argument. Many cases deal with what happens to an exemption which is, or is invested in, an asset that depreciatesin value over time. Vehicles are a good example of this type of an asset. In these cases, the courts have found that the exemptiondecreases in value as does the asset so that if the asset becomes worthless, the exemption disappears. See for example Brokopp v.Brokopp (1996) 1996 ABCA 4 , 181 A.R. 91, [1996] A.J. No. 77; Lovich v.

Lovich, 2006 ABQB 736. [84] I conclude, however, that those cases are distinguishable from the situation here. [85] I begin my analysis with the wording of the Matrimonial Property Act itself. The relevant provision is s 7(3) which providesthat it is the difference between the exempted value of the property and the market value of the property “at the time of trial” that may bedistributed between the parties. As I have already said, the exempted value of a property is established by s 7(2) as the “market value ofthat property...on the date on which the property is acquired”.

Thus, by the wording of the statute, the two relevant dates fordetermination of the value of an exemption are the date of acquisition and the date of trial. [86] The Act says nothing about fluctuations in the value of a property between those two dates, and it would appear therefore thatsuch fluctuations are irrelevant. [87] If Ms. Grant is correct, then fluctuations of equity in an exempt property during the course of a marriage would affect anexemption.

For example, if a party brought a home worth $100,000 into a marriage on year one, if at year 5 of the marriage, the marketvalue of that home had decreased to $75,000 because of a falling real estate market, then even if the market value of the home increasedto $150,000 by the time of a divorce in year 10 because of a rising market, the party's exemption would still have been caught by theearlier downturn and be limited to $75,000. If that

interpretation is correct, then parties would be forced to obtain historical valuations ofexempt property if it was suspected that a property had decreased in value over the course of the marriage, thereby greatly increasing thecomplexity and the expense of matrimonial property trials. That cannot have been the intention of the Legislature. [88] The numerous cases that conclude that when an exempt property is sold, if the proceeds are dissipated or otherwise cannot betraced into after acquired property, the exemption is lost, are also distinguishable.

There is one crucial difference between those casesand the case at bar. Here, the Husband's Home was never sold or otherwise alienated. Thus, there is no tracing issue. [89] As a consequence, in my view, Mr. Grant has maintained his exemption in the amount of $85,000 and the distributable valueof the Husband's Home is $263,000, less the mortgage balance at the date of trial.

[ 90 ] No presumption of equal distribution exists in respect to the increase in value of the Husband’s Home because it is property described in s 7(3) of the Act. This

section provides that the amount is to be divided in a manner that is “just and equitable”. [ 91 ] I have concluded that it would be just and equitable to distribute the increased value equally. This was a long marriage. The Husband's Home was clearly brought into the matrimonial regime and used as a family asset throughout the marriage. The family lived there for many years and when they moved to the Matrimonial Home in 2012, the Husband's Home was rented out and the income used to support the family.

The house was also encumbered from time to time and the proceeds used for family needs and wants. [ 92 ] I move now to the issue of the Wife's Home. [ 93 ] This property is valued by appraisal at $308,000. There are no encumbrances registered against title. No one argues its value should be other than the appraised value. Although this house was apparently purchased by Ms. Grant prior to the marriage, she makes no claim for an exemption related to it. The Wife's Home is now registered in the couple’s joint names.

This apparently occurred some time ago in order to facilitate financing. [ 94 ] Two events in the history of this home complicate distribution of its value. The first in time was the flood, which I have referred to earlier. The house was insured and the insurer paid out $80,443.96 by cheque for this loss in April of 2015. The insurer chose to issue a cheque rather than to undertake the repairs itself, because Ms.

Grant had decided to do certain repairs herself and in the process changed the floor plan, added rooms, removed interior walls, and roughed in new plumbing and electrical wiring, all without the agreement of the insurer and without obtaining the necessary permits. [ 95 ] Because the parties could not agree to disposition of these funds, $83,412 remains in trust with Mr. Grant’s counsel. The parties are agreed that these funds are matrimonial property, but Ms. Grant would like them distributed only to her so that she can complete the repairs on the home.

She agrees however that the funds are subject to equal division. Mr. Grant would like them to be distributed equally. [ 96 ] The second event that complicates division of the Wife's Home as matrimonial property is the fact that, like the Matrimonial Home, the Wife's Home too went into foreclosure when the two mortgages registered against it ceased to be paid. On July 31, 2015, Ms. Grant paid the sum of $162,534.26 to Witten LLP to redeem and pay out the two mortgages, obtaining the necessary funds by borrowing from her parents. Ms.

Grant's mother, Claudette Boisvert, confirmed in her evidence that she and her husband lent the above noted amount to Ms. Grant to allow her to pay out the mortgages. Mr. and Mrs. Boisvert did not have the cash to lend to their daughter, so they took a home equity line of credit mortgage on their own house to do so. Mrs. Boisvert confirmed, as well, that Ms. Grant was repaying them at $1,800 per month. [ 97 ] Ms. Grant also borrowed a further $65,353 (the "Living Expenses Loan") from her parents, also secured by the home equity line of credit on her parents’ home, which Ms.

Grant says was used for her own living expenses. It was not clear from the evidence if the amount she pays her parents each month included an amount for repayment of this further loan, however, I assume it does. I will deal with the Living Expenses Loan separately below. [ 98 ] Ms. Grant’s position is that the $162,534.26 debt to pay out the mortgages against her home is a matrimonial debt and should be divided equally. Mr.

Grant says the divisible debt should be capped at $153,396 ($61,204 + $92,192) being the balance of the two mortgages on the Wife's Home, before the foreclosure proceedings were begun. [ 99 ] In my view, the correct value for this debt is $162,534.26, the amount to pay out the mortgages in foreclosure. No evidence was tendered that this amount has been substantially reduced since the payout commenced. The sums suggested by Mr.

Grant would have the effect of valuing the debt earlier in time than the date of trial when everything else is valued, and he provided no reason for this. [ 100 ] The foreclosure proceedings on both the Wife's Home and the Matrimonial Home begun after the mortgages ceased to be paid in December of 2014. Mr. Grant argued that he could not afford to keep paying all of the expenses. It is true Mr. Grant had the care of the children and many expenses at the time. Notwithstanding this, Ms.

Grant faults him for his failure to pay the mortgages on the Matrimonial Home and the Wife's Home and tendered evidence to show that he did have sufficient cash flow to cover all the house mortgages. On the other hand, Mr. Grant also knew that Ms. Grant was not employed at the time and so far as he knew, her sole income was spousal support of $1,000 per month. The record shows that she also received some employment insurance income in 2014 and Mr. Grant may also have known about that. There is no evidence he knew she had cashed in RRSPs. Mr. Grant should have been aware, therefore, that Ms.

Grant might not be in a position to pay the mortgage if he ceased doing so. [ 101 ] The reality was, of course, that Ms. Grant did cash in RRSPs in the amount of $77,413 in 2014 and at that time, she was not paying child support and so she did, in fact, have funds she could have used to keep the mortgages current. [ 102 ] The evidence was therefore that although both parties did have funds they could have used to pay the mortgage payments on the Wife’s Home, neither Mr. Grant nor Ms. Grant chose to continue to make these mortgage payments.

Under the circumstances, while I accept that money was tight, I conclude the failure to pay the mortgages on the Wife's Home was the result of decisions made by both to use their available cash for other purposes. In the result, both should share equally in the financial effect of those decisions. The $162,534.26 is a joint debt and should be divided equally. [ 103 ] The value of the the Wife's Home ($308,000) should also be divided equally. [ 104 ] Because it is connected with the Wife's Home, it is convenient at this point to deal with the insurance proceeds.

Although both parties agree that these funds are matrimonial property, Ms. Grant wishes to have them paid out to her in total, saying this is necessary to enable her to finish the repairs on her home so that she can move out of the Matrimonial Home. However, although these funds were paid out as a consequence of damage to the Wife's Home, there is no longer any other connection to the home and whether the repairs could, in fact, be completed using these funds is open to question. I was provided with no evidence that these funds would be sufficient to complete this work.

These funds are also one of the few assets that can easily be distributed without having to convert them to cash,

without tax implications or without other issues which could complicate their distribution. I conclude that the best resolution would be simply to divide these funds equally. Other Assets: [ 105 ] The parties also own four vehicles. A 2000 Yukon XL is in the possession of Mr. Grant. Ms. Grant believes that Mr. Grant should keep this vehicle at a value of $1,500. Mr. Grant does not place a value on this vehicle. I will value this vehicle at $1,500 since it is the only evidence I have. It should remain in Mr.

Grant's possession since the evidence was that he is the one driving it. [ 106 ] The second vehicle is a 2003 Chevrolet Venture, which Ms. Grant values at $500 and says Mr. Grant should take. Her evidence was that this vehicle runs, but is very loud and requires thousands of dollars in repairs. She says that Mr. Grant left this vehicle on her driveway. Again, Mr. Grant does not place a value on this vehicle, nor does he indicate whether or not he would like to take it.

Since neither appears to want this vehicle, I direct that it be sold and the proceeds divided equally. [ 107 ] A 1992 Ford F-150 was the subject of much evidence. This vehicle is worth little but Mr. Grant claims a number of expenses associated with this vehicle, including the cost of two traffic tickets and some impound fees. Mr. Grant was angry with Ms. Grant for leaving it on the side of the highway after she was apparently stopped by the police. Ms. Grant says this vehicle has a negligible value of $500. She believes that Mr. Grant should have this vehicle. Mr.

Grant values this vehicle at $1,000 and agrees he should take it. I will value this vehicle at $750, being the average of the values placed upon it by the parties. Mr. Grant may keep the vehicle at this value. [ 108 ] Mr. Grant claims the various expenses associated with the vehicle are reimbursable by Ms. Grant as an adjustment on matrimonial property. Some of these claims were abandoned by Mr. Grant during argument, but even those that were not seem to result from a scorched earth policy both engaged in. The traffic tickets about which so much trial time was devoted were issued when Ms.

Grant was driving the vehicle, but it was registered in Mr. Grant’s name. As a result, Ms. Grant was not able to attend to re-registration when it expired. Mr. Grant admitted he knew the vehicle was unregistered at least two weeks prior to the time Ms. Grant was stopped driving it. Clearly, he knew it was unregistered and likely being driven, and she knew it was unregistered and continued to drive it. Further, rather than taking any kind of responsible action when she was stopped, Ms. Grant simply left it. However, Mr. Grant then paid more than the vehicle was likely worth to get it out of impound.

Both acted irresponsibly respecting this vehicle. I will simply call the expenses associated with the vehicle a joint matrimonial expense, albeit incurred sometimes unilaterally after the separation and will require Ms. Grant to reimburse Mr. Grant for one half of the $2035 paid for the tickets, towing and storage fees. [ 109 ] A 2014 Dodge Truck is in Ms. Grant's possession. The parties are agreed that this vehicle is heavily financed and there is no residual value for distribution. [ 110 ] The parties also own a number of recreational type assets.

They own a trike (apparently a type of motorized all-terrain vehicle), a boat and trailer, a holiday trailer, and a motorcycle. All of these are currently in Mr. Grant's possession. [ 111 ] Ms. Grant values the trike at $200 and suggests that Mr. Grant should keep it. Mr. Grant makes no suggestion about the value of the trike and does not indicate whether or not he would like it. I conclude on the basis of the only evidence I have that the value of the trike is $200 and that Mr. Grant should retain it. [ 112 ] The boat and trailer are valued by Ms. Grant at $30,000 and by Mr. Grant at $13,000. Ms.

Grant’s estimate is based upon an advertisement for sale of a similar boat which she found on-line. Mr. Grant said his estimate of the value was also based upon the mid- level value of similar boats he found on-line. [ 113 ] The evidence respecting the value of this boat is far from satisfactory. There is no way for me to know if the advertisement found by Ms. Grant is an outlier or is a reasonable valuation of the boat. Mr.

Grant provided no copies of the advertisements he said he used to obtain the average he gave. [ 114 ] Given the conflicting evidence, the only way to accurately determine the value for this boat and the trailer is to offer them for sale. However, Mr. Grant apparently wants the boat and trailer and Ms. Grant is content that he should have them. I will therefore order that Mr. Grant has the option to keep the boat and trailer if he accepts Ms. Grant’s value. Alternatively, both will be sold at auction and the value divided equally. Mr. Grant may bid at the auction. [ 115 ] Mr. Grant believes that Ms.

Grant bent the axle of the boat trailer when she used it once after the separation and believes that she should pay for this damage. He provided an invoice for the cost of the repairs but the invoice does not, on its face, indicate that it was to repair a bent axle. Counsel for Ms. Grant suggested in cross-examination that the invoice might be for realignment, but Mr. Grant denied this. Mr. Grant also provided an invoice for new tires for the boat trailer and said he thought Ms. Grant should reimburse him for these as well.

His explanation was that the bent axle caused the tires to wear out. [ 116 ] In my view, Mr. Grant has not proven that these repairs were caused by Ms. Grant’s negligence or that for some other reason she ought to reimburse him for these expenses. As I understood the evidence, Mr. Grant permitted Ms. Grant to use the boat only once although she had asked to use it on other occasions. Other than that single use by Ms. Grant, the boat was in Mr. Grant’s possession, and he has had the use of it since the separation. As a consequence, these expenses are his and there is no reason Ms.

Grant should be required to reimburse him. [ 117 ] The holiday trailer is also the subject of dissension between the parties. Ms. Grant values it at $10,000 based upon advertisements for sale she has found on the Internet. Mr. Grant says its value is negligible. He says, as well, that it is owned by his corporation and points to the fact that it has been depreciated on the corporation’s tax returns so that its present value for tax purposes is nil. Mr. Grant wishes to keep this trailer. Ms. Grant is content that he does so. [ 118 ] I conclude that the trailer should be valued at $10,000 as asserted by Ms. Grant.

In cross-examination, she was asked if the on-

line advertisement she chose to make an exhibit was the only one she found. She said it was one of several and all were about the same. From this response, I conclude that the on-line advertisement she chose show a representative value. Mr. Grant’s valuation does not represent the present value but only the depreciated value for income tax purposes. I can take judicial notice that values depreciated for income tax purposes are based upon a formula and sometimes bear little relationship to the actual market value of an asset. Nor do I make anything of the fact that the corporation is said to own the trailer.

There was no evidence tendered to show that the corporation purchased the trailer or that it is registered in the corporation’s name. Further, even if it is owned by the corporation, Mr. Grant’s evidence made it clear that like many sole shareholders of closely held corporations, Mr. Grant has made personal use of corporate funds and assets when he wished to, and there was no bright line separation between Mr. Grant's corporation and him personally. Mr. Grant may keep the trailer at the $10,000 value. [ 119 ] Mr.

Grant provided a bill for the cost of winter storage of this trailer, but it was not clear from his evidence why he did so. Since he valued the trailer at nil, it is difficult to understand how the amount paid for storage could be used to adjust the value of the trailer in his hands. As well, since he has had sole use of this trailer since the parties separated, there is no basis upon which he can argue that Ms. Grant should share this expense or reimburse him for it. [ 120 ] The final recreational vehicle asset is a motorcycle. Ms. Grant described this as a 1979 vintage machine and estimated its value at $150.

Again, Mr. Grant did not place a value on it. It is in Mr. Grant's possession and Ms. Grant is prepared to let him keep it. Having no other evidence, I value it at $150 as suggested by Ms. Grant and order that Mr. Grant may maintain ownership at that value. [ 121 ] Mr. Grant has a number of tools of the trade, a list of which was made an exhibit. He says these are also owned by the corporation and says, as well, that most were owned by him prior to the marriage. In cross-examination, Ms. Grant agreed that he did own tools before the marriage. Mr. Grant provided two lists of tools.

One list is those tools he owned prior to the marriage. Ms. Grant does not dispute these items or that they are exempt. They are the sole property of Mr. Grant, and their value is not divisible. [ 122 ] In argument, Mr. Grant’s counsel agreed that Mr. Grant would take his tools purchased after the marriage at the values set out by him in the list made Exhibit 63. The total value of these is $7,480. Ms. Grant agrees to this value and agrees that Mr. Grant should take them. I so order. [ 123 ] Mr. Grant has a pension with Edmonton Pipe Industry Pension Trust Fund.

A statement from the trust fund was made an exhibit and indicated the value was $227,348.90 for the accrual period stated to be July 28, 1990 to January 18, 2013. Both parties are agreed on the value during the accrual period and agreed, as well, that it should be divided at source. This is what should occur. Although Ms. Grant argued that the date of separation was in March of 2014 rather than January 2013, she did not argue that the accrual period as set out in the statement was incorrect. [ 124 ] Ms. Grant also received a pension pay-out when she left her position at Alberta Energy.

These funds have been transferred to a LIRA valued at $55,516. All of this value apparently accrued during the course of the marriage as Ms. Grant claims no exemption related to it. Again, in my view, the easiest method of dealing with this would be to divide it equally between the parties at source. [ 125 ] The parties have RESPs for each of the children. Both agree that these funds are the children’s and to be used for the children’s educations. Both are agreed, as well, that the bill recently paid by Mr. Grant for Ginelle's NAIT fees should have been paid out of her RESP. Mr.

Grant may reimburse himself for the cost of the NAIT fees. Otherwise these funds are to be used for the children’s education. I will direct that both parties be named as owners of each of these funds but that otherwise, they are not to be divided between them. [ 126 ] The parties also have RRSPs. [ 127 ] Mr. Grant’s RRSPs were valued by Ms. Grant at $186,123 and by Mr. Grant at $147,420. Mr. Grant provided a statement dated February 1, 2016, from TD who holds his RRSP which sets out the value he claims. Ms. Grant does not indicate from where she obtained the number she uses to value Mr. Grant's RRSP.

I conclude that the value is $147,420, because this amount is corroborated by the bank statement. [ 128 ] Ms. Grant has RRSPs now valued at $210,273 (exhibit 15). She acknowledges having cashed RRSPs during the separation but says she needed the money to live on and so says the date of valuation for her RRSPs should be the date of trial. Mr. Grant argues that the value of Ms. Grant's RRSPs should be $348,070, which is the value of what she had including the amount cashed in as shown on Exhibit 15. [ 129 ] Ms. Grant has also made a claim for retroactive spousal support, and the date of valuation of Ms.

Grant’s RRSP is tied to the claim for retroactive support because she says she had to cash the RRSPs in order to finance living expenses. Equitably, she cannot have both. If she depleted a matrimonial asset in order to fund living expenses during the separation period, to the extent she did so and seeks to have that asset ignored for matrimonial property division purposes, she cannot also claim that Mr. Grant should pay her retroactive spousal support in order to fund those same living expenses. This issue is also tied to the amount Ms.

Grant borrowed from her parents for living expenses during the separation. [ 130 ] Because these issues are inextricably tied together, I will deal with the value of the RRSPs to be divided and characterization of the Living Expenses Loan further when I consider the issue of spousal support. [ 131 ] I will, however, direct that the RRSPs, at the value established below, be equalized and transferred between the parties in specie so tax implications need not be considered. [ 132 ] Ms. Grant agrees she has $4,502 in her bank accounts and these funds are matrimonial property.

They are to be divided equally. [ 133 ] Both parties also have closely held corporations. [ 134 ] Mr. Grant’s corporation is called Ottewell Mechanical Services Ltd. It is a personal services corporation which contracts with various other corporations and businesses. Mr. Grant is the sole employee of Ottewell and does all of its work. Basically, therefore, the

corporation appears to be a vehicle for managing taxes with no value as a going concern. It has not been valued. Ms. Grant acknowledges the corporation has no real value as a going concern but says that the corporation’s bank account should be valued as a matrimonial asset. The number she uses in her calculations is $13,889 being the bank balance in the corporate bank account on December 31, 2015. [ 135 ] Mr. Grant argues that it is unfair and artificial to use the balance of the bank account at a moment in time as a number to be divided as matrimonial property.

Firstly, he argues these are corporate funds and used for corporate expenses. Secondly, he says that the bank account balance fluctuates wildly depending on the time of month and whether or not the corporation has just been paid for Mr. Grant’s work the previous month. [ 136 ] I agree. Because the corporation’s only income is what are, in effect, Mr. Grant’s wages, there is a real risk of double counting income as an asset if I do what Ms.

Grant suggests. [ 137 ] However, the corporation does have retained earnings of $12,616, according to the October 31, 2015 year-end financial statement of the corporation which was tendered as an exhibit. This amount of retained earnings is larger than this corporation has had historically (2014 was $1,413; 2013 was a deficit of -$10,604; 2012 was $269). I conclude from this evidence that for the year ending October 2015, Mr. Grant did not maximize the income he took from the corporation and could now dividend at least some of these retained earnings, should he choose to do so.

Thus, although retained earnings are the property of the corporation, either they should be considered when valuing the corporation or, if excess to the corporation’s needs, they may be dividended to the shareholder and should be considered as his personal asset. Essentially the retained earnings, if not needed for the operation of the corporation, constitute a savings account for the shareholder.

Either way, these retained earnings should be taken into account when dividing matrimonial property. [ 138 ] Somewhat arbitrarily, I conclude that at least half of these retained earnings could be dividended and still leave sufficient funds for the corporation to continue to operate and pay its bills. I therefore conclude that $6,308 (1/2 of $12,616) is the residual value of the corporation that should be treated as matrimonial property less applicable taxes. Mr. Grant will, of course, continue to have this corporation as his sole property. [ 139 ] Ms.

Grant also has a closely held corporation, SYT Consulting Ltd, which contracts with the City of Edmonton, its current sole client. Ms. Grant does all of the work. The parties are agreed, this corporation has no value. [ 140 ] The only other assets are household goods. There is furniture and electronics in both houses, as well as collectible items. Mr. Grant has attempted to put values on these assets, but these are not based upon anything other than his opinion. With one exception, which I will deal with below, I am not going to even attempt to put a value on the furnishings or to divide them.

If the parties cannot agree upon a satisfactory division, I direct that all the furnishings be taken to auction and sold and the proceeds divided. Values obtained at auction for secondhand furnishings are notoriously low. Hopefully, knowing this, the parties will be able to come to an agreement. [ 141 ] The one furnishings issue I will deal with concerns furnishings ordered by Mr. Grant from Direct Buy immediately after the separation. When he moved out of the Matrimonial Home and back into the Husband's Home, he did so with all four of the children.

On the evidence presented, it appears that Direct Buy is an entity which requires a membership. Ms. Grant was the named member. It also requires that items purchased be ordered in advance of delivery. Mr. Grant’s evidence was that there is a 2 or 3 week waiting period between the order and the delivery. Although Mr. Grant chose and ordered the furniture, it was delivered to Ms. Grant in the Matrimonial Home through some mix-up. Rather than redirecting it and even though she presumably already had a house full of furniture, Ms.

Grant accepted delivery of the furniture and has kept it ever since. [ 142 ] These furnishings were purchased after the separation by Mr. Grant and therefore s 8(

l) of the Matrimonial Property Act may be considered when determining if it is just and equitable to divide these equally. Mr. Grant no longer wishes to have this furniture as he has purchased other furnishings. He does want Ms. Grant to reimburse him for the furnishings which she wrongfully kept, and I direct that she do so. [ 143 ] In determining what is just and equitable in terms of a division, I must consider the factors set out in s 8 of the Act. I find the following to be significant. The furnishings were purchased after the separation using only Mr. Grant’s funds. Ms.

Grant contributed nothing to the acquisition of this property. She neither ordered it nor paid for it. Neither did she need it. By keeping it, she deprived her children as well as her husband from being able to make use of it and thus, far from her actions contributing to the welfare of the family, her actions simply caused more expense for Mr. Grant and discomfort for him and the children. Ms. Grant offered no reason for her actions, and I can think of none that would justify her behaviour. [ 144 ] I direct that the value of these furnishings be divided 100% to Mr. Grant and 0% to Ms. Grant. Ms.

Grant will keep these furnishings but she must reimburse Mr. Grant for 100% of the original purchase price. Debts: [ 145 ] The parties have a number of debts, as well, which must be considered in the division of matrimonial property. Most of these have, however, been dealt with when I considered above, the property they were tied to. One will be dealt with below, when I consider the spousal support claim made by Ms. Grant. [ 146 ] One other debt must be considered. In particular, both parties provided evidence of bills paid to repair or improve their respective houses or the Matrimonial Home.

None of these is to be shared by the other party. [ 147 ] The exception to this general rule is the loan from Mr. Grant’s mother. Mr. Grant’s mother loaned the couple $30,000 to help them complete the Matrimonial Home. Both parties agree this is a matrimonial debt, which must be repaid and should be shared equally. Mr. Grant will pay it and the amount paid will be part of the equalization calculations. I have noted the evidence that Mr. Grant’s mother gave the parties a further $12,000 to pay for granite countertops in the Matrimonial Home. These funds were a gift, however, and, unlike

the $30,000, there is little evidence there has been any demand for repayment of the $12,000. Mr. Grant says his brother, their mother’sattorney, would like the $12,000 returned but, unlike the $30,000, no demand letter for repayment of the $12,000 was entered intoevidence. [148] Otherwise, I direct that each party be responsible for their own credit card debt, utility debt, property tax debt, income tax debtor any other amount incurred by that party since the separation date, as established above.

The exception will be those property tax debtsassociated with the Matrimonial Home which I assume will be paid in the course of the foreclosure proceeding. Spousal Support: [149] Ms. Grant claims both retroactive and ongoing spousal support. She argues that the retroactive support should be paid as a lumpsum and ongoing spousal support periodically on a compensatory basis. She argues that considering Mr. Grant’s income and theadvisory spousal support guidelines, as well as her budget, a reasonable amount would be $3,400 per month. Mr.

Grant says there shouldbe no further retroactive or ongoing support paid. [150] Spousal support is intended to alleviate the economic consequences of marriage or marriage breakdown: Moge v. Moge (SCC), [1992] 3 SCR 813. In assessing whether to order spousal support, I must consider the objectives as set out in s 15.2(6)of the Divorce Act, as well as the “condition, means, needs and other circumstances of each spouse”: s 15.2 [151] In some ways, theirs was not a traditional marriage, insofar as Ms.

Grant worked for a number of years after they married andeven after the children were born, took only minimal time off as successive maternity leaves when each child was born, before returningto work. [152] However, in other ways it was quite traditional. When her position with Alberta Energy was moved to Calgary, because of herfamily commitments, Ms.

Grant did not move to Calgary but instead, accepted a severance package which went into joint investmentsand thereafter stayed home, taking a traditional homemaker role until 2012. [153] Her uncontested evidence was that she did the cooking, cleaning and primary child care and Mr. Grant's participation in theseactivities was minimal. As well, she helped Mr. Grant in his business by keeping receipts and doing bookkeeping. [154] Because Ms. Grant did the lion’s share of the work around the house, this permitted Mr. Grant to pursue his career and toaccumulate experience and job skills. At the same time, while Ms.

Grant was off work, her job skills became less in demand and she isnow less employable. [155] Ms. Grant has sustained an economic disadvantage as a result of the marriage. This was a marriage of 27 years, long term byany measure. There is no doubt, as a result, that Ms. Grant has an entitlement to spousal support on a compensatory basis. [156] Ms. Grant has been paid spousal support in the amount of $1,000 per month since June 2014. In addition, she has cashed RRSPsheld in her name and has borrowed over $65,000 from her parents. Mr. Grant estimates that Ms.

Grant has had cash flow of $263,000over the 22 months from April 2014 to the February 2016 trial date. Ms. Grant’s evidence was that she used some of these funds to finishthe Matrimonial Home, some for repairs and renovations on the Wife's Home and for her own needs. Of course, she also used some ofthese funds to pay her lawyer. [157] As noted above, I have taken Ms. Grant’s 2014 RRSP redemption into account when considering her responsibility to pay childsupport.

In my view, it only makes logical sense to also take it into account when considering retroactive spousal support for that year.The amount she cashed in, in 2014 was $77,413 according to her tax return. This was, of course, taxable and so the entire amount was notavailable to her. However, spousal support is taxable, as well, if received on a periodic basis. If the value of the RRSP cashed in isconsidered as having been paid as spousal support on a monthly basis, it would work out to about $8,600 per month from April toDecember 2014.

When the $1,000 per month actually paid for spousal support is added to this, it would be the equivalent of roughly$9,400 per month ($77,413 + $7000 ÷ 9 = $9379.22), likely more than Mr. Grant could have paid or Ms. Grant would have expected toreceive for support for that time period. [158] Ms. Grant had RRSPs valued at $324,236 at March 31, 2014. The present value is $210,273.

Thus, she appears to haveredeemed RRSPs to a total value of $119,712 since March 2014. [159] The evidence in exhibit 15 is that she also redeemed RRSPs in 2015 in the amount of $66,136, which I assume will be shown onher 2015 income tax return when she files it. [160] The amount of spousal support suggested by Ms. Grant of $3,400 per month would work out to $40,800 per year or $74,800 forthe 22 months since this couple physically separated. By any measure, therefore, if the amount redeemed in RRSPs by Ms. Grant sinceseparation is considered to be the equivalent of lump sum spousal support, Ms.

Grant has received more than she could reasonably beentitled to. [161] The difficulty now is in determining what would be a reasonable and practical resolution. Because I have utilised the amountredeemed in 2014 to calculate child support, it would be unfair to Ms. Grant to also treat it as a divisible matrimonial asset as Mr. Granturges me to do. It would also effectively value Ms. Grant's RRSPs earlier than the date of trial without a finding of dissipation.

On theother hand, as I have already pointed out, if treated as income for the purposes of spousal support, it more than amply compensates Ms.Grant for reasonable spousal support for that same time period. [162] I have concluded that I can most reasonably resolve this by treating the net value of all of the RRSPs, redeemed in both 2014and 2015, as lump sum spousal support in Ms. Grant’s hands. As Ms. Grant’s 2015 income tax return is not yet available, I cannotdetermine exactly how much that is. The parties will therefore have to do the calculation using the method I will outline below.

[163] Lump sum spousal support for Ms. Grant for the period since separation and until trial will be $74,800, that amount deemed toalready have been paid as a consequence of Ms. Grant’s cashing of RRSPs in both 2014 and 2015. To the extent that the net amountreceived by Ms. Grant as a result of her redemption of RRSPs exceeds a total of $74,800, the excess will be treated as ongoing lump sumspousal support in 2016 and going forward. [164] On the evidence I heard, Mr. Grant’s income since August 2015 and ongoing is apt to be less than it has been over the past fewyears.

He had been working for Worley Parsons Cord (formerly known as Teamco Ltd) but the evidence was that this contractterminated August 13, 2015. Since then, he has been working with another company. His hourly rate was $82 per hour until mid-Augustof 2015, when the contract was terminated. Then, until the end of October, he earned $62 per hour on his evidence. Since November, hehas had to take work in the fabrication shop working with regular rather than fibreglass pipe, and the hourly rate now is $54 per hour.

Additionally, he has historically worked a lot of overtime, but his evidence is that with the current economic downturn, overtime workhas all but disappeared. Additionally, he has been told that the current contract they are working under will be finished in two or threeweeks from the date of trial. Mr. Grant’s evidence was that they have already been told that the company will reduce hourly rates 10%on new contracts in order to remain competitive in the current economic climate. The amount of Mr.

Grant’s ongoing income isuncertain. [165] A court has discretion to award either lump sum or periodic support pursuant to s 15.2(1) of the Divorce Act. However, Albertacourts have held that an order for lump sum support is the exception, not the rule: see for example Krause v. Krause (1975) 1975ALTASCAD 29 , 64 D.L.R. (3d) 352 at 361 (Alta. S.C. (A.D.). In Lauderdale v.

Lauderdale (1997), 1997 ABCA 201, 200 A.R. 198 at para 5, the Court of Appeal held that the “difficulty of disentangling the economic lives of the divorcingspouses” favours periodic spousal support awards; lump sum awards remain the exception. [166] However, there is no closed list of situations in which that exception has been exercised.

Alberta courts have held that lumpsum support may be appropriate where, for example, the payor spouse may fritter away capital, leaving him or her unable to pay periodicsupport; where the recipient needs a lump sum amount to go to university or otherwise retrain; or where the level of ill will between theparties is such that a clean break will benefit them: see Lauderdale at para 7; Schubert v. Schubert (1978) 1978 ALTASCAD 230, 10 A.R. 305 at para 8 (Alta. S.C. (A.D.)); Baker v. Baker, 2003 ABQB 533. Lump sum spousal support can also be combinedwith periodic support. It is not an either/or proposition: Keen v.

Keen 2015 ABCA 314. [167] Ms. Grant’s entitlement to spousal support does not end with the trial or with the divorce. Her future employment situation isalso somewhat precarious. Her evidence was that her current contract is only in place until April 2016, although it could be extended. [168] I conclude that, on an ongoing basis, Ms. Grant remains entitled to spousal support and this entitlement will continue until July2019 at which time it is reviewable. [169] Based upon Mr.

Grant's income, her own income, her budget and the advisory spousal support guidelines, I conclude theamount she should receive is the equivalent of $1,800 per month. This will be payable, firstly, however, as a lump sum to the extent thatfunds remain from RRSP redemptions already made, after accounting for the amount payable for retroactive spousal support until trial,as detailed above. As only the RRSP amount net of taxes is to be considered in this calculation and Ms.

Grant will not otherwise be taxedon it, $1,800 per month will effectively be more than that amount for spousal support on an ongoing basis until the RRSP redemptionfunds are figuratively exhausted. [170] Once the RRSP redemption funds have been exhausted, Ms. Grant will receive continuing periodic spousal support in theamount of $1,800 a month, taxable in her hands and deductible in Mr. Grant’s hands, until any further review. [171] The RRSPs should be equalized using the present value of Ms. Grant's RRSPs of $210,273 and the value of Mr. Grant’s RRSPas set out above.

Other Orders: [172] The restraining order that has been in place since early in the separation is no longer necessary. I therefore, direct that it bevacated. [173] The divorce was granted at trial. I directed that as plaintiff, Ms. Grant prepare the necessary divorce documents and providethem for signature in the normal course. [174] The Matrimonial Home is in foreclosure and there was much evidence tendered that Ms. Grant has made sale difficult.

She wasslow to clear up clutter and now has a number of renters in the home, all of whom are disturbed by any real estate showings and rentersare often not conducive to ease of sale of a home. I direct therefore that Ms. Grant must provide her renters with the minimum amount ofnotice to vacate the home and must, herself, vacate the home on the same day as the last of the renters. Debt to Ms. Grant's Parents and Occupation Rent: [175] Two further issues remain to be resolved. The first is the approximately $65,000 Ms. Grant borrowed from her parents for livingexpenses before trial.

Having now considered the RRSP redemptions and spousal support, I am satisfied that, notwithstanding that thisdebt is a matrimonial debt, having considered the factors set out in s 8, it should be Ms. Grant’s alone to repay and should not be sharedby Mr. Grant. It was incurred after separation and without any agreement by Mr. Grant. It was incurred at a time when Ms. Grant hadother funds available to her for her expenses and while it is not clear from the evidence what Ms. Grant spent it on, it is clear that Mr.

Grant did not benefit from these funds in any fashion. [ 176 ] The last issue for resolution is Mr. Grant’s claim for occupation rent for Ms. Grant’s occupation of the Matrimonial Home during the pre-trial period and until she leaves it in accordance with the terms of this judgment. Ordinarily, such occupation rent claims in divorce proceedings are often dismissed. However, in this case, there is merit to it because Ms. Grant has been renting out rooms in the Matrimonial Home and thereby earning income. On the evidence, she has three current tenants and earns $1,200 per month in rent.

What she rented out was a matrimonial asset and, therefore, income from it should be treated as well as a matrimonial asset. I assume that these tenants were paying rent only and this was not a room and board situation. If that is the case, then Mr. Grant should have been entitled to receive one half of all rents received since April 2014, and Ms. Grant must account to him for these amounts as part of the matrimonial property division calculation. If the arrangement was, in fact, a room and board situation, then Ms.

Grant should be entitled to deduct her reasonable costs of providing the ‘board’ portion of this income. [ 177 ] Costs may be spoken to if required. Heard from the 8 th to 12 th days of February, 2016. Dated at the City of Edmonton, Alberta this 6 th day of April, 2016. D.C. Read J.C.Q.B.A. Appearances: Douglas N. Skovberg Skovberg Hinz for the Plaintiff Sarbjit S. Bains Bishop & McKenzie LLP for the Defendant