Klein v Wolbeck, 2016 ABQB 28

Court of Queen ’ s Bench of Alberta Citation: Klein v Wolbeck, 2016 ABQB 28 Date: 20160114 Docket: FL04 00630, 1504 00202 Registry: Grande Prairie FL04 00630 Between: Roger Steven Klein Applicant - and - Wendy Frances Wolbeck Respondent 1504 00202 Between: Wendy Frances Wolbeck Applicant - and - Roger Steven Klein Respondent _______________________________________________________

Memorandum of Decision of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] Roger Klein and Wendy Wolbeck lived together for about eight and a half years between early 1999 and August 2008. They became engaged on Christmas Day, 2000, but never married. They have one child of the relationship, H, who was born in 2002 and is now 13 years old. Ms Wolbeck had two children from another relationship who lived with Mr Klein and Ms Wolbeck while they remained together. [ 2 ] Ms Wolbeck and Mr Klein brought consecutive Special Chambers applications.

Mr Klein sought to terminate partner support payable to Ms Wolbeck set by an interim order of Justice Burrows of February 1, 2009 (the Support Order). Ms Wolbeck sought an order under

Part 3 of the Law of Property Act respecting certain lands that Ms Wolbeck and Mr Klein hold as co-tenants. The applications involved the same parties, the same relationship, some overlapping issues, and some overlapping evidence. To avoid duplication or omission, I have therefore addressed both applications in this judgment. [ 3 ] I have concluded that Mr Klein’s obligation to pay support to Ms Wolbeck shall terminate. Mr Klein shall be required to continue to pay partner support in accordance with the Support Order to and including January 1, 2016.

In February and March 2016, his obligation shall be reduced to $750, payable on the first day of the month. In April and May, 2016, his obligation shall be reduced to $500 per month, payable on the first day of the month. His obligation to pay ongoing partner support to Ms Wolbeck shall terminate with the May 2016 payment; thereafter, he shall not be obligated to make any further partner support payments. [ 4 ] I have concluded that an order under an order under s. 15(2)(

c) of the Law of Property Act is appropriate respecting the co- owned lands. Mr Klein shall be entitled to purchase Ms Wolbeck’s entire co-ownership interest in the Lands for $40,375 on the terms set out below. This amount is the value of Ms Wolbeck’s interest in the lands, set at $41,875, less $1,500 costs which I have assessed against Ms Wolbeck for both applications. [ 5 ] My reasons follow. A. PRELIMINARY EVIDENTIAL MATTERS . 3 1. Are materials from other proceedings between the parties admissible in either application? . 3 2.

Is hearsay admissible to support the parties’ positions in either application? . 5 B. PARTNER SUPPORT . 6 1. Should any cross-applications by Ms Wolbeck respecting retroactive support be entertained? 6 2. Should Mr Klein’s application to terminate support be adjourned? . 7 3. Did Mr Klein establish a change in circumstances justifying a variation of the Support Order? 12 4. Should Mr Klein’s obligation to support Ms Wolbeck terminate? . 16 C. the Co-owned Lands . 34 1. What rules govern the division of the value of the Lands? . 35 2. Were the parties originally joint tenants respecting the Lands? . 36 3.

Did the parties agree to share the value of the Lands equally? . 46 4. Did the presumption of advancement operate in favour of Ms Wolbeck? . 46 5. Did the factors listed in s. 17(2) of the Law of Property Act support Ms Wolbeck’s claim for an equal division of the value of the Lands? . 51 6. Did the doctrine of unjust enrichment operate in favour of Ms Wolbeck? . 60 7. How should the increase in value of the Lands be distributed? . 72 D. COSTS . 75 A. PRELIMINARY EVIDENTIAL MATTERS [ 6 ] Two sets of evidential issues apply to both applications: (1) are materials from other proceedings between the parties

(whether prior proceedings or the other application) admissible in either application? and (2) is hearsay admissible to support either applicant’s position? 1. Are materials from other proceedings between the parties admissible in either application? (

a) Family Law Act proceedings [ 7 ] Mr Klein’s termination of support application was brought under the Family Law Act , which countenances the admissibility of a broad array of materials from other proceedings: 87 The following are admissible in evidence in a proceeding under this Act: (

a) the record of the evidence given at any other proceeding; (

b) any documents and exhibits received in evidence at any other proceeding; (

c) an order, judgment, finding or declaration of the court. Hence, materials described in paragraphs (a) – (

c) of s 87 are admissible in Mr Klein’s support termination application, whether those materials were drawn from Ms Wolbeck’s application under the Law of Property Act or from prior proceedings between the parties. (

b) Orders, affidavits, and cross-examinations on affidavits [ 8 ] Court Orders, filed affidavits, and cross-examinations on affidavits in an application are matters of public record (if not sealed) and may be referred to in another application. The “implied undertaking” rule does not apply to these materials: [34] It seems to me that it is almost axiomatic that when affidavits are filed with the Court, they are available for all the world to see and to use within the confines of law. Such information should be no less available for lawful use in collateral proceedings.

No good reason has been provided why this should not be so. The principles of transparency in legal proceedings and openness of the court record predominate over the interests of confidentiality between the parties in any particular litigation. I conclude that the implied undertaking and the order for confidentiality do not apply to affidavits filed with the Court or evidence from cross-examination on those affidavits: Dreco Energy Services Ltd. v Wenzel , 2007 ABQB 635 at para 34 , Greckol J, affd 2008 ABCA 36 ; see also Floate v Gas Plus Inc , 2015 ABQB 545 , Jeffrey J at para 27.

Hence, Orders, affidavits, and cross-examinations on affidavits from other proceedings between the parties may be relied on (if otherwise admissible) in either the Family Law Act or Law of Property Act application. (

c) implied undertakings rule [ 9 ] Rule 5.33 provides as follows: 5.33(1) The information and records described in subrule (2) must be treated as confidential and may only be used by the recipient of the information or record for the purpose of carrying on the action in which the information or record was provided or disclosed unless (

a) the Court otherwise orders, (

b) the parties otherwise agree, or (

c) otherwise required or permitted by law.

(2) For the purposes of subrule (1) the information and records are: (

a) information provided or disclosed by one party to another in an affidavit served under this Division; (

b) information provided or disclosed by one party to another in a record referred to in an affidavit served under this Division; (

c) information recorded in a transcript of questioning made or in answers to written questions given under this Division. Paragraph 5.33(1)(c) (“otherwise ... permitted by law”) is engaged as indicated respecting public documents. Regardless, information disclosed in prior litigation between these parties or in one application should be admissible in the other application.

I grant leave to introduce the information from prior litigation or the other application despite the implied undertaking rule, on the grounds that the parties are the same (Ms Wolbeck and Mr Klein) and the issues are the same or similar (the nature and legal implications of their cohabitation, with particular reference to the economic sequelae of their relationship). According to Justice Binnie in Juman v Doucette , 2008 SCC 8 , [2008] 1 S.C.R. 157 at para 35 : [35] The case law provides some guidance to the exercise of the court’s discretion.

For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted …. See also: Perehudoff v Christiano , 2013 ABQB 390 , Jones J at paras 22 – 26; ET v Rocky Mountain Play Therapy Institute Inc , 2015 ABQB 396 , Mason M; Orlecki v Challenge Insurance Group Inc , 2014 ABQB 664 , Schlosser M; PL v Alberta , 2012 ABQB 309 , Graesser J at para 117.

I should add that preventing information disclosed in other relationship-related litigation between the parties from being relied on in the applications before me would be contrary to the public interest. The ability to hide evidence in plain sight from the

other party would bring the administration of justice into disrepute. 2. Is hearsay admissible to support the parties’ positions in either application? (

a) governing rules [ 10 ] Mr Klein’s application does not fall within the types of application listed in paragraph 1 of Family Law Practice Note 2, as it then was. Hence, the rules governing affidavits for his application fall under rules 12.43(1) and (2), 6.11 and 13.18. Similarly, affidavit evidence in Ms Wolbeck’s application is governed by rules 6.11 and 13.18. [ 11 ] Rule 13.18 provides as follows: 13.18(1) An affidavit may be sworn (

a) on the basis of personal knowledge, or (

b) on the basis of information known to the person swearing the affidavit and that person’s belief.

(2) If an affidavit is sworn on the basis of information and belief, the source of the information must be disclosed in the affidavit.

(3) If an affidavit is used in support of an application that may dispose of all or part of a claim, the affidavit must be sworn on the basis of the personal knowledge of the person swearing the affidavit. (

b) the applications and rule 13.18(3) [ 12 ] Special Chambers applications do not typically pursue “final” adjudications that “dispose of all or part of a claim.” Generally, a Chambers decision may be revisited at trial or in other proceedings involving viva voce and additional evidence: Olson v Olson , 2014 ABCA 15 at paras 2 and 5 ; Neighbour v Neighbour , 2014 ABCA 62 at paras 12 and 13 .

If the Klein and Wolbeck applications were not “final” applications, rule 13.18(3) would not be engaged and hearsay would be permitted in support of either application: Murphy v Cahill , 2012 ABQB 793 , Veit J at paras 25 – 26. [ 13 ] Ms Wolbeck’s application, though, seeks a final determination of rights respecting the distribution of the value of lands. Hence, her application cannot be supported by hearsay.

While a party responding to a claim for a final order is ordinarily entitled to rely on hearsay – since that person is not seeking a final determination of the matter but is resisting the final determination of the matter – Mr Klein is not entitled to rely on hearsay in response to Ms Wolbeck’s application. He too is seeking a final determination of property interests. He is not seeking to have the issues set over for trial.

See Court v Debaie , 2012 ABQB 640 , Ross J at paras 33 and 34: [33] It is true that the applicant who seeks to dismiss an action on the ground of lack of jurisdiction seeks a final disposition of the action, and, like other applicants for

summary judgment, cannot rely on hearsay: Airco Aircraft Charters Ltd v Edmonton Regional Airports Authority , 2010 ABQB 397 at para 25 , aff’d 2010 ABCA 354 , Yellowbird v Samson Cree Nation No 444 , 2003 ABQB 535 at para 16 . [34] However, the respondent to the application, who does not seek to dispose of the action but to have it proceed to trial, may rely on hearsay: Airco Aircraft Charters Ltd v Edmonton Regional Airports Authority at para 26 , Murphy Oil Co v Predator Corp , 2006 ABCA 69 at para 38 . [ 14 ] Mr Klein’s application, being an application to vary a partner support order, might appear to be an application for “interim” relief.

Any order granted in these proceedings cannot be “final” since it may be varied on the basis of a material change in circumstances. Nonetheless, for reasons set out at part B.2(

c) below, I find that Mr Klein’s application is for a “final” order. Without a material change in circumstances the determination cannot be revisited, even at trial. Hence, like Ms Wolbeck, Mr Klein cannot rely on hearsay to advance his application. Ms Wolbeck, though, on the authority of Court v Debaie , would be entitled to rely on hearsay to resist Mr Klein’s application. [ 15 ] I accept Justice Veit’s position that evidence admissible through an exception to the hearsay rule is admissible even in an application falling under rule 13.18(3): Murphy v. Cahill at paras 25 – 26 .

If evidence is admissible through an exception to the hearsay rule, the evidence may be proferred by an affiant based on his or her knowledge of the third-party information. B. PARTNER SUPPORT [ 16 ] Mr Klein has been paying court-ordered partner support to Ms Wolbeck of $1,000 per month since February 1, 2009 pursuant to the Support Order. Paragraph 3 of that Order required Mr Klein to pay child support for H based on an income of $90,000.

Mr Klein’s application to terminate partner support is an application to vary the Support Order. [ 17 ] My determination that Mr Klein’s obligation to pay Ms Wolbeck partner support under the Support Order shall terminate rests on consideration of the following issues: 1. whether any cross-applications by Ms Wolbeck respecting retroactive support should be entertained; 2. whether Mr Klein’s application to terminate support should be adjourned;

3. whether Mr Klein has established a change in circumstances permitting variation of the Support Order; and 4. whether Mr Klein’s partner support obligations should terminate, given changed circumstances. 1.

Should any cross-applications by Ms Wolbeck respecting retroactive support be entertained? [ 18 ] Paragraphs 38 to 43 of Ms Wolbeck’s affidavit of August 4, 2015 (the Wolbeck FLA Affidavit) seek relief for, among other things, retroactive child support, financial disclosure, retroactive partner support, and costs. [ 19 ] I find that there is no cross-application properly before the court respecting retroactive child support or retroactive partner support. [ 20 ] Despite rules 1.2(1) and 1.5, I cannot ignore the requirement to provide notice of claimed relief through formal documents contemplated by the rules of court.

Ms Wolbeck was not a self-represented litigant. The claims for relief should have been set out in the appropriate application document: see rules 6.3(2) and 12.44. The claims for relief were not proper components of an affidavit: rule 13.18 (and see, e.g., rule 12.18(4)). Affidavits should set out evidence, not argument or claims for relief: Wessa v Knight , 2014 ABQB 671 at para 3 ; Alberta (Human Rights and Citizenship Commission) v Alberta Blue Cross Plan , 1983 ABCA 207 at para 8 . The distinction between affidavits and pleadings should be maintained.

The relief claimed, in any event, was not directly referred to in Ms Wolbeck’s concise letter in response to Mr Klein’s application. In the third paragraph beginning on page 4 of the concise letter in response, there was reference to the possibility that Mr Klein underpaid Ms Wolbeck based on his actual income at the material times. This suggestion, however, was in aid of an application for an adjournment rather than a cross-claim. Furthermore, Mr Klein had only a short time to respond to any new issues.

The Wolbeck FLA Affidavit was filed on August 4 for an August 11 application, although Mr Klein was able to file a reply affidavit on August 7 (the Klein FLA Reply Affidavit). The time-lines contemplated by paragraph 15 of Practice Note 2 were evidently truncated. Hence, I shall not consider retroactive child support or retroactive partner support issues in connection with Mr Klein’s application. [ 21 ] Ms Wolbeck may bring applications for retroactive partner support for the period during which Mr Klein made partner support payments, and for retroactive child support.

This decision does not preclude either application. 2. Should Mr Klein’s application to terminate support be adjourned? [ 22 ] The following argument is found in the second last paragraph of Ms Wolbeck’s concise letter: Ultimately there is too much uncertainty in terminating the Applicant’s partner support obligations without testing either party’s evidence. There is conflicting evidence on a central point – the duration of the parties’ cohabitation. Relatedly, there is little information about the Applicant’s income following the parties’ ultimate separation.

In order to address this uncertainty, a questioning must occur, after which a determination can be made as to whether the matter should be adjudicated at a special chambers hearing, a viva voce hearing or else a trial. Should Mr Klein’s application be adjourned because (

a) the affidavit evidence conflicted on central issues, (

b) information was lacking respecting Mr Klein’s income, or (

c) the termination issue could not be determined at the present stage of proceedings? In my opinion, an adjournment was not appropriate for any of the reasons advanced. Neither do I find that I should (

d) refuse to entertain Mr Klein’s application because of his non-compliance with a child support order. (

a) conflicting evidence [ 23 ] Both applications proceeded on the basis of affidavit evidence. As is not unusual in Special Chambers applications, the affidavit evidence conflicted on some issues. If a Chambers judge is faced with affidavits that conflict on an issue, the determination of the facts requires a credibility assessment, and resolution of the issue is necessary to decide the application, the judge must refer the matter to trial or direct that viva voce evidence be provided.

Alternatively, an adjournment could be granted to permit questioning, as a means to address the reliability and weight of claims in affidavits. See Nafie v Badawy , 2015 ABCA 36 at para 106 ; Rensonnet v Uttl , 2014 ABCA 304 at para 10 ; Charles v Young , 2014 ABCA 200 at paras 3 – 5 ; Nieuwesteeg v Barron , 2009 ABCA 235 at paras 9 – 11 . (On the limits of fact-finding in

summary judgment applications see the decisions of Master Schlosser in Rai v 1294477 Alberta Ltd (Vinyl Retro Dance Lounge) , 2015 ABQB 349 ; Pannu v Urbia Venture Capital Ltd , 2015 ABQB 150 ; 1214777 Alberta Ltd v 480955 Alberta Ltd , 2014 ABQB 301 , and Emile Labby Trucking Ltd v Option Inc , 2014 ABQB 248 .

See also Mackey v Squair , 2015 ABQB 329 at para 36 .) [ 24 ] Nonetheless, judges hearing Chambers applications should be guided by Justice Karakatsanis’ direction to favour “proportionality and fair access to the affordable, timely, and just adjudication of claims:” Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 at paras 5 and 34 ; see also Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta , 2015 ABCA 101 , Bielby JA at paras 79 - 80.

The overarching question is whether a fair and just determination on the merits can be reached in the proceeding: This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v Mauldin at para 49 .

The question is whether a determination is appropriate on the record now, or whether the determination should be deferred to trial or to later proceedings augmented by additional evidence. [ 25 ] Chambers judges have some latitude for fact-finding, even in the face of conflicting affidavit evidence. Facts may be found despite conflicting affidavit evidence, for example, if

(

i) the conflicts do not concern essential facts; (ii) the conflicts do not concern facts, but only litigants’ opinions about the facts; (iii) a party relies on affidavit evidence that contains internally conflicting evidence, including evidence that supports an opponent’sfactual allegations – such evidence amounts to admissions against interest; (iv) a party’s affidavit evidence is inconsistent with evidence provided in cross-examination on affidavit; or (

v) issues can be resolved on the basis of evidence that is not in dispute. See Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta at para 81 and Janvier v 834474 Alberta Ltd, 2010 ABQB 800, Macklin J atpara 15 [26] Furthermore, the weight of affidavit evidence may properly be found to be reduced if, for example, the evidence is notconsistent with other evidence and known circumstances: Compton Petroleum Corporation v Alberta Power Ltd, 1999 ABQB 42 atpara 14; see N. V.

Reykdal & Associates Ltd at para 5; Janvier v 834474 Alberta Ltd, 2010 ABQB 800 at para 15; Faryna v Chorny, (BC CA), 1951 CarswellBC 133, [1952] 2 D.L.R. 354, O’Halloran JA at para 8 (CarswellBC). That is to say, commonsense need not be abandoned in the face of an allegation in an affidavit.

Allegations are not entitled to weight just because they areincluded in an affidavit. [27] Finally, claims in an affidavit have no weight if the statements are “self-serving,” in the sense of being “merely conclusory,”“argumentative,” or having no evidence supporting the claims made besides the claims themselves; that is to say, if the claims are “bareassertions” or “mere assertions.” See Guarantee Co. of North America v Gordon Capital Corp, (SCC), [1999] 3S.C.R. 423, Iacobucci and Bastarache JJ at para 31. [28] As will be elaborated below, the issues in Mr Klein’s application may be determined on the evidential record, in accordancewith these principles.

In particular, the evidence permits the resolution of the “central point” respecting the parties’ period ofcohabitation; and, in any event, the termination issue may be resolved on the assumption that Ms Wolbeck’s position on the length of therelationship is correct.

The simple response to the claim respecting Mr Klein’s income is that this issue may be pursued, as indicatedabove, in separate proceedings concerning retroactive partner support. [29] Nonetheless, the alleged linkages between Mr Klein’s income, his application for termination of support, and Ms Wolbeck’sapplication for an adjournment have some additional features that I must address. (

b) lack of information respecting income [30] The asserted need for an adjournment because of a lack of information about Mr Klein’s income draws on four factors. [31] First, the Support Order addressed not only partner support but child support based on a guideline income of $90,000. OnNovember 25, 2010, Justice Strekaf granted a consent order focusing on parenting and support matters concerning H (the Child SupportOrder). In paragraph 6 of the Child Support Order, Mr Klein’s guideline income for child support purposes was determined to be$120,000. The Child Support Order did not refer to partner support.

Partner support has continued to be paid in accordance with theSupport Order. [32] Second, the Child Support Order provided in paragraph 11 that “Each party shall provide the other party with a complete copyof his or her income tax return and any notices of assessment and reassessment issued to him or her by the Canada Customs and RevenueAgency on an annual basis, on or before June 30 of each year, as long as there is a child of the marriage ….” Mr Klein did not providethese records annually, although neither did Ms Wolbeck.

While these records were not initially provided with Mr Klein’s application,the records were provided with the Klein FLA Reply Affidavit, filed very shortly before the oral hearing. [33] Third, Mr Klein has earned income through Tomcat Contracting Ltd, which, it appears, is wholly owned and controlled byMr Klein. No explicit evidence was provided about shareholdings and control, but Mr Klein did refer to Tomcat as “my company:”Klein FLA Reply Affidavit at para 8.

Tomcat financial statements were also provided with the Klein FLA Reply Affidavit. [34] Fourth, Ms Wolbeck claimed that she repeatedly asked Mr Klein for financial information. This claim was denied by MrKlein. This particular conflict could not be resolved on the record. [35] A fundamental difficulty with the adjournment application based on the alleged lack of information is that the plea for furtherinformation comes very late. The facts relied on to support the adjournment application have been known since 2010, if not earlier. Theapparent increase in income was explicit in the Child Support Order.

Partner support was left unadjusted. Ms Wolbeck has known of theexistence of Tomcat since she lived with Mr Klein. Ms Wolbeck expressly referred to Tomcat in paragraph 17 of her November 2008Statement respecting partner support, attached as tab 6 to Mr Klein’s support termination application materials (the Wolbeck November2008 Statement). And while the Child Support Order required provision of certain income tax records, it did not require disclosure ofcorporate financial records. Had there been an interest in getting more information, it could have been sought at any time since at least2010.

Ms Wolbeck has received support at the level set by Justice Burrows since 2009. The amount of the payments was neverchallenged prior to Mr Klein’s application. [36] Furthermore, as indicated, the information about Mr Klein’s income would be relevant to and may be pursued in a separateapplication for retroactive partner support. [37] One might attempt to turn this last point against Mr Klein. Grant that the missing income information would be relevant to anapplication for retroactive partner support. But if retroactive partner support cannot be considered now, neither can the duration ofpartner support.

The two issues are inextricably intertwined. The retroactive claim concerns quantum, and quantum, along with duration

(and entitlement), is one of the essential dimensions of support. If the retroactive issues cannot be considered, neither can duration. Theretroactive claim pulls duration with it. Can the retroactive support issues be disentangled from the support duration issue? How can onebe addressed without the other? [38] I find that the retroactive partner support issues can be distinguished from the issue of duration, and that Mr Klein’sapplication can and should proceed with respect to the duration issue.

Fundamentally, “how long?” is a different issue than “how much?”The factors and facts bearing on duration are distinct from the factors and facts bearing on a retroactive support claim (e.g., annualincome; imputation of corporate income; “blameworthiness” vs reasonable reliance; all in light of differences in the principles andobjectives of partner support as opposed to child support (Kerr v Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 at para 207)).

Retroactiveclaims are often conjoined to claims for arrears and to claims for ongoing payments, but that does not make the issues the same or requirethat the issues always be considered together. In any event, an ongoing support obligation is not the same as a retroactive supportobligation. What Mr Klein is seeking is to terminate ongoing partner support. He seeks a finding that the amount of his ongoing supportobligation be set at zero. While retroactive support issues should be distinguished from “arrears” claims (properly speaking), the FamilyLaw Act allows duration and arrears to be distinguished.

Subsection 63(2) provides that “The termination of a spousal or adultinterdependent partner support order does not affect any arrears owing under the order before it is terminated.” Termination is theendpoint of duration. Termination does not entail that arrears are extinguished. What was owing remains owing. Similarly, in relation toa retroactive partner support claim, what was owing remains owing, despite termination of the obligation to make ongoing payments.

Itherefore dismiss the application for an adjournment on the “retroactivity” ground as well. [39] Again, I confirm that any determination I may make respecting the duration of Mr Klein’s obligation to pay partner support toMs Wolbeck does not extinguish or otherwise affect any right that Ms Wolbeck may have to recover amounts representing retroactivesupport – i.e., amounts that she should have been paid, based on proof that Mr Klein had significantly elevated available income over theperiod in which he made or was obligated to make partner support payments. (

c) premature determination [40] Ms Wolbeck’s counsel contended that Ms Wolbeck “has never been given a chance to have the spousal support issueultimately adjudicated” (paragraphs 4 and 5 in Ms Wolbeck’s concise letter); hence, again, Mr Klein’s application should be adjourned.Counsel’s contention can be understood in two ways. [41] On the one hand, there is a claim about Ms Wolbeck’s opportunities: “she has never been given a chance.” This claim lacksmerit. Nothing stopped Ms Wolbeck from bringing an application respecting partner support at any earlier time. She has had some sixyears since the Support Order.

Nothing stopped Ms Wolbeck from putting forward all relevant evidence in her affidavit or from raisingall arguments against support termination in her concise letter and oral argument. She has “had a chance.” [42] On the other hand, Ms Wolbeck’s counsel may be claiming that a final decision (an “ultimate adjudication”) respectingpartner support cannot or should not be rendered in this application. The parties did not provide any direct or express argument on thispoint.

Rule 12.51 provides as follows: 12.51 In a proceeding under the Family Law Act, the Court may, whether or not the respondent has complied with rules 12.18 and 12.19, (

a) decide all or part of the matter on an interim or final basis, (

b) adjourn all or part of the matter to a later date, or (

c) set all or part of the matter down for a short oral hearing or trial, and the Court may give any direction and grant any interim or procedural order that the Court considers appropriate. The precise question that Ms Wolbeck’s counsel may have intended to raise was whether the application to terminate would result in aninterim or final decision under 12.51(a): see Panasiuk v Leclercq, 2015 ABQB 464, Shelley J at paras 24 -31.

The general rule is that“Final orders are made after trials (or settlement of the dispute), and are rarely made in chambers based on conflicting affidavits:” Olsonv Olson, Slatter JA at para 2; see also MacMinn v MacMinn, [1995] AJ No 893 (QL), (ABCA) at para 10; Petersonv Ardiel, 2007 ABCA 218 at paras 8 and 11. If the decision were final, the termination issue could not be revisited at trial, absent asuccessful appeal of this decision.

However, the decision respecting the termination of support could not be a final decision respectingretroactive partner support or child support, since those issues have been expressly reserved.

Neither could the decision respecting thetermination of support be final in the face of a material change of circumstances. [43] Despite the general rule, bearing in mind the need for proportional, timely, and cost-effective processes, if a fair and justdetermination can be made on the record despite conflicts in the evidence (e.g., by assuming the truth of a respondent’s evidence), then –as Justice Shelley concluded in Panasiuk – an exception to the general rule is engaged and a final decision may be made in Chambers.

Inthis case, the only area of evidential contention directly bearing on duration pointed to by Ms Wolbeck’s counsel concerned the length ofthe relationship. The difference between the parties’ positions on this issue, though, was not large, and the disposition would not beaffected whether or not the longer view supported by Ms Wolbeck’s evidence were accepted. Moreover, Mr Klein’s application related to

duration of partner support, which is not necessarily the subject of an interim order: Peterson v Ardiel at para 5. Hence, the decisionrespecting termination is “final” in the sense that termination cannot be re-litigated without a material change in circumstances. (

d) compliance with the Child Support Order [44] In her affidavit of July 24, 2015 filed in the Law of Property Act application (the Wolbeck LPA 2015 Affidavit), Ms Wolbeckdeposed at para 20 that “The Respondent was also ordered to pay child support at the rate of $1,056.00 a month; he has since reduced hischild support payments to $868.00 a month.” Mr Klein confirmed that he had, without the benefit of a variation order, lowered his childsupport payments from the amount set by the Child Support Order: see his affidavit of July 22, 2015 filed in his support terminationapplication (the Klein FLA First Affidavit) at para 5; the Klein FLA Reply Affidavit at para 23; and his affidavit of July 31, 2015 filed inthe Law of Property Act application (the Klein LPA 2015 Affidavit) at para 64.

Mr Klein, then, by his own admission, has been inbreach of a court order.

Neither counsel addressed the implications of this for Mr Klein’s application. [45] An argument might have been made that the court should not entertain Mr Klein’s application on the grounds that the failureto comply with the court order was a contempt of court and no relief should be provided to Mr Klein until he has purged his contempt.The remarks of Justice O’Leary at para 14 of Phillips v Avena, 2005 ABCA 405 might have been relied on: Although I do not base my decision on this point, and it was not fully addressed in argument, I question whether a person who is incontempt of court for failure to obey specific orders of the Court of Queen’s Bench is entitled to the assistance of this Court.

The ordersshe has failed to obey are those under appeal and it is suggested she may succeed in her appeals and the contempt will then cease. I donot agree with that suggestion. Unless the applicant has complied with the orders and thus purged her contempt, or has been specificallyexcused from compliance, she remains in contempt. In any event, the applicant is in contempt of the courts in the State of Washington inproceedings related to these. There is authority for the proposition that a court will not assist a person in contempt of its orders ….

See also Kumra v Luthra, 2011 ABQB 366, Lee J at paras 13 – 17. [46] I shall not, however, refuse to entertain Mr Klein’s application on the grounds of his failure to comply with the Child SupportOrder. This point was not argued. There was no contention that Mr Klein should be found in contempt. While this is not a dispositivepoint, Mr Klein’s application does not concern child support. Again, Ms Wolbeck is entitled to pursue the child support issues in anotherapplication. 3.

Did Mr Klein establish a change in circumstances justifying a variation of theSupport Order? [47] Mr Klein’s application to terminate partner support is an application to vary the Support Order. The variation of supportorders is governed by s. 77 of the Family Law Act, which requires proof of a change of circumstances since the date of the order to bevaried: 77(1) In this section, “variation order” means an order made under subsection (2).

(2) The court may, on application by a person referred to in subsection (3), make an order varying, suspending or terminating a supportorder or any part of that order, prospectively or retroactively….

(5) Before the court makes a variation order in respect of a spousal or adult interdependent partner support order, the court shall satisfyitself that (

a) a change in the condition, means, needs or other circumstances of either spouse or adult interdependent partner has occurred since themaking of the order or the last variation order made in respect of that order, or (

b) evidence of a substantial nature that was not available at the previous hearing has become available, and in making the variation order, the court shall consider that change of circumstances or evidence. [48] The approach to “change of circumstances” under the Divorce Act illuminates the approach to “change of circumstances”under the Family Law Act.

The test for whether a “change in circumstances” has occurred for Divorce Act purposes was confirmed byJustices Abella and Rothstein in L.M.P. v L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 at paras 30 – 32, 34-35, and 44: [30] In our view, the proper approach under s. 17 to the variation of existing orders is found in Willick v Willick, (SCC), [1994] 3 S.C.R. 670, and G. (L.) v B. (G.), (SCC), [1995] 3 S.C.R. 370 …. [31] Willick described the proper analysis as requiring a court to “determine first, whether the conditions for variation exist and ifthey do exist what variation of the existing order ought to be made in light of the change in circumstances” (p. 688).

In determiningwhether the conditions for variation exist, the court must be satisfied that there has been a change of circumstance since the making ofthe prior order or variation. The onus is on the party seeking a variation to establish such a change. [32] That “change of circumstances”, the majority of the Court concluded in Willick, had to be a “material” one, meaning a changethat, “if known at the time, would likely have resulted in different terms” (p. 688).

G. (L.) confirmed that this threshold also applied tospousal support variations…. [34] The decisions in Willick and G. (L.) also make it clear that what amounts to a material change will depend on the actualcircumstances of the parties at the time of the order. [35] In general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances (see

Marinangeli v Marinangeli (2003), (ON CA), 66 O.R. (3d) 40, at para. 49). Certain other factors can assist a court indetermining whether a particular change is material.

The subsequent conduct of the parties, for example, may provide indications as towhether they considered a particular change to be material (see MacPherson J.A., dissenting in part, in P. (S.) v P. (R.), 2011 ONCA 336,332 D.L.R. (4th) 385, at paras. 54 and 63) …. [44] In sum, it bears repeating that the threshold question under s. 17 … is the one Sopinka J. described in Willick, namely: In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.This means a change, such that, if known at the time, would likely have resulted in different terms.

The corollary to this is that if thematter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. [p. 688] [49] Mr Klein, then, had the burden of establishing that since the date of the Support Order there has been a “material” change incircumstances, such that if these circumstances had been known at the time, the Support Order would likely have set out different termsof partner support.

The alleged material change in circumstances must have some permanence and not be simply temporary. [50] At this stage of the variation application, the issue is whether the change in circumstances “would likely” have resulted in adifferent order or whether change to the current order is warranted, not what that different order would be.

The implications of thesechanges for partner support will be considered in the next part of these reasons. [51] Mr Klein established four material changes in circumstance since the Support Order. [52] First, Ms Wolbeck was unemployed at the time of the Support Order and she is now working. [53] Second, Mr Klein pointed to the passage of time, the time that he has been paying partner support under the Support Order.The effect of the passage of support-paying time is the central matter in this application. [54] Third, Ms Wolbeck was, for a period, in possession of eight rig mats belonging (it appears) to Tomcat: Klein FLA FirstAffidavit at paragraphs 8 to 13; Klein FLA Reply Affidavit at paras 14 – 19.

Rig mats are used on well sites by firms in the oil welldrilling business. The eight rig mats were purchased so they could be rented out. The rig mats were income-producing assets. MsWolbeck was in possession of the rig mats from about July 2009 to September 2011. At paragraph 24 of the Wolbeck FLA Affidavit, MsWolbeck expressly admitted taking the rig mats from Mr Klein’s custody and admitted that taking them was wrong. She did add anexplanation to which I shall return below. While the mats were recovered by Mr Klein some 4 years ago, they were in Ms Wolbeck’spossession for nearly 2 years.

Ms Wolbeck’s possession of income-producing assets did mark a change in her means, temporary as thatmay have been. In Strang v Strang, (SCC), [1992] 2 S.C.R. 112, Cory J provided an

interpretation of “means” at 119: This

interpretation of “means” is consistent with the historical

interpretation of the term as including all pecuniary resources, capitalassets, income from employment or earning capacity, and other sources from which the person receives gains or benefits. See also Leskun v Leskun, 2006 SCC 25 , [2006] 1 S.C.R. 920, 206 SCC 25, Binnie J at para 29. I shall defer discussion of s.59 of the Family Law Act¸ which forbids taking into account spousal misconduct when assessing support, to the later discussion of thesignificance of this change in means. [55] Fourth, the circumstances relating to the parties’ son H have changed since the Support Order.

Pursuant to the Child SupportOrder, the parenting arrangements moved toward shared parenting. Under the Child Support Order, Mr Klein has had parenting of H for5 days out of 14. H is now 13 years old. Moreover, on the evidence, Ms Wolbeck’s two children from a previous relationship are nolonger living with her.

Both are over 18. [56] Mr Klein advanced two further arguments for a finding of material change in circumstances, which I reject. [57] Mr Klein asserted that Ms Wolbeck has been in a relationship with a new partner: Wendy is in a stable relationship and has been living with her new partner for the last three years. I believe that Wendy’s new partner isable to contribute to their household expenses: Klein FLA First Affidavit at para 15. I know that Wendy has been in a daily, cohabiting, relationship with someone named [X] for several years now, and that she met [X]when she was working for Shamrock Flooring.

I understand that [X] has his own contracting company: Klein FLA Reply Affidavit atpara 2. Contributions by a third party towards Ms Wolbeck’s household expenses would be a relevant factor under s. 58(

d) of the Family LawAct. However, Mr Klein has not established the facts. Ms Wolbeck denied that she has a new partner: Wolbeck FLA Affidavit atparagraph 29. The conflict cannot be sorted out on the record. In any event, Mr Klein did not support his assertions with any reference topersonal observational evidence. Mr Klein did refer in paragraph 2 of his reply affidavit to remarks by H.

I will set aside the issue of thepropriety of bringing H’s evidence into this litigation, although I should note the comments of Justice Bielby in Sparks v Sparks (1994),159 AR 187, (QB) at paras. 4-5 : “the Court should avoid putting children in positions where one or bothparent might see them as choosing one over the other. Such a result may implicitly, if not explicitly, affect the unsuccessful parent'sattitude or conduct toward the child.” H’s evidence was hearsay, and even if it had non-trivial weight, could not resolve the conflict withMs Wolbeck’s evidence.

The evidence engaged no exception to the hearsay rule. Moreover, this evidence did not address the key issue,which was whether the third party made financial contributions to Ms Wolbeck’s household expenses. [58] Mr Klein began paragraph 2 of the Klein FLA Reply Affidavit with this declaration: “I do not believe Wendy’s evidence thatshe has had no ‘domestic partner’ since we broke up in August 2008.” That declaration had no place in an affidavit and has no weight. Itis a mere statement of opinion respecting credibility. [59] Thus, I do not find any change of circumstances relating to a new partner.

[60] Mr Klein also claimed that Ms Wolbeck received a “significant inheritance” from her now deceased father: Klein FLA ReplyAffidavit at para 2. Were there evidence supporting that claim, that would be relevant to Ms Wolbeck’s means and could support afinding of a material change in circumstances: see Corbeil v Corbeil, 2001 ABCA 220 at para 74. Mr Klein went on to admit, though,that “I have no idea how much money he actually left to Wendy ….” Hence, Mr Klein did not provide evidence but only speculationabout a change in Ms Wolbeck’s means.

Ms Wolbeck cannot be faulted for not having responded to this claim in her own affidavit, sincethis claim was made in Mr Klein’s reply affidavit. I find no change in circumstances based on Ms Wolbeck’s receipt of any inheritance. [61] Finally, I should note that there was no change of circumstances based on the distribution of any of the property of therelationship. Ms Wolbeck had commenced an action relating to a division of property of the relationship, but that action was dismissed inSeptember, 2014.

In the second part of these reasons I will consider Ms Wolbeck’s Law of Property Act application for the division oflands owned in co-tenancy with Mr Klein. I do not take into account any amount that she shall receive resulting from this application,since this amount does not increase her means. My decision shall convert what she currently owns beneficially into cash. The value of hermeans remains the same. [62] The impact of the established material changes in circumstances must be assessed. 4. Should Mr Klein’s obligation to support Ms Wolbeck terminate? Following a review of (

a) the statutory framework governing the termination issue and (

b) cases and guidelines orienting the analysis ofthe termination issue, I will consider (

c) objectives and factors relevant to whether Mr Klein’s obligation to pay partner support to MsWolbeck should terminate, before providing (

d) my conclusion. (

a) statutory framework [63] The Family Law Act sets out criteria for varying support orders. Under s. 77(7), The court shall consider the same factors, pursue the same objectives, and use the same method to determine support with respect to anapplication to vary a support order as it does with respect to an application for a support order. [64] Entitlement is dealt with by s. 56: “every spouse or adult interdependent partner has an obligation to provide support for theother spouse or adult interdependent partner.” This

section does not entail that the obligation to provide support is necessarily permanent.The obligation recognized in particular cases must reflect the objectives and factors for support established in statute and interpreted incase law. Justice McLachlin, as she then was, commenting on parallel provisions in the Divorce Act, articulated three bases forconceptualizing entitlement to spousal support - contractual, compensatory, and non-compensatory: Bracklow v Bracklow, (SCC), [1999] 1 S.C.R. 420 at para 49.

This three-part understanding of entitlement applies to partner support under the Family LawAct: Desimone v Straub, 2010 ABQB 462, Mahoney J at para 120; Brick v Cross, 2014 ABQB 35, Goss J at para 86; Kostin v Eaket,2012 ABQB 756, Jones J at para 108. [65] The objectives of partner support are found in s. 60: 60 A spousal or adult interdependent partner support order should (

a) recognize any economic advantages and disadvantages to the spouses or adult interdependent partners arising from the relationship orits breakdown, (

b) apportion between the spouses or adult interdependent partners any financial consequences arising from the care of any child of therelationship over and above the obligation apportioned between the spouses or adult interdependent partners pursuant to a child supportorder or a child support agreement, (

c) relieve any economic hardship of the spouses or adult interdependent partners arising from the breakdown of the relationship, and (

d) insofar as practicable, promote the economic self-sufficiency of each spouse or adult interdependent partner within a reasonableperiod of time. According to L.M.P. v L.S. at para 49, each of these objectives has equal weight and importance. [66] The factors to be considered respecting the variation application are found in s. 58: 58 In making a spousal or adult interdependent partner support order, the court shall consider (

a) the conditions, means, needs and other circumstances of each spouse or adult interdependent partner, including (

i) the length of time the spouses or adult interdependent partners lived together, (ii) the functions performed by each spouse or adult interdependent partner during the period they lived together, and (iii) any order or arrangement relating to the support of the spouses or adult interdependent partners, (

b) any legal obligation of the spouse or adult interdependent partner having the support obligation under the order to provide support forany other person, (

c) the extent to which any other person who is living with the spouse or adult interdependent partner having the support obligationunder the order contributes towards household expenses and thereby increases the ability of that spouse or adult interdependent partnerto provide support, and

(

d) the extent to which any other person who is living with the spouse or adult interdependent partner who is to receive support under theorder contributes towards household expenses and thereby reduces the financial needs of that spouse or adult interdependent partner.

With respect to para (a), “other circumstances” include, for example, the age or health of the partners; and “needs” should be understoodin light of the parties’ accustomed standard of living while residing together: Kostin v Eaket at para 108. [67] Except in specified circumstances, the consideration of partner misconduct is forbidden by s. 59: 59 In making a spousal or adult interdependent partner support order, the court shall not take into consideration any misconduct of aspouse or adult interdependent partner, except conduct that (

a) arbitrarily or unreasonably precipitates, prolongs or aggravates the need for support, or (

b) arbitrarily or unreasonably affects the ability of the spouse or adult interdependent partner having the support obligation under theorder to provide the support. (

b) guidance for analysis [68] I have reviewed the cases relied on by counsel: for Mr Klein: Kostin v Eaket (5 year cohabitation; one child of relationship; payee had 2 children from previous relationship; duration ofsupport – 3 years); Stevenson v Winkler, 2011 ABQB 693, Kenny J (4 year cohabitation; one child of relationship, 2.5 years old at timeof separation; payee had grade 10 education, worked during relationship and after separation; duration of support – 2 years); Gordon vTowell, 2009 ABQB 415 (3 year cohabitation; one child of relationship, 3.5 at time of application; duration of support – 1 year). for Ms Wolbeck: Cipriano v Hampton, 2015 ONSC 349 (one party early 40s, other mid-40s; 8 year cohabitation; stay-at-home mother;one child, age 6 at separation; 2 years after separation, parenting on a “week-about” basis; following separation, child hademotional/behavioural issues; mother was landed immigrant, came to Canada shortly before marriage; duration of support – 12 years,until child turns 18 – “The child of the marriage should have a similar standard of living in each of the parties’ homes …:” at para 29);Decker v Fedorsen, 2011 ONCJ 850 (one party late 30s, other early 40s; 7 year cohabitation; no children of relationship, but payeemother had one child from previous relationship; payor acknowledged standing in the place of a parent and support obligation; stay-at-home payee mother; payee had grade 9 education and no income except what she received from payor; payee currently in school;duration of support – 5 years from separation); McCulloch v Bawtinheimer, 2006 ABQB 232, Sullivan J (6 year cohabitation; nochildren; payee moved twice with payor; payee had difficulty finding work in new locations (remote, small communities); duration ofsupport – 2 years).

Counsel acknowledged in argument that while the cases set out useful principles and approaches, direct us to important types of facts andconsiderations, and provide useful illustrations, particular results depend on the particular circumstances of particular cases in particularjurisdictions. [69] I have also taken into account the Spousal Support Advisory Guidelines, http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/index.html (SSAG’s).

The SSAG’s are not binding: Sawatzky v Sawatzky, 2008 ABCA 355 at paras 16-17; Neighbour vNeighbour at para 15; McCulloch v Bawtinheimer at para 41; V.S. v A.K. 2005 ABQB 754, Trussler J at paras 17-25. [70] I have been guided by the comments of Justice Baker of the British Columbia Supreme Court in Patrick v Patrick (1994), (BC SC), 92 B.C.L.R. (2d) 50 at 54, quoted with approval by Justice Bastarache, as he then was, in Ross v Ross, (NB CA), [1995] N.B.J. No. 463, 1995 CarswellNB 160, 1995 CanLII (CA) at 5: ...

Where the economic disadvantage sought to be remedied by the payment of spousal support has been eliminated or significantlyreduced, termination or a reduction in support is envisaged by the Act. In my view, however, where an order for spousal support has beenmade with the primary objective of compensating the receiving spouse for economic disadvantage accruing during several years ofmarriage and expected to continue after divorce, a court should not readily reduce or terminate spousal support.

The evidence on anapplication to vary a so-called “compensatory support” order must establish not only that there has been a significant change in the meansand needs of the parties since trial but also that the factors which resulted in economic disadvantage during the marriage and after itsbreakdown no longer exist and that the lost advantage has been recovered. (

c) considerations bearing on whether Mr Klein’s obligation to pay partner support to Ms Wolbeck should terminate [71] As indicated in L.M.P. v L.S. at para 47, If the s. 17 threshold for variation of a spousal support order has been met, a court must determine what variation to the order needs to bemade in light of the change in circumstances. The court then takes into account the material change, and should limit itself to makingonly the variation justified by that change….

I will consider the material changes established by Mr Klein - the passage of time, Ms Wolbeck’s employment, changes in parenting, andMs Wolbeck’s possession of the rig mats - in light of the objectives and factors that the Family Law Act requires be taken intoconsideration. [72] The four objectives of partner support in s. 60 of the Family Law Act remain engaged in the present case. I will address thechanges and factors from the following perspectives: (

i) the duration ranges suggested by the SSAG’s; (ii) the length of the period of cohabitation;

(iii) the period over which partner support has been paid; (iv) Mr Klein’s means; (

v) Ms Wolbeck’s needs and means; (vi) the functions performed by each partner during the period they lived together; (vii) the economic advantages and disadvantages arising from the relationship; (viii) economic hardship arising from the breakdown of the relationship; (ix) the financial consequences of care for H; (

x) Ms Wolbeck’s economic self-sufficiency; and (xi) the rig mats. The question is whether, given the changes in circumstances and consequent changes in the factors that must be considered, the objectives are best promoted by a new Order that ends Mr Klein’s obligation to pay support. (

i) duration ranges suggested by the SSAG’s [ 73 ] The SSAG’s “with child support” formula applies, since the parties have a child. Two tests apply respecting the duration of support. These are the “length-of-marriage” test and the “age-of-children” test. The upper and lower end of the duration range will be the longer duration produced by either test: In most cases, only one of the two tests, either the length-of-marriage test or the age-of-children test, will apply to determine both the upper and lower ends of the range.

In general, the length-of-marriage test applies for longer marriages, marriages of ten years or more, while the age-of-children test applies for shorter marriages, those under ten years. But the two tests must be used together, as it is the longer of the two tests that applies for each end of the range.

Remember that this is a range for duration, and that the actual outcome in any particular case will be worked out within that range over a series of orders or agreements, by way of review or variation of an initial order or agreement (SSAG’s, s. 8.5.4). [ 74 ] Under the length-of-marriage test, the upper end of the range is the length of the marriage. The lower end of the range is one- half the length of marriage. [ 75 ] Under the age-of-children test, the upper end of the range is the date that the last or youngest child finishes high school.

The lower end of the range is the date the youngest child starts full time school. According to the SSAG’s, “In shorter marriages, spousal support should continue at least until the date the youngest child starts attending school full-time” (s. 8.5.3). [ 76 ] Since the tests should be used together, the upper end of the range may be the longer of the length of the marriage or the date that the last or youngest child finishes high school.

The lower end of the range may be the longer of one-half of the length of the marriage or the date that the youngest child starts full time school. [ 77 ] In the SSAG’s, “length of marriage” means the period of cohabitation: “While we use the convenient term length of marriage, the more accurate description is the length of the cohabitation, which includes periods of pre-marital cohabitation, and ends with separation” (SSAG’s, s. 3.3.5). [ 78 ] I find below that the period of cohabitation of the parties was 8.5 years. [ 79 ] The SSAG’s, if considered in isolation, would yield a lower range of about 4.5 years of support based on length-of- cohabitation, since H began grade 1 in 2008 shortly after the parties separated (“If the children are already in school at the time of separation, then the lower end of the range will always be determined by this length-of-marriage test:” SSAG’s, s. 8.5.2).

Support has already been paid for a period in excess of one-half the length of cohabitation. [ 80 ] The SSAG’s would take the upper range of support to 2020, since H will not have finished high school until then. If support payments continued until 2020, the payment period of 12 years post-separation (after August 2008) would exceed the 8.5 year period of cohabitation. If that upper range were accepted, Mr Klein would be facing about another 4.5 years of support payments and his application to terminate now would have to be dismissed.

The SSAG’s do qualify the application of the upper range of the age-of- children test: “Relatively few cases will reach this outside time limit and those that do will likely involve reduced amounts of top-up support by that date” (SSAG’s, s. 8.5.3). (ii) parties’ ages [ 81 ] Mr Klein is 49 and was about 42 at the time of separation. Ms Wolbeck too is 49 and was about 42 at the time of separation. Ms Wolbeck entered the relationship with Mr Klein at about age 33. (iii) the length of the period of cohabitation [ 82 ] The parties made this issue more complex than it needed to be.

Mr Klein’s reply letter made the requisite admissions: Mr Klein’s evidence is that the parties lived together from February 1999 to July 2005, and from July 2006 to August 2008 – altogether,

the parties lived together for 103 months, or just over 8 and a half years …. [H]e does not dispute, and never has disputed, that they were common-law partners the entire time they lived together. [ 83 ] Thus, the parties cohabited for at least 8.5 years. I make the following findings respecting the length of the parties’ period of cohabitation: (

A) commencement date [ 84 ] The parties commenced cohabiting in February 1999. This was Mr Klein’s evidence. Ms Wolbeck deposed that “The Applicant and I started dating in 1998 and moved in shortly thereafter:” Wolbeck FLA Affidavit at para 2. That evidence confirms Mr Klein’s evidence. February 1999 is “shortly [after]” 1998. If the

interpretation of Ms Wolbeck’s evidence is that the parties commenced cohabiting in 1998, her evidence is vague and does not refer even to a month. The vagueness is self-serving, since it could add an indefinite number of months to the period of cohabitation. She should have had the knowledge necessary to specify a more precise date and she knew that the commencement of the relationship was a live issue when she swore her affidavit. The timing issue was explicit in para 2 of the Klein FLA First Affidavit. I disregard the suggestion that cohabitation commenced in 1998. (

B) legal status during cohabitation [ 85 ] During their period of cohabitation, the parties were adult interdependent partners. Mr Klein admitted this. The admission came late, though, in his reply letter. What preceded was some controversy over whether the relationship had been “marriage-like” over its last two years, following the 2005-2006 period of separation. The “marriage-like” terminology appears to have set roots early in the parties’ litigation. Mr Klein was never clear on why, exactly, the relationship was not “marriage-like.” Regardless, this classification was not legally significant.

Whether the parties were adult interdependent partners was legally significant, and they were. [ 86 ] Even without Mr Klein’s admission, on the evidence, the parties were adult interdependent partners. Given the admission, I will be brief. The Adult Interdependent Relationships Act provides as follows: 3(1) … a person is the adult interdependent partner of another person if (

a) the person has lived with the other person in a relationship of interdependence (

i) for a continuous period of not less than 3 years, or (ii) of some permanence, if there is a child of the relationship by birth or adoption …. 1(1) (f) “relationship of interdependence” means a relationship outside marriage in which any 2 persons (

i) share one another’s lives, (ii) are emotionally committed to one another, and (iii) function as an economic and domestic unit. 1(2) In determining whether 2 persons function as an economic and domestic unit for the purposes of subsection (1)(f)(iii), all the circumstances of the relationship must be taken into account, including such of the following matters as may be relevant: (

a) whether or not the persons have a conjugal relationship; (

b) the degree of exclusivity of the relationship; (

c) the conduct and habits of the persons in respect of household activities and living arrangements; (

d) the degree to which the persons hold themselves out to others as an economic and domestic unit; (

e) the degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another; (

f) the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well - being; (

g) the degree of financial dependence or interdependence and any arrangements for financial support between the persons; (

h) the care and support of children; (

i) the ownership, use and acquisition of property. Both ss. 3(1)(a)(

i) and (ii) were satisfied on the evidence, as were ss. 1(1)(f)(i), (ii), and (iii) pre-2005-2006 period of separation, and ss. 1(1)(f)(

i) and (iii) (at least) for the parties’ last two years together. Evidence supported the application of ss. 1(2)(b), (c), (d), (g), (h), and (i) – despite any subjective reservations or motivations (e.g. only staying together to preserve relationship with

H) on the part of Mr Klein. The parties lived together, had a child together, and held themselves out to third parties as a family unit. Mr Klein supported the family through work outside the home and Ms Wolbeck was a caregiver and homemaker. (

C) effect of separation between July 2005 and June 2006 [ 87 ] The relationship did have a period of separation, from July 2005 to the end of June 2006. There was some dispute about whether the parties were “emotionally” reconciled by December 2005. I need not find that there was any reconciliation at the mid-point of the separation. The parties were physically separate. From the perspective of the SSAG’s, this period of separation would not be

included as part of the parties’ period of cohabitation. [88] I recognize that the period of separation would not have been enough, by itself, to end the parties’ status as adultinterdependent partners. Under s. 10(1) of the Adult Interdependent Relationships Act, 10(1) Unless another enactment provides otherwise, an adult interdependent partner becomes the former adult interdependent partner ofanother person when the earliest of the following occurs: …. (

b) the adult interdependent partners live separate and apart for more than one year and one or both of the adult interdependent partnersintend that the adult interdependent relationship not continue …. See Re Racz Estate, 2013 ABQB 668, Gates J at para 17. [89] The 8.5 year period of cohabitation is therefore confirmed.

Regardless, even if the year of separation should be included aspart of the parties’ period of cohabitation, taking cohabitation from 8.5 years to 9.5 years, the addition of a year would not, in all of thecircumstances, have a significant bearing on the duration of support. (iv) the period over which partner support has been paid [90] Mr Klein has paid support pursuant to the Support Order for nearly 7 years. That period exceeds the SSAG’s lower range, andapproaches but does not equal the length of cohabitation of the parties.

Support amounts, I note, were also paid by Mr Klein prior to thegrant of the Support Order. (

v) Mr Klein’s means [91] Mr Klein has the means to continue to pay support to Ms Wolbeck. He earns about $80,000 per year more than Ms Wolbeck(at least according to his filed assessments). (vi) Ms Wolbeck’s needs and means [92] Ms Wolbeck can point to economic need. Her budget is annexed as Exhibit D to the Wolbeck FLA Affidavit; see also para 32.She has total monthly expenses of $3775.00, which, she deposed, she cannot meet through her current employment income alone. Herevidence does not disclose that she has accumulated any assets.

Her income tax returns show some small amounts of interest anddividend income, but the source was not identified. [93] Mr Klein has alleged that Ms Wolbeck has acquired some assets. He asserted that in 2014, Ms Wolbeck bought a new LincolnMKX SUV, attaching a photograph as an exhibit. He also asserted that she purchased a new holiday trailer and a hot tub, and has gone onseveral holidays: Klein FLA Reply Affidavit at paras 4 and 5. Mr Klein stated that “From picking up and dropping off our son, I haveseen most of Wendy’s spending.

Also at times of chatting with H, he has mentioned all the renovations that were happening:” Klein FLAReply Affidavit at para 6. Since these allegations were in a reply affidavit, Ms Wolbeck did not respond to these allegations. [94] Mr Klein’s allegations amount to unsubstantiated assertions. The photograph does not prove that Ms Wolbeck purchased avehicle. It is simply a vehicle in a driveway. No detail respecting observations was provided except that the claim that Mr Klein couldsee “most of Wendy’s spending.” It is not clear how that spending could have been observed.

There is no detail respecting the type orpotential value of any holiday trailer. Any comments from H were, once again, hearsay and provided no detail. [95] On the evidence, Ms Wolbeck has no significant assets. As indicated above, Ms Wolbeck did have possession of the rig mats,which entailed a temporary enhancement of her means. I will deal with the rig mats separately below. (vii) the functions performed by each partner during the period of cohabitation [96] The evidence relating to this factor was, for the most part, straightforward.

Mr Klein worked outside the home and financiallysupported the family and Ms Wolbeck contributed within the home as a homemaker. To the extent that the label remains meaningful, theroles of the parties were “traditional:” Moge v Moge, (SCC), [1992] 3 S.C.R. 813, L'Heureux-Dubé J at 847-848. Thisallocation of roles entailed that Ms Wolbeck was out of the external labour market for about 8 years.

She did have at least one period ofbrief part-time employment after H was born, at Shamrock Flooring in 2003-2004, as indicated in her affidavit of November 12, 2008(the Wolbeck 2008 Affidavit) found at tab 6 of Mr Klein’s support termination application materials. [97] The impact of this reality on Ms Wolbeck was not exhausted on termination of the relationship. She lost about 8 years of workexperience and skills development. This factor alone urged a period of support to compensate for her loss of earning capacity andemployment stability and to assist her with regaining her economic self-sufficiency.

According to s. 8.1 of the SSAG’s, Where there are dependent children, the primary rationale for spousal support is compensatory. After Moge, spouses must, as ChiefJustice McLachlin put it in Bracklow, “compensate each other for foregone careers and missed opportunities during the marriage uponthe breakdown of their union.” … The main reason for those foregone careers and missed opportunities is the assumption of primaryresponsibility by one spouse for the care of children during the marriage.

Where one spouse, in a marriage with children, has become afull-time homemaker or has worked outside the home part time or has worked as a secondary earner, there will be disadvantage and lossat the end of the marriage, usually warranting compensatory support. This compensatory rationale is encompassed by the first of the fourobjectives of spousal support, in s. 15.2(6)(

a) of the Divorce Act. On the evidence, loss of seniority through exclusion from a career was not a factor. There was no evidence that Ms Wolbeck hadopportunities to work in any industry in which seniority played an important role in determining remuneration: see Park v Slevinsky,2010 ABQB 762, Veit J at para 50.

[ 98 ] Ms Wolbeck claimed that Mr Klein “insisted” that she not work while they were living together: Wolbeck FLA Affidavit at para 19. Mr Klein denied this charge, claiming that leaving the workforce was her own decision: Klein LPA 2015 Affidavit at paras 14 - 18. “Insistence” is a strong word. It suggests that Mr Klein forced Ms Wolbeck not to work; an abuse of power is intimated. I attach no weight to Ms Wolbeck’s “insistence” claim. It is contradicted by Mr Klein. Whether or not there was “insistence” is immaterial.

The undisputed fact is that Ms Wolbeck was out of the external labour market for about 8 years. [ 99 ] A significant period outside the workforce suggests that a significant period of support was required to assist Ms Wolbeck to recoup what she lost. (viii) the economic advantages and disadvantages arising from the relationship [ 100 ] Ms Wolbeck, then, suffered economic disadvantages entailed by her role in the relationship.

Her economic disadvantages, though, arose only from her role in the relationship and (as considered under the next heading) from her role in parenting H. [ 101 ] There was no evidence that Ms Wolbeck gave up educational or particular vocational or professional opportunities through taking on the role of homemaker. In her affidavit of November 12, 2008, found at tab 6 of Mr Klein’s materials, Ms Wolbeck deposed that she has a high school education. She worked after high school for about five years as a waitress and bartender. She also worked in a deli wrapping meat.

She has no post-secondary education. [ 102 ] There was no evidence that Ms Wolbeck made sacrifices that amounted to investments in Mr Klein’s career, aside from her role as a homemaker. There was no evidence, for example, that she supported Mr Klein so he could obtain work-related training or education. So far as can be inferred from the evidence, Mr Klein was working in his field prior to commencing his relationship with Ms Wolbeck, he continued in this field during the relationship, and he continues in that field to this day. Mr Klein started Tomcat before his relationship with Ms Wolbeck.

The parties developed no new businesses during the relationship. There was no evidence that Ms Wolbeck contributed directly either to Mr Klein’s work or to the business of Tomcat. (ix) economic hardship arising from the breakdown of the relationship [ 103 ] When her relationship with Mr Klein terminated, Ms Wolbeck left the family home. She moved to new premises. She had the care not only of H, but of the two children from a previous relationship. At this time, H was 6.

She deposed as follows: “I was forced to reside at a residence my mother purchased for me, and to whom I paid rent in the amount of $1,200 a month. Luckily, I had a GIC, from where I drew an income until I was able to work and received support payments from the Respondent. The Respondent also ceased making payments on my truck and I was forced to take out a line of credit to make ends meet:” Wolbeck LPA 2015 Affidavit at para 13. Ms Wolbeck could point to two types of hardship arising from the breakdown of the relationship. [ 104 ] First, Ms Wolbeck had to re-establish her residence.

Her re-establishment costs, though, were mitigated because her mother purchased her residence. It is true that voluntary assistance by a relative would not have reduced Mr Klein’s support obligations: Fedor v Fedor , 2011 ABQB 185 , Poelman J at para 48 (the assistance would not seem to be of the sort contemplated by s. 58(

d) of the Family Law Act ). There was no evidence, though, of lingering financial prejudice. [ 105 ] In any event, Ms Wolbeck’s claims about Mr Klein having failed to pay any support following the separation are contradicted by Mr Klein and by her own evidence. Mr Klein deposed that he paid over $700 per month for the loan and insurance for her vehicle until January 2009; he also paid $80 per week to Ms Wolbeck to compensate for her driving H to school and made payments on a holiday trailer loan: Klein LPA 2015 Affidavit at para 38.

In Questioning held on May 5, 2009, attached as Exhibit F to the Klein LPA 2015 Affidavit (the Wolbeck 2009 Questioning), the following is found at page 95: Q: …. So from the separation until January of 2009, Roger paid all your truck payments, correct? A [Ms Wolbeck]: Yes (95.5-7). Q: And since the separation, right through now in fact to the present time, Roger’s made all payments towards the holiday trailer loan? A: Yes. (95.16-19). Q: And since the separation up until January of 2009, Roger made all insurance payments for your vehicle? A: Yes. (95.20-22).

Mr Klein paid partner support of $800 per month in at least October and November 2008 as well: Wolbeck November 2008 Statement (this admission corroborates Mr Klein’s claim to have paid $800 per month from October 2008 to January 2009). [ 106 ] Second, Ms Wolbeck had a compensatory claim based not only on her role during the relationship, but also arising from her primary parenting of H after the relationship ended. Primary parenting may prevent full time work or preferred work, post-relationship. The earning capacity of the primary parenting spouse may be impaired.

Further, as recognized by both the Family Law Act and the Divorce Act , the costs of looking after children are likely to exceed child support payments. Hence the legislation requires consideration of the “financial consequences arising from the care of any child of the relationship over and above the obligation apportioned between the spouses or adult interdependent partners pursuant to a child support order …:” Family Law Act , s. 60(b).

The SSAG’s recognize this type of compensatory claim: In shorter marriages, the basis for compensation is not just the past disadvantage flowing from the spouse's disproportionate assumption of child-rearing responsibilities (relatively short), but primarily the continuing disadvantages that flow from the spouse's ongoing and future responsibilities for child-rearing: Carol Rogerson and Rollie Thompson, The Spousal Support Advisory Guidelines: A New and

Improved User's Guide to the Final Version (March 2010), online: http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ug_a1-gu_a1/index.html On the theoretical front, marriages with dependent children raise strong compensatory claims based on the economic disadvantagesflowing from assumption of primary responsibility for child care, not only during the marriage, but also after separation. We haveidentified this aspect of the compensatory principle as it operates in cases involving dependent children as the parental partnershipprinciple (SSAG’s, s. 3.3.4).

More recently, what we have called the parental partnership rationale has emerged in the literature and in the case law. On this approach,the obligation for spousal support flows from parenthood rather than the marital relationship itself. It is not the length of the marriage, ormarital interdependency, or merger over time, that drives this theory of spousal support, but the presence of dependent children and theneed to provide care and support for those children.

Unlike the conventional compensatory approach, parental partnership looks at notjust past loss, but also the continuing economic disadvantage that flows from present and future child-care responsibilities (SSAG’s, s.8.1). [107] Ms Wolbeck does not have a non-compensatory entitlement to support, as an aspect of hardship arising from the relationshipbreakdown. Ms Wolbeck’s economic circumstances are not the result of illness or disability.

In Bracklow, Justice McLachlin confirmedthe view of Justice L’Heureux-Dubé that “a support obligation might well lie even in the absence of a compensatory underpinning” – butthis comment was tied to the example of sick or disabled spouses: Bracklow at para 44; Moge at 865. There was no evidence of anymedical or other disability that would prevent Ms Wolbeck from working or from working at any ordinary, reasonable level ofproductivity and compensation. She was not a new Canadian, facing difficulties of obtaining employment because of a lack of languageskills or Canadian-equivalent educational qualifications.

Moreover, this is not a case of a long-term relationship that left the formerhomemaker spouse at an age when re-training or obtaining work were no longer practically feasible. (

x) Ms Wolbeck’s economic self-sufficiency [108] Under s. 60(

d) of the Family Law Act, partner support should, “insofar as practicable, promote the economic self-sufficiency ofeach … partner within a reasonable period of time.” According to s. 8.5.5 of the SSAG’s, “A recipient is always under an obligation tomake reasonable efforts towards self-sufficiency.” It would be better to say that “self-sufficiency” is a factor to be considered, though,rather than a duty (“Failure to achieve self-sufficiency is not breach of ‘a duty’ and is simply one factor amongst others to be taken intoaccount:” Leskun at para 27). [109] During the 2005-2006 separation, Ms Wolbeck worked for Shamrock Flooring in Grande Prairie: Wolbeck LPA 2015 Affidav

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