Zima v Vanderzwaag, 2016 ABQB 705

Court of Queen’s Bench of Alberta Citation: Zima v Vanderzwaag, 2016 ABQB 705 Date: 20161216 Docket: 4813 005685 Registry: Ft. McMurray Between: Katerina Miluse Zima Plaintiff/ Defendant by Counterclaim - and - Jason Corey Vanderzwaag Defendant/ Plaintiff by Counterclaim _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.J. Hall _______________________________________________________ [ 1 ] The parties in this case are in agreement that they wish to obtain a divorce. They proceeded to trial over matrimonial property issues.

Additionally the wife seeks retroactive (but not prospective) spousal support since separation. [ 2 ] The parties have been able to agree upon the value of all matrimonial property and debts as at the date of trial. They have also agreed on the applicable exemptions. Exempt Property [ 3 ] The parties have agreed that the wife is entitled to an exemption for half of the proceeds from the sale of her property on

West 7 th Avenue in Vancouver, amounting to $45,504. She also is entitled to an exemption for her RRSP of $9,485 owned at the time of the marriage, while the husband is entitled to an exemption for his RRSP of $12,161 owned at the time of the marriage. Real Property Assets [ 4 ] The parties jointly own four real properties.

Those properties, their values at trial, and the mortgages or lines of credits registered against them at trial are as follows: Property Value Mortgage Line of Credit West 4 th Avenue Vancouver $715,000 $370,157 $45,800 Denholm Gate Fort McMurray $255,000 $325,252 none McDonald Drive Fort McMurray $115,000 $169,927 none Rainbow Creek Fort McMurray $655,000 $555,695 none [ 5 ] The husband indicates that he is prepared to take the three Fort McMurray properties onto his side of the ledger in the matrimonial property division, with the wife taking the Vancouver property onto her side.

The wife has now indicated she has no interest in the Vancouver property. That being the case, the parties are agreed that the Vancouver property can be sold and the equity divided equally between them. Tax Free Savings Accounts [ 6 ] The husband has a TFSA valued at $140 at separation and presently valued at $46,500. The wife acquired a TFSA in the amount of $9,000 during the marriage, which she has since spent to buy an airplane. Shares in Ashco [ 7 ] The husband has shares in Ashco (a holding company for his employer). He owned 1800 of those shares at separation and has since purchased another 2500 shares.

The total value of the Ashco shares is $168,603, of which $98,025 is the value of the shares he purchased after separation. Husband’s Pension [ 8 ] The husband’s Associated Engineering pension has a present value of $80,790. RRSPs [ 9 ] The husband has RRSPs in the amount of $101,345. As stated above, $12,161 was contributed prior to marriage and is exempt from distribution. The husband has contributed an additional $58,500 post-separation. [ 10 ] The wife has an RRSP valued at trial at $16,468. Again as stated above, $9,485 was contributed by her before the marriage and is exempt from distribution.

Life Insurance [ 11 ] The wife has a life insurance policy acquired during the marriage with a cash value of $6,604. Matrimonial Debt [ 12 ] The husband called evidence to show that there was a Scotiabank Line in the amount of $44,459 at the time of separation, which he has since paid off himself. There was also a Scotia Value Visa with a balance of $10,360 at separation, which the husband also paid off. Income Tax Effect [ 13 ] Some income tax issues arise in the distribution exercise and will be dealt with in the course of these reasons. Starting Principles re: Matrimonial Property

[ 14 ] The parties recognize the principles set forth in Hodgson v Hodgson , 2005 ABCA 13 , 361 AR 190. There, 11 years had elapsed between separation and trial, with the result that various assets, notably the matrimonial home, the wife’s pension and various gifts and inheritances received by the husband increased significantly in value.

The Court of Appeal considered ss. 7 and 8 of the Matrimonial Property Act, RSA 2000, c M-8 (“ MPA ”) and determined that valuation and division of matrimonial property must take place at the date of trial. [ 15 ] After determining all property owned at the date of the trial and removing such property as is exempt, the trial judge is then to determine what property falls under

section 7 of the MPA . This includes any increase in the value of the exempt property from the date of acquisition or marriage to the date of trial. That property is then to be distributed between the parties in a manner that is just and equitable. The trial judge has discretion, which is to be exercised by taking into consideration the factors in s. 8 of the MPA . Issues such as the length of separation or the independence of the parties are to be dealt with by considering the exemption section 7(2) (along with the applicable case law) and the factors set out in

section 8: Hodgson at paras 18-22 . Property Acquired Post-Separation [ 16 ] The major matrimonial property issue in this case pertains to property acquired by the husband post-separation but prior to trial. The husband maintains that such property should not be considered matrimonial property or divided as such and that he should have the sole benefit of those acquisitions. The wife seeks to share in the value of those assets as at the time of trial. [ 17 ] The assets in dispute are the post-separation increases in each of, the husband’s TFSA, his shareholdings in Ashco, his Associated Engineering pension, and his RRSP. [ 18 ]

Section 7.4 of the MPA provides: 7(4) If the property being distributed is property acquired by a spouse during the marriage and is not property referred to in subsection (2) and (3), the Court shall distribute the property equally between the spouses, unless it appears to the Court that it would not be just and equitable to do so, taking into consideration the matters in

section 8 . [ 19 ] Since the parties remain married at this time, the property acquired post-separation is still “property acquired by a spouse during the marriage” as contemplated by s. 7(4). [ 20 ]

Section 8 of the MPA details the matters to be taken into consideration in making a distribution. Background Facts [ 21 ] In order to apply sections 7 and 8 of the MPA , one must review the facts as they existed between these parties. [ 22 ] The parties met in 2000 and started dating in 2001. The husband obtained a civil engineering bachelor’s degree in 2003 and the parties started to live together after he graduated. He obtained a job with Associated Engineering, but returned to University in 2005 in a Master’s program. [ 23 ] The parties married in May 2006.

The wife had been employed in the accounting department of an environmental consulting company and had purchased a property in Vancouver (“the West 7 th Avenue property”) in October 2001 for $86,000. The parties resided in this home with the husband paying to the wife a small amount, estimated at $300 to $400 per month, for rent. Once the parties married, they commenced sharing expenses.

The wife indicates that it was her home and she did the bulk of household tasks, including most of the cleaning and cooking. [ 24 ] In 2007, the wife quit her job to accompany the husband to Nicaragua where he was on assignment for his master’s degree. She did not return to her employment. However, she continued her efforts to obtain training as a pilot. The wife had begun this training as far back as 1998 and had continued part-time as finances permitted. The parties had planned that, after marriage, she would train more intensively to get her flight instructor rating, so she could become employed as a pilot.

The mortgage against the West 7 th Avenue property was increased, in part to pay for the wife’s pilot training. [ 25 ] The husband paid for his education through scholarships and part-time work. After he completed his master’s degree, he resumed working as an engineer with Associated Engineering in Vancouver. In 2009, the wife sold the West 7 th Avenue property and the parties jointly purchased the West 4 th Avenue property in Vancouver. [ 26 ] They lived in the West 4 th Avenue property for approximately one year, during which time the wife continued with her flight training.

She obtained her flight instructor rating by the end of 2009, but was not able to obtain employment in the Vancouver area. Around this time Associated Engineering posted job opportunities for engineers in Fort McMurray. The wife was able to obtain a position as a flight instructor with McMurray Aviation, so the parties decided to move to Fort McMurray. They rented out the West 4 th Avenue property and moved to Fort McMurray in June 2010, initially living in a rental property. [ 27 ] In November 2010, they purchased the Rainbow Creek property in Fort McMurray.

It had an unfinished basement with a separate entrance, so in around July 2011, they put in, and rented out, a basement suite. [ 28 ] In March 2012, the parties bought the McDonald Drive property in Fort McMurray as an investment. They obtained the down payment by opening a line of credit registered against the West 4 th Avenue property.

[ 29 ] The parties indicate their relationship started to deteriorate at or around this time and they decided to separate. To facilitate separation, they agreed to purchase the Denholm Gate property in Fort McMurray in November 2012, using money they had on hand. The wife moved into the Denholm Gate property in November 2012, making that the date of separation. [ 30 ] Until that time, the parties had maintained a joint bank account. When they separated, they kept the joint account, but obtained separate bank accounts as well.

Rental monies from the four properties they owned continued to be paid into the joint account. They began taking separate responsibility for their own expenses. [ 31 ] The husband determined that the rents received from the properties were not sufficient to cover mortgages, lines of credit, insurance, taxes and other expenses, the shortfall being $2,480 per month. He says that he and the wife agreed that each would contribute one-half of that amount, being $1,240, into the joint account each month. The wife does not deny this arrangement and bank statements confirm these payments. [ 32 ] In

summary, at the time of separation, the cash on hand was fully depleted. All four properties were jointly owned by the parties. The husband was residing at the Rainbow Creek property in Fort McMurray and not paying any rent. The wife was residing in the Denholm Gate property and not paying any rent. The parties were contributing equally to shortfalls to maintain the four properties. The remaining matrimonial debt was being serviced by the husband. [ 33 ] In October 2013, the wife moved out of the Denholm Gate property and moved in with some friends.

The Denholm Gate property was then rented out, with the rental monies going into the joint account. Because the result was that the wife was required to pay rent and the husband was not, the parties agreed that the wife could take $900 per month from the joint account to pay her rent and that the husband would make up all shortfalls between rental receipts and expenses of the four properties. [ 34 ] The husband says that his contributions to the joint account to cover shortfalls were $10,800 in 2014, about $20,000 in 2015 and $17,000 in 2016 up until the Fort McMurray fire.

This was due to the fall in rental rates in Fort McMurray as a result of economic conditions following the fall in oil prices. [ 35 ] When the parties separated, the wife was working as a flight instructor at McMurray Aviation. In August 2012 she left McMurray Aviation and started with a new company, Nor-Alta. In February 2014 she took a new position in Calgary, again in the piloting business, working for Sun West Aviation as a first officer on a Dash 8 aircraft. In May 2016, she moved to Edmonton where she remains employed in the piloting business.

Income of the Parties [ 36 ] The wife’s income tax returns show total line 150 incomes as follows: Year Amount 2011 $47,081 2012 $72,854 2013 $72,267 2014 $68,086 2015 $67,541 [ 37 ] The husband’s income tax returns show total line 150 incomes as follows: Year Amount 2011 $177,638 2012 $218,829 2013 $202.515 2014 $220,251 2015 $262,864 [ 38 ] The husband provided evidence that the remuneration he received for his employment included “uplift” and “living allowance” amounting to $56,800 per year.

Those allowances are intended to compensate for the higher cost of living in Fort McMurray and would not have been received had he not been living there. Therefore, he says that, in comparing his income with the wife’s, his should be considered net of the uplift and living allowance. Decision Regarding the Real Property [ 39 ] The parties embarked upon a program of acquiring real property and renting it out to cover the expenses associated with carrying that property such as mortgage, line of credit, maintenance, insurance, taxes, utilities and the like.

They accumulated four properties with the common intention that these would increase in value and they would share that increase. [ 40 ] When the parties separated, they continued to maintain those properties in accordance with their previous plan. The fourth property was purchased so that the wife could reside in it without the need to pay rent, much as the husband was residing in the Rainbow Creek property without paying rent.

There was a shortfall in income to cover expenses of $2,480 a month and they agreed that each would pay $1,240 a month to cover that shortfall. [ 41 ] When the wife decided to move out of the Denholm Gate property, it became available to be rented out and to produce income. However, because the wife then had to pay rent, it was agreed that she would receive $900 per month from a joint account to cover that rent. In addition, the parties agreed that, from that day forward, the husband would cover all shortfalls in relation to the real

property. The husband has done so, at a cost to him, according to his calculations, of some $49,500. However, that was the bargain he made. There was never any suggestion in the agreement, or in the evidence before me, that the wife would have to repay any portion of that amount. [ 42 ] The husband’s girlfriend moved into the Rainbow Creek property with him in 2014 and has been paying $800 a month in rent to the husband. The husband has not been depositing that $800 into the joint account until earlier this year. However, the impact of that is nil.

If the husband had been paying that $800 a month directly into the joint account, then his contribution to the shortfalls would have been $800 per month less than they actually were.

The effect of him not depositing the amount, but paying the actual shortfall is the same; he has continued to meet the obligations that he undertook in the agreement with the wife. [ 43 ] Accordingly, it is clear to me that the parties should share equally in the gains or losses arising from their jointly owned real estate. [ 44 ] I accept that the proper date for assessment and distribution of the parties’ real property is the date of trial. As of that date, two of the Fort McMurray properties are “under water”, in that the mortgages exceed their values.

Since the husband has indicated he is prepared to have the three Fort McMurray properties entered on to his side of the matrimonial property statement ledger, he will keep the three Fort McMurray properties, and will undertake payment of all expenses and debts in relation to those properties. To accomplish this, the wife is directed to transfer her interest in those three properties to the husband. The husband is to arrange to have the wife removed from the mortgages on those properties.

An equalization will then have to take place such that each party is accredited with 50% of the value by which each Fort McMurray real property exceeds, or falls short of, the mortgages and line of credit registered against it. [ 45 ] With respect to the West 4 th Avenue property, if the parties can agree that the property be transferred to one or the other, in return for an equalization payment of 50% of the equity over the mortgage and line of credit registered against it, then they are free to do so.

However, if no such agreement can be reached, then I order that the West 4 th Avenue property be sold and the net proceeds after payment of the mortgage, line of credit, real estate commissions, legal fees and the like be distributed equally between the parties. Other Property: MPA

Section 8 Considerations [ 46 ] The essence of the wife’s arguments is that she has contributed significantly to the marriage and to the husband’s ability to earn income, which has resulted in the husband being able to accumulate assets since their separation. She maintains that, pursuant to Hodgson , all of the assets at the time of trial should be divided equally between the parties. She notes that the husband initially lived with her in her residence. She quit her job and followed him to Nicaragua. Thereafter they were working together as a team.

She maintains that she moved to Fort McMurray so that he could earn a larger income. She notes there is a significant difference between his income and hers. Since separation his income has increased considerably, while hers has not. [ 47 ] The husband says that both parties made contributions to the marriage. The two parties worked together to build a real estate portfolio of value, using their jointly contributed funds for that purpose, at least until the marriage breakdown. The husband says that the property he has acquired since the separation has been acquired by his contributions alone (

section 8 (

c) MPA ) and that the property was acquired since the spouses have been living separate and apart (

section 8 (

f) MPA ). [ 48 ] The wife relies upon Repas v Repas , 2012 ABQB 572 , 548 AR 180. In that case, the parties had been separated for some 19 years prior to trial. Indeed, the husband had died by the time of trial. Justice Goss determined that it was equitable that the matrimonial home be divided equally between the husband and the wife. However, while the wife initially had made some contributions in terms of working for the husband’s business, she acknowledged that she had contributed nothing to the company after separation.

Justice Goss found that it would not be just and equitable to order an equal division of the value of the business at the date of trial as there was a real imbalance in contributions after separation.

She allowed the wife a 50% interest in the value of the business at the date of separation, but nothing with respect to the increase in the value of the business thereafter. [ 49 ] The husband maintains that Repas supports his position regarding property acquired after separation, where the wife has made no contribution to those acquisitions. [ 50 ] The husband also refers to Doege v Doege , 2015 ABQB 802 where Justice Manderscheid reviewed the issue of valuation of assets acquired post-separation. He acknowledged that Mrs.

Doege had made significant contributions to the marriage as well as to the operation of the family business during the time the parties were together. He reviewed Thompson v Thompson , 2006 ABQB 796 , 33 RFL (6 th ) 381 where Justice Read held that it would not be just or equitable to enable either party to share in property acquired by the other during a long post-separation period. She noted that, after separation, spouses must get on with their financial lives and that the partnership is broken. [ 51 ] Justice Manderscheid found in Doege that it would be unjust and inequitable to grant Mrs.

Doege a share in Mr. Doege’s after acquired property, when that property was acquired while the parties were living separate and apart. He noted that the parties had lived essentially separate economic lives since 2001 when they sold a large portion of their marital farm assets and divided their interest in Doege Construction. [ 52 ] In response, the wife notes that there was a lengthy period of separation in Doege and Thompson .

Further, the wife maintains that these parties did not separate their financial lives, having jointly purchased a property for her to live in post-separation. [ 53 ] The husband refers to WDG v WLG , 2009 ABQB 340 , 69 RFL (6 th ) 221, in which Justice Mahoney was asked to distribute Suncor shares in the father’s name. He stated at para 59:

… If the shares started to accrue during the marriage then they should be apportioned accordingly. If they accrued after the separation date, then under s. 8 of the Matrimonial Property Act I exercise my discretion and find it would be inequitable that the mother share in the division of an asset which she gave nothing to acquire. … [ 54 ] The husband says that the Ashco shares that he acquired prior to separation should be divided equally between the parties. However, he alone purchased the remaining Ashco shares with no contribution from the wife.

He maintains, therefore, that Justice Mahoney’s reasoning in WDG is apposite. [ 55 ] The husband further refers to Hughes v Hughes , 2006 ABQB 468 , 410 AR 16 which again dealt, in part, with shares acquired after separation but prior to trial. At para 86, Justice Greckol states: While Mr. Hughes is not entitled to an exemption for the shares acquired after the date of separation but prior to trial, I am of the view that it would not be just and equitable that Ms.

Hughes receive a portion of the value of any shares acquired by him after October 1, 2002 (or any increase in the value of the shares after that date), when the parties’ personal and financial lives diverged. [ 56 ] The wife again says that these decisions can be distinguished because, in the case at bar, the parties’ personal and financial lives did not completely diverge upon separation. [ 57 ] The Alberta Court of Appeal considered this issue in LeBlanc v LeBlanc , 2014 ABCA 391 , 52 RFL (7 th ) 289.

The trial judge decided that the property acquired after separation should not be equally distributed and attributed 90% of the value of the shares to the husband and 10% to the wife. She noted that the funds held clearly were acquired after separation and after the parties had decided to go their separate ways financially. None of the funds were acquired by seed money or capital for assets accumulated during the marriage, but consisted only of income earned but not spent by the husband since July 2011. The Court of Appeal concluded the trial judge did not err.

Her determination that it would be just and equitable to make an unequal division of the savings accrued by the husband after separation was reasonable. [ 58 ] Respecting the distribution of pensions, the husband refers to Rands v Rands , 2011 ABQB 605 , a decision of mine in which I considered distribution of a pension when the parties had been separated for a lengthy period of time. In that case, I noted that during the separation period the pensioner continued to be employed and to make contributions to the pension while the former spouse was making no such contributions.

It was because of the pensioner’s efforts alone that the pension increased in value. Accordingly, I found that neither party should share in the appreciation in the other party’s pension during the separation period. [ 59 ] That decision was followed by Justice Yamauchi in Shopik v Shopik , 2014 ABQB 41 , 581 AR 46 at para 60 . He found that the joint accrual period for the pension was from the date of marriage until the date of separation. [ 60 ] The husband refers to Tarrabain v Tarrabain , 2016 ABQB 224 for the proposition that RRSP contributions made post- separation should not be divided between the parties.

He also refers to Sparrow v Sparrow , 2005 ABQB 216 where Justice Erb distributed the RRSP account less post-separation contributions and to Gulewicz v Gulewicz , 2005 ABQB 166 for the same proposition. [ 61 ] In addition, the husband maintains that he should be given credit for having discharged matrimonial debts that existed at the time of separation, being the Scotiabank Line of Credit amounting to $44,459 and the Scotia Value Visa amounting to $10,360. The wife argues that, as those debts no longer exist at the time of trial, they should not be considered in this distribution.

The husband refers to Peregrym v Peregrym , 2015 ABQB 176 , 608 AR 340 at para 82 et seq, where Justice Schutz follows the Alberta Court of Appeal’s direction in Kretschner v Terrigno , 2012 ABCA 345 , 539 AR 212 that the parties should be jointly liable for debt incurred during the marriage. [ 62 ] Turning to income comparison, the husband references Fisher v Fisher , 2008 ABQB 609 , 456 AR 353, in which Justice Veit dealt with a claim for child support where the husband resided in Fort McMurray and the wife had moved to Edmonton with the child.

Justice Veit noted that the cost of living in Fort McMurray, including accommodation and all other costs, was much higher in Fort McMurray than in Edmonton. Therefore the high yearly salary of the husband in Fort McMurray did not go as far it would in Edmonton and the difference in incomes between the parents did not reflect the reality of their disposal incomes.

That same finding was made by Justice Marceau in Coghill v Michalko , 2010 ABQB 59 , 488 AR 93 at para 70 . [ 63 ] Having regard to all the foregoing, and having regard to the circumstances of these parties, I conclude that it would be not be just and equitable that the property acquired by the husband after separation be divided between him and the wife. [ 64 ] First, both parties made contributions to the marriage. The husband obtained a Bachelor’s and a Master’s in civil engineering, enabling him to earn a significant income. He paid for that education through scholarships and part-time work.

While the wife left her job in the accounting department of an environmental company, it was never her desire or passion to stay with that job. She had always wanted to become a pilot and had been training to accomplish that when finances allowed. Once the parties were married and settled, monies were raised jointly between them so that she could continue her flying training and obtain her commercial pilot’s licence and then her flight instructor’s licence.

Both parties benefited from the move to Fort McMurray. [ 65 ] The parties determined to follow a common interest of amassing real estate property, with the intention that the rentals obtained from those properties would cover the mortgage and expenses and with the hope and expectation that the property values would increase. [ 66 ] While the parties agreed, upon separation, to purchase the Denholm Gate property jointly, this was done so that the wife would have a rent free place to live, to her benefit.

The intention again was that, should there be an increase in the value of the property, it would be equally divided between the parties, and in the meantime, the parties would equally share expenses in relation to their real property investments. [ 67 ] When the wife decided to move out of the Denholm Gate property, the parties agreed that she could have $900 per month from the joint account and that the husband would take on the shortfall between income received from the properties and expenses

incurred. That agreement was reached by the parties in good faith and is not to be disturbed. In that regard I refer to

section 8 (

g) of the MPA , requiring that the terms of an agreement between the spouses be taken into consideration.

That agreement substantially benefited the wife in that she continued to live rent free and was no longer being required to pay one-half of the shortfall between the income from the properties and the expenses. [ 68 ] The parties separated themselves both physically and economically, other than with respect to their real property investments. [ 69 ] The increase in the husband’s TFSA, Ashco shares, pension, and RRSP all resulted from contributions made solely by him. [ 70 ] I agree with the husband’s contention that, for comparison purposes, his income should be reduced to reflect the income allowance and uplift for residing in Fort McMurray.

Nevertheless, his income is substantially greater than the wife’s. The wife, however, has been able to pursue her passion of a career as a pilot or first officer. She is certainly not destitute, given her annual incomes as recorded earlier in this decision. Her income earning ability has not, in any way, been restricted or negatively affected by the marriage - quite the opposite.

The joint efforts of the husband and wife during the time that the parties were together resulted in the wife having time to pursue training as a pilot, as well as providing the financial wherewithal to afford the expensive process of pilot training. The parties have no children. [ 71 ] Paragraph 8 (

f) of the MPA requires the Court to consider whether the property was acquired when the spouses were living separate and apart. That is clearly the case in respect to this property acquired post-separation. It was an important consideration in all of the cases cited above. To my mind it is the most important consideration in the matter before me. [ 72 ] The husband has not used any assets acquired during the marriage to amass the increase in these assets post-separation. He has made the decision to invest his monies to increase his personal wealth.

While the period of separation between the parties is not so long as in a number of the precedent cases cited above, it is nevertheless clear that the parties separated and commenced their own financial lives. [ 73 ] For all of the above reasons, I conclude it would not be just and equitable for the wife to share in any of the properties the husband has acquired or increased since the separation, being the post-separation Ashco shares, TFSA contributions and interest earned thereon, pension earnings and RRSP contributions.

Accordingly, only $140 of the husband’s TFSA account is to be distributed between the parties. Only $70,580 of the value of the Ashco shares is to be distributed equally between the parties. Only $30,684 of the husband’s RRSP account is to be distributed equally between the parties. [ 74 ] The RRSP portion of this distribution can be accomplished by the husband rolling over the sum of $15,342 from his RRSP into the wife’s RRSP. In that way, the parties continue to defer income tax and will pay income tax only on that portion that each receives, at the time they redeem the RRSP.

I direct the husband to effect that rollover. Therefore, no consideration of income tax rates is necessary. [ 75 ] The pension has accrued for a period of 8 years. Its accrual pre-separation was 4.25 years. Applying the McAllister formula, the wife is entitled to one-half of (4.25 ÷ 8) of the present value of the pension ($80,790), which I calculate to be $21,460. [ 76 ] The matrimonial debts, which have been paid off by the husband, were joint obligations of the parties. The wife has benefited in that she has not paid any part of those debts.

I order that she reimburse the husband for one-half of the separation amount of the Scotiabank Line of Credit and the Scotia Value Visa. [ 77 ] The husband has urged upon me that I should consider a terminal loss and therefore a tax savings to the wife. He tried to introduce expert evidence in that regard, but did so at such a late date that I refused to allow the evidence. Accordingly, I make no adjustments for any such claimed tax advantage to the wife. [ 78 ] The wife acquired her life insurance policy during the marriage and must now split its cash value equally with the husband.

Similarly, the value of her $9,000 RRSP (now converted) must be split equally between the parties. Spousal Support [ 79 ] The wife maintains that she is entitled to either compensatory or non-compensatory retroactive spousal support from separation to trial, to be calculated at the high end of the spousal support advisory guidelines (“SSAG”).

She acknowledges that she is now in a significant relationship and seeks no ongoing spousal support beyond the date of trial. [ 80 ] The wife refers to Sawatzky v Sawatzky , 2008 ABCA 355 , 440 AR 267, in which the Alberta Court of Appeal reviewed the objectives of a spousal support order, being to recognize any economic advantages or disadvantages to the spouse arising from the marriage or its breakdown, to apportion between spouses any financial consequences arising from the care of the child of the marriage, to relieve any economic hardship of the spouses arising from the breakdown of the marriage and, insofar as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 81 ] The wife refers to Sawchuk v Sawchuk , 2010 ABQB 5 , 485 ABQB 183 which sets out the theory and principles of spousal support, referencing

section 15.2 of the Divorce Act . Quoting from Carbeil v Corbeil , 2001 ABCA 220 , 286 AR 330, the Court noted that compensatory support intends that both spouses profit from the joint venture of marriage. The courts look to see what the spouse’s contribution to the marriage was and whether the other spouse was advantaged by that contribution.

Non-compensatory support is based on the needs and means principle, the idea being that “spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractional or compensatory foundation for the obligation. Need alone may be enough.” [ 82 ] Justice Langston found that Mrs. Sawchuk was entitled to spousal support under either the compensatory or non-

compensatory model, given the advantages Mr. Sawchuk received during the marriage, by being able to focus on his career. An award of spousal support apportioned the financial consequences of Mrs. Sawchuk having been primarily responsible for child care, recognized disadvantages she was suffering from the marriage breakdown and promoted her current economic self-sufficiency. [ 83 ] The husband notes that Sawchuk involved a 24-year marriage and that the wife had some health problems. Her employment was not her dream employment, but was the only employment she was able to obtain following separation.

Those factors are not present in the case at bar. [ 84 ] The husband focusses on entitlement to spousal support. He notes the wife was not delayed in pursuing her career; indeed the marriage made her career achievement possible. She has not been adversely affected by the marriage. She has not raised children. The husband refers to RG v MG , 2007 ABQB 273 , 418 AR 244, where Justice Romaine noted that marriage per se does not automatically entitle a spouse to support and commented at para 81: The expectations that have been thwarted as a result of the breakdown of this marriage are (arguably) Ms.

G.’s expectations of early retirement and her expectation that she would share indefinitely in Mr. G.’s greater income-earning capability in order to ease the years prior to and after such early retirement. While the loss of such expectations is a bitter blow after many years of marriage, I cannot find that this kind of loss gives rise, in this case, to an obligation of support. The simple loss of access to Mr.

G.’s income in the circumstances is not an economic disadvantage that should be remedied with a support award. [ 85 ] At para 85 Justice Romaine states: Again, this is not a case where it was the marriage breakdown alone that resulted in Ms. G.’s loss of a comfortable Calgary residence.

It is true that had the marriage not broken-down, the parties would not have the expense of separate Calgary households, but that is not the kind of change that justifies a support order. [ 86 ] The husband refers to Godin v Godin , 1999 ABQB 614 , where the parties were married for six years and had one child, and the wife worked full time. At para 18 Justice Nash stated: Mrs. Godin has the ability to support herself. She has not foregone career or educational opportunities during the marriage as a result of her role in the marriage.

She has not suffered economic disadvantages arising from the marriage breakdown. The fact that she no longer has access to the cash flow generated by Mr. Godin is not in my view sufficient to constitute economic disadvantage. She has not suffered economic hardship arising from the breakdown of the marriage. [ 87 ] The husband references Fisher v Fisher , 2009 ABQB 85 , 74 RFL (6 th ) 117 to the same point. There, the wife’s income was approximately $85,000 and the husband’s was approximately $185,000. There was a child of the marriage primarily cared for by the wife.

At para 4, Justice Veit states: The circumstances here do not support Ms. Fisher’s claim for the continuation, after the breakdown of the marriage, of the social obligation inherent in marriage. Ms. Fisher was financially independent prior to the marriage and was able to return to financial independence when the marriage terminated. Prior to marriage, Ms. Fisher had a university education, an independent life, and a secure job with a responsible employer providing long term career opportunities; she was able to return to that situation when her marriage broke down. The marriage did not cause Ms.

Fisher any financial or economic disadvantage. ... [ 88 ] The husband refers to Griffiths v Griffiths , 2011 ABCA 359 , 19 RFL (7 th ) 30, a decision of the Alberta of Court Appeal to the same effect, and to Lee v Lee , 2014 BCCA 383 , 64 BCLR (5 th ) 313 in furtherance of that argument. [ 89 ] In DLW v DLW , 2003 ABQB 515 , 40 RFL (5 th ) 443 at para 62 , Justice Lee quoted McDonald v Cotterall , 2001 BCSC 1238 at para 89 as follows: The plaintiff has not demonstrated any need that is not satisfied by these orders, nor is there evidence of a significant decrease in the standard of living since the marriage breakdown.

She is a relatively young, well educated person, in apparent good health. She has no children to raise and educate. She worked during the marriage and continued to be employed after its breakdown. It is true that her earnings do not equal those of the defendant, but that is, in part, a reflection of the choices she has made. Moreover, the law does not state that there has to be an equalization of incomes following a marriage breakdown. [ 90 ] The husband cites Rubin v Gendemann , 2011 ABQB 71 , 507 AR 215 at para 336 to the same effect. [ 91 ] I agree with the husband.

The wife has not established entitlement to spousal support. During the course of the marriage she was able to train as a pilot, which was her career dream. Since the marriage she has been employed as a pilot. She has not been saddled with debts or obligations arising out of the marriage. There are no children of the marriage. The fact of a disparity in income between her and her husband does not entitle her to spousal support, particularly where she has made her career choices and has not been disadvantaged in those career choices through the marriage.

She has not demonstrated a need for spousal support arising out of the circumstances of the marriage. [ 92 ] Accordingly, the wife’s claim for spousal support is denied. Notice to Admit Facts [ 93 ] The husband submitted two Notices to Admit Facts to the wife. The wife denied a number of those facts which eventually were admitted at trial. The husband seeks to be compensated for costs in relation to proving those facts or in relation to the uncertainty associated with the failure of the wife to admit facts that were conceded at trial or on the eve of trial.

[ 94 ] I consider there is merit to the husband’s complaints in this regard. There are a number of incidents where facts should have been admitted by the wife but were not.

As a result, the husband was left not knowing whether he would have to prove these matters, at least until the eve of trial when some further matters were conceded. [ 95 ] While I do not consider that the husband incurred substantial extra costs because of the failure to admit such facts, nevertheless I think he is entitled to recompense for the wife’s failure to simplify the case by admitting such facts in her reply to his notice. [ 96 ] To compensate the husband for this failure I award him costs, in any event of the cause, in the amount of $1,500.

Div o rce [ 97 ] The parties are granted a Divorce, to become final 30 days after the date that the Divorce Order is signed. The Divorce should not precede the spousal rollover of a portion of the husband’s RRSP, so as to preserve the right to a tax-free rollover. Conclusion [ 98 ] The parties are directed, based upon the reasons herein, to prepare revised matrimonial property statements.

In the event of a dispute as to those matrimonial property statements and the amount of an equalization payment, the parties may address me in writing with respect to such issues. [ 99 ] The wife must transfer her interest in the Fort McMurray properties to the husband. The husband must arrange for the wife to be removed from the mortgages on those properties.

The husband must effect the RRSP spousal rollover. [ 100 ] Unless the parties agree that one will buy out the other’s 50% equity in the West 4 th Avenue property, that property is to be sold and the equity to be divided equally between them. [ 101 ] As the husband is self-represented in this matter, I direct the wife’s counsel to prepare the order arising from this Judgment and to provide a copy to the husband for review before submitting it to me for signature. [ 102 ] In addition to the costs awarded to the husband in paragraph 96 above, the husband shall have party-party costs of the action calculated as one-half of column 3 of

schedule C of the Rules of Court , without any inflation factor being applied, but including 100% of all reasonable and necessary disbursements incurred by him. I have cut column 3 costs in half to reflect that the husband has been self- represented and has not incurred legal fees. Heard on the 3 rd day of November, 2016 to the 4 th day of November, 2016. Dated at the City of Calgary, Alberta this 16 th day of December, 2016. R.J. Hall J.C.Q.B.A. Appearances: Harold Hinz, for the Plaintiff/Defendant by Counterclaim Jason Corey Vanderzwaag, not represented by counsel