Sisco v Sisco, 2017 ABQB 100

Court of Queen’s Bench of Alberta Citation: Sisco v Sisco, 2017 ABQB 100 Date: 20170214 Docket: 4801 152094 Registry: Calgary Between: Melvin Joseph Michel Sisco Plaintiff/ Defendant by Counterclaim - and - Charmaine Patricia Sisco Defendant/ Plaintiff by Counterclaim _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.J. Hall _______________________________________________________ [ 1 ] The parties proceeded to trial. Both seek a divorce.

In addition, they seek a distribution of matrimonial property. [ 2 ] The grounds and residency requirements for divorce have been met, the marriage certificate is in evidence, and there is no chance of reconciliation. I am satisfied that the divorce is appropriate and in order, and accordingly I grant the divorce. [ 3 ] The husband’s counsel is directed to prepare a stand-alone divorce order for approval by opposing counsel and then provide it to me for signature.

To the extent that it is necessary to sever the divorce from the matrimonial property, I will also provide that order, so that the divorce can proceed forthwith.

[ 4 ] The remaining issue at trial is the distribution of matrimonial property. There is presently the sum of $111,461.54 in the husband’s solicitor’s trust account, being the net amount realized from sale of the matrimonial home after payment of the mortgage, legal fees, registration charges and adjustments. It is the proper distribution of those funds that is in issue. The parties have each placed into evidence, their proposed distribution of matrimonial assets for the Court’s consideration. [ 5 ] The husband gave evidence, as did the wife. In rebuttal, the husband called the evidence of Mr.

Ronald Adams. [ 6 ] The husband gave his evidence in a forthright manner, responding appropriately to all questions put to him, both in his direct examination and in cross-examination. So also did Mr. Adams. [ 7 ] The wife, however, was a difficult witness. She was argumentative and confrontational to opposing counsel. She interrupted cross-examination questioning on repeated occasions, despite my instructions that she cease to do so. She was evasive in her responses. She took inconsistent positions repeatedly.

For example, she maintained that an extensive hockey card collection which was acquired during the marriage, partly by gift, partly by purchases made by her and partly by purchases made by the husband, was solely her property. Yet, when it came to the tools which were acquired during the course of the marriage, partly by gift, and partly by purchase, and which were taken by the husband on separation, the wife maintained she should have a half-interest in them. [ 8 ] The wife acknowledged that, during marriage and while cohabitating, the couple acquired two trucks.

On separation the husband took the newer of the two trucks, and the other was left to her. She failed to maintain insurance on the truck left to her, or alternatively failed to insure it for collision damage (her evidence on the point was unclear). [ 9 ] Her son took the truck and drove it into an accident, such that it was not worth repairing. In her evidence, the wife did not accept the proposition that she had received that truck and that while it was in her care, its value had been dissipated.

She maintained that there was no value in that truck because of the accident; yet she claimed half of the purchase price of the truck kept by her husband. [ 10 ] The wife complained that the parties increased their debt load towards the end of their cohabitation by drawing on lines of credit.

Yet the monies drawn were co-managed by her and her husband and were used for their mutual benefit. [ 11 ] The wife claimed $6,800 in spousal support arrears, but then later, after extensive cross-examination, admitted that all such arrears had been paid to her through the collection efforts of the Maintenance Enforcement Program. [ 12 ] The wife obtained exclusive possession of the matrimonial home, where she lived with one of her sons and his girlfriend, one of her daughters and her boyfriend, and a number of other people, from time to time. She maintained that none of them paid her any rent.

Throughout the period in which she resided in the matrimonial home after separation, the husband was making all the mortgage payments, which included property taxes. He also paid all of the insurance premiums to insure the house. [ 13 ] In the summer of 2014 the wife failed to pay the utilities charges, which resulted in the power, heat and water being cut off. She allowed that situation to continue, without notifying her husband, into the winter months. The husband learned of this when the parties were in court before Justice Tilleman.

Justice Tilleman ordered that the parties pay the utilities bills and get the power, water, and heat restored to the house. [ 14 ] The husband paid the bill to have the utilities turned back-on. He had to attend at the house for that purpose. It appeared to him to be abandoned. He took pictures of the filth in the house, damage to the doors, a toilet filled with frozen excrement, garbage strewn about the house, and water damage from broken pipes. He hired a plumber who replaced 10 pipes which had split because they had frozen. Photographs of those split pipes were entered into evidence.

The husband was intending to have the plumber fix the basement pipes the next day, but, inexplicably, the wife called the police and had the husband removed from the home; the result being that the basement pipes were never repaired and water could not be supplied to the home. [ 15 ] Notwithstanding that there was no water to the home, the wife denied, in cross-examination, that the house, in such a condition, had become unfit for habitation. She said she borrowed water from the neighbour.

Eventually she did acknowledge that a house with broken pipes and no water was worth less than it would be if it had sound pipes and running water. [ 16 ] In the result, where I am called upon to make findings of credibility to resolve an issue in the action, I prefer the evidence of the husband to the evidence of the wife. [ 17 ] With that background, I will turn to the debits and credits claimed by the parties. [ 18 ] Both of the parties start off with an equal distribution of the net sales proceeds in relation to the matrimonial home, crediting $55,730.77 to each. I agree.

See Jensen v Jenson , 2009 ABCA 272 at para 20 . [ 19 ] The husband’s next entry in his proposed distribution is entitled “Unpaid Spousal Support”. It covers a period from when the parties separated in November of 2011 to when he was first ordered to pay spousal support starting June 1, 2014. He calculates it at the amount later ordered of $850 per month for a total of $26,350. He reduces that amount by 20% to reflect the taxes he has had to pay without the deduction of spousal support. [ 20 ] This trial was not about spousal support.

However, this entry in the husband’s calculation is a proper one, except that I do not allow the 20% reduction for tax. If the husband had made monthly payments in a timely fashion from separation on, he could have claimed a tax deduction for those payments; but he did not. The wife did not have use of the funds in that timely fashion. The husband’s claim for tax deduction is denied. [ 21 ] The wife maintains that this is an improper way to deal with this aspect.

She says that, although the husband was not paying spousal support from the time of the separation until the order made effective on June 1, 2014, he was paying the mortgage payments. She argues that those mortgage payments should be treated as being payments made in lieu of spousal support and be treated as if they were spousal support payments. She takes that position in order to say that, when the husband later claims a deduction for the mortgage

payments that he has made, he should not be able to claim the mortgage payments from separation to June 1, 2014, because they stood in lieu of spousal support payments. [ 22 ] I do not agree with the wife’s position. It is clear that Justice Poelman’s order, effective June 1, 2014, required the husband to commence payment of spousal support in the amount of $850 per month; however, his order also required the husband to continue to make the mortgage payments. This belies the suggestion that the mortgage payments were in lieu of the spousal support payments.

There is no merit to the wife’s position in that regard. [ 23 ] Accordingly the wife will receive a credit of $26,350 being the amount not yet paid for spousal support from separation to June 1, 2014; and the husband will have a corresponding deduction from his share. [ 24 ] Next in the husband’s proposal is his payment of utilities which was ordered by Justice Tilleman to be paid so that the utilities could be restored. The husband paid $3,596.82.

He maintains that all of that expense was the wife’s responsibility and was paid for her benefit; since she was responsible for the utilities while she had exclusive possession of the home. [ 25 ] The wife argues that Justice Tilleman ordered the expense to be split between them. Therefore, even though she paid none of it, she maintains that only one-half of the payment made by the husband should be credited to him and debited against her. [ 26 ] I have reviewed Justice Tilleman’s order and the transcript in relation to that order.

It is clear that Justice Tilleman ordered the parties to share the costs of restoring the utilities. He made no determination, in doing so, as to the ultimate responsibility for payment of those utilities costs. I agree with the husband. He is to be credited with the whole of the $3,596.82 which he paid, which will come out of the wife’s portion. [ 27 ] The husband made all the mortgage payments, proven at a total of $46,024.85, until the property was sold, and all of the home insurance premiums at a total of $4,859. He maintains those payments were to the benefit of both him and his wife, and I agree.

He is to be credited one-half of those payments to come out of the wife’s portion. [ 28 ] The husband took a Rustler trailer when he separated. He valued that trailer at $4,000 at the date of trial. He said I should credit the wife with one-half of that amount. I accept his valuation and I agree with the treatment that he proposes. [ 29 ] The Ford F-150 is the truck that was transferred to the wife and which was written off in the accident while in her possession.

The husband maintains, from research that he has recently done, that the value of that vehicle at the time of trial, if it had not been lost, would have been $6,000. I find that valuation to be reasonable. I find that the vehicle’s dissipation is the responsibility of the wife. She failed to insure it for collision damage. Her son drove it, either by theft (which she denied) or by virtue of her having given him permission (which she also denied).

A $3,000 credit goes to the husband and an equal deduction as applied to the wife. [ 30 ] The husband maintains that the F-250 truck, which was purchased from the parties’ funds in the last month before separation, and which the husband kept thereafter, has a value at trial of $8,000, again based upon research which he had done. The vehicle was purchased for $19,500. [ 31 ] The wife maintains that she has no use of the F-250 truck and that the husband purchased the truck with family funds, knowing that he was going to separate from the wife.

She maintains that it is as if he had taken the money from a joint bank account at the time of the separation, when half of it should have been hers. She further maintains that the value of the vehicle should be left at the $19,500 at the time of separation, rather than its value at trial. [ 32 ] Again, I accept the position put forth by the husband. When he left, each party was left with a truck. Each party had a one-half interest in each truck. Each of the parties had the use of a truck.

The trucks depreciated over time, as vehicles do. [ 33 ] The Court of Appeal has indicated that, when dividing matrimonial property, the starting point is the value of the property at the date of trial: Hodgson v Hodgson , 2005 ABCA 13 at para 2 . In the case of a vehicle, that is entirely appropriate, and is not altered by consideration of the factors enumerated in

section 8 of the Matrimonial Property Act , RSA 2000, c M-8. [ 34 ] Accordingly, a credit of $4,000 in relation to the F-250 truck goes to the wife, and a corresponding debit of $4,000 to the husband, with the husband keeping the truck. [ 35 ] There is a hockey card collection that was kept by the wife upon separation. The wife said that she gifted it to her son. The parties agree to a value of $3,000.00. [ 36 ] The collection was acquired during the course of the marriage and is matrimonial property. The wife has allowed its dissipation by giving it away.

The husband is therefore to receive a $1,500 credit and the wife’s share of the property is decreased by $1,500. [ 37 ] The husband puts forth a claim relating to a Native art collection, which he valued at $2,500. He says the wife kept the full collection. The wife valued it at $1,000. However, she says that she gave the husband half of that collection by leaving it in the garage for him to collect. [ 38 ] In rebuttal the husband called Mr. Ronald Adams. Mr. Adams attended the garage with the husband.

He gave evidence that there was no Native art in the garage and none was removed by him or the husband. [ 39 ] I prefer the husband’s evidence and that of Mr. Adams’ to that of the wife. I further accept the husband’s valuation of $2,500. Therefore he is to be credited $1,250, to come out of the wife’s portion. [ 40 ] The husband values the home chattels, kept by the wife, being the furniture, appliances, electronics and the like, which were left in the house, at separation, at $5,000. He admitted that was his estimate of a replacement cost and not their value. The wife valued

the home chattels at $4,000. I will accept her valuation, since replacement cost is not the appropriate means of assessment of their value. Therefore, the husband is to be credited $2,000 and the wife’s interest is decreased by $2,000. [ 41 ] The husband says that he took two guns with him that were worth $260 such that the wife should be credited $130. I agree. [ 42 ] The husband took tools, a compressor and generator.

He valued them at $950 and proposes that a $475 credit go to the wife. [ 43 ] The wife maintains that he took not only tools, the compressor and generator, but also camping gear, guns, a bow and arrow and other items in the garage. She values the items collectively at $2,500, and seeks to have the husband charged with one-half of that value, being $1,250. [ 44 ] The husband denies that he took camping gear other than a tent that was in the camper, and said that the wife kept his bow. [ 45 ] As I have already indicated, in respect of credibility matters, I prefer the evidence of the husband.

I accept his valuation for the tools, compressor, and the generator at $950, such that a $475 credit goes to the wife. [ 46 ] In his proposed distribution of matrimonial assets, the husband maintains that there has been a loss in value of the home of some $41,500, which he attributes to the neglect of the wife in properly maintaining the home. [ 47 ] The husband put forth evidence that, in 2015, the City of Calgary had assessed the property, for property tax purposes, at $341,500.

The husband notes that the property in fact sold for $300,000; and hence his figure of $41,500 for lost value because of the wife’s neglect. [ 48 ] In argument, however, counsel for the husband conceded that $41,500 for some relatively cosmetic damage to the home and the damage to the basement pipes that had not been repaired, was excessive. He suggested, instead, that the amount should be $18,000, being 6% of the $300,000 sale price.

He rationalized that by saying that an appraisal done in 2014 and marked into evidence was 6% less than the City’s appraisal, and the appraisal indicated that items in the house were in disrepair. Therefore he urges the Court to find that the disrepair was responsible for the 6% difference. [ 49 ] He then says that 6% should be added to the $300,000 sale price as being the appropriate value for the property if the property had not been in disrepair. [ 50 ] Counsel for the wife maintains that repairs had been made to the house such that the only remaining repairs to be done were the repairs to basement piping.

She maintains that such repairs would not be nearly as expensive as was suggested by counsel for the husband, and recommends that the Court arrive at a lower number for the loss in value of the property as the result of the neglect (ie dissipation) by the wife. [ 51 ] This is not a matter of credibility but rather a matter of reasoning from the facts. [ 52 ] I am of the view that the amounts being claimed by the husband under this heading are too large. I fix the loss attributable to neglect (dissipation) by the wife at $6,000.

Accordingly, the husband is to be credited $3,000 under this heading with a corresponding debit to the wife in the same amount. [ 53 ] At trial, the husband gave evidence that he had paid an additional $1,800 for utilities on a previous occasion, and that after he had the utilities turned back on, he paid another $350 per month for three months in utilities payments which were not being made by the wife. [ 54 ] The husband’s counsel claims that those utilities payments were the responsibility of the wife, and that the husband should be reimbursed from the wife’s share of the proceeds.

However, in respect of both of these categories of utilities payments, the husband gave evidence that he was not claiming reimbursement for them. Accordingly, counsel for the wife did not cross-examine upon them. It would be unfair to now allow such a claim to be put forward. Accordingly, I allow nothing for those payments made by the husband. [ 55 ] The wife claims, and the husband concedes, that he had stock options from his employer which were earned during the course of the marriage, and which he personally cashed in after separation. Those stock options had a value of $6,000.

The wife claims a right to one-half of those proceeds, such that she would be credited $3,000 with a corresponding debit to the husband. I agree and I so order. [ 56 ] Shortly before the parties separated, the husband signed up for a Tax Free Savings Account, whereby, from every paycheque (twice a month) an amount of $200 would be paid into a Tax Free Savings Account directly by his employer, rather than being paid to the husband.

The wife claims that, over the course of time that the TFSA employee contributions have been made, there would have been $24,000 paid into a Tax Free Savings Account by the employer out of the husband’s paycheques.

She maintains that she should be credited with one-half of that amount, ie $12,000, with a corresponding debit to the husband. [ 57 ] The husband’s payslips show that he was not paid an additional $200 to go into a Tax Free Savings Account; rather, the $200 per paycheque was taken out of monies which he had earned. [ 58 ] The husband gave evidence to say that he was unable to keep that money in a Tax Free Savings Account because he needed it for living expenses. Accordingly, he says that he has withdrawn all of that money over the course of time since separation, in order to pay for his expenses and obligations.

He says that no amount has accrued to the Tax Free Savings Account, and it has a balance of zero. [ 59 ] Accordingly, he says this $200 per paycheque is no different than any other income which the husband earned and which was placed into his bank account. No monies are in that account. The husband was unable to afford to save $200 per paycheque, and accordingly drew upon that account just as he would draw upon his normal chequing account. [ 60 ] I find that there is no merit to the submission by the wife that she should have credit for half of the amount that was paid into

the Tax Free Savings Account. [ 61 ] The foregoing has the effect of dividing the matrimonial property equally between the parties, giving credits and debits as appropriate. [ 62 ] The wife gave evidence that she was impoverished, and that she left her job, initially going onto long term disability for eight months, then returning to her job part-time for a short period before quitting. She gave evidence that she had health concerns, including suffering from depression. She gave no evidence that she ever attempted to return to employment beyond what is mentioned above.

She called no medical evidence to support the contention that she was unable to return to work. [ 63 ] Accordingly, I find there is no basis for an unequal distribution of matrimonial property. The wife had received spousal support which was initially assessed at $850 per month on a chambers application by Justice Poelman; and which was confirmed at $850 a month by Madam Justice Campbell after a full two day spousal support trial.

In these Reasons I have credited her with similar spousal support from the date of separation to the date of the first spousal support order, such that she has received, or will be receiving, spousal support throughout, and indeed, into the future. [ 64 ] For these reasons, there is no basis for the Court to order a further variance from the amounts awarded above. [ 65 ] The parties are directed to recalculate the distribution of matrimonial assets pursuant to the Reasons herein, and thereafter to prepare an order reflecting the amounts to be received by each party from the matrimonial property. [ 66 ] The parties may address me with respect to costs, as well as payment of costs out of the matrimonial assets.

Heard on the 19 th day of January, 2017 to the 20 th day of January, 2017. Dated at the City of Calgary, Alberta this 14 th day of February, 2017. R.J. Hall J.C.Q.B.A. Appearances: George D. Roszler for the Plaintiff/Defendant by Counterclaim Abimbola Delalu for the Defendant/Plaintiff by Counterclaim