Slugoski v Slugoski, 2016 ABQB 423

Court of Queen’s Bench of Alberta Citation: Slugoski v Slugoski, 2016 ABQB 423 Date: 20160802 Docket: 4808 011720 Registry: Medicine Hat Between: Carol Mary Slugoski Plaintiff - and - Reginald Edwin Slugoski Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice J.H. Langston _______________________________________________________ [ 1 ] By agreement, this matter proceeded to a

Summary Trial on January 18 th , 2016. No procedural order was obtained to detail or control the nature of the evidence which was to be adduced. The parties filed affidavits which purported to be the evidence which would be relied on at this trial. However, when making submissions, counsel for the Defendant proposed to tender, as evidence, “read- ins” from the discovery of the Plaintiff which occurred on August 6 th , 2014. I allowed counsel to proceed on the understanding that counsel for the Plaintiff would have the opportunity to respond to the position advanced by counsel for the Defendant.

I took this position in order that the trial would not be protracted, and recognizing the fact that the Plaintiff had been caught off guard by the attempt to introduce this evidence. [ 2 ] By April 1 st , 2016 the parties had filed their Briefs addressing the right to call such evidence and the position to be taken if this evidence was admitted. [ 3 ] Counsel for the Defendant takes the position that the use of read-ins is a fundamental part of Trial advocacy and he relies on one authority where read-ins were part of the evidence adduced at a

Summary Trial. However, that authority appears to run contrary to the Defendant’s position, since the materials placed before that judge specifically contemplated the inclusion of read-ins as part of the evidentiary basis for the

Summary Trial.

[ 4 ] In this case the Defendant proposes to use the read-ins solely for the purpose of attacking the credibility of the Plaintiff. While it is obvious that credibility issues are inevitably part of a

Summary Trial, the extent of such an issue may impact on the propriety of proceeding to trial in a

summary fashion. [ 5 ] The

Summary Trial provisions contained in the Alberta Rules of Court set out the process which the parties must follow in relation to the evidence which will be put before the Court. They provide as follows: 7.5(1) A party may apply to a judge for judgment by way of a

summary trial on an issue, a question, or generally.

(2) The application must (

d) be accompanied with an affidavit or any other evidence to be relied on [ 6 ] The

Summary Trial process is designed to facilitate a resolution in a fair and expeditious manner. To achieve that result the parties and the judge need to be cognisant of all relevant evidence prior to the commencement of trial. The position adopted by counsel for the Defendant thwarts this process. [ 7 ] It was the Defendant who made application for the

Summary Trial. In that application the Defendant asserts that he will be relying on his affidavit and he further asserts that affidavit evidence will be sufficient for the purposes of the

Summary Trial. Had it been apparent that the credibility of the Plaintiff was, in reality, the primary issue in this trial, an early review by a judge may have halted this process because it may not be an appropriate case for

Summary Trial. [ 8 ] The actions of counsel for the Defendant amount to an ambush, disguised as trial advocacy. The need for read-ins and their use could have been dealt with, between counsel, well in advance of the trial date. This may have precipitated an application by the Plaintiff to withdraw from this process. [ 9 ] In the result the proper approach in this case is to proceed to determine the issues without reference to the discovery read- ins. Issues [ 10 ] The issues in this trial, as defined by the application for

Summary Trial, are: 1. A division of matrimonial property. 2. Spousal support. Facts [ 11 ] The parties were married on April 20 th , 1963. After a brief separation in 2012 they finally separated in September 2013. The Plaintiff is 73 years old. The Defendant is 69. Neither party takes issue with the principle that the matrimonial property should be divided equally. The Matrimonial Home [ 12 ] Ms. Slugoski left the matrimonial home on September 11 th , 2013. On February 20 th , 2014 Mr. Slugoski was ordered to give Ms. Slugoski possession of the home and to sell his share of the home to her.

By that same order a purchase price of $390,000.00 was set. As of April 1 st , 2014 the value of the mortgage on the property was $180,000.00. The materials suggest that the parties anticipated a quick transfer of the property. When Mr. Slugoski left the matrimonial home he purchased a new home. [ 13 ] Ms. Slugoski has resided in the matrimonial home since April 1 st , 2014 but no formal transfer has occurred. No action was taken in furtherance of the order and no appeal was launched. In my view the parties are bound by the terms of the order. Ms. Slugoski has paid the mortgage on the property since March 2014.

Although Ms. Slugoski suggests that the current value of the home has decreased, she is prepared to purchase the matrimonial home at the price set in the February 2014 order, with a mortgage value set at $180,000.00. Mr. Slugoski accepts this position. Accordingly the net equity in this asset is $210,000.00. However, subject to any alternative agreement between the parties, I direct that Ms. Slugoski purchase this home within 60 days of this Judgment being filed. If Ms.

Slugoski fails to purchase the home, during this time period, the property will be listed for sale and the net proceeds of the sale, after deducting all related expenses, will be divisible as follows. Mr. Slugoski will be entitled to one half of the net equity as contemplated by the proposed sale of the property in 2014. This amount is fixed at $105,000.00. Ms. Slugoski will receive the remainder of those funds. The Contents of the Home [ 14 ] When Mr. Slugoski left the home he took with him certain of the contents. The parties dispute the value of the contents taken from and left in the matrimonial home.

In her affidavit Ms. Slugoski itemizes the goods taken and assigns a value to each. Using her inventory and value Mr. Slugoski took approximately $14,700.00 worth of property. Again, using her inventory and valuation, there were goods left in the home valued at approximately $20,500.00. Mr. Slugoski puts a much lower value on all goods and suggests Ms. Slugoski retained goods worth approximately $1,700.00 more than the value of the goods which he took. It is not the Courts function to arbitrate in a vacuum. The true value of these goods cannot be accurately determined.

The affidavit evidence, as a whole, indicates that

Ms. Slugoski may be in possession of goods which are slightly more valuable than those which are in the possession of Mr. Slugoski. As I am unable to make a more accurate determination, I direct the parties will retain the goods in their possession and for the purposes of this Judgment no value will flow between the parties by way of an equalization. Exemptions [ 15 ] Mr. Slugoski claims as exempt property the value of a tax-free savings account and a 2010 Camaro car. He argues that these assets were purchased using money he inherited from his father’s estate. Mr.

Slugoski’s father died on January 13 th , 2008 and, on April 28 th , 2008, Mr. Slugoski received $40,926.13 by way of inheritance. Mr. Slugoski put the money into a joint account and shortly thereafter used approximately $26,000.00 of those funds to pay off joint debt. On August 14 th , 2008 he purchased a truck for use in a family business. On February 9 th , 2009 he transferred $5,000.00 into a tax-free savings account. On October 8 th , 2010 he purchased a 2010 Camaro for $34,000.00. Mr. Slugoski traded in the truck for $13,273.57 and used a credit card to pay the balance. Mr.

Slugoski says the present value of the Camaro is $24,000.00. [ 16 ] A review of the Affidavits does not establish that Mr. Slugoski had an intention to buy this vehicle and to segregate or separate the funds for that purpose. In fact his actions are to the contrary. The inheritance was placed in a joint account. It was used to pay joint debt and to purchase at least one significant family business asset. In my view the funds are not traceable and there is no exemption for the vehicle or for the RRSP. Mr. Slugoski’s RRIF and LIF [ 17 ] At separation the value of these assets was approximately $172,500.00. Mr.

Slugoski acquired these assets through employment and joint family contributions during the course of the marriage. In 1997, Mr. Slugoski began drawing down on these funds. The funds were used for matrimonial expenses. There is nothing in the evidence to suggest that these investments were anything other than joint family assets. Since separation Mr. Slugoski has, alone, taken approximately $48,000.00 from these investments. Over time these investments have increased in value. However, there was no evidence to suggest that the increased value is due to anything other than the accrual of interest. Ms.

Slugoski’s RRSP [ 18 ] During the marriage Ms. Slugoski cashed in an RRSP owned by her. I accept that the funds were used for family expenses in the normal pattern of this family’s affairs. There is no asset to divide and no evidence that there was dissipation of the asset. Vehicles [ 19 ] The parties each retained vehicles that are valued at approximately $3,000.00. The parties will each keep the vehicle in their possession. If Mr. Slugoski is still in possession of keys belonging to Ms. Slugoski’s 2003 Grand Am they will be returned to Ms. Slugoski forthwith. The Joint Account [ 20 ] After separation Mr.

Slugoski transferred $12,248.76 which had been held in a joint account. These were matrimonial assets and are equally divisible. There may have been other funds transferred prior to separation. However, I do not accept that such funds were dissipated or that they were used for anything but joint matrimonial expenses. Post Separation Expenses [ 21 ] Mr. Slugoski claims approximately $3,900.00 in expenses for payment of 2014 property taxes and insurance. However, it was Ms. Slugoski who paid the mortgage payments and other expenses on the home following her occupation of the residence.

In each case the parties were contributing to the maintenance of an undivided interest in the matrimonial asset. That asset is now the subject of division. The calculation of each party’s respective contributions to the well-being of this asset is unnecessary. The most that can be said as that it may be equivalent. Other Expenses Claim by Mr. Slugoski [ 22 ] During the party’s interim separation, and at a time when Ms. Slugoski was suffering from health issues, she requested Mr. Slugoski’s help to provide assistance for her needs and the needs of the residence.

She offered $1,000.00 per month for this service, if Mr. Slugoski returned to live in the matrimonial home. There is dispute as to whether Mr. Slugoski actually performed any of the services as contemplated by this oral contract. Based on the evidence before me I am not satisfied that Mr. Slugoski actually lived up to his end of the bargain. Mr. Slugoski is, in essence, seeking a total of $17,799.90 for these expenses. In my view he has not established a

claim.

Summary of the Division of Matrimonial Property 1) Mr. Slugoski will receive $105,000.00 as his share of the sale of the matrimonial property pursuant to my earlier direction. 2) The value of Mr. Slugoski’s tax-free savings account and the 2010 Camaro are not exempt property and are subject to equal distribution. 3) The value of Mr. Slugoski’s RRIF and LIF are to be divided equally. 4) The RRSP which was cashed in by Ms. Slugoski is not matrimonial property subject to division. 5) There will be no additional division of the contents of the matrimonial home. Each party has retained goods of equal value. 6) Mr.

Slugoski will return Ms. Slugoski’s keys. 7) The $12,249.76 withdrawn from the party’s joint account is matrimonial property and is subject to equal division. 8) Ms. Slugoski is not liable for expenses claimed by Mr. Slugoski after separation. Spousal Support [ 23 ] The parties were together for 49 years. Mr. Slugoski was the primary source of income. He handled the families’ financial affairs, including a curious use of credit cards, where indebtedness was transferred between cards as new cards with lower promotional rates were acquired. Mr.

Slugoski was not a particularly astute financial manager of the families’ resources. He retired in 2009 but has drawn funds from the RIFF and the LIF since 1997. The only conclusion to draw from the pattern of conduct by these parties is that these funds went into the joint family finances. It is equally clear that since separation Mr. Slugoski continued to draw on these funds to support himself while Ms. Slugoski had full-time employment. [ 24 ] Mr. Slugoski’s use of the RRIF and the LIF was an arbitrary use of matrimonial property.

However, it is equally clear that without access to these funds there would have been a significant disparity in the incomes of each party. This was a long term relationship which would call for an equalization of both matrimonial property and other economic benefits which accrued to the parties. [ 25 ] Ms. Slugoski’s current income is $42,500.00 per year. Mr. Slugoski has income of approximately $30,000.00 per year which is comprised of funds from the RIFF, LIF, CPP and OAS. Mr.

Slugoski’s withdrawals from the RIFF and the LIF have been consistent and in my view necessary for his support. [ 26 ] Those funds are matrimonial property and their value and equal division will be at the date of this Judgment. Mr. Slugoski will not be required to repay any amounts unless there has been a deviation in the pattern of his withdrawals. [ 27 ] Ms. Slugoski currently earns $42,500.00. Mr. Slugoski, without now being able to unilaterally withdraw funds from these plans, will earn income of approximately $1,500.00 per month based on CPP and OAS payments.

This results in a significant disparity in the quality of life as between the parties. [ 28 ] Accordingly, Mr. Slugoski is entitled to spousal support calculated on his income of approximately $18,000.00 per year and Ms. Slugoski’s income of approximately $42,500.00 per year. [ 29 ] I fix Ms. Slugoski’s ongoing obligation at $800.00 per month commencing on the 1 st day of the month following the filing of this Judgment. [ 30 ] There has been mixed success in this action and the party’s will each bear their own costs. Heard on the 18 th day of January, 2016.

Dated at the City of Medicine Hat, Alberta this 2 nd day of August, 2016. J.H. Langston J.C.Q.B.A.

Appearances: Darren D. Cahoon Rath Law Office for the Plaintiff Kevin C. E. Kurtz Stringam LLP for the Defendant