Pattison v Shwaykosky, 2017 ABQB 362

Court of Queen’s Bench of Alberta Citation: Pattison v Shwaykosky, 2017 ABQB 362 Date: 20170602 Docket: 4803 151062 Registry: Edmonton Between: Scott Alexander Pattison Plaintiff - and - Sandra Anne Shwaykosky Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ Introduction [ 1 ] A three-day trial was held to deal with the division of matrimonial property, child support, and spousal support. Facts [ 2 ] The parties married in April 1991. They separated within the matrimonial home in July 2008, when the plaintiff moved into the family room.

[ 3 ] The parties did not start living economically separate until February 2010, when the plaintiff moved out of the matrimonial home. The defendant continued to reside in the home and remains in the home today. [ 4 ] There are three children of the marriage. They were nineteen, sixteen, and fourteen years old when the trial was heard. [ 5 ] The parties had a shared parenting arrangement (based on a weekly rotation) for all three children between March 2010 and March 2013.

The oldest child began to reside with the plaintiff on April 1, 2013. [ 6 ] On February 1, 2015, the other two children began to reside with the plaintiff as well. [ 7 ] The oldest child has been independent since June 2016. [ 8 ] During the parties’ marriage, the plaintiff worked full-time in journalism and communications for various employers. The defendant worked part-time at a bank, picking up as many hours as she could. The defendant took a maternity leave after the oldest child was born, and a maternity/relocation leave after the middle child was born and the parties moved from Penticton to Edmonton.

Thereafter, the defendant worked one day a week at the bank, except when she was on a medical/maternity leave before and after the birth of the youngest child. The defendant was responsible for most of the homemaking and childcare during the parties’ marriage. [ 9 ] Following the parties’ separation, the plaintiff continued to work full-time in communications. However, he lost his job in May 2011, and did not find replacement employment until February 2012. While he was unemployed, the plaintiff had a business failure that left him $35,000 in debt.

He repaid that debt in 2012, after receiving a large severance payment from his former employer. The plaintiff has been working full-time, as a media spokesperson, since February 2012. [ 10 ] Excepting a six-month leave that she took in 2010, the defendant continued to work one day a week at the bank after the parties’ separation. She commenced a Bachelor of Education program in September 2010, and obtained her bachelor’s degree in June 2013. She commenced a Master of Education program the following September, and obtained her master’s degree in June 2015.

The defendant kept her job at the bank while she went to school. She also worked as a teaching assistant for a term. After obtaining her master’s degree, the defendant: • spent a term working as an assistant to a sessional lecturer at the university, • worked as a substitute teacher for a Catholic school board, • spent three months working as a full-time teacher for another school board, and • continued to work at the bank one day a week. The defendant lost her job at the bank in April 2016, but received “income protection” pay until March of this year.

She worked as a full- time teacher (covering a leave) between September 2016 and January 2017, and has been working as a substitute teacher for the Catholic school board since then. She has also been applying for teaching jobs at colleges. [ 11 ] When the trial was heard, the plaintiff was fifty-four years old and the defendant was fifty-one years old. Pleadings and Court Orders Pleadings [ 12 ] The plaintiff filed a statement of claim for divorce and division of matrimonial property in October 2009.

The defendant filed a statement of defence and counterclaim in January 2010, and an amended statement of defence and counterclaim in December 2010. Matrimonial Property Orders [ 13 ] In February 2010, the defendant obtained an order granting her exclusive possession of the matrimonial home. The defendant has made the mortgage payments on the home since April 2010, in accordance with an order made in March 2010. [ 14 ] In October 2011, the plaintiff was ordered to transfer half of the RRSP in his name to the defendant (the Interim Distribution Order). The RRSP was valued at $70,099.

Child Support Orders [ 15 ] In February 2010, the plaintiff was ordered to pay the defendant child support of $1,780 per month commencing on March 1, 2010. (This order was based on the plaintiff having a guideline income of $95,173.) [ 16 ] In June 2011, while he was unemployed, the plaintiff obtained an order reducing his child support payments by $500 per month (to $1,280 per month) for the months of June and July 2011. [ 17 ] In October 2011, while he was still unemployed, the plaintiff obtained an order reducing his child support payments to $415 per month, commencing on November 1, 2011. (This order was based on the plaintiff having a guideline income of $19,200, from employment insurance, and the defendant having a guideline income of $7,772, based on her 2010 tax return.) [ 18 ] In February 2012, the defendant obtained an order increasing the plaintiff’s child support payments to $1,328 per month.

(This order was based on the plaintiff having a pre-disclosure guideline income of $70,484 and the defendant having a guideline income of $7,772, based on her 2010 tax return.) [ 19 ] In January 2015, the plaintiff obtained an order stating that, effective January 31, 2015, he was no longer obliged to pay child support to the defendant (because all three children would be residing with him). [ 20 ] In May 2015, the plaintiff was ordered to pay the defendant $750 per month in June, July and August of that year.

The order stipulated that the payments would “be a credit towards any child support arrears.” Spousal Support Orders [ 21 ] In March 2010, the plaintiff was ordered to pay the defendant spousal support of $1,400 per month commencing on April 1, 2010. [ 22 ] In October 2011, while he was unemployed, the plaintiff obtained an order suspending his spousal support obligations for a six-month period commencing on November 1, 2011 and ending on April 30, 2012. [ 23 ] In June 2012, the plaintiff obtained an order suspending his spousal support obligations for a four-month period commencing on June 1, 2012 and ending on September 30, 2012. [ 24 ] In October 2012, the plaintiff obtained an order suspending his spousal support obligations for an indefinite period commencing on October 1, 2012. [ 25 ] Notwithstanding the various orders suspending his spousal support obligations, the evidence shows that the plaintiff paid the defendant $4,200 in spousal support in 2012: Exhibit 2, Tab 12.

Custody and Access Order [ 26 ] In April 2017, I signed a consent corollary relief custody and access order which: • provides that the parties will continue to have joint custody of the middle child and the youngest child; • provides that those children will continue to reside with the plaintiff; • provides that the defendant and the middle child will arrange for the defendant’s access to the middle child; and • specifies the defendant’s access to the youngest child. Issues [ 27 ] The issues to be determined are: (

i) how the parties’ matrimonial property and debt should be divided, (ii) what retroactive and ongoing child support orders should be made, and (iii) what retroactive spousal support order should be made. Matrimonial Property and Debt [ 28 ] As the Court of Appeal held in Fleming v Fleming , 2016 ABCA 88 at para 30 , 616 AR 217 [ Fleming ]: Section 7(4) of the Matrimonial Property Act , RSA 2000, c M-8 presumes an equal division of non-exempt matrimonial property unless that presumption can be rebutted by demonstrating the existence of one or more of the factors in

section 8 : Hodgson v Hodgson , 2005 ABCA 13 at para 21 , 40 Alta LR (4th) 212; Kretschmer v Terrigno , 2012 ABCA 345 at para 45 , 539 AR 212. [ 29 ] Consequently, if a party argues for an unequal distribution based, for example, on an alleged dissipation of matrimonial property by the other spouse, he or she must prove the alleged dissipation: MPA , s 8(

l) and Fleming at para 30 . [ 30 ] Generally, the proper date for the valuation and division of matrimonial property (and debt) is the date of trial: Hodgson v Hodgson , 2005 ABCA 13 at paras 1-2 and 32 , 40 Alta LR (4th) 212 [ Hodgson ]. Pensions [ 31 ] The plaintiff has a pension under the Operating Engineers Local 955 Pension Plan (the Plan) that was recently valued at $78,564.

The Plan is governed by the Employment Pension Plans Act , SA 2012, c E-8.1: Exhibit 2, Tab 24. [ 32 ] The defendant is entitled to 50% of the value of the pension benefits earned between April 20, 1991 (the date of the parties’ marriage) and April 3, 2017 (the date the trial commenced). This is the joint accrual period for the purposes of my pension order.

[33] The parties will have the administrator of the Plan review and confirm their draft pension order before presenting it to me forsignature. [34] The parties should also apply to have the Canada Pension Plan credits they accumulated between April 20, 1991 and April 3,2017 divided equally between them. Matrimonial Home and Furnishings [35] The matrimonial home is owned by the parties as joint tenants. The defendant has had exclusive possession of the home sinceFebruary 2010, and the parties agree that she should keep the home. The home was recently valued at $325,000. There is a $117,736mortgage on the home.

The equity in the home ($207,264) is to be divided equally between the parties, subject to the defendant’sexemption discussed below. [36] The defendant has paid the mortgage on the matrimonial home since April 2010. She is seeking to be reimbursed $3,000 forthe additional mortgage interest she was required to pay as a result of the plaintiff’s admitted refusal to sign a mortgage renewaldocument. The defendant testified that the plaintiff’s refusal to sign the mortgage renewal document caused her to have to pay anadditional $500 in mortgage interest per month for a six-month period.

I agree that the plaintiff owes the defendant that $3,000. [37] The plaintiff testified that he did not take any furnishings from the matrimonial home. He values the furnishings in the homeat $5,000. The defendant suggests the furnishings have no value. [38] I am not going to include the value of the matrimonial home’s furnishings in my property order. The evidence demonstratesthat the plaintiff withdrew $5,000 from the parties’ joint funds (in his bank account) on February 18, 2010, just before he moved out ofthe matrimonial home: Exhibit 5, Binder 1, Tab 6.

And, the plaintiff testified that he used some of the parties’ joint funds to purchasefurnishings for the condominium. Accordingly, I find that the parties’ furnishings have already been equally divided. Exemption Traceable into the Matrimonial Home [39] The defendant claims an exemption for a $7,998 withdrawal she made from a RRSP account she owned prior to the marriage:Exhibit 5, Binder 1, Tab 13. The parties used those funds to purchase their first home (in Penticton). That home was owned by theparties as joint tenants.

The defendant testified that the equity in the parties’ first home was transferred to the matrimonial home. Thus,the defendant’s pre-marriage RRSP funds are traceable into the matrimonial home. [40] Exempt property put into joint names loses its exempt status in respect of the one-half interest that was gifted to the otherspouse (and thus became distributable matrimonial property): Harrower v Harrower (1989), (AB CA), 68 Alta LR(2d) 97, [1989] AJ No 629 (QL) and Jackson v Jackson (1989), 1989 ABCA 197 , 68 Alta LR (2d) 118, [1989] AJ No 630(QL).

Accordingly, the defendant is entitled to a $3,999 ($7,998/2) exemption. Any increase in the value of the defendant’s exemption(reflected in the value of the matrimonial home) is to be divided equally between the parties. Condominium [41] The plaintiff and the children reside in a condominium that the plaintiff purchased in May 2010 with some of the parties’ jointfunds. The plaintiff has always paid the mortgage on the condominium. [42] The parties agree that the condominium is a matrimonial asset. The condominium was recently valued at $280,000. There is a$229,503 mortgage on the condominium.

The equity in the condominium ($50,497) is to be divided equally between the parties. Vehicles [43] The plaintiff owns a 2008 Jeep Cherokee Laredo (the Jeep) that the parties agree is a matrimonial asset. He testified that theJeep had been in a couple of accidents, had been repaired, and had about 225,000 kilometres on it. He estimates that the Jeep is worth$5,000.

The defendant disputes this, and claims that the Jeep should be valued at $13,521, based on the black book value for a 2008 JeepGrand Cherokee Laredo with 172,717 kilometres on it: Exhibit 5, Binder 1, Tab 3. [44] The plaintiff testified that the Jeep is not a Grand Cherokee. It is a base model. As neither party produced specific evidenceregarding the Jeep’s value, I am going to split the difference between them and value the Jeep at $9,260.

That amount is to be dividedequally between the parties. [45] The defendant argues that the 1998 Dodge Durango that the plaintiff traded in for the Jeep should be valued at $5,000, andconsidered a matrimonial asset. I disagree. Whatever value the Durango might have had is reflected in the value of the Jeep. RRSP Account [46] The defendant alleges that the plaintiff withdrew $5,000 from the RRSP account in his name, after the Interim DistributionOrder was made, and before he transferred half of the RRSP account to her.

In support of her allegation, the defendant relies on: • the Interim Distribution Order pronounced on October 5, 2011, which valued the RRSP account at $70,099; • a bank document indicating that the plaintiff withdrew $5,000 from the RRSP account on October 31, 2011 (Exhibit 5, Binder 1,Tab 5);

• a bank document indicating that the plaintiff instructed the bank to transfer half of the RRSP account to the defendant on November 22, 2011 (Exhibit 2, Tab 34); and • a government document indicating that the value of the RRSP account just before the transfer was $63,005 (Exhibit 2, Tab 34). [ 47 ] When all this was put to the plaintiff during his testimony, he maintained that the $5,000 he received from the RRSP account was part of his half of the account.

He also explained that the value of the RRSP account fluctuated between the date of the Interim Distribution Order and the date of the transfer to the defendant. [ 48 ] To the extent that it is inconsistent with the documentary evidence, I reject the plaintiff’s testimony regarding the RRSP account.

It is clear from the documentary evidence that the plaintiff withdrew $5,000 from the account, after the Interim Distribution Order was made, and before he instructed the bank to transfer half of the account to the defendant. [ 49 ] Accordingly, I find that the plaintiff owes the defendant $2,500, representing half of the funds he improperly withdrew from the RRSP account.

Joint Guaranteed Investment Certificate [ 50 ] The parties had a guaranteed investment certificate (GIC) that matured in November 2008 (shortly after they separated within the matrimonial home, but before they separated economically). $31,784 was deposited into the parties’ joint bank account.

Immediately thereafter, the plaintiff transferred $31,000 (the GIC funds) from the parties’ joint bank account to his own bank account. [ 51 ] The plaintiff used $14,000 of the GIC funds to purchase the condominium. [ 52 ] The defendant argues that she is entitled to half of the balance of the GIC funds ($31,000 - $14,000 = $17,000/2 = $8,500).

The plaintiff disputes, arguing that the GIC funds were used to meet the family’s expenses, and were exhausted after he put down the deposit on the condominium. [ 53 ] The plaintiff testified that the parties’ were using his bank account for their day-to-day living when he transferred the GIC funds to that account in November 2008. He described his account as “the family account”. He said his pay went into, and all the family’s expenses came out of, that account.

He also said that he gave the defendant money from the account when she needed it, and that the defendant had access to the bank card and statements for the account. [ 54 ] The defendant testified that the plaintiff did not ask for her permission to transfer the GIC funds to his account, and that she did not know he did that. She denied that she had access to the plaintiff’s account, or the statements for that account, during the relevant period.

The defendant said that, when she reviewed the statements later on, she realized that the plaintiff had used the GIC funds to purchase several things that did not benefit her or the children. The purchases the defendant challenges add up to about $2,300. I am satisfied that the plaintiff dissipated that amount of the GIC funds to the defendant’s detriment. [ 55 ] The plaintiff owes the defendant $1,150, representing half of the amount of the GIC funds the defendant proved he dissipated.

He also owes her $4,929, representing half of the balance in his account on February 22, 2010 (the day before he left the matrimonial home and the parties separated economically) less the $14,000 condominium down-payment ($23,859 - $14,000 = $9,859/2 = $4,929). Those funds were not available to the defendant when the parties separated economically because the plaintiff had wrongly transferred them to a bank account the defendant had no access to. In making these findings, I acknowledge that the plaintiff’s pay went into his account during the relevant period: Exhibit 5, Binder 1, Tab 6.

Joint Line of Credit [ 56 ] The parties owe $34,992 on a joint line of credit. The plaintiff testified that he used the credit line on March 10, 2010 to pay off the loan for the Jeep ($17,784) and a credit card debt ($15,425). [ 57 ] The plaintiff testified that the credit card debt he paid off with the credit line was “family debt”. He also explained that he used the credit line on March 10, 2010 to reduce his debt service ratio so he could qualify for the mortgage he needed to purchase the condominium.

Finally, he testified that, excepting one principal payment he may have made years ago, he has only made interest payments on the credit line since the parties separated. [ 58 ] The plaintiff argues that the credit line debt is matrimonial debt, as the credit line was used to clear up debt that accumulated before the parties separated economically; that is, before the plaintiff moved out of the matrimonial home. [ 59 ] The defendant argues that the credit line debt should be borne by the plaintiff alone.

She criticizes the plaintiff for failing to make principal payments on the credit line while the Jeep (an asset purchased with the credit line) depreciated in value. She also denies that the credit card debt the plaintiff paid off with the credit line was family debt. She testified that the plaintiff’s credit card statements show that he made numerous purchases between June 2008 and March 10, 2010 that did not benefit her or the children. [ 60 ] I am not prepared to penalize the plaintiff for his failure to make principal payments on the credit line.

The credit card purchases the defendant challenges add up to about $4,500: Exhibit 5, Binder 1, Tab 17. I am satisfied that the credit line debt relating to those purchases is not matrimonial debt. The rest of the credit line debt ($34,992 - $4500 = $30,492) is matrimonial debt that must be shared equally by the parties. Outstanding Property Taxes [ 61 ] The parties have an outstanding tax balance of $6,253.10, arising from the defendant’s failure to pay the 2015 and 2016

property taxes on the matrimonial home: Exhibit 5, Binder 1, Tab 9. The plaintiff argues this is not matrimonial debt. I agree. [ 62 ] The defendant has been responsible for paying the property taxes on the matrimonial home for many years. The fact that she has failed to meet her obligation for the past two years does not make the resulting debt matrimonial debt. Student Loan Debt [ 63 ] The defendant argues that all her student loan debt is matrimonial debt.

In so doing, she relies on SDK v RDK , 2011 ABQB 245 , [2011 AJ No 409 (QL) [ SDK ], which included a determination that the student loan debt incurred by the wife after the parties’ separation was matrimonial debt. [ 64 ] The plaintiff says none of the defendant’s student loan debt is matrimonial debt. In support of his argument, he criticizes the defendant’s decision to pursue a master’s degree, and notes that most of her student loan debt was incurred while she was completing that degree.

He also suggests that the retroactive support awards the defendant will receive will make up for the fact that she was inadequately supported while completing her bachelor’s degree. [ 65 ] The defendant testified that, during their marriage, the parties agreed that she would be a stay-at-home mom, and that, once the children were old enough, she would go back to school to become a teacher.

She said the plaintiff agreed that, as she supported his career by relocating several times for his jobs, he would support her going back to school to become a teacher. [ 66 ] The defendant also testified that she struggled financially while she went to school, because she received very little spousal support after October 2011 and had to live off her student loans.

She said she had to go to the food bank to get groceries for her and the children about twenty times during this period. [ 67 ] At the end of her studies, the defendant’s student loan debt totalled $47,457 ($29,317 + $18,140): Exhibit 5, Binder 1, Tab 12. During her testimony, the defendant estimated that she incurred $30,000 of this debt while she was completing her master’s degree.

Interest has accrued, and continues to accrue, on the defendant’s student loans. [ 68 ] Based on all of the circumstances, including: • the plaintiff’s agreement that he would support the defendant going back to school to become a teacher, • the financial difficulties the defendant endured while she went to school, • the funds the plaintiff had available to him during that time (especially in 2012), • the fact that the defendant was qualified to work as a teacher when she commenced her master’s degree, and • the defendant’s spousal support submissions (discussed below), I am satisfied that the student loan debt the defendant incurred while she was completing her bachelor’s degree ($47,457 - $30,000 = $17,457) is matrimonial debt that should be divided equally. [ 69 ] The defendant is solely responsible for the student loan debt she incurred while completing her master’s degree, as well as the interest that has accrued, and continues to accrue, on all of her student loans.

Expenses Associated with the Potential Sale of the Matrimonial Home [ 70 ] The defendant claims a liability of $18,000 for commissions and legal fees she will incur if she sells the matrimonial home. This claim is denied as speculative. [ 71 ] The defendant testified that the location of the matrimonial home is beneficial for the children, as it is very close to the condominium.

She said she intends to stay in the matrimonial home as long as she can refinance it, and seemed optimistic that she will be able to obtain the requisite refinancing if her name is taken off the parties’ joint line of credit, which it will be. [ 72 ] In the event that the matrimonial home must be sold, the parties will share the costs of the sale (realtor and legal fees and disbursements) equally.

Support Child Support [ 73 ] As the Court of Appeal noted in Pinter v Pinter , 2016 ABCA 58 , [2016] AJ No 209 (QL) at para 19 , citing DBS v SRG; LJW v TAR; Henry v Henry; Hiemstra v Hiemstra , 2006 SCC 37 at paras 54 and 68 , [2006] 2 SCR 231 [ DBS ]: [I]t is trite law that children have a right to support from their parents that is commensurate with their parents’ income ... [and that] right, and a parent’s corresponding obligation, exists independently of any court order.” [ 74 ] And, as the Court of Appeal said in Durocher v Klementovich , 2013 ABCA 115 , [2013] AJ No 279 (QL) at para 20 : The general rule is that the trial judge will revisit and adjust the amounts of support provided for in any interim orders: MacMinn v.

MacMinn (1995), (AB CA), 174 AR 261 at para. 13, 17 RFL (4th) 88 (CA); Lapp v. Lapp, 2008 ABCA 15 at para.19, 425 AR 232, 93 Alta LR (4th) 1; Hartley v. Del Pero, 2010 ABCA 182 at para. 9, 27 Alta LR (5th) 248, 487 AR 248. That is theexpectation of the parties, and the assumption upon which interim orders are made. Interim orders are made to recognize that thechildren need immediate support, and that they cannot abide the amount of time it takes to prepare a case for trial. Such interim ordersare often made on incomplete data, before full disclosure of all the relevant information by each party, based on estimates about futureincome, and after

summary proceedings in chambers. It is almost inevitable that they will not be completely accurate. The trial judge,having a much better record, extends no "deference" to those interim orders. While there may be an element of "retroactivity" in theprocess, that is not generally an impediment: D.B.S. at para. 68. When an interim order is made, it is anticipated that it will be revisited attrial, and the perceived unfairness of any retroactive adjustment is considerably reduced. ...

Spousal Support [75] In Keen v Christian-Keen, 2015 ABCA 314, [2015] AJ No 1087 (QL) at para 10 [Keen], the Court of Appeal noted that: Spousal support, as envisioned in the Divorce Act, is part of a scheme intended to ensure the “fair and equitable division of resources toalleviate the economic consequences of marriage or marriage breakdown”: Moge v Moge, (SCC), [1992] 3 SCR 813 at849. [76] In assessing what spousal support order I should make in this case, I must consider the factors and objectives in sections15.2(4) and (6) of the Divorce Act. [77]

Section 15.2(4) provides that I must consider: 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. [78] And,

section 15.2(6) provides that a spousal support order 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 anyobligation 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. [79] “Within this framework, spousal support can be compensatory, contractual, or non-compensatory”: JLH v RSW, 2017 ABCA98, [2017] AJ No 283 (QL) at para 13 [JLH], citing Moge v Moge, (SCC), [1992] 3 SCR 813 at 878 and Keen at paras11-12.

Parties’ Incomes [80] The parties’ tax documents (Exhibit 2, Tabs 1-9; Exhibit 5, Binder 1, Tab 14; and Exhibit 7) indicate that their total incomesfor the relevant years were as follows: Year Plaintiff Defendant2008 96,773 2009 123,538 2010 120,633 22,2222011 87,396 18,9772012 171,804* 22,3612013 105,322 9,4762014 108,180 8,4712015 103,699 10,138**2016 100,954 48,563 * This figure includes an additional $10,000 in severance pay that the plaintiff admitted receiving in 2012 but did not report as “otherincome” on his 2012 tax return: Exhibit 2, Tabs 5 and 11. ** This figure includes the additional employment income ($8,845.70) the defendant reported on her T1 Adjustment Request for 2015:Exhibit 5, Binder 1, Tab 14 and Exhibit 7. [81] These figures will be used to calculate the parties’ annual incomes for the purposes of the Federal Child Support Guidelinesand the Spousal Support Advisory Guidelines.

The Plaintiff’s Failures to Accurately Disclose His Income [ 82 ] In the past, the plaintiff failed to accurately disclose his income to the defendant, and the Court, in a timely manner. As a consequence, the defendant did not receive sufficient child or spousal support payments from him. [ 83 ] The most striking example of this stems from the plaintiff’s failure to advise the defendant, and the Court, of the severance payment he negotiated, and received from his former employer, in 2012. [ 84 ] The total income the plaintiff reported on his 2012 tax return included $95,000 in “other income”.

The plaintiff testified that that income was a severance payment he received from his former employer after they reached a settlement agreement in May 2012: Exhibit 2, Tab 11. [ 85 ] The plaintiff admitted that the severance payment he received totalled $105,000, not $95,000. He could not explain why only $95,000 was reported on his 2012 tax return. [ 86 ] The plaintiff also admitted that he did not disclose the fact that he had received the severance payment to the defendant, or to the Court, other than by producing his 2012 tax return in late 2013: Exhibit 3.

In other words, he admitted that he obtained the June and October 2012 orders suspending his spousal support obligations without disclosing the fact that he would be receiving, or had received, $105,000 in severance pay. [ 87 ] The defendant asks that I consider the plaintiff’s failures to accurately disclose his income in a timely manner in assessing the retroactive child and spousal support that should be awarded in this case.

Should Income Be Imputed to the Defendant? [ 88 ] The defendant has never paid any child support to the plaintiff, notwithstanding that all three children have been residing with him since February 1, 2015. [ 89 ] The plaintiff argues that, for the purposes of calculating the retroactive, and ongoing, child support the parties owe to one another, I should impute income to the defendant. He says the defendant has been intentionally under-employed since September 2013, when she was qualified to start work as a teacher.

It is his position that the defendant should have started working as a teacher in September 2013, and that income should be imputed to her accordingly. [ 90 ] Section 19(1) of the Federal Child Support Guidelines provides that: The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; ... [ 91 ] In order to impute income to the defendant under section 19(1)(a), I would have to find that she has “pursued a deliberate course of conduct for the purpose of evading child support obligations”: MAO v SAO , 2013 ABCA 414 , [2013] AJ No 1286 (QL) at para 12 [ MAO ], quoting Hunt v Smolis-Hunt , 2001 ABCA 229 at para 42 , 286 AR 248 [ Hunt ]. [ 92 ] It is the plaintiff’s position that the defendant has made choices that inhibited her ability to pay child support.

Most notably, he criticizes her decision to pursue a master’s degree. The plaintiff also suggests that the defendant has never made sufficient efforts to obtain a teaching position.

The plaintiff relies on these cases to argue that a full-time Alberta teacher’s salary should be imputed to the defendant from September 2013 onwards: Mercer v Mercer , 2004 ABQB 551 , 45 Alta LR (4th) 188 [ Mercer ]; VLW v JEW , 2007 ABQB 358 , 75 Alta LR (4 th ) 252 [ VLW ]; and Rensonnet v Uttl , 2016 ABQB 95 , [2016] AJ No 169 (QL) [ Uttl ], aff’d 2016 ABCA 196 , [2016] AJ No 650 (QL). [ 93 ] In Mercer , Watson J (as he then was) determined that an intention to avoid the payment of child support could be inferred because it was the logical consequence of the father’s lack of motivation in seeking, or inadequate attempts to find, employment. [ 94 ] In VLW , Kenny J found that the father “made a conscious choice to continue his education to the Masters or Doctorate level with the knowledge that this [would] have an adverse effect on his children’s right to receive appropriate support from him”: para 34.

Consequently, she inferred that the father was intentionally under-employed to the determinant of his children. [ 95 ] Finally, in Uttl , Poelman J determined the Hunt test was met after finding that: • the father had a strong educational background and demonstrated technical skills, • he had not produced the required financial disclosure, • he had incurred significant international travel expenses over the period in question, • he had discontinued working for the company that he had earned significant income from, • he testified that he could not say what his entire income was for certain years,

• he testified that he was too busy representing himself in the litigation to take employment in other years, and • he eventually obtained a part-time position. [ 96 ] The defendant denies that she has ever been intentionally under-employed. She says she tried to find a teaching position after obtaining her bachelor’s degree to no avail, and pursued her master’s degree as a back-up plan.

She maintains that she increased her employment prospects by obtaining her master’s degree, and notes that she has held several teaching positions since she completed that degree. [ 97 ] The plaintiff testified that he did not find out that the defendant had enrolled in a Master of Education program until September 2013, when she started the program.

He was upset when he learned that the defendant was continuing with her education because it was his understanding that she was going to look for employment after completing her Bachelor of Education degree. [ 98 ] The defendant testified that she did look for employment after completing her bachelor’s degree. She said she applied to four public school boards but did not hear back from any of them.

The defendant admitted that she did not include the requisite number of professional references with the application she submitted to the Edmonton Public School Board, and that she thought that may have been why she did not hear anything from that board. The defendant explained that returning to school to do a master’s degree was her Plan B. So, that’s what she did when she did not get a teaching job by the fall of 2013. [ 99 ] The defendant also testified that she tried to pick up extra hours at the bank, and looked for a summer job, after finishing her classes in April 2013, all to no avail.

Finally, she testified that she continued to look for teaching jobs while she was completing her master’s degree. [ 100 ] Since completing her master’s degree, the defendant has held various teaching positions and managed to significantly increase her employment income. [ 101 ] I am not prepared to impute any income to the defendant for the purpose of calculating child support.

There is no “proof of a specific intention [on her part] to undermine or avoid support obligations”; and the circumstances are insufficient to support an inference that she ever intended to undermine, or avoid, her support obligations: MAO at para 12 , quoting Hunt at para 42 . [ 102 ] The cases the plaintiff relies on are distinguishable from this case on their facts. For example, at least two of the cases ( VLW and Uttl ) involved the imputation of income to parents who were gainfully employed prior to the parties’ separation.

None involved a parent like the defendant, who was responsible for most of the homemaking and childcare before the parties’ separation, and required retraining to achieve economic self-sufficiency. Retroactive Child Support [ 103 ] The parties agree that the circumstances in this case (which include the plaintiff’s failures to accurately disclose his income in a timely manner, and the resulting interim child support orders), warrant retroactive child support awards dating back to March 2010. I am satisfied that this is so, and will give effect to their agreement.

Owed to the Defendant [ 104 ] The defendant seeks retroactive child support for March 2010 through January 2015, representing money she ought to have been paid but was not. [ 105 ] The plaintiff agrees that the defendant is entitled to retroactive child support for March 2010 through August 2013.

However, based on his imputation of income argument, which I have rejected, he denies that the defendant is entitled to any retroactive child support after August 2013, and argues that he overpaid child support for September 2013 through January 2015. [ 106 ] The defendant is entitled to a retroactive child support award for March 2010 through January 2015. Her award should be calculated in accordance with the Federal Child Support Guidelines , using the total incomes listed above (adjusted in accordance with

Schedule III of the Guidelines ), and accounting for these facts: • the parties had a shared parenting arrangement for all three children between March 2010 and March 2013; • the oldest child began residing with the plaintiff on April 1, 2013; and • the parties had a shared parenting arrangement for the middle child and the youngest child between April 2013 and January 2015. [ 107 ] The plaintiff must be credited for the $2,250 ($750 x 3) he paid in retroactive child support pursuant to the May 2015 order. [ 108 ] I leave it to the parties to revise the calculations they gave me accordingly: Tab 3 to Defendant’s Written Argument and Tab 8 to Plaintiff’s Written Argument.

Owed to the Plaintiff [ 109 ] The plaintiff seeks retroactive child support for February 2015 through April 2017, representing money he ought to have been paid but was not. However, the calculations he has provided are based on his rejected imputation of income argument. [ 110 ] The defendant agrees that the plaintiff is entitled to retroactive child support for February 2015 through April 2017, but denies that any income should be imputed to her.

[ 111 ] The plaintiff is entitled to a retroactive child support award for February 2015 through April 2017. His award should be calculated in accordance with the Federal Child Support Guidelines , using the total incomes listed above (adjusted in accordance with

Schedule III of the Guidelines ), and accounting for these facts: • all three children have been residing with the plaintiff since February 1, 2015; and • the oldest child ceased being a “child of the marriage” under the Divorce Act in June 2016. [ 112 ] I leave it to the parties to revise the calculations they gave me accordingly: Tab 3 to Defendant’s Written Argument and Tab 8 to Plaintiff’s Written Argument. Ongoing Child Support [ 113 ] The plaintiff seeks ongoing child support.

However, once again, the calculations he has provided are based on his rejected imputation of income argument. [ 114 ] The plaintiff is entitled to ongoing child support calculated in accordance with the Federal Child Support Guidelines , using the defendant’s 2016 income listed above (adjusted in accordance with

Schedule III of the Guidelines ). This ongoing child support is subject to adjustment on confirmation of the defendant’s actual 2017 income. [ 115 ] The parties must provide to each other annually the information required under

section 25 of the Federal Child Support Guidelines . Retroactive Spousal Support [ 116 ] The parties agree that the circumstances in this case (which include the plaintiff’s failures to accurately disclose his income in a timely manner, and the resulting interim orders suspending his spousal support obligations), warrant a retroactive spousal support award dating back to November 2011.

I am satisfied that this is so, and will give effect to their agreement. [ 117 ] The defendant seeks retroactive spousal support for November 2011 through August 2013, if all of her student loan debt is considered matrimonial debt, which it is not. Alternatively, she seeks retroactive spousal support for November 2011 through April 2015, plus a contribution towards her student loan debt. [ 118 ] The plaintiff agrees that the defendant is entitled to retroactive spousal support from November 2011. However, he says her award should end after April 2013, when she completed the coursework for her bachelor’s degree.

He also says he must be credited for the spousal support he paid the defendant in 2012. [ 119 ] Based on all of the relevant circumstances, including: • the length of the parties’ cohabitation (17 years), • the roles the parties played during their cohabitation, • the plaintiff’s agreement that he would support the defendant going back to school to become a teacher, • the financial difficulties the defendant endured after the parties separated economically, • the funds the plaintiff had available to him after the parties separated economically (especially in 2012), • the efforts the defendant made to achieve self-sufficiency, • the fact that the defendant was qualified to work as a teacher by September 2013 but could not find a teaching position, • the fact that the defendant pursued her master’s degree in an effort to increase her employment prospects, and • the fact that the defendant completed the coursework for her master’s degree in April 2015, I am satisfied that the defendant is entitled to the alternative retroactive spousal support she seeks, on a compensatory, contractual, and non-compensatory basis: Keen at paras 11-12 . [ 120 ] Thus, the defendant is entitled to retroactive spousal support for November 2011 through April 2015.

The support owing to her will be calculated using the total incomes listed above (adjusted in accordance with

Schedule III of the Federal Child Support Guidelines ), and will be at the high end of the range of outcomes generated by the Spousal Support Advisory Guidelines with child support formula. The plaintiff must be credited for the $4,200 in spousal support he paid the defendant in 2012. I leave it to the defendant to revise the calculations she provided accordingly: Exhibit 5, Binder 1, Tab 15. [ 121 ] The defendant’s student loan debt has been dealt with separately in these reasons.

Ongoing Spousal Support [ 122 ] The defendant does not seek ongoing spousal support, but asks the Court to leave it open to her to seek spousal support in the future. I need not make any order in this regard. Section 17(4.1) of the Divorce Act enables the defendant to apply for a review of spousal

support if there is a change in her condition, means, needs or other circumstances: JLH at para 32 . Result [ 123 ] I make the following orders: Pension Order [ 124 ] The defendant is entitled to 50% of the value of the pension benefits the plaintiff earned between April 20, 1991 and April 3, 2017. [ 125 ] The parties will have the administrator of the Plan review and confirm their draft pension order before presenting it to me for signature. [ 126 ] The parties must apply to have the Canada Pension Plan credits they accumulated between April 20, 1991 and April 3, 2017 divided equally between them.

Matrimonial Property Order [ 127 ] Subject to the defendant’s exemption ($3,999), the equity in the matrimonial home ($207,264) is to be divided equally between the parties.

The equity in the condominium ($50,497), and the value of the Jeep ($9,260), are also to be divided equally between the parties. [ 128 ] These matrimonial debts are to be divided equally between the parties: • $30,492 of the joint line of credit debt; and • $17,457 of the defendant’s student loan debt. [ 129 ] The plaintiff owes the defendant: • $3,000, representing the additional mortgage interest the defendant was required to pay as a result of the plaintiff’s admitted refusal to sign a mortgage renewal document; • $2,500, representing half of the funds the plaintiff improperly withdrew from the RRSP account in his name, after the Interim Distribution Order was made; • $1,150, representing half of the amount of the GIC funds the defendant proved the plaintiff dissipated; and • $4,929, representing the GIC funds that should have been available to the defendant when the parties separated economically. [ 130 ] Each party will keep the property (and debt) currently in his or her possession.

The plaintiff must get the defendant’s name off the joint line of credit as soon as possible. Thereafter, the defendant must refinance the matrimonial home in her name alone, get the plaintiff off the title to the matrimonial home, and make the requisite payment to the plaintiff (based on all the combined orders). [ 131 ] In the event that the defendant is unable to refinance the matrimonial home in her name alone, and the matrimonial home must be sold, the parties will share the costs of the sale (realtor and legal fees and disbursements) equally.

Child Support Orders [ 132 ] The defendant is entitled to retroactive child support for March 2010 through January 2015. [ 133 ] The plaintiff is entitled to retroactive child support for February 2015 through April 2017. He is also entitled to ongoing child support. [ 134 ] The child support owing to both parties must be calculated in accordance with the Federal Child Support Guidelines , and account for my fact findings.

The ongoing child support owing to the plaintiff is subject to adjustment on confirmation of the defendant’s actual 2017 income. [ 135 ] The parties must provide to each other annually the information required under

section 25 of the Federal Child Support Guidelines . Spousal Support Order [ 136 ] The defendant is entitled to retroactive spousal support for November 2011 through April 2015. The spousal support owing to the defendant must be calculated using the high end of the range of outcomes generated by the Spousal Support Advisory Guidelines with child support formula, and account for my fact findings. [ 137 ] The plaintiff must be credited for the $4,200 in spousal support he paid the defendant in 2012.

Divorce Judgment [ 138 ] The parties’ divorce is uncontested. I leave it to them to prepare the divorce judgment (with consent signatures), and supporting documents, and submit them to the Court. Costs [ 139 ] If the parties cannot agree on costs, they may speak to them within thirty days of the date of this decision. Heard on the 3 rd , 4 th , and 5 th days of April, 2017. Dated at the City of Edmonton, Alberta this 1 st day of June, 2017. Don J. Manderscheid J.C.Q.B.A. Appearances: Timothy J. Snyder Snyder & Associates LLP for the Plaintiff Marilyn Sheckter Legal Family Crisis Clinic for the Defendant