CMK v GSK, 2017 ABQB 319

Court of Queen’s Bench of Alberta Citation: CMK v GSK, 2017 ABQB 319 Date: 20170509 Docket: 4803 161308 Registry: Edmonton Between: C.M.K. Plaintiff - and - G.S.K. Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.P. Feehan _______________________________________________________ I. Introduction [ 1 ] C.M.K. (“Ms. K.”) and G.S.K. (“Mr.

K.”) seek a divorce pursuant to the Divorce Act , RSC 1985, c 3 (2 nd Supp), as amended ( Divorce Act ), and division of their matrimonial property pursuant to the Matrimonial Property Act , RSA 2000, c M-8, as amended ( MPA ). Additionally, Ms. K. seeks retroactive and continuing spousal support pursuant to the Divorce Act . II. Overview [ 2 ] Ms. K. is 62 years of age. Mr. K. is 68 years of age. This was a second marriage for each of them. Ms. K. has four adult sons from her previous marriage and Mr. K. has an adult son and daughter from his previous marriage. There are no children of the marriage. [ 3 ] Ms.

K. and Mr. K. began cohabiting on August 31, 2007, were married on November 9, 2007, and separated on August 31, 2011 (exh 1). [ 4 ] Ms. K. has a Bachelor of Education degree and an Alberta Permanent Professional Teaching Certificate. She taught for Edmonton Catholic Schools until her first son was born in 1984, continued to teach English as a Second Language part-time through the

Department of Continuing Education and returned to teaching for Edmonton Catholic Schools in 1996 (exh 1). [ 5 ] Mr. K. has a Bachelor of Commerce degree and is a commercial realtor in Edmonton. He has traditionally received employment income and corporate dividends from his wholly owned corporations 223149 Alberta Ltd. and 652851 Alberta Ltd., which in turn have received funds from other bodies corporate, partnerships and limited partnerships involved in various real estate investments, property developments, rental properties, and other investments.

A sketch of these corporate holdings follows (exh 14): G.S.K. (100% shareholder) 652851 Alberta Ltd. ← pays profits to (100% shareholder) 223149 Alberta Ltd. (33% shareholder) 888075 Alberta Ltd. (partnership interest) DYNAFOUR REAL ESTATE (25% shareholder) 1097744 Alberta Ltd. (75% shareholder) 1230007 Alberta Ltd. (a member of) CUSHMAN & WAKEFIELD INTERNATIONAL III.

The Divorce [ 6 ] As there are no children of this marriage, both parties have been ordinarily resident in the Province of Alberta for many years, have lived separate and apart for at least one year, and have indicated there is no possibility of reconciliation and no collusion in relation to the application for divorce, a divorce is granted to take effect on the 31 st day after the day on which the judgment granting the divorce is filed, pursuant to the Divorce Act . IV.

MPA [ 7 ] 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. [ 8 ]

Section 7 of the MPA empowers the Court to distribute between the parties all of their property, except for property exempt 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 matrimonial property. [ 9 ] 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.

I adopt that date of valuation for all purposes in this decision. [ 10 ] 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. [ 11 ] The parties agree that the property at issue as of the date of trial is that property acquired by the parties after November 9, 2007, which consists largely of the net proceeds from the matrimonial home, RRSPs, pension, cash, investments, life insurance policies and share value accumulated after that date.

This property will be set out in detail in the matrimonial property statement requested later in this decision. [ 12 ] Ms. K. brought few assets into the marriage; the sale proceeds from her bungalow on 22 nd Avenue in Millwoods, Edmonton, and her 2003 Honda Accord. There was no contest as to whether her 2003 Honda Accord would be an exempt asset and I find that it was. [ 13 ] In his pleadings, Mr. K. states that the following property should be exempt pursuant to s 7(2) of the MPA as property acquired before the marriage:

(

a) one-half of the pre-marital funds of $785,000 he contributed to the purchase of the matrimonial home; (

b) the cabin located at 51 st Avenue, Alberta Beach, Alberta; (

c) the cabin located at 55 th Street, Alberta Beach, Alberta; (

d) his pre-marital RRSPs; (

e) his shares in 223149 Alberta Ltd.; (

f) his shares in 652851 Alberta Ltd., inclusive of its shareholdings in 888075 Alberta Ltd. and its shareholdings in 1230007 Alberta Ltd.; (

g) the funds inherited from his father; and (

h) the funds received from his first wife’s pension. [ 14 ] There was no issue at trial with respect to the two cabins at Alberta Beach, the funds inherited from Mr. K.’s father or received from his first wife’s pension. All of those are exempt pursuant to s 7(2) and no issues arise under s 7(3) of the MPA . The issue of the matrimonial home is complex and will be addressed in detail below. Additionally, ownership, as opposed to valuation, of Mr.

K.’s shares in 223149 Alberta Ltd. and 652851 Alberta Ltd., inclusive of its shareholdings in 888075 Alberta Ltd. and its shareholdings in 1230007 Alberta Ltd., are not in issue in this litigation, although the income earned from them during the course of the marriage is in issue. The former is exempt; the latter will be addressed below. [ 15 ] During his evidence-in-chief, Mr. K. relied for reference upon the Statement of Exempt Property as at November 9, 2007 prepared by Lance Clark, his accounting expert. Mr.

K. indicated that as at the date of the marriage, he had assets with RBC Dominion Securities with a total value of $94,090.24 which he said should be exempt (exh 20). In addition, he produced an RBC personal account statement in the amount of $19,629.48 (exh 22), which he also claims as exempt although it is listed on the exempt property

schedule prepared by Mr. Clark at $20,000. I find those funds to be exempt. He estimated that there were automobiles and boats that were exempt totalling approximately $50,000, owned through his corporations 223149 Alberta Ltd. and 652851 Alberta Ltd. He indicated that he had sold those automobiles during the course of the marriage. In addition, he indicated that he had sold the boats for between $7,000 and $8,000 and a Seadoo for $3,500, so he had effectively monetized that exemption. Those assets are not traceable nor exempt. [ 16 ] Mr.

K. also claimed as exempt his Dominion Securities RRSP which as at December 30, 2011 amounted to $359,063.07 (exh 23), funds held in his Scotiatrust RRSP investment account as at December 30, 2011 in the amount of $53,764, his Bank of Montreal RRSPs as at December 31, 2011 in the sum of $350,723.18, and a TFSA as at December 31, 2011 in the amount of $6,775 (exh 18, sch 2A), all totalling $770,325.25. He agreed, however, that those valuations were as at date of separation, not date of marriage, and some of those RRSP and TFSA contributions had been made during the course of the marriage.

He identified contributions in 2009 of $40,790, in 2010 of $22,000, and in 2011 of $22,450, for a sum total of $85,240 (exh 26). He provided no advice as to his contributions in December, 2007 and during 2008. If one were to average his contributions from the succeeding three years and prorate them for those 13 months, I can and do infer a further probable contribution of $30,781.11, for a total reduction from the December 31, 2011 figure of $116,021.11, leaving an exemption for Mr. K. in these investments of $654,304.14, compared to a claim on the Statement of Exempt Property prepared by Mr. Clark of $727,000.

I find that amount of $654,304.14 to be exempt. [ 17 ] On the other hand, RRSP contributions accrued during the course of the marriage, which are included as assets of the marriage, added to the inferred amount for the 13 months from the date of the marriage to December 31, 2008 of $30,781.11, are available for distribution in the amount of $116,021.11. [ 18 ] Otherwise, with respect to Mr. Clark’s calculation of exempt assets as at the date of the marriage, he was challenged significantly on cross-examination. He indicated that the RBC cash amount of $94,000 was only a figure that he had received from Mr. K.

He indicated that his line item “Cash account for purchase of furn etc for Tory Road” had been misnamed and should have reflected “costs” for such purchases. With respect to the value of exempt property in automobiles and boats, $50,000, he indicated that he had not seen a detailed valuation for those items. With respect to the shareholders loan of $29,284, he agreed that the loan had already been drawn down by this time, he had not reflected that drawdown and he had not adjusted for it.

With respect to the marginal tax rate on dividends of 27.71%, he indicated that he used the highest tax bracket for that calculation on the advice of Mr. K. With respect to the share value of 223149 Alberta Ltd. of -$12,995, he agreed that the figure was “questionable”. He agreed that the automotive loan of $38,333 was a typographical error and it should have been $8,333. As a result, I do not accept the evidence of Mr. Clark on exempt assets, except as otherwise indicated in these Reasons. [ 19 ] Mr.

K. produced a list of the furniture purchased for the matrimonial home (exh 21) which he estimated to be $110,514; however, he agreed that this was an estimate and that a more accurate figure would be in the neighbourhood of $100,000. These purchases were made during the course of the marriage, selected by Ms. K. and paid for by Mr. K. The evidence is that Ms. K. sold virtually all of her previous furniture and there was little evidence about Mr. K.’s previous furniture.

There was not sufficient evidence allowing the Court to trace funds from the sale of previous furniture into the purchase of new furniture, and as a result, none of the furniture purchased for the matrimonial home is exempt. V. The Matrimonial Home [ 20 ] As identified above, one of the significant contests in this matter is Mr. K.’s claim for exemption of one-half of the pre- marital funds he contributed for the purchase, and the distribution of the sale proceeds, from the matrimonial home.

[ 21 ] Ms. K. indicated that when she met Mr. K., she was residing with her four sons in a property on 22 nd Avenue, Millwoods, Edmonton, on which there was an $80,000 mortgage with payments of $800 per month. This property had been acquired with her first husband in 1989 but had been transferred into her name alone as a result of the settlement of her earlier divorce. [ 22 ] In the spring of 2006, Ms. K. and Mr. K. began to discuss marriage. They agreed they would both sell their current properties and buy a new property on Tory Road, Terwillegar, Edmonton, the matrimonial home. [ 23 ] Ms.

K.’s evidence is that Mr. K. promised her he would be able to cover the cost of the house as she had a modest salary and indicated she knew very little about finances. She said the agreement was that she would sell her home on 22 nd Avenue, Millwoods and would provide him with the net sale proceeds for her financial contribution to the purchase of the matrimonial home on Tory Road. They agreed that a reasonable estimate for the net sales proceeds for her 22 nd Avenue, Millwoods home would be approximately $250,000. Ms. K. says Mr.

K. advised her she would own one-half of the Tory Road matrimonial property. [ 24 ] The purchase price of the Tory Road matrimonial property was $1.4 million, and it required renovations including the construction of an additional bedroom. [ 25 ] Ms. K.’s accounting expert, Brenda Pisko, advised that the Tory Road matrimonial home was acquired using a combination of funds from various sources including use of Mr. K.’s Royal Credit Line and RBC Homeline Plan, cash from Mr. K.’s personal accounts, and contributions from the sale proceeds of each of Mr. K. and Ms. K.’s previous homes.

The accounting of those funds was further complicated by the use of funds in Mr. K.’s Royal Credit Line and RBC Homeline Plan to purchase property in an Ocean Palms development in Mazatlán, Mexican. A brief history follows: May 22, 2007: Mr. K. enters into a real estate purchase contract for the Tory Road matrimonial home for $1.4 million with a proposed closing date of September 4, 2007 (exh 1, tab 2); August 31, 2007: Actual closing date of the Tory Road matrimonial home purchase. Mr.

K.’s advice is that at this time he anticipated receipt of $800,000 from his previous Riddell Street, Riverbend, Edmonton home and $250,000 from Ms. K.’s 22 nd Avenue, Millwoods home which would leave an anticipated outstanding mortgage on the Tory Road matrimonial home of $350,000; August 31 and September 1, 2007: Mr.

K. withdraws $720,000 from his Royal Credit Line and adds a $400,000 mortgage loan to his RBC Homeline Plan (total: $1,120,000) as partial purchase price for the Tory Road matrimonial home (exh 1, tab 4), the remaining $280,000 to be paid from cash; September 8, 2007: Transfer of Land registered with the Land Titles Office for the Tory Road matrimonial property, showing Mr. K. as the sole owner, and a mortgage registered to the Royal Bank of Canada in the principle amount of $1.4 million (exh 1, tab 3); October 9, 2007: Sale date for the previous home owned by Mr.

K. at Riddell Street, Riverbend (exh 1); October 10, 2007: Mr. K.’s RBC Homeline Plan and Royal Line of Credit paid down by $504,725.52, being the proceeds of the sale of Mr. K.’s previous Riddell Street, Riverbend home (exh 1, tab 4). This reduced the outstanding balance on the Homeline Plan to $614,117.28, after an interest payment on October 4, 2007 ($215,264.48 on the Royal Line of Credit and $398,852.80 on the mortgage); November 7, 2007: Mr. K. executes a new will in contemplation of marriage to Ms.

K., leaving all of his property in trust to Canada Trust Company, except a $500,000 Sun Life insurance policy which he left to Ms. K. The will specifically indicated that title to the property of the Tory Road matrimonial home was to be held by himself and Ms. K. “to each an undivided one-half (1/2) interest”, and granted Ms. K. an option to purchase the remaining one-half interest at fair market value (exh 3, tab 6); November 8, 2007: Mr. K. executes a Transfer of Land for the Tory Road matrimonial home into his and Ms.

K.’s names each as to an undivided one-half interest, in consideration of the sum of $250,000 anticipated to be paid to him by Ms. K. on the sale of her 22 nd Avenue, Millwoods property (exh 1, tab 6); November 9, 2007: Date of the marriage; November 19, 2007: Certificate of Title issued for the Tory Road matrimonial property showing ownership by Mr. K. and Ms. K. in undivided one-half interests, reflecting a mortgage of $1.4 million. The value of the transfer to Ms. K. was shown to be $700,000 (exh 1, tab 3);

January 3, 2008: Mr. K. withdraws $500,000 US from his RBC Homeline Plan for partial financing of the $575,000 US purchase price for a condominium at Ocean Palms, Mazatlán, Mexico, a corporate investment of 654851 Alberta Ltd., leaving $715,264.48 on the Royal Credit Line and $397,059.71 on the mortgage (total: $1,112,324.19) (exh 3, tabs 2 and 5); February 6, 2008: Mr. K. withdraws $100,000 from his personal account for further contribution to the purchase price of the Ocean Palms Mexican property (exh 3, tabs 4 and 5); February 8, 2008: Mr.

K. sends a note indicating the balance of funds for the purchase of the Ocean Palms Mexican property in the sum of $475,000 US will be transferred by February 15, 2008 (exh 3, tab 4); February 14, 2008: 652851 Alberta Ltd. withdraws $475,000 US on Royal Funds transfer to Sterling Trust Company for the remainder of the purchase price on the Ocean Palms Mexican property (exh 3, tab 3); February, 2008: Mr.

K. enters into a Declaration of Trust with 652851 Alberta Ltd. indicating that he has established an Irrevocable Fideicomiso Trust with Banco Interacciones with respect to the Ocean Palms Mexican property and that he holds all the rights and obligations of the trust for and on behalf of 652851 Alberta Ltd. (exh 1, tab 9); Fall 2008: Ms. K. sells her previous home on 22 nd Avenue, Millwoods for $220,000, keeps $5,000 for expenses, and provides Mr. K. with $215,000 as her contribution to the purchase price of the Tory Road matrimonial home (exh 1); October 16, 2008: Of the $215,000 received from Ms.

K. as a result of the sale of her previous home, Mr. K. pays down $115,000 on the RBC Homeline Plan (exh 1). His use of the remaining $100,000 is unexplained; August 31, 2011: Date of separation; Ms. K. continues to live in the Tory Road matrimonial home, Mr. K. moves to one of his properties at Alberta Beach; February, 2012: The Tory Road matrimonial home is listed for sale (exh 1); May 2, 2012: A real estate purchase contract for the Tory Road matrimonial home is completed with a sale price of $1,188,800 and an initial closing date of June 6, 2012 (exh 1, tab 7); May 23, 2012: Mr.

K. draws on his RBC Homeline Plan in the sum of $199,415.01 in part to advance $150,000 to Ms. K. so she can purchase a new post-separation home (exh 1); May 25, 2012: Mr. K. provides Ms. K. with the sum of $150,000 as a loan to be paid firstly from Ms. K.’s share of proceeds from the Tory Road matrimonial home and any balance to be repaid from Ms. K.’s share of the matrimonial property (exh 1, tab 8); May 28, 2012: Mr.

K. transfers $50,000 into his RBC Royal Line of Credit from an undisclosed source (exh 1); July 6, 2012: The Tory Road matrimonial home is sold for a sale price of $1,188,800 evidencing a loss of $211,200 (exh 1, tab 7). The sale proceeds of the matrimonial home are applied as follows: a. to pay out the RBC Homeline Plan: $751,650.86; b. to pay out the mortgage on the matrimonial home: $318,270.59; c. to pay sales commission: $39,547.20; d. for legal fees and disbursements: $1,884.25; e. kept by Mr. K.: $77,672.44; f. tax adjustment in favour of Mr. K. and Ms.

K.: ($225.34); Total: $1,188,800 (exh 1). [ 26 ] After the sale of the Tory Road matrimonial home, Mr. K. purchased a new home in Sandin Cove, South Terwillegar, Edmonton with an assessed value of $716,500 (exh 3, tab 10) for $634,997 (exh 16, sch B2), with a current mortgage of $581,000. Ms. K. purchased a home in Ambleside, South Terwillegar, Edmonton for $544,000. VI. The Mexican Condominium [ 27 ] The use of personal funds, Mr. K.’s Royal Credit Line, the mortgage on the RBC Homeline Plan, and contributions from each of Mr. K. and Ms.

K.’s previous homes, with respect to the Tory Road matrimonial home, became entangled with the purchase of the condominium at Ocean Palms, Mazatlán, Mexico.

[28] The evidence of Mr. K. is that in the summer of 2007 he began talking to a friend, an Edmonton lawyer, about buying one ormore condominiums in the Solaria development in Mazatlán, Mexico. He eventually determined to buy the condominium in OceanPalms, Mexico. He and Ms. K. viewed the Ocean Palms condominium in January, 2008. During that attendance, he began negotiationswith respect to the purchase price and there were significant negotiations which resulted in an oral agreement to purchase the OceanPalms condominium for $575,000 US, finalized only while he and Ms.

K. were boarding a plane to return to Edmonton. [29] Ms. K. said she was aware that the purchase price on the Mexican condominium was $575,000 US, but said she did not knowwhere Mr. K. had obtained the funds for that purchase. [30] A brief timeline with respect to the Ocean Palms, Mexican condominium was included in the timelines for the Tory Roadmatrimonial home, above, but is set out here more fully: January 3, 2008: Mr. K. withdraws $500,000 from his RBC Homeline Plan for654851 Alberta Ltd. to invest in the Ocean Palms Mexicanproperty (exh 1). On the same day, Mr.

K.’s RBC personalaccount shows receipt of a branch to branch transfer deposit inthe sum of $500,000 (exh 3, tab 5);February 6, 2008: Transfer of $100,000 US from the personal account of Mr. K. toSterling Trust for the initial down payment on the Ocean PalmsMexican property (exh 3, tab 4, exh 3, tab 5). Mr. K.’s advice onMexican law was that a non-Mexican person could not ownproperty within 50 kilometres of the beach, so the Ocean Palmscondominium was held in trust by the Banco Interacciones on anIrrevocable Fideicomiso Trust for him personally, and he in turnheld it in trust for 652851 Alberta Ltd. Mr.

K. advised that652851 Alberta Ltd. had also purchased interests in the Solariadevelopment, 50% of two units, both of which haveapproximately broken even, and one of which has now beensold;February 14, 2008: The RBC corporate account of 652851 Alberta Ltd. shows atransfer of $475,000 US from 652851 Alberta Ltd. to SterlingTrust Company as the remaining payment on the purchase ofthis Ocean Palms Mexican property (exh 3, tab 3). There is noexplanation as to why a portion of the purchase price for thisproperty came from the personal account of Mr.

K. and aportion from his wholly owned corporation 652851 AlbertaLtd.;February, 2008: Mr. K. purchases the Ocean Palms condominium in Mazatlán,Mexico for $575,000 US using in part $500,000 drawn from theRBC Royal Credit Line (exh 1). VII.

Section 36 of the MPA, Harrower and Jackson [31] Counsel for MS. K. argued I should find that Mr. K. transferred to MS. K. an undivided one-half interest, in tenancy incommon, in the Tory Road matrimonial home in accordance with the Will of November 7, 2007, the Transfer of Land of November 8,2007 and the Certificate of Title of November 19, 2007, or in the alternative, on the basis of s 36 of the MPA and the decisions of ourCourt of Appeal in Harrower v Harrower, (AB CA), 68 Alta LR (2d) 97, 97 AR 141, and Jackson v Jackson, 1989ABCA 197, 68 Alta LR (2d) 118, 97 AR 153. Counsel for Mr.

K. argued that I should restrict my findings to the Harrower / Jacksonanalysis. Counsel for Mr. K. argued that s 8 of the Law of Property Act, RSA 2000, c L-7 applies, and that if Ms. K. holds an undividedone-half interest in the Tory Road matrimonial property as a tenant in common, she holds it in a resulting trust for Mr.

K. [32] Historically, at common law, when one spouse gave property or money to the other during the course of the marriage, thatwas presumed to be a gift and was known as the presumption of advancement. [33] Section 36(1) of the MPA clarified the common law by directing that the Court was not to apply the presumption ofadvancement as between spouses in respect of property acquired by one or both before or after, which I take to mean “during”, themarriage. [34] Section 36(2), however, confirmed the presumption of advancement in the absence of evidence to the contrary, where theproperty was put into the name of both spouses as joint owners.

This was affirmed in the Harrower and Jackson decisions. The resultfrom those cases in the situation of joint ownership was that each of the spouses bringing exempt property into a marriage were deemedto have gifted half of the exempt amount to their spouse, such that only half of the exemption became matrimonial property. [35] Counsel for Ms.

K. relies in distinguishing a tenancy in common and a joint tenancy upon the descriptions set out in Warnke vSkrobek, 2000 ABQB 340, where a husband and wife owned property as joint tenants, the marriage broke down, the wife moved toOntario, the husband sold the property to a third party without notice to the wife, and the wife later determined that she wished to moveback to Alberta and reoccupy the property.

Master Funduk set out the legal distinctions between joint tenancy and tenants in common,found that the husband had taken actions which converted the joint tenancy to a tenancy in common, found that the husband was onlyentitled to sell his one-half interest in the house and ordered that the title be cancelled and a new title issued to the third party and thewife, each as to an undivided one-half interest.

While an interesting discussion of the difference between these two concepts ofownership, it does not assist in the present case in determining whether the commercial concept of tenancy in common should be applied

in the division of matrimonial property before the Court. [ 36 ] The Court in Harrower warns that marriage is not “like a business partnership”. It said: “The Act was passed in recognition of the fact that ordinary business rules should not, indeed cannot, be applied to matrimonial property”.

Similarly, in Kazmierczak v Kazmierczak , 2001 ABQB 610 , [2001] AJ No. 955, aff’d 2003 ABCA 227 , [2003] AJ No. 909, when addressing the issue of occupation rent, the Court cautioned that much care must be taken in carrying forward commercial concepts into the family law context. [ 37 ] I have determined that, following Harrower and Kazmierczak , in the present case the more traditional rules with respect to property distribution as set out in Harrower and Jackson should apply. [ 38 ] In Jackson , the Court said that the object of the MPA was to share the consequences of economic decisions made during marriage such that the accounting for the results of those decisions is necessary (para 13).

Although Jackson dealt with an exempt gift being placed into joint names, rather than as tenants in common, under the factual circumstances in this matter, I conclude a presumed intention to subject the funds received from the sale of the two original parties’ properties invested in the Tory Road matrimonial home to be subject to the matrimonial property regime. VIII. The Financial Evidence on the Matrimonial Home [ 39 ] Ms. K. called as an expert accounting witness, Brenda Pisko, CA, CBV of Pisko Valuation Services Inc.

She was qualified to give expert evidence in the area of business valuations, pension valuations, future cash flow, matrimonial property statements, tracing and verification of corporate transactions, current assets and guideline income. I found her to be an impressive witness, careful in her assumptions and generally cautious in her conclusions. I accept her evidence in whole, except where specifically indicated otherwise in this decision. [ 40 ] Mr. K. called as an expert witness, Lance Clark, B. Comm., CA, IFA, a partner at BDO Canada LLP.

He was qualified to give expert evidence in the area of the division of matrimonial property, maintenance and support payments, valuation of pensions, corporate business valuations and Guideline income determinations (exh 17). He did not specifically produce a report with respect to the matrimonial home. [ 41 ] Ms. Pisko has made calculations with respect to the division of the Tory Road matrimonial home, based upon all of the above listed transactions which she has identified, under her four different scenarios: 1. Assuming Mr. K.’s exemption is $785,000 and Ms. K.’s exemption is $215,000 ( Jackson division); 2.

Assuming Mr. K.’s exemption is $185,000 ($500,000 having been used for the purchase of the Mexican condo and $100,000 left from the $215,000 payment received from Ms. K., increasing debt on the home by $600,000, and Ms. K.’s exemption is $215,000 ( Jackson division); 3. Assuming that the parties have an equal ownership interest in the property (tenants in common) and share equally in the loss on the sale of the property, and that the debt in Mr. K.’s sole name is his debt, net proceeds being divided equally after accounting for Mr. K. having received $677,672 ($500,000 on the Line of Credit, $100,000 from Ms.

K. and $77,672 from the proceeds of the sale) and Ms. K. having received a $150,000 advance on the Line of Credit; and 4. Assuming that the parties have an equal ownership interest in the property (joint tenants) and share equally in the loss on the sale of the property, that the debt in Mr. K.’s name remains solely his debt, and assuming that Ms. K. still owes Mr. K. $35,000 on the original purchase agreement to acquire the Tory Road matrimonial property. [ 42 ] For the reasons set out above, I do not accept Ms. Pisko’s calculations 3 and 4 based upon the tenants in common analysis.

Of the two “ Jackson division” calculations, as she referred to them, the second is the most reasonable, taking into account expenditure on the Mexican condominium and the unaccounted $100,000 received by Mr. K. from Ms. K. after the sale of her home, but not used to pay down the Line of Credit. Given that assumption, Mr. K. preliminarily owes Ms. K. the amount of $271,365, as calculated by Ms. Pisko, as her share of the value of the matrimonial home. [ 43 ] Mr. K. also claims a number of set-offs with respect to the matrimonial home as costs he incurred to facilitate the sale of that home (exh 3, tab 11).

His total claim is $49,346.08; however, a number of the items claimed in set-off are in fact the continuation of operating expenses of the home: house insurance, property taxes, mortgage, utilities, security system, cable and internet. In effect, I find that only $12,457.79 are actually costs expended for the sale of the house. The balance must be considered as part of the analysis for spousal support. [ 44 ] From the amount of $271,365, one must subtract one-half of the actual costs incurred by Mr.

K. readying the matrimonial home for sale: $6,228.93, for a net total distribution with respect to the matrimonial home from Mr. K. to Ms. K. of $265,136.07. IX. Post-Separation Agreements [ 45 ] On December 14, 2011, four months post-separation, Mr. K. and Ms. K. entered into an agreement acknowledging that from September through December 2011, Mr. K. had advanced to Ms. K. $2,500 each month and indicated that monthly advances could continue thereafter in the sum of $2,500 per month, to be repaid from Ms.

K.’s share of the proceeds of the sale of the matrimonial home and that such advances would not form part of any amount to which Ms. K. may be entitled by way of property settlement or spousal support (exh 1, tab 8). Those payments continued until June 2012 for a total loan of $25,000. However, for the taxation year 2012, Ms. K. was issued a T4 for $20,000 on that amount, and paid $11,000 in income tax with respect to those advances. During cross-

examination, Mr. K. agreed that he had been income splitting with Ms. K. in that same amount of $2,500 per month, during the marriage. [ 46 ] On May 25, 2012, Mr. K. and Ms. K. entered into a second agreement whereby Mr. K. advanced to Ms. K. the sum of $150,000 as a loan to be repaid from her share of the sales proceeds of the Tory Road matrimonial home and thereafter from her share of the parties’ matrimonial property. The agreement also acknowledged that the total indebtedness from Ms. K. to Mr. K. now amounted to $175,000 (exh 1, tab 8). Ms.

K. utilized the $150,000 loan to purchase a new home in Ambleside, South Terwillegar, Edmonton. She allocated $108,000 for the down payment on that Ambleside home and retained $42,000 for expenses. [ 47 ] I find that Mr. K. is entitled to further set-offs as against the amount to be paid to Ms. K. on the net total distribution of $258,907.15 with respect to the matrimonial home, the following: (

a) on the agreement of December 14, 2011: $14,000 ($25,000 less $11,000); and (

b) on the agreement of May 25, 2012: $150,000; Total further set-off: $164,000 X. Ms. K.’s Pension Plan [ 48 ] Ms. K.’s pension plan is a defined benefit plan, rather than a defined contribution plan, such that the amount of pension ultimately payable is based on her number of years of service and average annual salary. [ 49 ] Firstly, I find that pension benefit accrued to Ms. K. prior to the marriage date of November 9, 2007 is exempt pursuant to s 7(2) of the MPA . Mr. K. is entitled to a valuation as at the date of trial equal to one-half of Ms.

K.’s pension benefits accrued after the date of the marriage, November 9, 2007. Ms. Pisko has assumed a trial commencement division date of December 31, 2016, which is reasonably approximate, and has calculated a spousal interest of 50%, totalling $87,231, on a “ Jackson v Jackson split”, again using Ms. Pisko’s characterization. [ 50 ] Mr. K.’s accounting expert, Mr. Clark, reviewed the pension calculations of Ms. Pisko. He had minor comments with respect to her choice of interest rate, life expectancy and monthly pension amount. He thought that the life expectancy should be one year longer than estimated by Ms.

Pisko, he said the interest rate utilized by her of 2.31% was “a little low” and that his monthly pension amount “is lower”, but he basically agreed with her calculations. As a result, I accept the pension calculations of Ms. Pisko. [ 51 ] Counsel have brought to my attention the case of Beier v Beier , 2011 ABQB 371 , where the Court determined that it was just and equitable to distribute Ms. Beier’s pension equally between the parties to the date of separation, but that any increase thereafter to date of trial should be attributed 100% to Ms. Beier having regard to the factors in s 8(b), (

d) and (

f) of the MPA . That determination was influenced by the Court’s determination that Mr. Beier had been underemployed after the separation, had cashed in and spent his own RRSP investments, and did not contribute “in the same fashion as he had before” in terms of employment income. I have determined that those factors are not present in the case before me, and I find that it is appropriate for there to be an equal distribution of Ms. K.’s pension accrual from the date of marriage to the date of trial as calculated by Ms. Pisko above. XI.

Division of the Matrimonial Property [ 52 ] On the issue of the division of matrimonial property, Mr. K.’s retained accounting expert, Mr. Clark, produced two reports, the first dated September 17, 2014 (exh 18) and the second prepared as at December 31, 2016 (“Draft for Discussion Purposes Only”) (exh 19). Unfortunately, the first of those reports is now two and one-half years out of date and the second of those reports was marked by counsel for Mr. K. not for the truth of its contents but only to show work product.

As a result, neither is of considerable assistance in determining the division of matrimonial property as at the date of trial, except as they assisted above to determine some exempt assets as at the date of marriage, November 9, 2007 (schs 1A, 1B and 1C). [ 53 ] On Mr. Clark’s calculation of corporate valuation for 652851 Alberta Ltd. he had included in his 2007 calculations income earned from the partnership which had been deferred: $306,000.

When he was asked to review his calculations for 652851 Alberta Ltd. for 2016, he agreed that he had not included any deferred income, such that $496,000 of partnership draws were not reflected on that document. If one applied a 13% tax to that figure, the amount of $431,520 was not reflected on his corporate valuation for 652851 Alberta Ltd. as at August 31, 2016. Similarly, with respect to his corporate valuation of 223149 Alberta Ltd. as at August 31, 2011, he could not point to the inclusion of deferred income, thereby understating the valuation of that corporation by $170,139 less taxes. [ 54 ] Mr.

Clark indicated that Mr. K.’s RRSPs had increased in value over the course of the marriage and his corporations in total had increased in value. Despite that, he said that Mr. K.’s exemptions at the date of marriage are, in his calculation, greater than his current net worth. When challenged with that conclusion, he responded: “It was odd to me, too.” [ 55 ] Mr.

Clark indicated that in his calculations he did not do a “ Jackson analysis”. [ 56 ] With respect to his corporate valuation of 652851 Alberta Ltd. as at August 31, 2011, he listed an original cost of the Ocean Palms Mexican property at $634,863 and a current estimated fair market value of $360,050, a loss of $274,813, but he agreed that the Ocean Palms Mexican property was still held by 652851 Alberta Ltd. and therefore no actual loss had yet been suffered, and may not be until the property was sold. Mr.

K. advised that he came up with that figure from “mostly hearsay”, talking to realtors and looking on the internet. Additionally, he produced internet searches (exh 27) showing the value of other properties in the Ocean Palms development showing southside listings of $375,000 US, $355,000 US, $340,000 US, and northside listings of $490,000 US and $419,000 US, noting that the unit specifically owned by him, in trust, was a northside unit. [ 57 ] On his Preliminary Statement of Matrimonial Property Exempt Assets Included, he indicated that the net proceeds of the sale

of the Tory Road matrimonial home was $827,729. He agreed that was incorrect and the net sales proceeds should have been $227,000. In total, he agreed that Mr. K.’s RRSPs had increased in value, his share value in his corporations had increased in value and his partnership interest had increased in value. [ 58 ] Given all of the difficulties with the matrimonial property statement prepared by Mr. Clark, I prefer those prepared by Ms. Pisko. However, I have made significant findings above that have not been considered by Ms. Pisko, including with respect to Mr. K.’s claimed exemptions, the total amount of Mr.

K.’s RRSP contributions during the course of the marriage available for distribution, the non-exempt status of furniture for the matrimonial home, the net total distribution determined with respect to the matrimonial home, Mr. K.’s set-off entitlements and the division of Ms. K.’s pension accrued during the course of the marriage. [ 59 ] I would ask Ms. Pisko to re-prepare her form of matrimonial property statement within 30 days of these Reasons with all of these decisions reflected in it and provide it to me for my further consideration. I would also invite Mr. K., with input from Mr.

Clark if desired, to comment on the further matrimonial property statement to be prepared by Ms. Pisko, but not to revisit any of the determinations made in these Reasons. I will determine in further reasons whether I find the further matrimonial property statement to accurately reflect my determinations in this matter. XII. Spousal Support [ 60 ] Ms. K. advised that she has worked as a teacher for 25 years to the date of trial, primarily with special needs children suffering from autism, attention deficit hyperactivity disorder, learning disabilities, anorexia, etc.

She began her career teaching full-time for Edmonton Catholic Schools. She stayed at home during the formative years with her four sons for about 10 years, but over that period of time taught English as a Second Language part-time. She also taught in the evenings for the Fresh Start Program for approximately 13 years, and taught summer school. [ 61 ] In the school year 2008-2009 she taught full-time but says she was completely exhausted during that year. In August 2009, her family physician at the time, Dr. Hartman, recommended she take off work for three months in the fall of 2009 for insomnia and anxiety.

Further discussion about Ms. K.’s medical condition will be set out below in the

section on medical evidence. [ 62 ] She did not return to work during the 2009-2010 year. In the 2010-2011 school year, Ms. K. worked 0.5 FTE. In the 2011- 2012 school year she began at 0.6 FTE, moved up in March 2012 to 0.8 FTE and for the months of April through June, 2012 worked full-time. She says that at the end of that time she “crashed”, so in the 2012-2013 school year she reverted back to working 0.5 FTE, afternoons only.

Her disability insurers required that she return to work full-time for the school year 2013-2014, and in July 2014 she worked for a single week earning $1,200 marking provincial achievement exams. She did not work at all from September 2014 to February 2015 and began once again in February 2015 to work 0.5 FTE, afternoons only, which pattern she continued until June, 2016. For the school year 2016-2017 she has again worked 0.5 FTE full day Mondays, and Tuesday, Wednesday and Thursday afternoons, with approximately 20 special needs students.

She advises that she could not return to full-time employment presently. [ 63 ] In August 2016 Ms. K. entered into a discretionary settlement with her disability insurer, Alberta School Employee Benefits Plan, for a payout of all future disability amounts in the sum of $80,000. She is currently earning $2,650 per month from Edmonton Catholic Schools and a total of $5,250 per year for the tutoring of two autistic students (exh 4).

She was warned by the Alberta Teachers Association that her disability insurer may be entitled to subrogate any monies that she receives from a retroactive spousal support determination (exh 5). [ 64 ] Ms. K.’s income tax returns show that in each of the years 2008, 2009 and 2010, she received $30,000 from 652851 Alberta Ltd. Her T1 General 2011, line 150 total income was $103,408.33 (exh 3, tab 12). [ 65 ] Ms. K. pays $1,900 per month on a first and second mortgage. She indicates that in March 2014 she began to sell her jewelry, she currently has no savings and no equity in her current home.

She has produced a monthly income and expenses statement showing a monthly shortfall of $4,111 (exh 3, tab 7) and has advised that, in addition, she has a life insurance payment of $1,640 per month leaving her with an overall shortfall of $5,751 per month. (

a) The Medical Evidence [ 66 ] Dr. Raymond Cheung has been Ms. K.’s family physician beginning December 16, 2009, and was qualified to give expert evidence in the area of the general practice of medicine. Upon taking over the care of Ms. K. from Dr. Hartman, her previous family physician, he researched her medical history on Netcare back to 2001 or 2002, but agreed under cross-examination that his historical medical information came primarily from her subjective reporting. He initially identified her preliminary issues as fatigue and sleep troubles that had started “a few months earlier”.

He later diagnosed anxiety disorder and prescribed antidepressants, anti-anxiety medications, and thyroid medications. However, she suffered significant gastro-intestinal effects from those medications and in 2010 he stopped those medications and referred her to the North Alberta Sleep Clinic. [ 67 ] On March 7, 2016, Dr. Cheung corresponded to the Alberta School Employees Benefit Plan, Ms. K.’s disability insurer (exh 12). He confirmed that Ms. K. suffered from chronic fatigue and difficulties with sleep since at least 2009. His diagnosis was primary insomnia and generalized anxiety disorder. Ms.

K. showed a sleep efficiency of only 17% and he said that her conditions made it “very difficult to maintain concentration and focus”. He said that in his opinion, “Ms. K. cannot and should not work beyond a 0.5 FTE” (exh 12), and her prognosis was guarded. [ 68 ] Dr. Atul Khullar is a psychiatrist, board certified in sleep medicine. He was qualified to provide expert evidence in the area of psychiatry, sleep disorders and mood disorders. He indicated that he began treating Ms. K. on October 5, 2010 for generalized anxiety disorder and primary insomnia, now called insomnia disorder.

He agreed that all of his information before that date had come from her self-report and a number of independent medical reports provided to her disability insurer. He wrote correspondence dated March 3, 2016 in which he confirmed those diagnoses and responded to a medical report from a Dr. Moscovich which had apparently been

commissioned by her disability insurer. He said that he had been treating Ms. K. for seven years, that she demonstrated severe insomnia, sleeping only one hour out of seven and had significant sleep apnea. In an earlier letter, which was not marked as an exhibit, Dr. Khullar had indicated that Ms. K.’s sleep difficulties began in her thirties and had worsened seven to eight years earlier with the onset of peri- menopause. He had tried her on 13 medication trials but found that she was unable to tolerate significant medication. He indicated that Ms. K. had taken

part in cognitive therapy sessions for insomnia on-line and was seeing Dr. Anne Daines for cognitive therapy. He had referred her to the University of Alberta Hospital for additional sleep and cognitive therapy but said her prognosis remained guarded. He concluded that Ms. K. suffered from chronic exhaustion and could not work more than 0.5 FTE (exh 8). He was of the opinion that she would not be able to return to work full-time. [ 69 ] In cross-examination, Ms. K. admitted that her previous psychiatrist, Dr.

Gendeman, had written an opinion letter to her disability insurer on December 14, 2015, but neither that letter, nor its contents, were produced in the litigation. [ 70 ] Dr. Anne Daines is a registered psychologist who was qualified to give opinion evidence in the areas of health psychology, insomnia and cognitive behavioural therapy. She was qualified to give opinion evidence in those areas. Dr. Daines indicated that she began treating Ms. K. on April 15, 2015 for depression, anxiety and stress, on a referral from Ms. K.’s disability insurer. She indicated she had treated Ms.

K. with stress management therapy, cognitive therapy, behavioral therapy, and tested her on the Depression, Anxiety, Stress Scale, the Insomnia Severity Index and on a Personality Assessment Inventory. She diagnosed depression, stress, anxiety and somatic complaints. She was advised of the diagnosis of primary insomnia, but left the treatment of that condition to other treatment providers. On February 29, 2016, Dr. Daines corresponded to Ms. K.’s disability insurer (exh 10), indicating that the onset of insomnia was in 2009 and was associated with distress arising from her marital relationship.

However, she admitted under cross-examination she had no personal knowledge as to when Ms. K. began suffering from these symptoms and no direct knowledge as to what had occurred during the marriage. She concluded that “Ms. K. is not likely able to maintain an employment level beyond that which she is now achieving”. [ 71 ] I accept the uncontradicted medical and psychological opinions of Dr. Cheung, Dr. Khullar and Dr. Daines that Ms. K. is currently working to her maximum potential and is not able to work more than a 0.5 FTE. I therefore reject the suggestion of Mr. K. that Ms.

K. should be working more than she is currently and that she has failed to mitigate her change in financial position since the date of separation. I take that conclusion into account in my determination on spousal support. [ 72 ] Ms. Pisko, Ms. K.’s accounting expert, has calculated Mr. K.’s income with reference to the Spousal Support Advisory Guidelines based on the definition of income under the Federal Child Support Guidelines. She has specifically included income available from Mr.

K.’s corporate interests having regard to the Federal Child Support Guidelines s 16 (total income as reported on the T1 General issued by Canada Revenue Agency), s 17 (three year spouse’s income to reflect pattern of income, fluctuation in income or receipt of non-recurring amounts), s 18 (shareholder, director or officer to include all or a part of pre-tax income of corporations for an amount commensurate with the services that the spouse provides to the corporation), s 19(1)(h) (significant portion of income derived from dividends, capital gains or other sources that are taxed at a lower rate), and

Schedule III (adjustments to income: dividends from taxable Canadian corporations, capital gains and capital losses, business investment losses and net income). [ 73 ] I accept the following determinations of Ms. Pisko set forth in paragraph 5.04 of her report with respect to spousal support (exh 14): (a) 223149 Alberta Ltd. and 652851 Alberta Ltd. have positive cash balances and no bank debt; (b) 223149 Alberta Ltd. has had sufficient earnings to loan to 652851 Alberta Ltd. for various investments; (c) 652851 Alberta Ltd. has significant portfolio investments, real estate holdings and investments in other subsidiary companies; (

d) The companies have no significant working capital requirements; and (e) 223149 Alberta Ltd. has maintained an annual corporate deficit, although 652851 Alberta Ltd. has significant positive retained earnings. The combined retained earnings are positive. As such, it appears that all allocatable earnings of the companies during the course of the marriage are available for distribution to the shareholder. [ 74 ] I also accept Ms. Pisko’s calculation of Mr.

K.’s total taxable income as reflected on line 150 of his returns and his adjusted income before personal benefits (exh 14): Total Taxable Income Adjusted Income Before Benefits 2011: $137,183 $156,820 2012: $303,174 $403,545 2013: $392,024 $252,784 2014: $199,849 $413,319 2015: $609,074 $532,387 Projected 2016: $258,137 $477,183 [ 75 ] On the other hand, I do not accept Ms. Pisko’s calculation of corporate benefits personally received by Mr. K. On the 223149 Alberta Ltd.

Summary of Statements of Income (exh 14, sch 3), by comparison of Ms. Pisko’s

Schedule 1 with

Schedule 3, Note 1 for both 223149 Alberta Ltd. and

Schedule 5, and Note 1 with respect to 652851 Alberta Ltd. she has assigned personal benefits to Mr. K. from advertising, promotion and travel at 75%. As indicated by Mr. Clark, the accounting expert retained by Mr. K., those figures and taxation gross-up on those figures are excessive, and I would ask Ms. Pisko to recalculate those personal benefits at 25% with appropriate taxation gross-up. Likewise, with respect to the 652851 Alberta Ltd.

Summary of Statements of Income (exh 14, Sch 5), Ms.

Pisko has calculated personal benefits for interest (2010 to 2012 for the Ocean Palms Mexico property), condominium fees, insuranceand utilities at 75%, and for the same reason, I would ask Ms. Pisko to recalculate those personal benefits at 25% with appropriatetaxation gross-up. [76] After future adjustments for estimated personal benefits and taxation gross-up, I also accept Ms. Pisko’s calculation ofundistributed pre-tax income of the corporations set out on her

schedule 1, page 1, and I would ask for the final recalculation to be basedupon a three year average pursuant to s 17(1) of the Federal Child Support Guidelines. The final three year average will be Mr. K.’simputed guideline income for the purpose of determining spousal support. [77] Mr. Clark reviewed Ms. Pisko’s calculation of Mr. K.’s Guideline income. He said that he had concerns with respect to thepersonal benefits estimates in her report and the taxation gross-up on those benefits as he thought they were very high.

I have indicatedabove that they are to be recalculated, as it is clear that these figures are indeed high. He was also critical of her calculation of capitaldividends paid out as he thought this evidenced some double counting, having been included in corporate dividends already. I havereviewed Exhibit 14, and cannot determine that there has been double counting. Other than those two comments, Mr. Clark has basicallyagreed with the calculation of Guideline income as proposed by Ms. Pisko, and, with the comments that I have made above requiringsome recalculation, I adopt the calculations of Ms.

Pisko. [78] The Supreme Court of Canada in Bracklow v Bracklow, (SCC), [1999] 1SCR 420, made it clear that the lawrecognizes three conceptual grounds for entitlement to spousal support: (1) compensatory, (2) contractual, and (3) non-compensatory (p431). None of these theories in isolation achieve a just law of spousal support (para 438) and the Court is asked to strike a balance thatbest achieves justice in the particular case before the Court (p 439).

It is required of the Court to look to all the factors in light of theobjects stipulated in s 15.2(4) of the Divorce Act in exercising a discretion that equitably alleviates the adverse consequences of themarriage breakdown. (See also Riad v Riad, 2002 ABCA 254 at paras 33 and 34.) In the present case, contractual entitlement isirrelevant, as there is no evidence of any agreement made in that regard, but both compensatory and non-compensatory factors arerelevant. [79] I conclude that in determining the claim for spousal support, I cannot and do not find that Ms.

K. should be mitigating thisclaim by working more than 0.5 FTE, as she is currently. I also find that she is entitled to ongoing spousal support and potentiallyretroactive spousal support, but, adopting the approach in Bergquist and Bergquist, 2011 ABQB 623, the financial situation of each ofthe parties will not be clear until they know what property they have after property distribution. As such, until the further calculationswhich I have requested above are provided and settled, I defer a decision on the quantum of that ongoing spousal support and potentiallyretroactive spousal support. XIII.

Conclusion [80] In these Reasons, I have made the following determinations, which are set out here in

summary form for the assistance ofcounsel and the parties: (

a) a divorce is granted to take effect on the 31st day after the day on which the Judgment granting the divorce is filed, pursuantto the Divorce Act; (

b) Ms. K.’s 2003 Honda Accord is an exempt asset; (

c) Mr. K.’s two cabins at Alberta Beach, the funds inherited from Mr. K.’s father or received from his first wife’s pension, areexempt assets; (

d) actual ownership, as opposed to valuation, of Mr. K.’s shares in 223149 Alberta Ltd., 652851 Alberta Ltd., 888075 AlbertaLtd., and 1230007 Alberta Ltd. are exempt assets; (

e) Mr. K.’s RBC Dominion Securities in the amount of $94,090.24, and RBC personal account statement in the amount of$19,629.48, as at the date of the marriage, are exempt assets; (

f) Mr. K.’s automobiles and boats, owned through 223149 Alberta Ltd. and 652851 Alberta Ltd., were effectively monetizedare not traceable nor exempt; (

g) Mr. K.’s Dominion Securities RRSP, Scotiatrust RRSP, Bank of Montreal RRSPs and TFSA as at December 31, 2011 areexempt only to the amount of $654,304.14; (

h) Mr. K.’s Dominion Securities RRSP, Scotiatrust RRSP, Bank of Montreal RRSPs and TFSA as at December 31, 2011, in theamount of $116,021.11, are not exempt and are available for equal distribution; (

i) none of the furniture purchased for the matrimonial home is exempt; (

j) preliminary net total distribution with respect to the matrimonial home from Mr. K. to Ms. K. is $258,907.15; (

k) Mr. K. is entitled to a set-off for post-separation agreements as against the amount to be paid to Ms. K. on the preliminarynet total distribution of $258,907.15 with respect to the matrimonial home in the amount of $164,000; (

l) there shall be an equal distribution of Ms. K.’s pension accrual from the date of the marriage to the date of trial in theamount of $87,231; (

m) Ms. Pisko is asked to re-prepare her form of Matrimonial Property Statement within 30 days of the date of these Reasons with

all of the determinations set out in these Reasons reflected in it and provide it to the Court for further consideration; (

n) Mr. K. and/or Mr. Clark are entitled to comment on the further Matrimonial Property Statement from Ms. Pisko, but not so as to revisit any of the determinations made in these Reasons; (

o) Ms. K. is not required to mitigate her claim for retroactive and prospective spousal support by working more than 0.5 FTE; and (

p) Ms. K. is entitled to retroactive and ongoing spousal support, the calculation of which is deferred until further calculations requested of Ms. Pisko have been provided and settled. XIV. Costs [ 81 ] Costs are reserved until after receipt of the further information requested above and final determination with respect to the distribution of matrimonial property, retroactive and prospective spousal support. Heard on the 20 th through 24 th days of March, 2017. Dated at the City of Edmonton, Alberta this 9 th day of May, 2017. K.P. Feehan J.C.Q.B.A. Appearances: Michele J. Reeves Attia Reeves for the Plaintiff Elsa G. Rice, Q.C. for the Defendant