Strydhorst v Strydhorst, 2017 ABQB 134

Court of Queen’s Bench of Alberta Citation: Strydhorst v Strydhorst, 2017 ABQB 134 Date: 20170227 Docket: 4803 156025 Registry: Edmonton Between: Carmen Michelle Strydhorst Plaintiff - and - Chad Strydhorst Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Douglas R. Mah _______________________________________________________ [ 1 ] I gave oral judgment in this matter on December 1, 2016, reserving solely the issue of amount of spousal support for the period June 1, 2016 to December 31, 2019. I asked counsel for written submissions on this remaining issue because (

a) Ms. Ramos, on behalf of Carmen Strydhorst, provided me with figures based on 2014 and 2015 income, and (

b) Mr. Dupres, on behalf of Chad Strydhorst, having taken the position that spousal support was no longer payable, provided me with no submissions as to amount. Counsel obliged me by providing written submissions dated January 23, 2017 (Ms. Ramos) and January 30, 2017 (Mr. Dupres). [ 2 ] I canvassed the factual background of this case in considerable detail in the oral judgment but for the benefit of anyone reading this decision, I will reiterate some essential facts. The parties were married in 1999 and separated either in late 2010 or early 2011. There are three children of the marriage, now 13, 11 and 8.

During the marriage, Mr. Strydhorst was the primary wage-earner and Ms. Strydhorst had the primary role of caring for the children. Throughout the marriage, Ms. Strydhorst was financially dependent on Mr. Strydhorst. The parties had joint custody of the children following separation. In May, 2013 Mr. Strydhorst took advantage of an opportunity presented to him by his employer for overseas deployment. To facilitate this opportunity, Ms. Strydhorst assumed sole

custody of the children. Mr. Strydhorst was posted to Saudi Arabia for a period of three years, during which time he earned significantlymore compared to his Alberta employment. The parties were granted a divorce judgment in 2014. By the time of his return in May, 2016,Mr. Strydhorst had entered into a new relationship. They married later in the year. Mr. Strydhorst acquired additional land, upon whichhe has constructed a new residence. He also has acquired more farmland which is currently being rented. His eventual plan is to return tofarming in addition to his employment.

His new partner has a child from her previous relationship and the three have formed a de factofamily unit. I was told at trial that the father of this child does not contribute to the child’s support, so the burden falls to Mr. Strydhorst.Ms. Strydhorst has not remarried. [3] Historically, Mr. Strydhorst was ordered to pay spousal support from the date of separation until March 31, 2014 in the sumof $1,350 per month and the sum of $1,800 per month from April 1, 2014 until May 1, 2016. Spousal support thereafter was to be amatter for trial. Mr. Strydhorst asserted at trial that Ms.

Strydhorst’s entitlement to spousal support had been extinguished but I foundotherwise. [4] The trial of this matter lasted five days last November with issues of child custody, child support (both prospective andretroactive),

section 7 expenses (both prospective and retroactive), entitlement to further spousal support and matrimonial property allbeing decided. Some of the issues at trial were decided in favour of Ms. Strydhorst and some were decided in favour of Ms. Strydhorst.In fixing Mr. Strydhorst’s income for 2014 and 2015 for the purposes of adjusting retroactive child support, I applied

section 4 of theFederal Child Support Guidelines to limit inclusion of income above $150,000 to a further $35,000 (for a total of $185,000) in 2014 anda further $50,000 (for a total of $200,000) in 2015. I did so after hearing all of the trial evidence and “having regard to the condition,means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute tothe support of the children” as directed by that section. As a result, Ms. Strydhorst is receiving less in retroactive child support than sheanticipated. Ms. Ramos is also concerned that my recognition of certain

section 7 expenses incurred by Mr. Strydhorst will furtherreduce the net amount that Ms. Strydhorst receives. Ms. Ramos now asks me to take this into account in looking at the remaining issueof amount of spousal support. In particular, Ms. Ramos asks me to consider awarding current (that is, from June 1, 2016 to December 31,2019) spousal support using what she views as Mr. Strydhorst’s unreduced historical income. Further, or in the alternative, Ms. Ramosasks that I not include child support payments for the purposes of spousal support calculations. She proposes on behalf of Ms.

Strydhorsta monthly spousal support payment of $6,000 for the period May 1, 2016 to December 31, 2019. [5] Mr. Dupres argues that Mr. Strydhorst’s historical guideline income, already established by oral decision in the context ofchild support, cannot be relitigated under the guise of spousal support, nor should current spousal support be based on historical (versuscurrent) income, no matter what it may be. He also feels that any credits Mr. Strydhorst receives will have relatively minor effect in theoverall scheme of things. [6] First of all, I don’t think the fact that Ms.

Strydhorst’s expectations from the trial were not completely met is a reason forusing an artificial income figure for the purposes of the residual spousal support issue. While I may not agree with the way Ms. Ramos’calculated Mr. Strydhorst’s income for spousal support purposes, I do not find it necessary to comment further given how I intend to dealwith the applicability of the Federal Spousal Support Advisory Guidelines (SSAG). [7] It is common ground here that Mr. Strydhorst’s current income (as of May 1, 2016) is $120,809 per annum while Mrs.Strydhorst’s is $44,861.

He was a high income earner in the years 2013, 2014, 2015 and the first four months of 2016 due to beingposted overseas to Saudi Arabia for employment. He returned to Alberta as of May 1, 2016. Both counsel provided ranges under theSSAG using current incomes which are nearly the same. I will quote Mr. Dupres’ range for discussion since it is nominally higher, with alow point of zero and a high point of $526 per month. The amount of $280 (the midpoint) has been proposed on behalf of Mr. Strydhorst. [8] The Court of Appeal has commented on the applicability of the SSAG on several occasions.

Notably, for example, inSawatsky v Sawatsky, 2008 ABCA 355, the Court states at para 17: While we recognize that the Guidelines were not intended to impose a radically new approach and were instead intended to suggest arange of both amounts and duration of spousal supports that reflects the current law, they cannot be used as a formula or a software tool.We agree with the New Brunswick Court of Appeal that they are best used as a useful “cross-check” or “starting point” for spousalsupport that “will help in the long run to bring consistency and predictability to spousal support awards”, encourage settlement and allowparties to “anticipate their support responsibilities at the time of separation”: S.C. v.

J.C. (2006) 2006 NBCA 46 , N.B.J No.186, at para 5, leave to appeal to SCC refused [2006] SCCA No. 246. However, they do not and cannot take the place of analysis of therelevant provisions of the Divorce Act. [9] More pointedly, Germain J says in Modry v Modry, 2005 ABQB 262 at para70: I suggest that courts will likely use these Guidelines as a bench mark to see what the support amount would be if the Guidelines wereapplied. Thus it will serve as another method of calculation, which when coincidentally echoing judicial discretion, will becomereferenced with approval.

In other cases where the courts are either astounded by the payment proposition, that is that the math creates anumber that is perceived to be too high or inadequate, the courts will shy away from its application. [10] In my view, this is one of those cases where the payment proposition is astoundingly low, even at the highest end. The SSAGhave the most utility in determining overall spousal support having regard to both duration and amount. In this case, there has alreadybeen a history of spousal support and a relatively short finite period going into the future has been established. Looking at Mr.

Dupres’submission as an example, the formula results are premised on a minimum duration of 5.5 years and maximum of 11 years, which areclearly not applicable here. Using the current incomes of both parties, the application of the SSAG produces a woefully inadequateamount having regard to the circumstances of this case, particularly the strong compensatory component of Ms.

Strydhorst’s claim.Accordingly, while I receive the formula results from both counsel as information, I find I must turn to the factors and objectivesoutlined in the Divorce Act to come to a fair result. [11] Those factors and objectives are: Factors

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

a) the length of time the spouses cohabited; (

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

c) any order, agreement or arrangement relating to support of either spouse. Objectives of spousal support order

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

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

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

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

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 12 ] Mr. Dupres made submissions based on a comparison of the net disposable income of the parties irrespective of the SSAG . As for Ms. Ramos’ submission, rather than artificially rejig Mr. Strydhorst’s income for SSAG purposes, I will treat the applicable arguments as addressing spousal support outside of the SSAG . [ 13 ] Ms. Ramos made three primary arguments as to why I should fix spousal support at a level higher than the SSAG formula results using current income.

First, she argues that Mr. Strydhorst exercised “controlled release” of his financial information which hampered Ms. Strydhorst in her ability to claim spousal support in the past. Second, Ms. Strydhorst provided Mr. Strydhorst with the ability to pursue his opportunity in Saudi Arabia by taking sole care and custody of the children during the 2013-2016 period. Third, she argues that I should take no account of the new financial obligations undertaken by Mr.

Strydhorst with respect to his new spouse and family in view of his primary obligation to his former spouse. [ 14 ] I might have had cognizance of the first argument about delayed financial disclosure if Ms. Strydhorst had sought retroactive spousal support but she did not. Now we are only dealing with spousal support for the period May 1, 2016 and onward for which there is sufficient financial information. I did consider this argument when I dealt with retroactive child support. [ 15 ] The second ground advanced by Ms. Ramos, in my view, is the most compelling. Mr.

Dupres points out that my decision about duration took into account Ms. Strydhorst’s role in facilitating Mr. Strydhorst’s Saudi Arabia opportunity. That is correct but it does not end there. Ms. Strydhorst’s role in that regard is also a factor that helps to establish amount. There is no doubt that Ms. Strydhorst assumption of sole care and custody for that period allowed Mr. Strydhorst to take advantage of a lucrative financial opportunity. [ 16 ] With regard to the factors in subsection (4), I note that during this 11 year marriage, Mr.

Strydhorst was the primary wage- earner and the family was dependent on his earnings. Ms. Strydhorst worked part-time at times but was primarily responsible for the home and care of the children. This arrangement enabled Mr. Strydhorst in his career. Their roles during Mr. Strydhorst’s Saudi Arabia deployment is an extension of their roles during the marriage, with an even greater child care burden falling to Ms. Strydhorst than before. Accordingly, there is a strong compensatory component to determining the amount. [ 17 ] Ms.

Strydhorst has argued that the Saudi Arabia income was converted into new assets for Mr. Strydhorst in the form of a newly constructed home and mechanical shop and additional farmland, as well as paying for a destination wedding. It is a reasonable assumption, I think, that some of the Saudi Arabia earnings were used to in some way to acquire new assets but I also heard at trial that at least the farmland is currently financed. At any rate, it is sufficient to say Ms. Strydhorst’s role facilitated Mr. Strydhorst’s Saudi Arabia experience. Her child care responsibilities limited her own opportunities.

It is proper here to recognize Ms. Strydhorst’s contribution to the Saudi Arabia income as part of the Divorce Act objective of apportioning the financial consequences arising from the care of the children, by establishing an appropriate amount of spousal support. [ 18 ] It is primarily because of Ms. Strydhorst’s facilitation of Mr. Strydhorst’s Saudi Arabia opportunity, which occurred post- separation, which takes this case out of the ordinary and makes the SSAG such a bad fit. [ 19 ] Third, while Mr. Strydhorst has not particularly made an argument about undue hardship, I accept the authorities cited by Ms.

Ramos ( Locke v Ledrew , 2006 ABQB 452 and Hanmore v Hanmore , 1999 ABQB 301 ) and take no account of any new familial obligations taken on by Mr. Strydhorst since the breakup with Ms. Strydhorst. [ 20 ] I will now consider the remaining objectives of spousal support in the Divorce Act . [ 21 ] Based on what I heard at the trial, I would characterize the amounts of spousal support paid as barely adequate. It is clear from the trial evidence that the economic disadvantages of the marriage breakdown have been most keenly felt by Ms. Strydhorst.

In particular, her living accommodation has been for the most part provided through the charity of her father. Given her somewhat limited employment opportunities at present, the only way to provide some measure of relief from financial hardship arising from the breakdown of the marriage is to make a substantial order for spousal support. [ 22 ] Next I will deal with the promotion of self-sufficiency. Limiting the period of spousal support to the end of December 2019 provides a sufficient period, in my view, for Ms. Strydhorst to transition to full-time employment. She is an educated person who works

in a professional field. According to the employment letter of August 15, 2016, Ms. Strydhorst has already requested full-time hours and her opportunity is only limited by demand in the market at this time. The finite end date serves the purpose of encouraging self- sufficiency. [ 23 ] I recognize Mr. Dupres argument about the comparison of net disposable income. No doubt Mr. Strydhorst will be strapped to meet all his obligations. However, I commented during my reasons following the trial that Mr. Strydhorst made good money in Saudi Arabia and should have realized that a day of reckoning was in the offing.

He knew the trial was upcoming and the issues that would be decided in the trial. If he improvidently took on new assets or new debt, those are decisions that should not be visited upon Ms. Strydhorst. I suggested to counsel that Mr. Strydhorst may well want to consider selling some assets in order to clear off his obligations to Ms. Strydhorst arising from this trial if, as appears to be the case, he has insufficient cash flow. [ 24 ] Having regard to the factors and objectives discussed above, I fix the amount of spousal support payable by Mr. Strydhorst to Ms.

Strydhorst at $2,000 per month for the period May 1, 2016 to December 31, 2019. Heard on the 14 th to 18th day of November, 2017. Dated at the City of Edmonton, Alberta this 27 th day of February, 2017. Douglas R. Mah J.C.Q.B.A. Appearances: Ning Ramos Ning Ramos Professional Corporation for the Plaintiff Mark Dupres Long Family Law Group for the Defendant