Stojak v Stojak, 2016 ABQB 737

Court of Queen’s Bench of Alberta Citation: Stojak v Stojak, 2016 ABQB 737 Date: 20161223 Docket: 4803 118175 Registry: Edmonton Between: Yolanda Nancy Stojak Plaintiff/Defendant by Counterclaim - and - Andrew Eugene Stojak Defendant/Plaintiff by Counterclaim _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.P. Feehan _______________________________________________________ I Introduction [ 1 ] Yolanda Stojak and Andrew Stojak seek division of their matrimonial property pursuant to the Matrimonial Property Act , RSA 2000, c M-8, as amended ( MPA ).

II Overview [ 2 ] Yolanda Stojak is currently 69 years old. Andrew Stojak is 74 years old. They were married on July 5, 1986, separated on August 1, 2000 and divorced on February 2, 2002. Both were previously married and divorced. [ 3 ] There is one child born of the marriage, Russell. He is now almost 27 years old.

[ 4 ] Andrew Stojak also has one child from a previous marriage, Steve, who was 15 years old at the time of Andrew’s marriage to Yolanda in 1986. [ 5 ] Both of the parties are highly educated. Yolanda has Master’s degrees in English and Business Administration, and Andrew has a Master’s degree in Education. Both were employed in senior positions with the Government of Alberta. [ 6 ] The two parties were the only witnesses. The following is a timeline of relevant events based on their evidence: 1980 Andrew purchases a cabin at Pigeon Lake, Alberta.

July 1986 Andrew and Yolanda are married; they cohabitate for approximately one week pre-marriage, and then live in a rental apartment for approximately six months. January 1987 Yolanda and Andrew rent a house in Edmonton. July 1989 Yolanda purchases the matrimonial home and title is registered only in her name. January 1990 Russell Stojak is born; Yolanda takes six months maternity leave. 1990 Andrew purchases a Honda race car. Spring 1992 Andrew receives an inheritance from his mother. Mid 1992 Andrew purchases New Westminster Undercoating for Steve and himself.

Mid 1990s Yolanda pays off the mortgage on the matrimonial home. September 1994 Both Yolanda and Andrew take sabbaticals from work. to August 1995 July 1997 Andrew retires at age 55, with 21¾ years of pensionable service. August 2000 Yolanda files a Statement of Claim for Divorce and Division of Matrimonial Property; Andrew leaves the matrimonial home. February 2002 Divorce is granted. 2002 Andrew sells the Honda race car to Steve.

June 2003 Statement of Defence and Counterclaim for Divorce and Division of Matrimonial Property is filed by Andrew. 2003 Andrew sells the cabin at Pigeon Lake to Yolanda. 2004 Andrew sells New Westminster Undercoating. October 2007 Yolanda takes her government pension and begins contract work. June 2009 Counterclaim amended to add a claim for occupation rent. 2010 Yolanda retires with 35 years of service.

August 2014 Yolanda moves out of the matrimonial home, which is still occupied by Russell. [ 7 ] The parties agree that the present value of the matrimonial home is $435,000. [ 8 ] They also agree that the following property should not be considered by the Court nor included in any division of matrimonial property: − any property acquired by either of them after the date of separation; − the cabin at Pigeon Lake; − the house purchased by Andrew Stojak from the proceeds of the sale of the cabin; and − Andrew Stojak’s debts.

III Issues [ 9 ] The Court must determine the appropriate outcome with respect to: 1. distribution of the value of the matrimonial home; 2. Yolanda’s claim that Andrew has dissipated assets to her detriment;

3. Andrew’s claim for occupation rent; 4. pension entitlements; and 5. distribution of four paintings. IV MPA [ 10 ] The Court of Appeal in Smith v Smith , 2016 ABCA 376 , [2016] AJ No 1238 at paras 18-19 noted that the purpose of the MPA is to fairly and equitably distribute the assets of the parties on dissolution of marriage. [ 11 ]

Section 7 of the MPA empowers the Court to distribute between the parties all of their property, except for property exempted under s 7(2). Section 7(4) establishes a presumption that the Court will distribute the non-exempt property equally between the parties, unless an unequal distribution is justified based on the factors set out in s 8. This is a recognition of the fundamental importance of marriage in society and the need to balance and weigh the financial and non-financial contributions that spouses make to a marriage.

The Court has, however, discretion, taking into account the s 8 factors, as to the distribution of an increase in value of exempt property or property traceable to the exempt property: s 7(3). [ 12 ] The date of valuation for the purposes of the division is, generally speaking, the date of trial: Smith at para 21 , Hodgson v Hodgson , 2005 ABCA 13 at para 10 , 248 DLR (4th) 95, Mazurenko v Mazurenko , 1981 ABCA 104 , 30 AR 34. [ 13 ] In Hodgson , the Court of Appeal set out a four-step analysis for the Court to follow in order to achieve a just and equitable division of property owned by the parties at date of trial: 1. determine all property owned at the date of trial; 2. discern the property that is exempt from distribution under s 7(2) or that can be traced to s 7(2) property as not connected to the marriage; 3. determine what property falls under s 7(3); and 4. divide the balance of the remaining assets equally, unless it would be unjust and inequitable to do so considering the factors set out in s 8. [ 14 ] The Court of Appeal in Hodgson at para 20 held that no statutory presumption of equality exists with respect to the increase in the value of exempt property.

However, the Court in Smith at para 20 held that the increase is presumed to be divided equally subject to s 8 factors. A presumption of equal division can perhaps be inferred from the requirement in s 7(3) that the Court justify an unequal distribution based on a consideration of the s 8 factors, although the wording of s 7(3) suggests that an equal distribution must also be justified on the s 8 factors. In any event, the s 8 factors are the key to a just and equitable distribution of the increase. V

Section 8 Factors [ 15 ] The s 8 factors are relevant to distribution of property under s 7(3) and s 7(4), both of which are in issue in this case. I will address each of the relevant factors in light of the evidence. A Contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent [ 16 ] The parties agreed that they kept their finances separate. They had separate bank accounts.

They had no joint bank accounts, credit cards or investments. [ 17 ] Yolanda kept a record of household expenses she paid, indicating that Andrew’s net debt to her as at March 31, 1994 amounted to $13,622. She testified that she continued to pay most of the expenses for the house and the mortgage, utilities, property tax and insurance until August 2014. [ 18 ] Exhibit 1, Tab 6 is a record of some of those payments in the year 1986. She admits that Andrew did make some payments with respect to utilities, groceries, after school care and taxes. However, she stated that all payments had ceased by September 28, 1995.

Andrew could not recall whether he had made any payments after 1997. [ 19 ] Andrew indicated that while Yolanda paid for the utilities, taxes and phone, he gave her cash amounts from time to time. [ 20 ] Andrew testified that Yolanda paid for opera tickets and he paid for football tickets. [ 21 ] Yolanda stated that she lent $17,000 to Andrew on November 18, 1986 with interest to be repaid at 9% per annum over a period of eight years for the purpose of allowing him to buy out a mortgage with a higher interest rate on his cabin at Pigeon Lake, Alberta.

That transaction was set out in the handwritten contract at Exhibit 2, Tab A. She said this loan was not paid back before the purchase of the matrimonial home on July 4, 1989. She did not keep a separate ledger for that loan. Andrew testified that he eventually paid her back. [ 22 ] At one point in their marriage, Andrew received a refund cheque from Canada Revenue Agency for $12,000. Yolanda Stojak

put that cheque in her bank account and then used it to pay off debts that Andrew had accumulated. When he found out what she had done, he insisted that she return the $12,000 to him. She did so.

As a result, he was made whole, but she had paid $12,000 of his debts. [ 23 ] There were a number of other instances where Yolanda signed cheques on Andrew’s account to pay some of his debts, for example a cheque in December 2000 for $1,032.04 (Exhibit 4), a cheque of May 13, 1989 (Exhibit 5), cheques of May 13, 1989 in the sum of $6,806.69 and May 17, 1999, and a cheque for $1,000 to the Bank of Nova Scotia (Exhibit 6). [ 24 ] Under cross-examination, Yolanda admitted that over the years 1987 through 1992, Andrew repaid $49,578.57 to her.

She also admitted that at the time of the purchase of the cabin at Pigeon Lake, Andrew paid out the lien on that title. [ 25 ] In 1990, Andrew purchased a Honda race car for between $43,000 and $47,000 from the proceeds of a Pontiac that he sold, together with necessary racing accessories, including a trailer, fire suits and helmets for his own and Steve’s use. He said that he and Steve started racing that car in 1990 after they took a course which cost $400 per person.

He said that the cost of the racing suit, helmet, shoes and gloves, and fireproof underwear was between $700 and $800 and that the cost to enter races was between $400 and $500 per race. They entered about four races per season. He sold the car in 2002 to Steve for a nominal amount. In 1992, he bought a travel trailer for the family and a new vehicle to haul that trailer. [ 26 ] Yolanda testified that she purchased the cabin at Pigeon Lake from Andrew in September 2003 because he had failed to pay property taxes and the cabin was at risk of tax sale by the municipality.

She purchased it for $100,000 or $104,000 and sold it in the spring of 2015 for $98,000. Exhibit 2, Tab G shows that the sale proceeds were used to pay $30,000 to Scotia Bank on a line of credit, $3,000 for taxes, $18,000 as a down payment on Andrew’s new house after separation, $3,500 for legal fees, and $5,000 for household furnishings and improvements. The remainder was used for Andrew’s living and business expenses. [ 27 ] Yolanda took 6 months of maternity leave in 1990.

There was no evidence that one party contributed more as a homemaker or parent than the other. [ 28 ] However, Yolanda did testify that Andrew was an alcoholic, he “drank all day long”, and he spent some time in alcohol programming at the George Spady Center in the summer of 1999. [ 29 ] Andrew agreed that he drank frequently after his retirement, and he admitted that he drank “too much”. He said that he had two friends who were members of Alcoholics Anonymous and they took him to the George Spady Center in May 2000.

He followed their alcohol recovery program thereafter from May until he and Yolanda were separated in August 2000. He wrote her a letter on September 4, 2000, in which he admitted that he was now “finally sober”. He said “all these years of drinking, I wonder what else I’ve missed”. He stated that he has only had two drinks every two days since that time, but he spends about $10 to $15 per day on alcohol. He admitted that before his marriage to Yolanda, he had lost his driving licence for impaired driving.

Under cross-examination, he said he drank vodka and wine, and a bottle of vodka would last him “a couple of days”. He admitted that Yolanda thought he had a problem with alcohol and admitted under cross-examination that he “drank most days”. [ 30 ] As outlined below, Andrew did contribute to the maintenance of the home.

B Contribution, whether financial or in some other form, made directly or indirectly by or on behalf of a spouse to the acquisition, conservation or improvement of the matrimonial home [ 31 ] The matrimonial home was acquired during the marriage, but Yolanda’s contribution was acquired by her prior to this marriage. [ 32 ] As noted, the parties agree that the present value of the matrimonial home is $435,000. Yolanda submits that the entire purchase price of $129,900 is her initial exemption under s 7(2).

Andrew argues that only some of the purchase price is exempt. [ 33 ] Yolanda testified that as a result of the matrimonial settlement from her first marriage, she received furnishings and paintings. She also received $90,000, representing one-half of the value of that first matrimonial home. She purchased the current matrimonial home in the summer of 1989. Correspondence from real estate counsel dated July 4, 1989 indicates that she paid a deposit of $10,000 followed by a cash payment of $91,900.

She testified that she obtained a mortgage for $30,000 to fund the total purchase price of $129,900, leaving approximately $2,000, which presumably covered legal fees and disbursements. Yolanda paid off the mortgage in the 1990s. [ 34 ] Andrew agrees that the purchase of the matrimonial home by Yolanda was funded partially from the proceeds of her earlier matrimonial settlement and interest on that amount. [ 35 ] Although Andrew admitted under cross-examination that he did not pay the $10,000 deposit and that Yolanda probably paid it, there was no evidence at trial of the source of those funds.

The parties had been married for three years at that point. Further, the purchase of the matrimonial home required a mortgage of an additional $30,000, which was paid off during the course of the marriage. There is nothing in the evidence to suggest the deposit and mortgage payments were not made with income earned by the parties during the marriage. [ 36 ] As noted above, the evidence establishes that Yolanda paid most of the expenses for the house and the mortgage, utilities, property tax and insurance until August 2014.

While Andrew did make some payments with respect to utilities and taxes during the marriage, his contributions had ceased by 1995 or 1997. Andrew gave Yolanda cash amounts from time to time although there is no reliable evidence as to the amounts of most of such payments.

[ 37 ] Yolanda recalled flooding in the house one time due to a severe rain storm. She asked Andrew to deal with the repairs. He replied that it was her house, and she had to deal with it. Andrew recalled the flood, but said it was caused when a water heater exploded. He said that Yolanda phoned a plumber and the matter was addressed. [ 38 ] Yolanda stated that no major renovations were done to the matrimonial home during the marriage, merely maintenance. However, Andrew indicated that over a period of two years, he installed hardwood floor in the living room, dining room, hallway and bathroom.

He was also involved in other renovations such as painting, putting up backsplash in the kitchen, installing wood finishing over the curtains and shelving, building shelves, and doing regular maintenance such as unplugging clogged drains. He said that he was in charge of the yard work, work in the garage, he made some meals and paid for groceries.

C Income, earning capacity, liabilities, obligations, property and other financial resources that each spouse had at the time of marriage and at trial [ 39 ] As previously noted, both of the parties are well educated and were employed in senior positions with the Government of Alberta. Yolanda worked for 35 years before drawing her pension, while Andrew Stojak had 21¾ years of pensionable service at retirement. [ 40 ] Yolanda testified that between July 1986 and December 1987 she paid off debts that Andrew brought into the marriage totalling $8,537.83.

However, he paid an amount to her of $8,750 in 1987 which he said was repayment for that contribution. She admitted that Andrew gave her money “when he had some money to give her”. [ 41 ] Upon retirement in 2007, Yolanda began receiving a Government of Alberta pension of approximately $78,000 annually, or $6,500 net per month. [ 42 ] In 2000, the year of the separation, Yolanda had an RRSP totalling $6,899.83 and further mutual funds and fixed income totalling $13,430.93. [ 43 ] Andrew retired in 1997 at the age of 55, taking a government early retirement offer.

He testified that before retiring, he was making about $50,000 per annum. On retirement, he was given a $40,000 payout and thereafter received about $30,000 annually in pension. With the $40,000 payout, he bought a number of used vehicles to resell, and bought and sold cars on behalf of others, but agreed that he never made much money on those transactions. Andrew admitted that in retrospect it was a mistake to retire early. He did not consult with anyone about taking the early retirement package, nor did he consult a head hunter.

However, he did talk about it to Yolanda. [ 44 ] Approximately eight or nine years ago, Andrew took a job as a car salesman at Sherwood Honda. [ 45 ] Andrew receives a monthly net pension of $1,585. Correspondence dated July 21, 2015 from Alberta Pension Services sets out how that pension was paid, increasing monthly to age 65, with coordination increase stopping at age 65 and reducing thereafter.

Correspondence dated December 6, 2004 from the Management Employees Pension Plan indicates that upon Andrew’s death, Yolanda, as designated recipient, would receive 75% of his pre-1992 base pension and two-thirds of his post-1991 base pension for her lifetime, if she survives Andrew. [ 46 ] As noted, Andrew agrees that his current debts should not be considered by the Court. D Duration of the marriage [ 47 ] This marriage was not short. The parties were married for 16 years. They lived together for 14 of those years.

E Whether the property was acquired when the spouses were living separate and apart [ 48 ] The matrimonial home, which is the most significant asset in issue, was acquired during the marriage, but Yolanda’s contribution was acquired by her prior to this marriage. [ 49 ] Yolanda continued to contribute to her pension after separation until her retirement in 2007.

F Dissipation of property by one spouse to the detriment of the other [ 50 ] Yolanda submits that Andrew dissipated property through his involvement in a car detailing proprietorship, New Westminster Undercoating. [ 51 ] In the spring of 1992, Andrew received an inheritance from his mother of between $80,000 and $85,000. Andrew also received monies from the sale of a cabin that he acquired in Saskatchewan, prior to the parties’ marriage.

These were exempt assets estimated together to be about $110,000. [ 52 ] In mid-1992 while still working for the Alberta government, Andrew purchased New Westminster Undercoating, in New Westminster, British Colombia. He said that some of the money from his inheritance was used for that purpose. [ 53 ] Andrew said he discussed this purchase with Yolanda and her response was neutral.

[ 54 ] Yolanda testified that Andrew told her about the purchase, but did not ask for her consent or approval. She did admit that she bought him a book at the time on how to be an entrepreneur. She said she thought the business might make money, but she never expected to receive any proceeds from the business. [ 55 ] Andrew’s primary purpose in purchasing the business was to provide employment for Steve, who was 21 years old at the time.

He also considered that he and Yolanda might move to the coast sometime in the future, and thought this might be a post-retirement opportunity for him. [ 56 ] Andrew testified that he consulted with a cousin who is a chartered accountant. His cousin said that this investment would be “fine just to create jobs”. [ 57 ] Andrew paid $25,000 for New Westminster Undercoating. After purchasing the business, he visited it for at least a four day weekend every six weeks while he was still employed with the Alberta government.

After 1992, he and Yolanda would holiday on the coast and he would spend at least one week at the shop in New Westminster. He also recalls spending two Christmases at the shop. After he retired in July 1997, Andrew spent approximately 1½ weeks out of every two months at the shop. [ 58 ] Andrew testified that the business made money over short periods of time but that never lasted for a full year.

He declared the following net losses with respect to the business: 1992 $16,488.17 1993 $35,066.61 1994 $16,878.53 1995 $23,730.42 (receiving a refund from Canada Revenue Agency of $6,186.72) 1996 $36,901.92 (receiving a refund from Canada Revenue Agency of $13,639.60) 2000 net business income loss of $37,081 (and T4 earnings of $28,708) 2002 $25,703 2003 $20,978. [ 59 ] In 2001, he declared net business income of $11,739.

No information was available for the years 1997, 1998 or 1999. [ 60 ] Andrew agreed that he had to inject cash into the business annually for renting the facility, supplies, payroll, taxes and equipment, some of which would have been from exempt assets and some from assets acquired during the marriage. The building in which they had leased space was eventually sold, and in 2004 they closed down the business. At the time of closing, there was nothing left to sell. [ 61 ] Andrew indicated that at the date of separation in August 2000 he was carrying debt amounting to around $74,507.66.

He admitted that by 2015 or 2016 he had a debt load of around $257,000. He has not asked that Yolanda be responsible for any of his debts in this matrimonial property distribution. G

Summary [ 62 ] The parties were married for a significant period of time and it is an important policy consideration that distribution of matrimonial property should be equal between spouses, unless it would not be just and equitable to do so. [ 63 ] In this case, both of the parties had government careers. They kept their finances separate. They did not comingle their incomes. Andrew retired early in 1997, resulting in a reduced annual income. He discussed his retirement with Yolanda.

He spent most of his $40,000 retirement payout on used cars. [ 64 ] Yolanda paid the majority of the couple’s household expenses prior to separation, and paid all of the expenses for the house and the mortgage, utilities, property tax and insurance until August 2014. [ 65 ] Yolanda loaned money to Andrew to decrease his debt load on several occasions. He repaid at least some of those loans. [ 66 ] Andrew failed to contribute significantly to the maintenance of the matrimonial home and the expenses of marriage.

He did contribute to the upkeep and maintenance of the home through his labour. [ 67 ] Andrew had debt of $74,507 at the time of separation, and of $257,000 in 2015 or 2016. He agrees that his debts should not be factored into the matrimonial property distribution. VI Dissipation [ 68 ] Yolanda alleged that Andrew dissipated assets to her detriment through the New Westminster business. [ 69 ] Andrew told Yolanda about his intention to purchase the business. She thought it might make money, but did not expect to receive any proceeds from it.

[ 70 ] The incomplete evidence on net business losses indicates that Andrew’s business incurred total net losses of over $160,000 up to the time of separation. Andrew agreed that he injected cash into the business annually. Presumably, he used some funds from his exempt assets, his inheritance and the sale of his cabin in Saskatchewan, and his pension income to support the business. The pension money would have, theoretically, otherwise been available to the couple. [ 71 ] Counsel cited Hennesey v Hennesey , 2005 ABQB 883 , [2005] AJ No 1703 on the issue of dissipation.

In that case, the husband alleged that the wife had dissipated property by significant business losses where she had not taken reasonable steps to ascertain whether the investments could reasonably be expected to yield a profit.

The Court at para 74 found that negligent or careless use of matrimonial property, not just its deliberate waste, could constitute dissipation and that it was reasonable to find that a negligently or carelessly incurred investment which turned out to be unprofitable could be seen as constituting dissipation to the extent that it reduced matrimonial property either through assets spent or liabilities incurred. [ 72 ] The Court at para 81 cited Lobo v Lobo , 1999 ABQB 107 , 240 AR 257, and Hunt v Smolis-Hunt , 1998 ABQB 389 , 224 AR 68, aff’d 2001 ABCA 229 , 286 AR 248 for the proposition that a spouse investing matrimonial property has a duty to do so with reasonable care so as to preserve and increase the matrimonial property.

A spouse who has invested negligently cannot expect that a resulting loss will not have an impact on a division of the matrimonial property. [ 73 ] I find that Andrew dissipated matrimonial property in an amount which exceeded the exempt assets he used to purchase and perhaps partially support the business.

The total business losses also exceeded his debt at separation, which he has agreed should not be considered on the division of matrimonial property. [ 74 ] I also note the evidence of Andrew’s expenditure of funds on alcohol, and his pattern of spending on activities which were not of benefit to the marriage, while failing to contribute significantly to joint expenses. VII Matrimonial Home [ 75 ] Yolanda’s contribution toward the purchase of the matrimonial home came from a previous matrimonial settlement. She registered title in her name alone.

She appears to have taken care of the purchase, and she paid off the mortgage.

There was no evidence that she intended to gift any portion of her contribution to Andrew. [ 76 ] I conclude that Yolanda’s contribution of $91,900 is exempt from distribution under s 7(2) as it represents property acquired by Yolanda before her marriage to Andrew, the house and mortgage were solely in her name, and there is no evidence to suggest she intended to gift a portion of the contribution to Andrew. [ 77 ] A variety of possible calculations flow from the evidence: Present value: $435,000 Less purchase price: $129,900 Increase in value: $305,100 Yolanda’s exempt contribution on purchase: $ 91,900 Non-exempt property used on purchase: $ 38,000 Total initial investment: $129,900 Yolanda’s percentage contribution to purchase: $91,900/$129,900 = 70.7467% Increase in value of Yolanda’s investment: 70.75% x $305,100 = $215,848 Increase in value of non-exempt property: $305,100 - $215,848 = $89,252 Non-exempt investment plus its increase in value: $38,000 + $89,252 = $127,252 Current value of home, less Yolanda’s exemption: $435,000 - $91,900 = $343,100 [ 78 ] There are many ways these various contributions and values may be taken into account.

Yolanda Stojak urges an allocation, based upon s 7(3) of the MPA , beginning with an exemption for her initial investment, which I have found to be $91,900, and 70.7467% of the increase in value of the matrimonial home; $215,848, leaving $89,252 to be divided.

Andrew Stojak argues that Yolanda should have an exemption only for her initial investment of $91,900, leaving $343,100 to be divided between them. [ 79 ] I adopt the position taken by Andrew Stojak, recognizing that any unfairness or inequity that this determination may create is best addressed in consideration of s 8 factors. [ 80 ] Matrimonial property is to be distributed equally unless it would not be joint and equitable to do so in light of the s 8 factors: s 7(4).

I have considered all of the s 8 factors, including Yolanda’s more significant financial contribution and Andrew’s contribution to the value of the home through his labour. In my view it is just and equitable to allocate two-thirds of the entire non-exempt value

($343,100) to Yolanda ($228,733), and one-third ($114,367) to Andrew. [81] To summarize, Yolanda is entitled to a total of her exempt contribution and her percentage of non-exempt value ($320,633)and Andrew is entitled to $114,367. VIII Occupation Rent [82] Andrew left the matrimonial home in August 2000. The parties’ son, Russell, was around 10 years old at the time.

Yolandaindicated that she lived in the matrimonial home until August 2014, but that Russell, now almost 27 years old, continues to live there andwishes to buy the house in a transaction that would include a trade of his current condominium. [83] On June 4, 2009, Andrew amended his Counterclaim to add a claim for occupation rent for the period of time from September2000 to November 2009, claiming 50% of what he says would have been a reasonable rent for the matrimonial home over that period. Insupport of that claim, he provided a number of documents (Exhibit 2, Tabs I, J, and

K) in which he set out the methodology by which hecalculated the value of one-half of the estimated rent from September 2000 to November 2009, an addition of $200 per month to accountfor furnishings and equipment, and interest. His research consisted of reviewing classified advertising and Kijiji postings, and calculatingmid-points of the range of rental prices on those listings for each year.

As a result of those calculations, Andrew claims $115,110excluding interest on that amount from September 2000 through November 2009 and $1,019 for the period of time November 2009 toNovember 2016. [84] Counsel for Yolanda objected to this evidence being considered by the Court on the basis that it was irrelevant, and constitutesexpert opinion evidence from a person not recognized by the Court as being qualified to give such evidence.

I determined to hear theevidence but to make a determination at the time of decision as to relevance, materiality, weight and whether or not it constitutedimproper expert opinion evidence.

Counsel also argued that Andrew’s amendment on June 4, 2009 was outside any limitation period forsuch amendment. [85] In Kazmierczak v Kazmierczak, 2001 ABQB 610, [2001] AJ No 955, aff’d 2003 ABCA 227, [2003] AJ No 909, the Courtheld that occupation rent is a discretionary remedy intended to address a common law attribute of the joint ownership of property, andcautioned that much care must be taken in carrying forward the concept into the family law context. The Court set out the factors to beconsidered: 95 ... (

a) The spouse who is not in possession generally should not be entitled to occupation rent if the other spouse is occupying thepremises with the children of the marriage, and is not making a claim for support or a contribution towards the expenses of the house. (

b) Where the spouse in possession does make a claim for contribution towards the expenses of the house, that claim, the cross-claim foroccupation rent, and any claim for spousal or child support should be considered together. The occupation rent would be a potentialexpense item in one party's budget, and a revenue item in the other party's budget. (

c) In many cases it would be simpler just to eliminate the claim for occupation rent from the equation, and deal with child support andspousal support at large. However, given that the Federal Child Support Guidelines now mandate certain levels of support for children,it may be unfair not to include a notional occupation rent in the guideline income and budgets of the parties, at least when consideringspousal support. (

d) The spouse in occupation will generally not be entitled in the matrimonial property proceedings for any credit for the mortgagepayments and taxes paid by him or her. Those payments should be a part of the support equation. The only possible exception is withrespect to the portion of the mortgage payment that actually goes to reduce principal, as notionally one-half of that payment is made onbehalf of the non-occupying spouse. See Balzar v. Balzar [(1990), (MB KB), 67 Man. R. (2d) 196]. However, if theparty in occupation has not adequately maintained the property, and has essentially eroded its capital value, a set-off for the excessivewear and tear might be called for. (

e) There will be cases, such as Scott v. Scott [(1996), (AB KB), 183 AR 103], where the family unit can no longerafford to maintain the previous matrimonial home. If one spouse insists in staying in occupation of the house, and is prepared to makethe necessary financial sacrifices, then fairness may require that occupation rent be included in the overall equation. (

f) Rarely, if ever, should one spouse be able to bank a claim for occupation rent, and present that claim in capitalized form years later aspart of a matrimonial property action. [86] In Smith v Smith, 2016 ABCA 376, [2016] AJ No 1238, the Court of Appeal held at para 21 that where the party with theassets has delayed getting to trial, the date of trial for valuation purposes takes on particular importance because the spouse ultimatelyfound to be entitled to a share in the assets does not have them and the other spouse has the benefit of the entire asset until trial. [87] There is no doubt that in this case there has been significant delay in bringing the matter to trial.

Brief reference was madeduring the trial to an unsuccessful application for dismissal pursuant to Alberta Rules of Court r 4.33, the “drop dead rule”. Yolanda isthe party in this case with the assets, both possession of the matrimonial home and the greater pension value. Andrew has not had accessto or use of a portion of the matrimonial assets. [88] Yolanda argued that she did not cause the delay. Andrew stated that he did not know why it had taken so long for this matterto get to trial.

He explained that he originally had legal counsel, legal counsel withdrew, he then applied for Legal Aid, and he finally puta second mortgage on his house for the purpose for retaining counsel. He said that this was not a planned delay on his part. [89] In this case, Andrew was not in possession of the matrimonial home. Yolanda occupied the home with Russell, who was achild of the marriage until at least 2008. Yolanda makes no claim for support or contribution towards the expenses of the house. There

was evidence that in a much earlier application, some form of support was granted by the Court and Andrew’s government pension was garnisheed through the Maintenance Enforcement Program through which he paid child support of $262 per month, although he refused to pay Court costs. [ 90 ] Andrew’s claim for occupation rent at the present time constitutes a claim in capitalized form years later as part of a matrimonial property action. [ 91 ] I have found that Yolanda is entitled to the majority of the value of the matrimonial home. [ 92 ] In

summary, Yolanda resided in the home until August 2014. Russell was a child of the marriage until at least 2008. He has continued to reside in the home since Yolanda left it in 2014. Yolanda has paid the majority of the expenses relating to the home since she purchased it. She is not claiming any contribution towards the expenses, although her payment of expenses was factored into the decision on distribution of the value of the home.

Andrew has “banked” the claim for occupation rent, and presented it in capitalized form years later as part of this matrimonial property action. [ 93 ] Having considered the evidence and the applicable factors, I dismiss Andrew’s claim for occupation rent. IX Pension Entitlements [ 94 ] Yolanda submitted that the parties should keep their own pensions.

Andrew argued that each party is entitled to 50% of the distributable portion of each other’s pension. [ 95 ] Both parties started their pensionable service with the Alberta Government before they began cohabiting. [ 96 ] The parties agreed that the joint accrual period should begin on the date of marriage, being July 5, 1986. [ 97 ] Andrew began drawing his pension in 1997 and currently receives a monthly government net pension of around $1,585. As noted above, Yolanda began receiving a government net pension of $6,500 per month in 2007.

Pension valuation must consider more than just the period of time over which employee contributions are made, particularly in defined benefit plans such as the government pensions. The factors are far more complex, and require the involvement of Alberta Pension Services. Likewise a joint accrual period for named persons cannot end at the date of final individual employee contributions. [ 98 ] Yolanda submitted that the joint accrual period for both pensions should end on the date of separation, August 24, 2000.

Andrew argued that it should end on the date of divorce, February 2, 2002. [ 99 ] The evidence establishes that the parties functioned more or less completely independently after separation.

There is no suggestion in the evidence that Andrew did anything during the separation and before divorce that assisted in enabling Yolanda to earn the portion of her pension relating to the period from August 2000 to February 2002. [ 100 ] I conclude that the joint accrual period for both pensions ends on the date of separation, August 24, 2000. [ 101 ] As for each party’s percentage entitlement to the other’s pension, the portion of the parties’ pensions acquired during the course of the marriage is matrimonial property subject to the presumption of equal division; s 7(4) MPA . [ 102 ] Yolanda contributed to her pension throughout the marriage.

She retired after 35 years of pensionable service. [ 103 ] Andrew chose to retire at age 55 with 21¾ years of pensionable service. He contributed to his pension for 11 years of the marriage. He did discuss with Yolanda his decision to retire early. There is no evidence that he had any further gainful employment after retiring until after the divorce. [ 104 ] I have thoroughly considered, as set out above, all of the s 8 factors which are relevant to the parties.

Given all the circumstances, I conclude, for the same reasons set out above with respect to the division of the value of the matrimonial home, that Yolanda is entitled to a greater percentage of that portion of her pension which is divisible between the parties. Specifically, I find that it is just and equitable that Yolanda be entitled to two-thirds and Andrew to one-third of that portion of Yolanda’s pension which was earned from the date of marriage to the date of separation. The portion of Andrew’s pension which is divisible between the parties shall be divided 50/50.

Each pension is valued as at the date of trial. X Paintings [ 105 ] There is some dispute over a number of paintings left in the matrimonial home: a Kerr painting, a Townsend, a Steveston, and a Mexican street scene. [ 106 ] Andrew claims two of the four paintings. [ 107 ] Yolanda testified that she brought into the marriage a Kerr print with a value of $90 and the Kerr painting, which she later donated to the Edmonton Art Gallery.

She also said that she owned the Townsend painting prior to the marriage. [ 108 ] The evidence is clear to the effect that the Kerr was brought into the marriage by Yolanda and is no longer available as she has donated it to the Edmonton Art Gallery. It is also clear that the Townsend was brought into the marriage by Yolanda and is exempt from distribution.

[ 109 ] The Steveston and the Mexican street scene paintings were acquired during the course of the marriage. I direct that Andrew choose which of those paintings he wishes to keep, and that Yolanda turn over that painting upon being advised of his choice. I deem this to amount to an equal distribution of the paintings. XI Conclusion [ 110 ] In the above Reasons I made the following conclusions, which are set out here in

summary form for the assistance of counsel and the parties: 1. the sum of $91,900 invested in the matrimonial home is exempt in the hands of Yolanda Stojak; 2. the remaining current value of the matrimonial home, $343,100, is to be divided two-thirds to Yolanda ($228,733) and one-third to Andrew ($114,367); 3.

Andrew’s application for occupation rent is dismissed; 4. the pension joint accrual period for each of Andrew’s and Yolanda’s pensions begins on the date of marriage and ends on the date separation; 5. joint accrual of pensions, valued as of the date of trial, shall be divided as to Yolanda’s pension, two-thirds to Yolanda and one- third to Andrew; and as to Andrew’s pension, 50% to each of Yolanda and Andrew; and 6. Andrew Stojak is directed to select one of the Steveston or the Mexican street scene paintings and Yolanda is directed to turn it over upon being advised of his choice.

XII Costs [ 111 ] If the parties are unable to agree to costs, they are invited to speak to the matter within 30 days of the date of this decision. Heard on the 5 th day of December, 2016. Dated at the City of Edmonton, Alberta this 23 rd day of December, 2016. K.P. Feehan J.C.Q.B.A. Appearances: Michael Pollock Pollock Murdoch Bowbell for the Plaintiff/Defendant by Counterclaim Michael Furman Glenora Law Office for the Defendant/Plaintiff by Counterclaim