Olson v Olson, 2016 ABQB 533

Court of Queen ’ s Bench of Alberta Citation: Olson v Olson, 2016 ABQB 533 Date: 20160926 Docket: 4803 154237 Registry: Edmonton Between: Cynthia Ann Olson Plaintiff - and - Glenn Kermit Olson Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] This trial concerned a single set of contested issues – the determination of Glenn Olson’s (Glenn’

s) current income for the purpose of calculating spousal support and of the duration of Glenn’s obligations to pay spousal support to Ms. Olson (Cynthia). Cynthia’s entitlement to spousal support at the time of trial was conceded on both compensatory and non-compensatory grounds. The parties agreed that if spousal support were ordered, Glenn would pay “mid-range support” under the Spousal Support Advisory Guidelines, online: http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/index.html (the SSAG’s). [ 2 ] For the reasons that follow, I have found that

(

a) The duration of Glenn’s obligation to pay spousal support is indefinite. (

b) Glenn’s annual income for the purposes of spousal support is $22,665. (

c) No additional income shall be imputed to Glenn. (

d) No ongoing spousal support is payable by Glenn to Cynthia in the present circumstances. (

e) The amount and duration of Glenn’s spousal support obligation is reviewable on or after May 7, 2023, when Glenn turns 65. At the conclusion of the trial I also granted the parties a divorce judgment with a severance of corollary relief. Table of Contents A. Background . 3 1. Cynthia . 3 2. Glenn . 5 B. Spousal Support - General Principles . 9 C. Duration . 11 D. Amount 11 1. Assets . 11 (

a) Tax Refund . 12 (

b) RRSP . 14 2. Expenses . 15 3. Earning Capacity . 16 (

a) What is the standard for assessing earning capacity? . 16 (

b) What is my assessment of Glenn’s testimony? . 19 (

c) What steps have been taken by Glenn to find work? . 20 (

d) Is Glenn intentionally underemployed? . 22 (

e) Has Glenn been reasonably diligent in trying to find employment? . 23 (

i) payee’s need . 23 (ii) intrinsic capacity . 25 (iii) personal factors . 26 (iv) external factors . 28 (

v) steps taken . 32 (vi) consequences of imputation . 33 4. Glenn’s Income . 33 5. What if things change? . 34 E. Further Aspects of Corollary Relief . 34 F. Terms of Judgment and Order 34 G. Costs . 35 A. Background [ 3 ] In addition to commendably narrowing the trial issues, the parties filed an “Agreed Statement of Facts/Issues for Trial.” Only

Cynthia and Glenn testified. While this limitation on testimony posed some challenges in the areas of hearsay and opinion evidence, theapproach accorded with rule 1.2, was proportional to the nature of the issues, and, as discussed by Justice L’Heureux-Dubé in Moge vMoge, (SCC), [1992] 3 SCR 813 at 871 - 872, properly took into account the financial positions of the parties. [4] The parties were married on September 20, 1986. [The Agreed Facts put the date of marriage on September 30, but that datedoes not appear to be accurate.] They separated on December 28, 2009. They cohabited for about 23 years.

At the time of trial, they hadbeen separated for nearly 7 years. [5] They have two children. EO is 26. LO is 19. At this time, neither is a “child of the marriage” for the purposes of entitlementto child support. 1. Cynthia [6] Cynthia is 57. [7] She resided in the United States before marriage. When she and Glenn married she moved to Canada. She had a positionworking with autistic children but Glenn’s work paid more and the move made economic sense. [8] During the marriage, she was the parent primarily responsible for the care of the children.

She did not work during themarriage, save for minor involvement with Nutrisystem. [9] In August 2010, after the separation, she returned to the United States. This was her choice. She has family and friends in theUnited States. The children went with her, with Glenn’s consent. She and her new partner Dan now live in Shirley, Massachusetts, asmall town about 40 miles north of Boston. LO lives with them. [10] Dan was laid off in June 2016. He was entitled to unemployment insurance payments of $700 per week for 27 weeks. Dan hasa child from a previous relationship with special needs.

His former wife is deceased. [11] LO is not working. [12] Cynthia has a Bachelor of Arts Degree in Sociology and Psychology. In September 2012, she started retraining to prepareherself for work. She enrolled in a program that would assist her in starting her own business. Her plan was to start a home-basedquilting and crafting business. Products would be sold online and through consignment. She did not complete the program. She realizedthat the venture was not likely to make much money. She also had a dental problem which caused her to miss a significant part of theprogram.

She withdrew from the program in November 2012. [13] In September 2013, she embarked on studies that would lead to a career in sonography, as an ultrasound technician. Beforeentering the sonography program she had to complete some pre-requisite courses. She struggled with one of the pre-requisites, thealgebra course. At this time, the house that she and Dan were renting was being sold by the owners. They had to move. The move wascomplicated by the family having two large dogs, limiting available rental accommodations. Circumstances proved to be too much.

Shedid not complete the prerequisite courses and has not pursued a sonography career. [14] Cynthia looked for work as a bank teller and as an airline agent. On March 9, 2016, she was able to secure a position with theHome Depot in Marlborough, Massachusetts, about a 40 minute drive south from Shirley. She started as a part-time worker and her hourswere low - 6, 12, 21, up to 37 hours per week. As of July 2016, she has been working full time for Home Depot (40 hours per week). Hernet take home pay is $359.82 per week. [15] Cynthia is in very difficult financial circumstances.

She is not current on her vehicle payments. She owns a 2013 Honda Pilotfour-wheel drive SUV. As of August, 2016, she is in arrears $230.90 for communications services (phone and internet); $724.17 for gas(heating); $3,073.53 for electricity (the latest bill in evidence requires payment of $3,652.56 to avoid disconnection); and $308.58 forexcise tax assessed by the Town of Shirley on her vehicle. She has received collection notices for credit card debts. She owes about$16,000 for 2015 taxes. She has not yet filed her 2015 return, because she couldn’t afford to have her taxes done last year.

She has notyet heard from the IRS. [16] Cynthia put in evidence a monthly budget showing total family expenses of $8,543 USD, or at two-thirds of that amount,representing her and LO’s share of the expenses, $6,758.50 per month. [17] The major expenses are as follows: • rent - $2,500; $1,875 for her and LO; • utilities - $820; $615 for her and LO; • 2015 tax - $1,500; $1,200 for her and LO; • car payment - $801; • credit card payments - $950; • legal fee payment (on outstanding arrears) - $500. [18] The family has been able to carry on in their present accommodations in part because Dan was able to sell some possessionsderived from his deceased spouse.

[ 19 ] Cynthia testified that trading in the Honda for a less expensive vehicle was not feasible. She cannot get credit. The Honda has some dents and would not yield much on a trade-in. She needs four-wheel drive to get her through the snow to work. There is no practical public transit connection from Shirley to Marlborough. [ 20 ] Cynthia and her family had difficulty finding rental accommodations. Few rentals in their area allow dogs, let alone two big dogs. One of these dogs is LO’s.

Glenn admitted in Questioning that LO is very attached to the dog and taking it away would have a negative effect on LO: Questioning for Discovery of Glenn, October 15, 2013 (Glenn’s Questioning), 58.21-26. [ 21 ] Because of her low income, Cynthia has received some State assistance. She and LO receive food stamps for groceries. They are covered by State-funded health care. She does not know how her move to full-time employment with Home Depot will affect State assistance. [ 22 ] Cynthia admitted that she received about $31,000 through her matrimonial property settlement with Glenn.

She didn’t invest any of the money. It was spent on moving expenses, household expenses, and some holidays. [ 23 ] Cynthia admitted that by October 2013 she had “max’d out” her credit cards. Yet as of the end of 2011, she was receiving child support of over $2,300 per month and spousal support of $7,200 per month (On September 29, 2011, Justice Manderscheid ordered child support in the amount of $2,328 per month commencing May 1, 2011 and spousal support of $7,210 per month commencing May 1, 2011.

Spousal support was reduced by the Orders of Justice Lee on October 23, 2015 (to $3,833) and by Justice Clackson on March 8, 2016 (to $1,000)). [ 24 ] The parties agreed that Cynthia’s current annual income for the purpose of calculating spousal support is $25,000 CAD. 2. Glenn [ 25 ] Glenn is 58. He is in good health. He trains regularly and stays fit. [ 26 ] He graduated from High School in 1976.

He has no post-secondary education, although he has both taken and instructed industry-based programs, as will be discussed below. [ 27 ] In August 1976, after completing High School, Glenn went to work in the oilfields. This began a 38 year career in the oil and gas and mining industries. Some detail about Glenn’s work experience is found in a curriculum vitae forming part of Exhibit 6. Exhibit 6 is a lengthy compilation of documents relevant to Glenn’s job searches.

The c.v. is attached to correspondence dated November 30, 2015 to Advisian, WorleyParsons Group, respecting a Project Health Safety Security Marine Lead position (Glenn’s CV). [ 28 ] Glenn has worked in Canada and the United States. His work took him across the world, to Algeria, Argentina, Australia, China, Colombia, Democratic Republic of Congo, Ecuador, Falkland Islands, Gabon, Great Britain, Indonesia, Kazakhstan, Malaysia, Mexico, Oman, Qatar, United Arab Emirates, Venezuela, and Yemen.

Fifteen years of his 38-year career were spent overseas: Questioning on Affidavit, September 18, 2015, 21.22-23 (Glenn’s Questioning on Affidavit). [ 29 ] Home base for Glenn, for at least the last 20 years, has been St. Albert. [ 30 ] The overall arc of Glenn’s work history has been as follows: [ 31 ] From 1976 to 1978 he worked with Otis Engineering as a gas tester. He went to the rigs in 1978. From 1978 to 1984 he worked with Nabors Drilling Canada. He started as a roughneck, worked up to Derrick Hand, then into the office as Safety Coordinator. In 1984 he was recruited to Shelby Drilling.

He began as driller, then advanced to rig manager. [ 32 ] Glenn and Cynthia were married in 1986. [ 33 ] Around this time, he did work with Stuart Olson Construction on a hotel in Kananaskis being readied for the 1988 Calgary Olympics. He had no carpenter experience. He got the job through a friend. [ 34 ] In 1987 he took a position with the Petroleum Industry Training Service in Nisku as a floorhand training instructor. [ 35 ] In 1988 he joined Ensco Drilling Canada as a Safety Manager for drilling.

Ensco was associated with Nabors Drilling. [ 36 ] When Ensco left Canada in 1991, Glenn went to Phelps Drilling International as a Safety Manager. He got this job through a contact with Nabors. [ 37 ] Glenn joined Nabors (Nabors Yemen Ltd. or Nabors Drilling International) in 1992 and went to Yemen. While a civil war in Yemen ended Glenn’s work there for a time, friends at Nabors got him back on the payroll. [ 38 ] From 1993 to 1997, Glenn worked with Brelco Drilling Ltd. as Manager of Safety and Training.

Later in 1997, he went to Baker Hughes Canada Co. as Health, Safety and Environmental Coordinator, where he remained until 2000. [ 39 ] During this period, he was also doing part-time work for AMA Towing and Rogers Towing out of St Albert to make extra money. [ 40 ] From 2000 to 2006, Glenn rejoined Nabors Drilling International. He was sent to Yemen, then Qatar. He was a Quality Health Safety and Environmental Systems Manager. In 2003, Nabors sent Glenn to the UAE. Nabors was doing shipyard refurbishment under contract to BHP Billiton (BHP). [ 41 ] Glenn became acquainted with BHP personnel.

He inquired about working with BHP.

[ 42 ] In December 2006, BHP offered Glenn a consultant position in the Health, Safety and Environment Advisory area. He commenced working with BHP in 2007. [ 43 ] BHP was developing a potash mine in Saskatchewan. In 2010 or 2011, BHP sent him to work on this project. He worked on this project until 2014. [ 44 ] In 2014, BHP took

part in the shale boom in the United States. From August 2014 to August 2015, Glenn returned to the petroleum industry as a consultant for BHP Billiton Petroleum Americas – North American Shale. [ 45 ] The economics of the oil and gas industry began turning downward in 2014. The price of oil dropped. BHP scaled back its operations. [ 46 ] Glenn survived the first set of job cuts. To save its staff, BHP contemplated drastic reductions in hours in the field. A “Norwegian work

schedule rotation” (14 days on, 28 days off) was planned: Exhibit 4. But the price of oil continued to drop in August 2015. Glenn was “laid off” on August 18, 2015. He was not an employee of BHP, but an independent contractor. His contract was simply terminated: Exhibit 5. [ 47 ] Glenn’s work history was, manifestly, punctuated by frequent employment transitions. As Cynthia testified and as Glenn confirmed, he’d always been able to find the next job in his areas of expertise.

In Glenn’s Questioning on Affidavit, we find the following at 25.21-23: Q So previous times, how long do you think you had been off work on average? A Myself? Just a month. [ 48 ] This time things were different. [ 49 ] After the termination of his BHP contract, Glenn has had one brief job drawing on his skills. This job was with Sirius Well Manufacturing Services, from September 9 to October 28, 2015. This opportunity had first gone to one of Glenn’s friends. The friend was heading into retirement and passed the opportunity on to Glenn.

With Sirius, Glenn worked on a Health, Safety, and Environment performance review. Sirius was a contractor in Shell Canada’s Carmon Creek Project near Peace River. Shell, as is well known, shut down the project. Glenn got 28 days work. He received a payment of $38,000. [ 50 ] Since then, the only long-term work that Glenn has been able to secure is with a Costco Liquor Store (Costco Canada Liquor Inc). The manager asked Glenn if he could help out during the 2015 Christmas rush. Glenn has been there ever since. He works on a limited part-time basis. He cannot work more than 30 hours per week.

He earns just over $21,000 per year. By extrapolation from the paystubs constituting Exhibit 7, his annual liquor store income is $21,544 (year-to-date $14,086.5 for 34 weeks). [ 51 ] Glenn was also able to get some short-term work with the Ice Castles display in Hawrelak Park in Edmonton. He was responsible, generally, for crowd control. The display was cut short because of the mild 2016 winter. His net pay was $1,120.90, as disclosed in Exhibit 7. [ 52 ] While Glenn has limited formal education, he has a wealth of experience in the oil and gas and mining industries both in North America and internationally.

Moreover, he took a substantial number of industry training courses from 1997 to 2014, as set out on page 4 of Glenn’s CV. These include sessions respecting • Drilling Waste Management • Fundamentals of WHMIS [Workplace Hazardous Materials Information System] for Trainers • Drilling Fluids Fundamentals • Basic Marine Firefighting • Forklift Safety • Crane/Rigging Safety • Basic Offshore Safety Induction and Emergency Training • H2S Alive • First Line Supervisors Blowout Prevention • Second Line Supervisor Well Control [ 53 ] Glenn also completed a project management certification course at NAIT.

Glenn’s CV indicates that he received Project Leadership Certification in August 2014 and a Certificate of Achievement in Project Management in December 2014. [ 54 ] In Glenn’s Questioning on Affidavit, which took place about a month after his BHP contract ended, we find the following exchange at 16.27 – 17.8: Q How many years have you been working in this industry? A 38.

Q Is it fair to say that you’re a highly-respected and sought-after employee in this industry? A Yes. Q Have there been other times where you found yourself in this situation where you have no employment? A No.

This is the first time I’ve been unemployed. [ 55 ] The parties agreed that Glenn’s income has been as follows: 1998: $71,819 1999: $80,134 2000: $99,593 2001: $107,116 2002: $116,057 2003: $108,964 2004: $83,037 2005: $119,667 2006: $107,548 2007: $168,007 2008: $256,637 2009 $334,108 2010 $269,707 2011 $272,714 2012 $296,808 2013 $301,275 2014 $292,820 2015 $206,560 The 2015 income is as described in Glenn’s 2015 Notice of Assessment. It does not include his Sirius income (referred to above), which Glenn testified has been deferred to the 2016 taxation year.

There was no argument that Glenn’s 2016 income, at least for the purposes of setting his income for spousal support purposes, should include the Sirius income. I have not taken the amount received for the Sirius project into account in determining his current income for spousal support purposes, although the opportunity itself and the inferences it supports are relevant to his earning capacity. That aspect of the Sirius payment has been taken into account. [ 56 ] Further evidence relating to Glenn and his job searches will be considered below in connection with his capacity to pay spousal support. B.

Spousal Support - General Principles [ 57 ]

Section 15.2 of the Divorce Act is the statutory foundation for spousal support orders : Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the o rder as it thinks fit and just. Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relati ng to support of either spouse.

Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spou se in relation to the marriage. Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 58 ] According to Justice L’Heureux - Dubé in Moge at 852, All four of the objectives defined in the Act must be taken into account when spousal support is claimed or an order for spousal support is sought to be varied. No single objective is paramount. The fact that one of the objectives, such as economic self - sufficiency, has been attained does not necessarily dispose of the matter. Carruthers C.J.P.E.I observed in Mullin v.

Mullin (1991), supra , at p. 148: All of these objectives must be considered. There is nothing in the legislation to suggest that any one or two of these objectives should be given greater weight or importance than any other objective …. and at 866: The exercise of judicial discretion in ordering support requires an examination of all four objectives set out in the Act in order to achieve equitable sharing of the economic consequences of marriage or marriage breakdown. [ 59 ] Spousal support has three elements – entitlement, duration, and amount.

In this case, Cynthia’s entitlement to spousal support was admitted on both compensatory and non-compensatory (“means/needs”) bases. This was a sensible admission. Cynthia and Glenn had a long term (23 year) relationship. Cynthia was out of the workforce for the duration of the relationship. Cynthia had primary responsibility for the household and the raising of the parties’ two children. Cynthia has suffered from the breakdown the marriage. Her transition to the workforce has not gone well.

After two incomplete efforts at retraining after separation, to her credit, she has lately succeeded in getting full-time employment at Home Depot. Cynthia’s expenses exceed her revenues. She has no significant assets. [ 60 ] The duration and amount of spousal support remain to be determined, the latter in light of the parties’ concession that if spousal support is ordered, Glenn shall pay “mid-range support” as indicated by the SSAG’s.

The objectives and factors of spousal support must also be considered in relation to duration and amount, as Justice Jerke observed in Walsh v Walsh , 2015 ABQB 652 at para 43 : [43] The basis of entitlement to spousal support is an important consideration in determining the amount and duration of spousal support. I have found that Ms. Walsh’s entitlement is primarily on the compensatory basis. Spousal support issues such as quantum and duration are inter-related, and a judge must exercise discretion to determine an appropriate order.

Langston J stated in Bennett v Bennett , 2005 ABQB 984 at para 33 : In conclusion, the underlying philosophy of the Act is the fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown. The role of the judge is to examine all the factors under s15.2(4) in the light of the stipulated objectives of support under s15.2(6) and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown. C.

Duration [ 61 ] At this point, the parties have been separated for about 7 years following the conclusion of their 23 year relationship. The SSAG’s would suggest that the duration of support should be indefinite, given the length of the parties’ relationship (§7.1, without child support, online: http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/p7a.html#a71 ).

I recognize that the SSAG’s are not binding: Sawatzky v Sawatzky , 2008 ABCA 355 at paras 16-17 ; Neighbour v Neighbour , 2014 ABCA 62 at para 15 ; McCulloch v Bawtinheimer , 2006 ABQB 232 at para 41 ; VS v AK , 2005 ABQB 754 , Trussler J at paras 17-25.

Nonetheless, the SSAG’s are a “useful tool:” Dowhaniuk v Dowhaniuk , 2014 ABQB 217 , Ross J at para 61; RMQ v JAQ , 2015 ABQB 392 , Graesser J at para 39. [ 62 ] In this case as in Dowhaniuk v Dowhaniuk (at para 75 ), “[t]he evidence does not permit me to evaluate the consequences of a time limited support order.” In my opinion, given the length of the parties’ relationship, Cynthia’s role during the relationship, her displacement from the workplace during the relationship, her ongoing economic difficulties following the breakdown of the relationship, the relatively short period since separation, and taking into account the detailed assessment of Glenn’s economic situation to follow, I must find that the duration of support is indefinite.

I shall not impose a termination date at this time. However, the duration and amount of spousal support shall be reviewable (without the need to demonstrate a change in circumstances) on or after May 7, 2023, when Glenn turns 65. See Walsh v Walsh at para 48 and Dowhaniuk v Dowhaniuk at para 74 .

D. Amount [63] Determining the amount at which Glenn’s income shall be set for the purposes of a spousal support order requires anassessment of the condition, means, and needs of the parties. The condition, means, and needs of the parties – of each spouse - includenot only the factors listed in s. 15.2(a) – (c). Justice Manderscheid elaborated in Doege v Doege, 2015 ABQB 802 at para 110: “Condition” includes age, health, needs, obligations, dependants and station in life.

The term “needs” is relative and often determined bycomparing the lifestyle enjoyed during the marriage and the payor’s entitlement to have a reasonable standard of living: Moge at paras84-85. The term “means” includes all financial resources, capital assets, income from employment or earning capacity and any othersource from which benefits are received: Strang v Strang, (SCC), [1992] 2 SCR 112 at para 15. [64] Cynthia has evident need, as reviewed above. She and her family are being swallowed by debt. Her need, though, is notdeterminative. Both parties’ condition, means, and needs must be considered.

Glenn’s assets, his income and expenses, and his earningcapacity must be assessed. 1. Assets [65] As indicated above, Cynthia has no significant assets that could be liquidated to assist in her time of need. On the evidence,her only asset of value is her Honda Pilot. There was a suggestion in argument that she should find a cheaper vehicle. This is not arealistic option. She cannot get credit.

There was no evidence contrary to her opinion that the Honda would have a low trade-in value.Her drive to work is significant and she needs four-wheel drive to get her through the snow to work safely. [66] Does Glenn has assets that could be drawn on for the purposes of spousal support for Cynthia? [67] Except for two assets that I’ll consider next, Glenn is similarly situated to Cynthia. On the evidence, he has no significantassets. He is not “cash-poor” but “asset-rich” (as in McCulloch v McCulloch, 2013 ABQB 177, Michalyshyn J).

He is not in a positionin which he can reduce his income but have a comfortable lifestyle because of his prior acquisitions. Neither he nor Cynthia saved orinvested. Glenn made the following comments in his testimony: “I may have made a lot of money, but 51% of that went to Cynthia –pre-tax;” after paying taxes and everything else, there was not much left over; “it looked like I made a lot, but in the end I didn’t.” LikeCynthia, Glenn spent his share of the proceeds of the matrimonial home. He used the proceeds to pay down his line of credit.

Glennconfirmed in his testimony that he has no “offshore accounts.” [68] Exhibit 9 documented the available balances in Glenn’s bank accounts ($15.38, $47.44, $46.83, $19.02, $213.79, $187.55,with one account overdrawn (-$35.55)). As will be detailed below, Glenn needs this $530 for his own bills. [69] Exhibit 14, the Matrimonial Property Statement, showed that Glenn retained a ManuLife insurance policy, valued at about$8,000. This was a whole life policy. It was cancelled. Glenn could not afford to retain it.

Glenn relied on the “savings” or “cash value”component of the policy to pay premiums when he otherwise lacked the resources to do so. When the “savings” amount ran out, thepolicy terminated. [70] Glenn has retained a time share, valued in Exhibit 14 at $10,593. To maintain this asset, Glenn must pay $423 every twoyears. There was no evidence of the present-day liquidation value of this asset. In any event, this asset went to Glenn as part of theparties’ matrimonial property distribution.

The amount allocated to preserve it ($211 per year, or $17.62 per month) is not large; certainlynot large enough to be useful to Cynthia if a portion of that amount were re-distributed to her. There was no argument that this assetshould figure in the determination of Glenn’s income for spousal support purposes. In any event, Cynthia had claimed an amount forvacations in her budget - $150 per month in the total family budget – although she did not make a vacation claim in the “two-thirds”budget for her and LO.

People who work should be entitled to vacations, even those in straightened financial circumstances, and eventhose who are obligated to pay spousal support, at least so long as the vacation expenses are reasonable and do not dissipate resourcesthat should be available to provide support. On the evidence, Glenn’s maintenance of the time share does not involve an excessiveexpenditure even given Cynthia’s need. I do not take it into account in the determination of his resources available for spousal supportpurposes. (

a) Tax Refund [71] One asset, a chose in action or receivable, is a tax refund Glenn expects. Tax was withheld on Glenn’s 2015 earnings in theUnited States. The amount of the refund is about $30,390 USD. The IRS is processing this refund. Glenn’s income, including the incomerepresented by the refund, is taxable in Canada. Glenn currently owes about $38,000 for Canadian taxes. The refund will be set offagainst the amount of Canadian tax he owes. At this time, the value of the refund in Canadian dollars and Glenn’s total Canadian tax bill(incorporating interest and penalties) is not known.

Glenn elaborated in his Questioning on Affidavit: A … Because I was working in the States, I had – New Tech Global withheld 30 percent for paying US taxes. I am getting a refundfrom Internal Revenue US, and that will be going to help pay this off because also with – even though I file taxes in the States, I also hadto file that same tax with Revenue Canada. Q So the one that you’re going to get from the United States is going to go directly to those arrears? A Yes, because that was … what I paid there is assessed against taxes in Canada here. So I’m paying taxes both in the US and Canada.

Q And do you expect to get a refund from the Canadian income tax return?

A No …. (39.5-22) Q Do you know, approximately, if the refund from the US tax department is going to cover this 38,000? A No, I don’t. Q How much do you think? A Well, it’s 30,000 US that I’ll get refunded, and that’s 30,000 US – it’s 30, 960 to be exact. That was also claimed. I had to claim that with Revenue Canada (39.25 – 40.6). [ 72 ] The US refund represents earnings while Glenn was employed. If the amount of the US refund in Canadian dollars is less than or equal to the amount of tax (plus interest and penalties) Glenn owes for Canadian taxes, the refund shall have no impact on spousal support.

There was no argument otherwise. [ 73 ] It is possible, though, that the amount of the refund will exceed Glenn’s Canadian tax debt. The parties did not address the issue of the distribution of any amount of the refund in excess of Glenn’s Canadian tax debt. Should there be a non-trivial refund amount in excess of Glenn’s Canadian tax debt, I urge the parties to work out the distribution themselves. If they cannot, they may apply to me in writing for a decision. I will provide a written decision based on the written submissions. No oral hearing shall be necessary.

I would expect that the payment of any amount of the refund to Cynthia would constitute a one-time lump-sum payment, as contemplated by s. 15.2(1) of the Divorce Act (“A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse”). [ 74 ] To confirm the amounts received and payable, Glenn shall provide to Cynthia’s counsel, within two weeks following receipt, the documentation he receives establishing the amount of the refund of tax from the US authorities and the documentation he receives establishing the amount of his Canadian tax liability, against which the refund is set off. (

b) RRSP [ 75 ] Exhibit 14 confirmed that Glenn retained a CIBC RRSP, valued at the time of division of matrimonial property at $7,267.00. The RRSP is now (as of July 29, 2016) valued at $15,353.76: Exhibit 9. Should total value of the RRSP or the approximate $8,000 growth in the value of the RRSP be taken into account for the payment of spousal support? [ 76 ] In my opinion, $7,267 of the value of the RRSP is protected: Boston v Boston , [2001] 2 SCR 413, 2001 SCC 43 , Major J at para 63.

The parties divided their assets and each had the benefit of that division. [ 77 ] It is possible that the growth in value of an RRSP post-distribution could be taken into account in assessing the ability to pay spousal support, upon retirement and once the RRSP begins to pay out . The following passages from Justice Major’s decision in Boston are pertinent: 61 The purpose of spousal support in cases such as this is to relieve the economic hardship suffered by reason of the marriage or its breakdown.

There is no reason per se that spousal support cannot continue past the date of retirement of the pension-holding spouse.

However, several factors must be considered in making that decision …. 63 How is double recovery fairly avoided? ….It is generally unfair to allow the payee spouse to reap the benefit of the pension both as an asset and then again as a source of income …. 64 To avoid double recovery, the court should, where practicable, focus on that portion of the payor’s income and assets that have not been part of the equalization or division of matrimonial assets when the payee spouse’s continuing need for support is shown ….

In this appeal, that would include the portion of the pension that was earned following the date of separation and not included in the equalization of net family property. 65 Despite these general rules, double recovery cannot always be avoided. In certain circumstances, a pension which has previously been equalized can also be viewed as a maintenance asset.

Double recovery may be permitted where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and, despite this, an economic hardship from the marriage or its breakdown persists. Double recovery may also be permitted in spousal support orders/agreements based mainly on need as opposed to compensation, which is not the case in this appeal. [ 78 ] I was directed to no authority that an RRSP should be collapsed pre-retirement. There was no evidence of the tax consequences of such a step.

Glenn’s prudence at saving for his retirement should not be casually undermined. [ 79 ] I do not take the RRSP amounts into account for the purposes of determining Glenn’s ability to pay spousal support now. [ 80 ] The relevance of any payments Glenn shall receive on retirement may be considered in the review of spousal support taking place on or after Glenn’s 65 th birthday. 2. Expenses [ 81 ] Can Glenn’s expenses be reasonably reduced to leave more money available for spousal support?

[ 82 ] Both parties’ expenses exceed their incomes. Efforts were made to portray each as having unreasonably high expenses, exaggerating need on the one hand and inability to pay on the other. [ 83 ] I find that both budgets and their component expenses are accurate. They owe what they owe. Neither is spending on frivolities or inessentials. Some comments: [ 84 ] Rent is a major expense for both parties. There could be no more complaint about Glenn living in St Albert (and not Edmonton) than about Cynthia living in Shirley (and not Boston).

Parties are free to live where they like and courts should not interfere in these personal choices, unless expenses are unreasonable for spousal support purposes. As the Court of Appeal wrote in MacPhail v Karasek , 2006 ABCA 238 at para 45 , [45] Canadians have the right to choose to separate and divorce, and they have the right to relocate, and it is not for the courts to determine whether they like or agree with the reason for separating or moving. There could be no more complaint about Glenn renting a two-bedroom apartment than about the premium Cynthia must pay to rent premises that permit two dogs.

Further, Glenn’s evidence was that a single-bedroom apartment in his complex was only $50 less per month, most of his utility expenses are included in his rent, and his tenancy is on a month-to-month basis, allowing him to leave without penalty should a job opportunity arise that requires a move. [ 85 ] Both Cynthia and Glenn must cover large debt payments. Their descents into debt were not detailed in the evidence. It is true that while Glenn took on matrimonial debt as part of the property settlement he also took matrimonial assets.

It is true that Cynthia accumulated significant debt although she was receiving significant spousal support and child support payments from Glenn. Both are trying to cope with bad luck, poor job prospects, and the loss of Glenn’s job. [ 86 ] I should confirm that Glenn’s rental of a storage unit (and he has reduced the rental by about $150 per month) is entirely reasonable. Snow tires, tools, and oil rig work clothes cannot be kept in his apartment.

I fully appreciate that not only his economic but his residential circumstances have been much reduced. [ 87 ] Glenn did have a suggestion that could modestly mitigate Cynthia’s expenses. As things stand, LO is living with Cynthia. LO is not working or going to school. Glenn volunteered that LO could live with him in St Albert. The educational and vocational opportunities in Canada might be better than in Shirley. LO could bring his dog. Both parents’ concerns respecting LO go far beyond the economic. I am hopeful that they will be able to work together with LO to support his future. 3.

Earning Capacity [ 88 ] Neither Glenn’s assets nor revenues, none of what he now has or receives, can be drawn on to assist Cynthia. The real question is not about reallocating assets or repurposing revenue; it is about what Glenn could do but has not yet done. It is about his “earning capacity,” a condition and means factor referred to by Justice Langston in Bennett . [ 89 ] Glenn is now actually earning about $21,000 per year. This is less than one-tenth of what he was earning in 2015. Since the parties separated, to and including 2015, Glenn earned over $200,000 per year.

His average annual income between 2009 and 2015 was $281,998.85. From 1998 to 2008, his annual income was never below $70,000 per year. Throughout his working life, he has worked for different employers. When one source of work ended, he found another. [ 90 ] Hence, Cynthia’s argument runs, Glenn is manifestly capable of earning far more than he is now, and he has demonstrated over the years that he is manifestly capable of finding new jobs. Glenn could be earning more and he should be earning more.

His failure to find more remunerative work demonstrates either intentional underemployment or an inadequate and unreasonable job search. For the purposes of the calculation of spousal support, an amount of income in excess of Glenn’s current income should be imputed to him. At the very least, full time compensation should be the basis of a spousal support calculation and not simply his “limited part time” compensation. [ 91 ] By what standard must I assess the requirement of a payor to accommodate the needs of a payee?

More precisely, by what standard must I assess whether a payor may be judicially-required to work more or face unfunded imputed income, given the needs of a payee? And once we have that standard in hand, should income beyond his current income be imputed to Glenn for the purposes of spousal support? Five questions arise: (

a) what is the standard for assessing earning capacity? (

b) what is my assessment of Glenn’s testimony? (

c) what steps have been taken by Glenn to find work? (

d) is Glenn intentionally underemployed? (

e) has Glenn been reasonably diligent in trying to find employment? (

a) What is the standard for assessing earning capacity? [ 92 ] In the case of child support, the Court of Appeal has clearly described the standard for assessing payor conduct for the purposes of imputing income. Under s. 19(1)(

a) of the Federal Child Support Guidelines , 19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment isrequired by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs ofthe spouse …. In Hunt v Smolis-Hunt, 2001 ABCA 229, the majority interpreted this provision as follows, at paras 42, 70, and 73 [the latter twoparagraph numbers are corrected from the CanLII online version]: [42] The

section should be interpreted to impute income where the obligor has pursued a deliberate course of conduct for the purposeof evading child support obligations. We read the

section as requiring either proof of a specific intention to undermine or avoid supportobligations, or circumstances which permit the court to infer that the intention of the obligor is to undermine or avoid his or her supportobligations. [70] We agree with the conclusions of Vertes, J. in Williams v. Williams (1997), (NWT SC), 32 R.F.L. (4th) 23(N.W.T.S.C.), and Aston J. in Hall v. Hall (1999), O.T.C. 230 (Gen. Div.), that s. 19(1)(

a) implies that before a court will impute income,there must be a deliberate course of conduct related to the purpose of the Guidelines. A court should only impute income under s. 19(1)(

a) of the Guidelines when it has evidence of the obligor’s intention to avoid or undermine child support obligations. [73] In keeping with those Guidelines objectives, therefore, the intent to evade support obligations may also be found where theunemployment, under-employment or other acts of the obligors indicate a deliberate refusal to live up to the obligation to support one’schildren. [93] If the Hunt v Smolis-Hunt standard applied, Glenn could be found to be underemployed and an amount of income greaterthan his actual income imputed to him only if I found on the evidence that Glenn “pursued a deliberate course of conduct for the purposeof evading [spousal] support obligations;” if I found that Glenn “intended to undermine or avoid [his] support obligations.” But, in myopinion, Hunt v Smolis-Hunt does not supply the applicable standard. [94] I concede that our Queen’s Bench jurisprudence on the applicability of the Hunt v Smolis-Hunt imputation standard tospousal support is not uniform.

Some cases accept the applicability of Hunt v Smolis-Hunt. See, e.g., MacNeill v MacNeill, 2008ABQB 535 at para 25; DBF v BF, 2016 ABQB 484 at para 302; Bednarz v Bednarz, 2015 ABQB 447 at para 21. However, I findmyself convinced by the reasoning of Justice Greckol (now of the Court of Appeal) in Jean v Jean, 2006 ABQB 938, as relied on byJustice Yungwirth in Gordon v Gordon, 2014 ABQB 596 at para 82: [82] I reject any suggestion that income should be imputed to Ms. Gordon pursuant to s. 19(1) of the Federal Child SupportGuidelines.

Instead, I adopt the reasoning of Greckol J. from the case of Jean v Jean, 2006 ABQB 938 at paras 106-113: 106 In Myers v. Hawco (2005), 2005 NLCA 74 , 262 D.L.R. (4th) 719, the Newfoundland Court of Appeal suggested atpara. 42 that, “There is no specific provision regarding the imputing of income for purposes of spousal support. However, if income isimputed for the purposes of determining child support, there is no basis in principle for using a different income to ascertain spousalsupport.” Further, it stated at para. 43 that, “Whether income should be imputed is in the discretion of the trial judge.

However, inexercising that discretion, relevant factors and evidence must be considered.” 107 The approach in Myers makes sense where there might be an inconsistent and awkward outcome where two different incomes areascribed to a payor spouse in the course of the same application or trial. The courts in Ontario have done exactly as advocated in Myersand employed the Guidelines for imputing income in determining spousal support, even if child support is not at issue ....

However, theMyers approach does not take into consideration that the objectives of a child support order differ from those of a spousal support order,as statutorily recognized in s. 15.2(6) of the Divorce Act. 108 The underlying rationale for a child support order is that the children of the marriage should not be worse off as a result of themarriage breakdown and that both parents should bear the responsibility of child-rearing despite the marriage breakdown. Entitlement tochild support is automatic if the child is determined to be a child of the marriage.

Quantum is determined by the Guidelines, which is aRegulation that has the force of law, and which requires the ascribing of a “hard and fast” number to the income of a payor spouse. Thismay explain the strictness and severity of the imputation provisions found in s. 19 of the Guidelines, particularly as they relate to thepayor spouse's underemployment or unemployment. 109 By contrast, the objectives of a spousal support are to: (

a) recognize any economic advantages or disadvantages arising from themarriage or its breakdown; (

b) apportion any financial consequences arising from the care of any child of the marriage over and abovethe obligation for support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown ofthe marriage; and (

d) promote, as far as practicable, the economic self-sufficiency of each spouse within a reasonable period of time. 110 The condition, means, needs and other circumstances of each spouse, which must be considered under s. 15.2(4) of the Act, willnecessarily affect the quantum of spousal support awarded, if any, as explained by the Alberta Court of Appeal in Corbeil v.

Corbeil(2001), 286 A.R. 330, 2001 ABCA 220 at para. 47: The right to support and its quantum will vary with each circumstance and with the abilities of the spouses to support themselves ...Accordingly, quantum and duration of support will vary with the circumstances ... There is no magic formula.

Rather, maintenance is amatter of judicial discretion, taking into consideration those matters set out in the Divorce Act. [Emphasis added.] . . . . 112 With this overriding discretion and the totality of the circumstances in mind, and focusing on the “means” factor in s. 15.2(4) ofthe Divorce Act, the court can consider the payor spouse’s employment situation without the confusion of reference to the“underemployment or unemployment” criterion in s. 19 of the Guidelines.

The "means" factor was described in the following terms byLangston J. in Bennett v Bennett ... at para. 28 . . . . 113 Evaluation of the “means” factor in s. 15.2(4) of the Divorce Act allows the court to attribute to the payor spouse an amount ofincome that is based not only on his or her actual income, but his or her earning capacity, regardless of whether he or she is unemployed

or underemployed. This inquiry necessarily involves an assessment of whether the payor spouse's actions, as they relate to his or heremployment situation, are reasonable in the circumstances. [83] Although Greckol J. was dealing with the issue of whether or not income should be imputed to the payor of spousal support, thisreasoning applies equally to the consideration under

section 15.2(4) of the “means” factor in relation to the recipient of spousal support. [95] The Jean/Gordon test is encapsulated in para 113 of Jean: “This inquiry necessarily involves an assessment of whether thepayor spouse's actions, as they relate to his or her employment situation, are reasonable in the circumstances.” This is a broader, lessstringent test than the intentionality test in Hunt v Smolis-Hunt. A payor who sincerely was not intending to avoid spousal supportobligations could nonetheless be fixed with imputed income if there were a finding that the payor’s income earning conduct was notreasonable in the circumstances. (

b) What is my assessment of Glenn’s testimony? [96] An important consideration in determining whether to impute income to Glenn, regardless of the applicable imputationstandard, is my assessment of Glenn’s testimony. He was best-placed to provide an account of his search for work. Cynthia offered nosignificant testimony respecting his post-termination job hunt, as indeed she could not. She lives far away and claimed no expertise in hisareas of potential employment. She had no personal knowledge about his job searches.

Findings relating to intention and reasonablenessof Glenn’s efforts, then, had to be based on his testimony and the evidence he relied on in support of that testimony. [97] I confirm that Glenn was a strong and persuasive witness. I believed the factual elements of his testimony (setting asideoccasional and understandable forays into hearsay and opinion). He gave his testimony in a frank and open fashion, requiring very littleprompting from his counsel. He had an excellent memory of his work history and the steps he has taken to find work.

He was notargumentative or hostile during examination in chief or cross-examination. He did not display any hostility toward Cynthia (nor did shetoward him) or any undue emotion. He answered questions directly and fairly, without attempting to side-step or to answer questions notasked. He did not fail to make reasonable concessions in his testimony. There were no contradictions within his testimony, whether as hisnarrative unfolded or between examination in chief and cross-examination.

Any differences between prior testimony (e.g. in cross-examination on Affidavit or Questioning) and in-court testimony were adequately explained – generally on the basis of differences inavailable information between the time of trial and earlier times. There were no tensions between his testimony and the background ofcommon sense against which testimony must be assessed.

See R v Storey, 2010 NBQB 80, Ferguson J at para 78: In the final analysis it becomes a matter of determining the veracity of the evidence utilizing the age old tools of logic, reason andcommon sense in measuring the probability, if it is deductible from the evidence, that the witness or witnesses' honesty on the centralissue or issues is assailable) and Faryna v Chorny, (BC CA), [1952] 2 D.L.R. 354, 1951 CarswellBC 133, O’Halloran, J.A. at para 10(CarswellBC): the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which apractical and informed person would readily recognize as reasonable in that place and in those conditions.

Only thus can a courtsatisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in thehalf-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witnessmay testify what he sincerely believes to be true, but he may be quite honestly mistaken. [98] Toward the end of Glenn’s cross-examination, Cynthia’s counsel sought to cross-examine Glenn on a documents purportingto contain job opportunities relevant to him. These documents had not previously been disclosed in the litigation.

They had not beenpreviously disclosed because they had only recently been generated by counsel and her office. I expressed concern with this line of cross-examination. Use of the documents was unfair, since the documents had not previously been made available to the other side. Use of thedocuments appeared to be impermissible (without leave) under rule 5.16. Counsel had created the documents and so appeared to beentering the litigation as a witness, with the possibilities of cross-examination that might attend.

The search parameters supporting thedocuments and details respecting job qualifications were not in evidence so the actual pertinence of any job opportunities disclosed couldnot be readily assessed. Counsel abandoned this line of cross-examination. I have drawn no inferences from this line of cross-examinationadverse to Glenn. His general response to the cross-examination was consistent with his cooperative and non-confrontational approach totestifying, in that he was thankful for notice of opportunities he might have missed.

Regardless, even the less stringent Jean/Gordon testdoes not require perfect investigation and follow-up, only reasonable conduct. (

c) What steps have been taken by Glenn to find work? [99] Exhibit 6 chronicled Glenn’s job search, providing a

summary and back-up documentation. By my count, since June 27, 2015to the date of trial, over a period of about 14 months, he applied for some 70 positions. Note that he started looking in June 2015, beforehis BHP contract was terminated. He saw the writing on the wall and was taking active steps to re-position himself should the worstoccur.

The volume of applications confirmed his testimony that he has been “trying just about every day” to find work. [100] Some of jobs he has sought, unsuccessfully, in the energy and mining industries include the following: • K+S Potash Canada – Health, Safety, Environment Advisor • Suez Canada – EHS and security programs manager • Vermillion Energy – Quality Health, Safety, Environment position • Parker Drilling, Newfoundland – Health, Safety, Environment Quality Manager

• BHP Billiton Canada Potash – Senior Safety Advisor – Jansen Mine • North West Redwater Partnership, Lead HSE position – Gibbons Upgrader • Advisian/WorleyParsons Group – Project Health Safety Security Environment Marine Lead – Kitimat BC • Big Country Drilling (sent resumé) • Site Energy Services – EHS Field Safety Lead – Fort McMurray area • RioTinto – diamond mine – NWT HSE Superintendent • Suncor – Senior Advisor, Risk Management & EHS Advisor - Colorado • Dragon Oil, Dubia, UAE – Operations Manager on Algerian project • National Resources, Doha, Qatar – Safety Coordinator • Saudi Aramco – Safety Engineer [ 101 ] Glenn inquired with his brother, who owns a small oil company (400 barrels a day).

He had nothing for Glenn. His brother has already laid off about 75% of his workforce and is not running projects now. [ 102 ] Glenn unsuccessfully sought positions in industries outside of energy and mining, including the following: • Sherritt Metals – HS Advisor • EPCOR – Coordinator – HSE & Compliance • SNC Lavalin, Fort Saskatchewan – Project Site Health & Safety Manager • Enbridge – Fort McMurray – Safety Analyst • Atco Structures & Logistics – HSE Advisor • Sysco Canada – EHS leader [ 103 ] Glenn sought, again unsuccessfully, to try to find positions outside of heavy industry.

Some of these efforts included • Alberta Agriculture and Forestry - Farm Safety Specialist • Travelers Canada – Risk Control Consultant • Alberta Energy Regulator – Inspector – Wainwright Field Centre • Daytona Homes Master Builder – Field Technician [ 104 ] Glenn applied for tow-truck operator jobs (he had driven a tow-truck in the past).

He applied to the AMA for a Service Vehicle Operator position and to Roadrunners Towing Services in Morinville. [ 105 ] He applied for a position as a security guard or surveillance operator with the Apex Casino in St Albert. [ 106 ] He tried to secure warehouse jobs with Uline and Kane Veterinary Supply. [ 107 ] He made significant efforts to secure a position as a personal trainer. This was no fantasy. He trains and is interested in the area. He completed the theory portion of the CanFit Pro Personal Trainer Specialist course and completed a St John Ambulance Emergency First Aid course.

He applied for positions at • Goodlife Fitness – Tamarack Edmonton and St Albert locations • World Health, 137 street Edmonton location • Anytime Fitness • Sturgeon Valley Athletic Facilities In a few instances he got interviews, even second interviews. In none of the competitions was he successful. [ 108 ] He is registered with some headhunter organizations, including the David Aplin Group, Michael Page Canada, and Ian Martin.

He is registered with and follows online opportunity notifications from websites such as careerbuilders.ca, wowjobs.ca, LinkedIn, RigZone, Workopolis, and recruiters.com. [ 109 ] Glenn has reached out to contacts, including former colleagues at • BHP Billiton

• Citadel Drilling • Nabors Drilling • Atlantica Tender Drilling • New Tech Global (the consultant agency he worked with in the US) • Century Drilling • ENFORM training services – Nisku In Glenn’s Questioning on Affidavit, he commented on these calls as follows, at 17.23 – 25: I’ll phone them and see what’s happening, but there’s nothing happening. It’s getting really tough right now to find a job. (

d) Is Glenn intentionally underemployed? [110] If I am wrong and the more stringent Hunt v Smolis-Hunt test must be applied to determine whether income should be imputedto Glenn, I find that Glenn was not intentionally underemployed, that he did not pursue a deliberate course of conduct for the purpose ofevading spousal support obligations, and that his conduct disclosed no intention to undermine or avoid his support obligations. Myfindings are based on Glenn’s testimony and my assessment of that testimony, the evidence supporting his testimony, and, assummarized above, his significant efforts to find employment.

He had no control over his termination. He was terminated through nofault of his own. As he testified, he has been trying to find work. I find that he has been trying hard. [111] My conclusion is also supported by the Jean/Gordon reasonableness analysis that follows. Had I found that Glenn’s job searchconduct was not reasonable in the circumstances, aside from the Jean/Gordon standard, that could have been some circumstantialevidence of intentional underemployment.

On the evidential point, see R v Buzzanga and Durocher, , 49 CCC (2d)369 (Ont CA), Martin JA at 26 ; R v MacKinlay, , 28 CCC (3d) 306 (Ont CA) at 11 – 12 and R vKerr, [2004] 2 SCR 371, 2004 SCC 44, LeBel J at para 84. (

e) Has Glenn been reasonably diligent in trying to find employment? [112] Have Glenn’s efforts to find well-paying employment been reasonable in the circumstances? This question presupposes ananswer to another question: what factors should be taken into account to assess reasonableness for the purposes of determining earningcapacity and imputing income? [113] Aware of the risks of both over-complication and over-simplification, I suggest that the reasonableness analysis concerns theinteraction of six sets of factors – (

i) need, (ii) intrinsic capacity, (iii) personal factors, both objective and subjective, (iv) external factorsrelating to the marketplace and prospective employers, (

v) steps taken for well-paid employment, and (vi) consequences of imputation.The analysis considers the reasonableness of conduct of the payor, in light of the payee’s need, given the payor’s capacities andcircumstances, and given the limitations and realities of the marketplace. A spousal support determination is discretionary, and my hopeis that this approach will at least make the basis for my determination transparent. (

i) payee’s need [114] The evidence of Cynthia’s actual need is described above. [115] The reasonableness of a payor’s conduct must be considered in light of the need of the payee. I offer five observations. [116] First, entitlement to support is recognized in this case, on both compensatory and non-compensatory grounds. Cynthia’s seriousneed cannot be ignored because of the relationship she had with Glenn. She is his former wife.

Justice McLachlin addressed the nature ofthe obligation to pay spousal support on a non-compensatory basis in Bracklow v Bracklow, (SCC), [1999] 1 S.C.R.420 at paras 31, 32, and 43: 31 .... [the mutual obligation view of marriage] places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state, recognizing the potential injustice of foisting ahelpless former partner onto the public assistance rolls. 32 ....

The real question … is whether the state should automatically bear the costs of these realities, or whether the family,including former spouses, should be asked to contribute to the need, means permitting. 43 .... [the Divorce Act] retains the older idea that spouses may have an obligation to meet or contribute to the needs of their formerpartners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation.

In the words of Rogerson, quoted by Justice McLachlin at para 46, One is simply not allowed to abandon a spouse to destitution at the end of a marriage if one has financial resources which might assist inrelieving the other spouse's financial circumstances: [emphasis added] at para 46. [117] Second, the greater the need, the greater the moral and legal force of the payee’s claims against the payor.

Justice Veitcautioned in MacNeill at para 30 that “[i]t is perhaps realistic to acknowledge, however, that if the payee’s need were very great, thecourt might be very strict in analyzing the payor’s explanation for underemployment.” By analogy, if our child were starving, we would

have a greater obligation to find resources and to subordinate our own interests than if our child’s needs were less pressing. [ 118 ] Third, a payee’s need, by itself, does not entail that the payor is responsible to satisfy the entire need. In Bracklow , Justice McLachlin referred to the obligation to meet or contribute to the need of the payee spouse (paras 32 and 43 quoted above).

Justice McLachlin also identified the “false premise” that need fixes quantum at para 54 of Bracklow : 54 ..... [Fixing on one factor to the exclusion of others] leads her to the false premise that if need is the basis of the entitlement to the support award, then the quantum of the award must meet the total amount of the need. It does not follow from the fact that need serves as the predicate for support that the quantum of the support must always equal the amount of the need.

Nothing in ... the Divorce Act forecloses an order for support of a portion of the claimant’s need, whether viewed in terms of periodic amount or duration. Need is but one factor to be considered. [ 119 ] Fourth, as Justice McLachlin indicated, need is “but one factor” bearing on the spousal support analysis. Justice McLachlin observed in Bracklow at para 20 that “[w]hen two spouses are married, they owe each other a mutual duty of support.” But when the marriage breaks down, “[t]he presumption of mutual support that existed during the marriage no longer applies:” at para 21.

According to Justice McLachlin, “[s]uch a presumption would be incompatible with ... the liberty many claim to start their lives anew after marriage breakdown:” at para 21. Spousal support is not driven solely by the “mutual obligation model.” Justice McLachlin elaborated at para 32: It is critical to recognize and encourage the self-sufficiency and independence of each spouse. It is equally vital to recognize that divorced people may move on to other relationships and acquire new obligations which they may not be able to meet if they are obliged to maintain full financial burdens from previous relationships.

On the other hand, it is also important to recognize that sometimes the goals of actual independence are impeded by patterns of marital dependence, that too often self-sufficiency at the time of marriage termination is an impossible aspiration, and that marriage is an economic partnership that is built upon a premise (albeit rebuttable) of mutual support. The real question in such cases is whether the state should automatically bear the costs of these realities, or whether the family, including former spouses, should be asked to contribute to the need, means permitting ....

Parliament [requires] ... courts to consider not only compensatory factors, but the “needs” and “means” of the parties. It is not a question of either one model or the other. It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court. [ 120 ] Fifth, any continued obligation to provide support must not only take into account the payee’s need, but must be fair and just from the perspective of the payor.

In part, fairness to Glenn is protected through the reasonableness test to which his conduct is subject. [ 121 ] In part, fairness to Glenn is protected through a reasonableness assessment of Cynthia’s need – keeping in mind that this need already rests on a substratum of conceded entitlement and on the imputation to her of income of $25,000 per year. “Causation” arguments in this context must be approached cautiously, despite the temptation to attribute a payee’s poor financial circumstances to bad decisions or bad luck.

Yet a reasonableness assessment of even the payee’s conduct was countenanced by Justice McLachlin in her concurring judgment in Moge at 882: A formalistic view of causation can work injustice in the context of s. 17(7), as elsewhere .... Hypothetical arguments after the fact about different choices people could have made which might have produced different results are irrelevant, unless the parties acted unreasonably or unfairly. [83] A shadow is cast in this case by the mountain of debt that Cynthia has accumulated.

She is indebted not only on her credit cards, but owes taxes, and is significantly behind in her utilities. Glenn’s counsel did raise the issue of how this indebtedness might have swollen, given the substantial child and spousal support payments Cynthia received. [ 122 ] Nonetheless, disadvantage arising from the marriage, hardship arising from the marriage breakdown, and financial consequences arising from the care of the parties’ children cannot be ruled out as contributing factors to the debt.

The evidence did not tease out the various lines of contribution – and well it should not have, given Justice L’Heureux-Dubé’s admonition that “[f]air distribution does not, however, mandate a minute, detailed accounting:” Moge at 849. It would be difficult for Glenn to argue that Cynthia’s financial predicament is unreasonable given that his own circumstances are similar. He too faces large debt, owed to the banks and the federal government.

Neither has assets from better days. [ 123 ] In the circumstances, I will not discount Cynthia’s need on the ground that it was unreasonably accumulated. (ii) intrinsic capacity [ 124 ] I find that Glenn is extremely capable. He has 38 years’ experience in the energy and mining industries. He kept employed and pulled in a solid income. His annual earnings were described above. He did very well, despite having only a High School education. He obviously was capable of learning on the job.

An excellent reflection on his character was getting carpenter work on the Kananaskis hotel, despite not being a certified carpenter. He evidently learned what he needed to know. He obviously did a good job in his energy and mining work, since he kept being hired after projects were completed. He is capable of doing Health, Safety, and Environmental work with an energy or mining company since that is the type of work he had been doing. Moreover, he is capable of doing that work outside the North American environment. He has very significant international experience.

This response of Glenn’s in his Questioning on Affidavit was accurate, at least to the best of his knowledge in 2015 (16.27 – 17.3): Q Is it fair to say that you’re a highly-respected and sought-after employee in this industry? A Yes. [ 125 ] Glenn can do an HSE job, and it is possible that – as in the case of the Sirius job – he could get a call for a new well-paying project at some time in the future.

[126] These possibilities are what doubtless baffle both Cynthia and Glenn: Glenn could do the work – but why, then, does he not getthe work, particularly given his long history of getting work? [127] The difficulty is that these possibilities do not determine his probabilities of obtaining a well-paying job. These possibilities donot determine whether obtaining a well-paying industry job is reasonably probable for Glenn over the short to mid-term.

BetweenGlenn’s intrinsic capacity - his ability to do the work - and getting a job lie his personal factors and market conditions. (iii) personal factors [128] Personal factors can be subcategorized into objective and subjective factors. [129] Glenn’s objective factors would be these: He is 58. He is therefore 7 years from “normal” retirement. He is vigorous and hishealth is good. He has no injury or medical condition that would prevent him from performing an active job. He has only a High Schooleducation.

He has completed (and even taught) numerous industry-based courses, but these qualifications (unlike a University degree)expire unless they are refreshed. His course-based qualifications have in fact formally expired. He has been gainfully employed since hewas about 18 years old. He has worked for about 10 different companies, for some at different times (e.g. Nabors) and for BHP indifferent divisions. [130] Glenn’s subjective factors concern his work preferences. Just as a court should not tell a party where to live, a court shouldbegin with a reluctance to tell a party where to work and how much to work.

That reluctance, of course, must be tempered by therecognition of the obligation to pay spousal support and the requirement (on the Jean/Gordon approach) to perform that obligationreasonably.

The Court of Appeal’s comments in Hunt v Smolis-Hunt about the role of work in payors’ lives apply as much in thespousal support context as in the child support context [again with corrected paragraph numbering]: [64] Interpreting the Guidelines to require spouses to support their children to the maximum of their earning capacity also has theeffect of dictating to divorced spouses that they may engage in a limited range of employment, namely, only those which pay themaximum they are capable of earning.

This fails to recognize the fundamental importance of work to a person’s life and fails to value thefreedom to choose work which fulfills needs and interests extending beyond the receipt of an income. [65] The significance of work was recognized in Re Public Service Employee Relations Act (Alta.) (1987), (SCC), 38D.L.R. (4th) 161 at 199 (S.C.C.), where Dickson, C.J.C. stated: “Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, asimportantly, a contributory role in society.

A person’s employment is an essential component of his or her sense of identity, self-worthand emotional well-being.” [66] In response to the argument that the Charter right to freedom of association does not include associational activity for the pursuitof economic ends, he responded at 198-9, “If by this it is meant that something as fundamental as a person’s livelihood or dignity in theworkplace is beyond the scope of constitutional protection, I cannot agree.” His statements have been reiterated and stressed in numerousother decisions, most recently, for example, by Cory, J. in United Food and Commercial Workers, Local 1518 v.

KMart Canada Ltd., (SCC), [1999] 2 S.C.R. 1083 at para. 25. [67] Given the importance of work, it is equally important to allow individuals the freedom to pursue work which provides not only alivelihood but also a sense of identity, self-worth and emotional well-being, subject to the right of the state to impose, in accordance withthe principles of fundamental justice, legitimate and reasonable restrictions on the activities of individuals: Wilson v. British Columbia(Medical Services Commission) (1988), (BC CA), 53 D.L.R. (4th) 171 (B.C.C.A.). Similarly, Kerans, J.A. for thisCourt stated in Black v.

Law Society of Alberta (1986), 1986 ABCA 68 , 27 D.L.R. (4th) 527 at 543, “The pursuit of a livelihoodthrough a trade or calling has been, in Canada, accepted as an appropriate and vital human ambition, available to those of either sex whowant or need to pursue it . . .” [68] We do not say that parental interests and rights should directly compete with children’s interests. The latter should be paramountand the central focus of the trial judge’s assessment.

That having been said, the best interests of children are often best served when theidentity, self-worth and emotional well-being of both parents are also carefully considered. [69] Therefore, we cannot support an

interpretation of s. 19(1)(

a) which has the effect of telling a person that he or she may notengage in a career which was undertaken, as here, with bona fide intentions, commenced prior to and not in contemplation of separationor marriage breakdown, and with the agreement of the other spouse. I might note that the Court of Appeal’s recognition of the critical importance of work for individuals is in line with the “free choice ofemployment” provisions in

article 23 of the Universal Declaration of Human Rights, online:http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf and

article 6 of the International Covenant on Economic,Social and Cultural Rights, online: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx). [131] Work preference has figured in Glenn’s circumstances in two ways. First, when pressed in cross-examination about why he wasnot pursuing work with (e.g.) the Home Depot, Glenn responded that “I am looking diligently to get back into my career field.” An effortto continue to do the type of work that he knows best how to do is reasonable.

At least at this point, it cannot be said that finding an HSEjob is hopeless, even if there are no jobs now that are readily available. At this point, it cannot be said that abandoning his 38 years’experience and starting over in something new is the only reasonable course. Reasonableness should not dictate that any and every jobpossibility must be pursued. [132] Second, reasonably, given his evident difficulties in obtaining an HSE job in the short-term, he has cast about for employmentopportunities in some areas other than his areas of core expertise. For example, Glenn sought a personal trainer position.

There werepersonal trainer job opportunities: it was reasonable for Glenn to build on his personal interests (and even to complete at least part of the

certification) to attempt to gain one of these positions. Despite his best efforts, no job came. Reasonably again, Glenn did not continue topursue this type of opportunity. He had not invested much – certainly not 38 years – and a reasonable conclusion was that he was notgoing to get one of these jobs. He was not obligated to spend his time trying to obtain similar jobs at locations across the MetropolitanEdmonton area. (iv) external factors [133] Glenn’s capacities and his personal factors must be set against the real world.

Two features of the context in which he seekswork must be taken into account – the state of the oil and gas market and prospective employer decision-making. [134] In addressing these external factors, judicial notice comes into play. Moge itself countenanced reliance on judicial notice inspousal support determinations at 873: Another alternative might lie in the doctrine of judicial notice. The doctrine itself grew from a need to promote efficiency in the litigationprocess and may very well be applicable to spousal support. One classic statement of the content and purpose of the doctrine is outlinedin Varcoe v.

Lee, 181 P. 223 (Cal. 1919), at p. 226: The three requirements . . . -- that the matter be one of common and general knowledge, that it be well established and authoritativelysettled, be practically indisputable, and that this common, general, and certain knowledge exist in the particular jurisdiction -- all arerequirements dictated by the reason and purpose of the rule, which is to obviate the formal necessity for proof when the matter does notrequire proof. As E. M. Morgan noted in “Judicial Notice” (1944), 57 Harv. L.

Rev. 269, at p. 272: . . . the judge . . . must be assumed to have a fund of general information, consisting of both generalized knowledge and knowledge ofspecific facts, and the capacity to relate it to what he has perceived during the proceeding, as well as the ability to draw reasonabledeductions from the combination by using the ordinary processes of thought. That fund of general information must be at least as great asthat of all reasonably well-informed persons in the community.

He cannot be assumed to be ignorant of what is so generally accepted asto be incapable of dispute among reasonable men. [135] A more recent description of judicial notice is set out by Lebel J in Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1S.C.R. 61 commencing at para 237: [237] .... As McLachlin J. explained in R. v. Williams, (SCC), [1998] 1 S.C.R. 1128, “[j]udicial notice is theacceptance of a fact without proof”: para. 54. In other words, it “dispenses with the need for proof of facts that are clearly uncontroversialor beyond reasonable dispute”: R. v.

Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48. [238] According to the principles laid down in Find, judicial notice applies only where facts are either (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate andaccurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Potts (1982), (ON CA),66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p.1055. [para. 48] (See also R. v.

Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 53.) [239] These categories of facts are obviously limited. A court must therefore be cautious when asked to take judicial notice of particularfacts. In particular, it must refrain from taking judicial notice of social phenomena unless they are not the subject of reasonable disputefor the particular purpose for which they are to be used: Spence, at para. 65.

As Binnie J. explained in Spence, the closer a factapproaches the dispositive issue, or the closer it is to the centre of the controversy between the parties, the more stringently the courtought to verify it before taking judicial notice of it: paras. 60-61. [136] I take judicial notice of the following: • the price of oil has radically declined since 2015 • the oil and gas industry in Alberta and internationally has been hard hit by the decline in oil prices, resulting in projectcancellations, less development activity, and job losses.

This does not entail that no jobs are available in the natural resources sector. Rather, the supply of jobs has diminished and the demandfor jobs – the number of qualified applicants seeking available positions – has increased. It is harder in 2016 to get a job in the naturalresources area than in 2013. [137] I view these matters as being beyond reasonable dispute. Moreover, these ar

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