Pannu v Bamber, 2017 ABQB 407

Court of Queen’s Bench of Alberta Citation: Pannu v Bamber, 2017 ABQB 407 Date: 20170627 Docket: 4803 171659 Registry: Edmonton Between: Neesh Inder Pannu Plaintiff - and - Dean Derek Bamber Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice S.D. Hillier _______________________________________________________ I.

Introduction [ 1 ] This divorce action was set for trial under Case Management of Renke J. who issued various orders to best ensure effective use of Court time to resolve the dispute between these parties, and to allow them to get on with the next stages of their lives. The major outstanding issues are: 1. matrimonial property division 2. the parties’ incomes 3. entitlement to spousal support (including quantum and duration), and 4. child support. [ 2 ] The parties were formally married on July 25, 1997 and have two children.

The oldest child is now almost 14 years old and the younger child has just turned 12 years old. [ 3 ] There is some dispute as to the formal date of separation, although it does not in the least impede their grounds or entitlement to a divorce. The Plaintiff filed her claim for divorce on April 15, 2015, the Defendant counterclaimed on June 25, 2015, and I am satisfied that there is absolutely no prospect of reconciliation.

[ 4 ] From the trial evidence, including the marriage certificate, period of separation and circumstances affecting the children, I hereby issue Judgement granting standard terms for the divorce between these parties effective upon expiry of the 30 day appeal period. II. Background [ 5 ] The parties first met at the University of Alberta in 1988 and started dating in 1989. The nature of their relationship, including frequency of contact, is rather unclear as they pursued their professional education and careers prior to marriage.

The Plaintiff completed a first degree and then graduated in Medicine at the University of Alberta in 1995. She did residencies in Edmonton and Calgary. [ 6 ] The Defendant completed a BSc at the University of Alberta with a specialty in genetics. He left his studies to explore a career as a pilot before completing a year in anthropology, spending some time in Victoria. He was accepted into the Master’s Program in September 1993. As part of his subsequent PhD in forensic anthropology, he was assigned to a project through the United Nations International Communal Tribunal.

He had three assignments or tours in Rwanda in late 1995 to 1996 totalling between four and six months. On his return, he left his PhD studies because of grant delays and a lost taste or apathy towards anthropology. [ 7 ] After the parties married in 1997, the Plaintiff completed a clinical fellowship and critical care residency at Stanford until problems arose with her work visa status. She secured a clinical staff position at the University of Alberta Hospital in nephrology, but her work also included critical care responsibilities.

She remained in that position until the birth of their first child. [ 8 ] The Defendant worked as a case manager and claims instructor with the Workers’ Compensation Board where he earned at least $48,000 annually from 1997 until he resigned in 1999. He relocated to be with the Plaintiff in Stanford where he became a University staff member under a grant to study genetic-related cancers in the Division of Oncology Human Genetics. He was the Program Manager for the team and earned about $55,000 US until August 2001.

The Defendant continued working as a consultant from Edmonton using a corporation he set up to minimize tax such as GST. He worked about four or five hours a day, monitoring and trouble- shooting “on call” until the grant money ran out in late 2002 or into 2003. The existence of the corporation came to light at trial for the first time.

Nothing turns on this except to note that the Defendant’s lack of disclosure permeated not just the litigation but also characterized the sharing of information by the Defendant to the Plaintiff during the marriage. [ 9 ] In 2002, the parties bought their first home in Belgravia, an older Edmonton neighbourhood. In addition to his work for Stanford, the Defendant did significant renovations to the home.

He also worked on a revenue property that the parties flipped in 2003 or 2004 to repay some of their debts. [ 10 ] When the oldest child was born in July 2003, the Plaintiff took a six month leave since her contract did not accommodate maternity. Upon her return to work, she accepted a tenure track position at the University of Alberta and stopped doing critical care assignments in order to concentrate on nephrology, which helped her to juggle her parenting responsibilities. The parties’ first of four full time nannies was hired in January 2004.

The Plaintiff also began a Master’s Degree Program from Harvard that she completed in 2007, due in part to the age and needs of their children. [ 11 ] The parties seem to have agreed, at least passively, that the Defendant would continue as a home renovator, particularly doing high end kitchens and bathrooms for neighbours and other contacts. The evidence was unclear as to the amount of time taken or revenue generated from that work. He also enjoyed cooking, but nothing supports that he took on a role as a stay at home spouse.

The parties’ second child was born in March 2005 and the Plaintiff took off another six months, still with the aid of their nanny. [ 12 ] By the summer of 2005, the couple decided to buy a larger home in Grandview. They sold the Belgravia home for $448,000, having purchased it for $260,000 in late 2001.

There was no evidence as to total monies invested in that home, nor the market inflation, but there was no dispute that the sale value was enhanced in some measure by the Defendant’s work in a number of areas of the house. [ 13 ] The Defendant spent most of the next six months preparing the Grandview home for occupancy. He had a reciprocal service or barter arrangement with a teacher/welder named John Neufeld to work on each other’s homes.

From that relationship, the idea arose to set up a joint business venture. [ 14 ] The Defendant and Neufeld incorporated Air Arc Manufacturing Ltd. in 2006, initially to build skid platforms for the oil industry. The Defendant estimated at trial that each of them probably invested $35,000. This was unconvincing, but a number of other points are uncontroverted. Although he arranged to hire two former students as apprentice welders, Mr. Neufeld was not as committed to the time and work needed for the business to succeed.

His initial contract with Husky Oil did not fully materialize and the Defendant shifted the work to vehicle modifications for oil servicing vehicles. The Defendant spent evenings on diesel truck modifications to protect against volatile gas cut offs. That work was lucrative but took a lot of his time.

Neufeld simply stopped showing up for work in the shop. [ 15 ] Overall, the Defendant performed Air Arc management roles in payroll and human resources, was responsible for most designs, sales and supervision as well as contacts with suppliers and financial arrangements with the Business Development Corporation (BDC). He swept the shop floor nightly. [ 16 ] Although he could not recall the timing, records show that the Defendant bought out Neufeld in July 2007 for $85,000.

His only justification for that figure was that it was the value asserted by Neufeld and he thought it would only get higher as work continued to grow. The Defendant never had a valuation done and the financial statement for the year ending July 31, 2007 (Ex. 1, T23) showed Gross Revenue of $464,000, Net Revenue of $5,400 and a Net Loss just under $93,000. [ 17 ] Although the Defendant says he consulted the Plaintiff to authorize the Neufeld buyout, it was quite clear that she had no real knowledge or interest by which to assess the circumstances. She simply trusted him.

The $85,000 was drawn out of the Plaintiff’s professional corporation and the letter of credit with the Bank of Nova Scotia charged against the Defendant’s equity in the home was

increased to $250,000. [ 18 ] In early 2008, the Defendant borrowed $30,000 from the Plaintiff’s father, Mr. Pannu, to cover payroll, which he says was repaid. No documents were produced to support that assertion and Mr. Pannu testified that he was never repaid. The Defendant expanded and specialized the Air Arc business. The 2008 Financial Statement for Air Arc shows Net Earnings of $131,000. For reasons unexplained by the evidence, the Defendant borrowed another $150,000 in August 2008 from the Plaintiff’s uncle.

That debt was paid down to $118,000 by August 2010,at which point the Plaintiff’s father wrote a second cheque for that amount to pay out his brother. But as early as six months after the Neufeld buyout, Air Arc had cash flow problems that grew worse. [ 19 ] A number of other factors jeopardized the success of Air Arc: the cost of labour, particularly welders, increased significantly and the Defendant began doing more work himself to reduce those expenses; the market in the oil industry fell off significantly by 2009; and the work became more specialized and consumed more of the Defendant’s time.

He was also drinking heavily as the stresses increased. [ 20 ] The hardest task for the Defendant to manage was the collection on accounts receivable that affected cash flow. He neither consulted nor retained any financial manager to tackle this issue. Despite initial assurances of forebearance , the BDC stepped in to shut down the business in 2010. It was only a few months before this that the Defendant first told the Plaintiff about Air Arc’s significant financial problems and that he needed a lot more money from her. He declared personal bankruptcy effective March 23, 2011 and sought early discharge.

In opposition to discharge, the Trustee in Bankruptcy challenged the August 2010 transfer of the matrimonial home to the Plaintiff as a fraudulent preference. [ 21 ] Legal counsel Kentigern Rowan, Q.C. negotiated a settlement of that claim in exchange for a without prejudice payment to the Trustee of $20,000, although it took until early 2014 to secure the formal release. Mr. Rowan also obtained the personal discharge of the Defendant on May 3, 2012, even though no money had been earned or paid towards the debts incurred in the bankruptcy.

The Defendant stated that he did not want a separate job during the bankruptcy because his wages would be taken by the trustee to pay debts. Mr. Rowan’s chronology of how money was expended and financed for Air Arc was unchallenged and I will consider that evidence, which I found highly reliable, in dealing with the issue of dissipation. [ 22 ] In overview, both parties are highly educated and intelligent but the strains of the relationship became pervasive, particularly in the aftermath of the bankruptcy. The Defendant was charged with care and control of a vehicle while impaired in February 2011.

Although he has a totally innocent version of events and the timing of his consumption, the Plaintiff recounted that she had called police as she was concerned that he was going to hurt himself. The Plaintiff’s father acted for the Defendant on the criminal charges, although his licence was suspended. [ 23 ] On a more positive note, the Defendant agreed to counseling and by July 2011 he commenced a two month residency rehabilitation programme at Homewood Health Centre in Ontario, funded by Plaintiff’s health plan coverage.

The Defendant declined to authorize release of any medical records or to provide any expert report for trial. On the limited evidence provided, I am satisfied that at least some of his issues stem from his experiences in Rwanda.

It appears he was diagnosed with PTSD at Homewood, but no one has addressed his ability to function following his time in Rwanda, much less his future prognosis. [ 24 ] Although the Defendant denied any real ongoing issue, his problems with alcohol continued: his licence was suspended again in 2015 and incidents arose that included punching walls, another hospitalization, and binge drinking that caused the housekeeper and eventually the Plaintiff and children to leave. [ 25 ] Dr.

Nicholas Coupland, a U of A psychiatrist, gave evidence that the Defendant was referred to him in October 2014, initially for weekly then biweekly sessions, with authority to speak with the Plaintiff as needed. When she called in February 2015 with concerns that the Defendant had been drinking for three days and was threatening harm, Dr. Coupland advised her to contact the police. The Defendant was admitted to hospital and later acknowledged excessive drinking which he thought may explain how the Plaintiff may have misunderstood what he was saying about harm. He withdrew permission for Dr.

Coupland to speak with the Plaintiff. [ 26 ] Dr. Coupland said that he now sees the Defendant about every three weeks and his prescriptions for stress and anxiety are modified from time to time. In addition to treatment for PTSD, the Defendant suffers from alcohol dependence and is at times non- compliant with advice to abstain and attend counseling. Dr. Coupland noted without charts that the Defendant recounted nightmares about Rwanda, was concerned whenever his children were injured and felt guilty for not being supportive.

The Defendant has been compliant with taking medications prescribed for stress and short term anxiety but continues to relapse in his consumption of alcohol. [ 27 ] Dr. Coupland agreed that the major source of information in the course of his treatment of the Defendant is what the patient reports. This did not assist the Court’s ability to rely on Dr. Coupland’s evidence in the face of the Defendant’s acknowledgment that he lied to him and medical staff about the amount of alcohol and sleeping pills he consumed leading up to the incident with guns that caused the housekeeper to leave in February 2015. III.

Matrimonial Property A. Positions of the Parties 1. Plaintiff [ 28 ] The Plaintiff claims entitlement to the residual proceeds of the sale of the matrimonial home and asserts that the Defendant has dissipated his claim to any equity, that the parties agreed to the transfer into her sole name for good and valuable consideration, and that the circumstances generally, including a lack of disclosure, support her entitlement to these proceeds once the home is sold.

[ 29 ] In particular, the Defendant failed to provide the following disclosure: • any record of the initial amounts invested by the Defendant and Neufeld in Air Arc; • any valuation for the buyout of Neufeld in 2007; • any accurate information as to the jeopardy of the company until July 2010 when the bank threatened enforcement on the line of credit; • financial statements of Air Arc for 2009 and 2010; and • the bankruptcy file or records. [ 30 ] While acknowledging that the Defendant worked on home renovations, the Plaintiff argues that he has improperly dissipated matrimonial property.

His involvement in Air Arc without professional advice and financial oversight led to massive lines of credit, family loans and his personal bankruptcy, entailing a serious risk that the matrimonial home would also be lost. [ 31 ] The Plaintiff is prepared to leave all household contents with the Defendant except the following: • one of at least two eight place settings of dishes, • the Reidel wine Glassware, • a set of 12 Silverware gifted by the Plaintiff’s uncle and aunt • one of two televisions, • a dining room table and eight chairs, • the children’s bedroom furniture. 2.

Defendant [ 32 ] The Defendant argues stridently that he is entitled to the presumption of equal distribution. He submits that he supported the Plaintiff’s career, his role was largely as a stay at home spouse, and he made significant renovations to the matrimonial home. He argues that dissipation is only one factor and mismanagement has not been established by the evidence to the level contemplated by cases which have applied the criteria in Cox v Cox , 1998 ABQB 987 , 233 AR 258. The Plaintiff never came to the shop and exercised no oversight of the business.

The failure arose from a drop in the Alberta market and difficulties with cash flow as customers extended the time for payments on accounts receivable. [ 33 ] As for household items, the Defendant agrees to release of the wine glasses, and a television. He says the silverware was a wedding gift to both of them; he designed (but did not make) the dining room table; and he wishes to keep the children’s furniture.

He takes no position regarding the significant inventory of other items still in the home, including the master suite, guest bedroom, the three living room sets, the furniture in the office/den, kitchen table/chairs, the tools and garden equipment and other related contents. B.

Legal Framework [ 34 ] The purpose of the Matrimonial Property Act , RSA 2000, c M-8 (MPA) is to “legally recognize marriage as an economic partnership, founded on the presumption that the parties intended to share the fruits of their labour during and as a result of it, on an equal basis”: Jensen v Jensen , 2009 ABCA 272 at para 1 , 70 RFL (6th) 63.

An obvious corollary is the presumption that the parties generally also bear equally in the risks and benefits of their joint efforts and investments. [ 35 ] Section 7(4) of the MPA establishes a general presumption of equal distribution, unless it would not be just and equitable to do so taking into consideration the following factors set out in s. 8: (

a) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent; (

b) the contribution, whether financial or in some other form, made by a spouse directly or indirectly to the acquisition, conservation, improvement, operation or management of a business, farm, enterprise or undertaking owned or operated by one or both spouses or by one or both spouses and any other person; (

c) the contribution, whether financial or in some other form, made directly or indirectly by or on behalf of a spouse to the acquisition, conservation or improvement of the property; (

d) the income, earning capacity, liabilities, obligations, property and other financial resources (

i) that each spouse had at the time of marriage, and (ii) that each spouse has at the time of the trial; (

e) the duration of the marriage; (

f) whether the property was acquired when the spouses were living separate and apart;

(

g) the terms of an oral or written agreement between the spouses; (

h) that a spouse has made (

i) a substantial gift of property to a third party, or (ii) a transfer of property to a third party other than a bona fide purchaser for value; (

i) a previous distribution of property between the spouses by gift, agreement or matrimonial property order; (

j) a prior order made by a court; (

k) a tax liability that may be incurred by a spouse as a result of the transfer or sale of property; (

l) that a spouse has dissipated property to the detriment of the other spouse; (

m) any fact or circumstance that is relevant. C. Factors 1. Roles - s. 8(a) [ 36 ] Predictably, the parties gave contrasting descriptions of their roles and their respective contributions to this marriage, and to the welfare of the family as a homemaker or parent. Although the evidence here was not extensive, the Court is able to conclude that both parents were engaged in raising the family, albeit in differing ways.

The testimony from a neighbour and even the Defendant’s mother did not in the least support that the Defendant carried a disproportionate parental burden or was a stay at home parent. [ 37 ] There were some periods where the Plaintiff was away from the home after the children were born (to complete her programme at Harvard or to attend conferences). However, nothing inordinately onerous was imposed on the Defendant, largely because of the roles and responsibilities of the parties’ various nannies.

For four years, the Defendant spent many hours working without paying much attention to his children as he struggled with Air Arc. Certainly nothing derives from the periods where each was away from home, nor is there evidence that either of them sacrificed his or her own aspirations to the benefit of the other. [ 38 ] The evidence is clear that the Defendant did most of the cooking in the home and probably a greater share of shopping, yard work and certainly home maintenance and renovations.

But from the evidence, I am satisfied that the Plaintiff has been principally responsible for the health, education and activities of the two children. Certainly during and after the bankruptcy, the Plaintiff changed her hours and was obliged to take on significant responsibilities as the Defendant was working very long hours, and likely abusing alcohol - at least in part to cope with the stress.

This did not significantly improve after the bankruptcy in the years leading up to separation. [ 39 ] The last few years leading to the separation were impacted by disharmony, most profoundly by the bankruptcy, and stress caused by the Defendant’s moods and inordinate consumption of alcohol. While the Defendant’s drinking may relate to PTSD, I reject any suggestion in the Defendant’s evidence that he did not and does not have a serious issue with alcoholism, notwithstanding the reassignment to treatment for PTSD at the Homeward in the summer of 2011.

The incidents, police charges, and evidence from the Plaintiff, the nanny and Dr. Coupland provide a reliable basis for the Court to conclude that the Defendant’s alcohol consumption created fear that he would hurt himself on a number of occasions and that his failure to work during or after discharge from bankruptcy, and his denial of a problem with alcohol were significant problems in the latter years leading up to and following separation that included innumerable vitriolic communications with the Plaintiff.

Clearly, these events significantly diminished the Defendant’s ability to positively contribute to the home and marriage during the latter part of the marriage. 2. Management - ss. 8(

b) and (c) [ 40 ] As noted, this was an 18 year marriage to the time of the parties’ formal separation. Nothing much turns on the difficulties they experienced in 2014 as they continued to live in the same home, except that it increased the stress and tension. I am satisfied that the Defendant had health issues during this time including serious difficulties with alcohol. [ 41 ] Neither party was particularly attuned to the finances and banking arrangements during the marriage. They maintained a joint account where the Plaintiff deposited the income from the University and her clinical practice.

Presumably, the Defendant also made deposits at times, although no direct evidence of this was given. He seems to have mostly paid for groceries while the Plaintiff paid for the bulk of all household expenses, but those payments would have come from their joint account. [ 42 ] The MPA speaks largely in terms of financing and management which contributes to the acquisition, conservation, or improvement of assets. It makes sense to be looking for contributions which resulted in the accumulation of matrimonial property.

Here the funds for purchases of matrimonial assets came from the Plaintiff’s professional corporation. The Defendant’s positive contributions were in the nature of conservation or improvement of assets acquired. His hard work undoubtedly contributed to the increased value of the houses sold by the parties. However, any quantification of the value of his contribution is impossible on the evidence. Further, as I will address under dissipation, the Defendant’s efforts in terms of generating income through Air Arc had a disastrous impact on the family’s assets as well as on the marriage itself. 3.

Earnings - s. 8(d) [ 43 ] Limited evidence was provided as to the parties’ earnings prior to raising a family. The Defendant earned generally about

$55,000 per year whether working for WCB or for Stanford. The Plaintiff had clinical contracts as a physician as she continued to complete her training. By 2002, the parties had invested in a home and were able to afford a full time nanny when the Plaintiff returned to work in 2004. The disparity in earnings appears to have been fairly constant for the last 11 years of the marriage, with the Plaintiff earning between $350,000 and $395,000 per year.

The Defendant’s profits from renovations were not noted and the Court is invited to infer that his financial contribution remained around $55,000 per year to at least 2006 when Air Arc was incorporated.

After that point in time, I have even less evidence, except to note that the shareholder equity of the Defendant shown at $246,000 on the July 2008 Financial Statements would have been consumed in the 2010 bankruptcy, if not before. [ 44 ] Since the Defendant continued to borrow for Air Arc from the Plaintiff and her relatives, there can be no inference that any material revenue was drawn out of Air Arc to the benefit of other matrimonial property investments.

Accordingly, it is fair to conclude that the Plaintiff was earning at least six times what the Defendant derived from his activities during the majority of the marriage and likely a much higher percentage of household income overall. 4. Duration and Timing of Property Acquisition - s. 8(

e) and (f) [ 45 ] The parties lived together as a married couple for nearly 18 years from July 1997 to April 2015, just two years short of what would be considered a “long-term” marriage. Most of their property was acquired while living together. [ 46 ] The home was purchased in September 2005 in the joint names of the parties but has been registered in the Plaintiff’s name only since July 2010. I will review those circumstances in the discussion of the issue of dissipation. The property is currently encumbered by a mortgage in the amount of about $740,000.

The Defendant continues to reside in the home and it remains unsold. Whatever the reasons for delay to this point, it must be sold promptly. 5. Gifts, Agreements, Distributions and Court Orders - ss. 8(g), (h), (

i) and (j) [ 47 ] The parties have already arranged for equal distribution of a number of major assets as set out in Renke J.’s Order dated March 30, 2016, including: • RRSPs which resulted in a $58,583 rollover to the Defendant; • University Pension split to transfer a sizeable half benefit into a LIRA for the Defendant; • professional corporation divided so as to transfer a half benefit to Defendant at a value of $82,229.50 with a net payout sent to the Defendant on April 14, 2016 for $51,667; • four pieces of Artwork divided equally. [ 48 ] In addition, the Defendant retained two vehicles valued at $6,500 each.

There are no issues affecting exempt property. [ 49 ] The Defendant argued that the terms of the March Order were dispositive of all household items to his benefit. However, while he has certainly had the use of all contents since the Plaintiff left, para 15 of Renke J.’s March Order directs: “The remaining property issues being the division of household contents, the remaining house sale proceeds and any claims of dissipation and corollary relief matters are adjourned to trial”. 6.

Dissipation- ss. 8(l) [ 50 ] The Plaintiff takes the position that the Defendant’s conduct in relation to Air Arc constitutes dissipation and resulted in the loss of a considerable portion of the matrimonial property. Assertions in the Defendant’s pleadings that the Plaintiff had also dissipated assets were abandoned at trial. [ 51 ] As referenced earlier, the parties decided to transfer the matrimonial home to the Plaintiff as part of the Defendant’s strategy to address Air Arc’s cash flow issues in the face of pressures from the BDC in the summer of 2010. Mr.

Rowan represented the Plaintiff in response to the Trustee’s challenge of the transfer of title to the home. The evidence of his letter to counsel for the Trustee and his outline as part of his evidence at trial were unchallenged.

That letter is set out in full in Appendix 1 to this decision. [ 52 ] The letter identifies a number of important points: • the Plaintiff was never a director or shareholder of Air Arc, nor did she ever receive any benefits from it; • various loans were obtained to cover expenses of Air Arc, for which the Defendant agreed to be solely responsible; • only the equity of the Defendant in the matrimonial home was to be responsible for the BNS line of credit Mortgage by July 2007; • funds were borrowed from the Plaintiff’s family as well as the Plaintiff’s professional corporation for use in relation to Air Arc; and • the transfer of land dated July 28, 2010 registered title to the matrimonial home in the Plaintiff’s name. [ 53 ] In the letter, counsel profiled the equitable principle of exoneration as being applicable to the Defendant’s obligation to indemnify the Plaintiff by protecting her equity from capture in the bankruptcy.

In the alternative, any dower interest of the Defendant was of no value to the estate. Those representations led to a negotiated payment by the Plaintiff of $20,000 plus legal fees to protect her interest.

[54] The Plaintiff calculates the general value of the equity in the matrimonial home as follows: Current list price $1,190,000 Current mortgage $739,000 Estimated realtor commissions $39,700 Estimated legal fees on sale $1,300 Net estimated equity $410,000. [55] The Defendant seeks to share in division of that equity.

Although Defendant’s counsel largely backed away from openingassertions that dissipation needs to be shown to be “frivolous or self-indulgent”, he argued that the losses incurred were the result of goodfaith efforts during the marriage. [56] The law on dissipation in the context of division of matrimonial property is fairly clear. The nine points summarized byPaperny J.A. in Cox at para 46 address important factors derived largely but not exclusively from conduct post-separation as regardsintention and detriment.

Cases reinforce that the applicable standard of care is that of a “prudent manager”: see for example Hennesey vHennesey, 2005 ABQB 883, [2005] AJ No 1703, citing Burger v Burger (1985), (AB KB), 64 AR 138, [1985] AJNo 23 (QB). [57] The recent decision in Stojak v Stojak, 2016 ABQB 737, [2016] AJ No 1371 presents a number of important parallels to thecircumstances in this case. The parties were both highly educated and separated after a 14 year marriage. The husband drank too muchand attended one treatment centre towards the end of the marriage.

The husband told the wife about his purchase of an automobileundercoating business during the marriage but did not ask her consent or approval.

Although some exempt funds were used, the husbandalso injected cash from matrimonial assets. [58] Based on incomplete evidence the Court concluded that net business losses totalled over $160,000 by the time of separation.The Court then cited the case law and applied the prudent manager test, stating at para 72: “A spouse who has invested negligentlycannot expect that a resulting loss will not have an impact on a division of the matrimonial property”. [59] Here, various factors led to the failure of Air Arc. Some of those factors were outside of the Defendant’s control.

However,others factors were not properly addressed, for example the collection of accounts receivable. Instead of seeking professional assistance,the Defendant responded to Air Arc’s financial problems by encumbering the matrimonial property, and obtaining loans from thePlaintiff’s family. There is no evidence that any of the income from Air Arc ever actually benefitted the family. [60] The Defendant does not appear to have obtained professional advice on the efficacy of a business arrangement with Neufeldwho was a full-time teacher.

Nothing in the evidence points to the extent of their investment, shareholding or time and skills requirement,much less any mechanism for triggering a buyout by either party. The Defendant does not appear to have obtained any legal oraccounting advice on the buyout of Neufeld – as to valuation, timing, financing or consequences for the business.

Accepting that bothpartners invested $35,000, the payout to Neufeld of $85,000 a year later appears to be a very handsome return on investment for Neufeld. [61] The Defendant had no experience in managing cash flow, collection of receivables, financing, taxes or debt servicing. Herepresented to the Plaintiff and her family that the business was doing well, that it simply needed some cash to bridge the payment toemployees. He expanded the scope and size of the business without marketing advice.

He took on an inordinate amount of the workhimself, ostensibly to save labour costs but at significant costs to his attention to management, his health and his family.

Without eventhe need to weigh competing versions of some events, the Defendant’s conduct does not even begin to approximate that of a prudentmanager. [62] The Defendant relies on MAB v RDB, 2007 ABQB 438, [2007] AJ No 1537, where the Court reviewing the cases cited andpoints summarized in Cox at paras 49-50 and found that the evidence did not support the conclusion that the wife had negligently orwilfully run the company into the ground through mismanagement.

The Court specifically noted at para 51 that the wife’s managementupon receivership resulted in her extinguishing all of the debt of the company. [63] The evidence here is quite the opposite: the Defendant declined to do any work after September 2010 and experiencedserious unaddressed issues with alcohol for an extended period of time.

That is just one factor to be considered in the Court’s exercise ofdiscretion having regard to the whole of the circumstances. [64] The parties pointed to no case law suggesting that the test of prudent management ought to be measured differently forconduct arising prior to separation as contrasted with post-separation.

Section 8(

l) makes no such distinction. One would expect that aspouse has less opportunity to monitor or object once separation has occurred. However, the degree to which a spouse may havecondoned, supported or encouraged the conduct of the mismanaging spouse is ultimately a question of fact and is not necessarily affectedby the cohabitation of the couple. Whether one characterizes the conduct as dissipation under s. 8(

l) of the MPA or unequal contributionto the acquisition or assets or management of an undertaking under s. 8(b), the acts by one party which detrimentally affect thematrimonial assets are relevant to the determination as to whether an unequal distribution is warranted. [65] I conclude that the Defendant’s acts in responding to the financial problems of Air Arc resulted in dissipation of matrimonialproperty. I accept that the Plaintiff was not aware of the jeopardy to the matrimonial assets until Air Arc was in financial crisis.

Theseconclusions derive as a corollary from the agreement with the Plaintiff in July 2010 to transfer the matrimonial home to her inconsideration of the money paid from her professional corporation and from her family. If there was any presumption of joint ventureapproving his handling of the business prior to that time, that presumption is negated by his agreement to relinquish his equity in thematrimonial home.

[ 66 ] The Plaintiff lists the following payments as a cumulative justification for her claim that the roughly $400,000 equity in the matrimonial home should not be split but rather payable in full to her: a) $250,000 LOC # 2 increased by Defendant as of July 2007 for Air Arc b) $267,927 loans from PC accumulated as of October 2011 c) $59,075 CIBC VISA payout from BNS mortgage in September 2010 d) $10,224 CIBC LOC #1 payout in early 2006 e) $20,000 payout to Trustee for release of claim against Plaintiff’s equity in home. [ 67 ] Thus, the total claim for dissipation comes to more than $607,000 and the calculation is supported in the evidence. [ 68 ] A significant portion of that amount would fall within the scope of the Agreement by which the Defendant transferred and divested himself of the Plaintiff’s claim to the residual equity now projected to be a bit over $410,000. [ 69 ] As for the remainder of $197,000, not all can be ascribed to dissipation.

In particular, the initial investment would fairly be seen as a joint risk. The problem is that the evidence is unclear how much was advanced: in Questioning the Defendant thought the total was between $150,000, by which I assume he meant $75,000 each, but at trial he revised the figure to $35,000 each. He provided no documentation of any sort to support either amount. [ 70 ] I set the invested amount at $60,000 for the singular purpose of attributing an implied consent by the Plaintiff to authorize investment of half that amount on her behalf.

Therefore, the amount in issue above and beyond the equity in the matrimonial home is approximately $137,000. D. Conclusion [ 71 ] As has been stated in many cases, determining the appropriate apportionment of matrimonial property is not an exact science. It is important in this case to recognize the dynamics between these parties, the fact that the Defendant has demonstrated talents, is well- educated and, from the perspective of the Plaintiff at the time Air Arc was incorporated, was very keen to succeed.

So, over and above the amount recovered in the transfer of equity in the home, the additional amount dissipated by the Defendant without the Plaintiff’s informed consent is set at around $137,000. In the normal course, the Plaintiff would have been entitled to half of that amount, or $68,500. [ 72 ] I reject the Defendant’s arguments regarding the dining room table, silverware and children’s furniture and endorse the claim of the Plaintiff to those assets listed in paragraph 31 which I will collectively refer to as Plaintiff’s “Personal Property”.

The Plaintiff seeks no adjustment regarding the value of the household contents. As a result, the Defendant is entitled to the vast bulk of personal property still in the matrimonial home, notwithstanding that this division of household contents strongly favours the Defendant. [ 73 ] The Plaintiff does claim a further property credit ascribed to the Defendant for the following assets: two vehicles valued at $6,500 each, plus the value of guns at $12,000 as ascribed by the Defendant in questioning.

I reject his trial evidence purporting to recant that valuation based on some informal and undocumented listing on the internet. The tally for these items comes to $25,000. Half of that amount, or $12,500, should be credited to the Plaintiff. [ 74 ] In addition to her entitlement to the net equity in the matrimonial home, the terms for sale of which are summarized below, I set the notional residual equalization payment from the Defendant for matrimonial property at $81,000 ($68,500 + $12,500).

The Plaintiff does not seek to have the Defendant actually pay any equalization, but asks that it be treated as a credit towards any further claim for spousal support. IV. Spousal Support A. Positions of the Parties [ 75 ] The Defendant’s claim for spousal support in paragraph 9 of his pleadings refers only to “different roles undertaken by either party during the marriage”.

It makes no reference to any disability and no amendment has ever been sought in that regard. [ 76 ] The Defendant did not address either quantum or duration but seemed to infer that spousal support, on at least a non- compensatory basis, ought to continue. [ 77 ] The Defendant profiles that he did most of the cooking and quite a bit of the shopping, at least until the work at Air Arc began to take up such an inordinate amount of his time. By his testimony, both he and the Plaintiff would get up at times during the night if needed by the children. He would attend school functions when he was available.

He also seemed to infer that he sacrificed career options in support of the Plaintiff; however, the evidence is fairly clear that he exercised considerable freedom in his choice of education, employment and renovation projects, and in his decision to set up his own business. [ 78 ] Although he did not provide an actual budget of his expenses, the Defendant alleged in evidence that his monthly costs, paid largely by the Plaintiff, exceed $11,000. He does not advise as to how he is covering any alleged deficit, nor does he outline any steps

which he has taken to reduce these costs which include a housekeeper and child expenses. The evidence indicates he did not have ahousekeeper and that he has paid no child support. Expenses such as medications and counseling have been covered under the Plaintiff’shealth plan. [79] The most unsatisfactory aspect of the evidence concerns the Defendant’s health. As noted earlier, he hinted at an inability towork due perhaps to issues stemming out of time spent in Rwanda before he was married.

However, he refused to disclose informationby which the Court could properly assess the matter, even after directions to this effect in case management. The undocumented evidenceof treatment at Homeward in the summer of 2011 suggested that treatment shifted from an emphasis on alcoholism to PTSD. TheDefendant was under psychiatric care with a Dr. Spaner before moving to a psychologist named Ms. Magill in 2014. Another move toDr. Coupland occurred in 2015, but in no instance has there been any documentation provided of a diagnosis or any correlation betweenPTSD and alcoholism, much less any future prognosis.

The Court is aware that the Defendant completed elective shoulder surgery justfour days before trial which will restrict him physically for the rest of 2017. [80] The Plaintiff disputes that the Defendant has any future entitlement to spousal support. She seeks no monetary adjustment forthe unequal distribution of property, only that the equalization payment owed by the Defendant to her be factored into the assessment ofwhether further spousal support is payable to him.

She also argues that the Defendant’s dissipation of matrimonial assets should beconsidered as a payment in lieu of lump sum spousal support, in addition to entitling her to the equity in the matrimonial home. As well,she seeks no retroactive child support but asks that the Court consider this as another factor to be weighed against the Defendant’s claimfor spousal support. [81] The Plaintiff notes that despite the demands of her career, she took leaves of absence to have and care for the children. She didnot dispute that the Defendant did most of the cooking and worked hard at renovating the property.

What she did profile is that inaddition to being the major income earner, and despite the services of a nanny or housekeeper, she carried primary parentingresponsibilities for their two children, including responsibilities for transport, health, education and social activities. Her evidence on thiswas unchallenged. The parties’ housekeeper left in February 2015 due to a gun incident involving the Defendant which caused her fearfor her own safety. [82] As confirmed by the Order dated March 30, 2016, the Plaintiff had by that time paid $27,250 in periodic spousal support tothe Defendant.

This was taxable in his hands and properly tax deductible by the Plaintiff. The Order further specifies that uponcompletion of 2015 tax returns, “the Plaintiff shall reimburse the Defendant for the tax arising from the spousal support, such payment tobe deemed a periodic spousal support payment in 2016”. B.

Legal Framework [83] The objectives of spousal support set out in s. 15.2(6) of the Divorce Act, RSC 1985, c 3 (2nd Supp) are to: • recognize economic dis/advantages arising from the marriage or its breakdown; • apportion between the spouses the financial consequences arising from the care of a child of the marriage over and above anyobligation for the support of the child; • relieve economic hardship arising from the breakdown of the marriage; and • in so far as practicable, promote the economic self-sufficient of each spouse within a reasonable time. [84]

Section 15.2(4) provides that the Court is to take into account the condition, means, needs and other circumstances of eachspouse, including: • the duration of cohabitation; • the functions performed during cohabitation; and • any order, agreement or arrangement relating to support. [85] Cases since Bracklow v Bracklow, (SCC), [1999] 1 SCR 420, [1999] SCJ No 14 have recognized theimportance of case specific assessment of the various factors intended to ensure the equitable distribution of the economic consequencesof family breakdown between spouses.

The Supreme Court of Canada at para 21 confirmed that, although the presumption of mutualsupport during a marriage no longer applies once the marriage breaks down, entitlement may be established by consideration of the s.15.2(4) factors listed above. The circumstances may speak to the need for support either on a compensatory or non-compensatory basis.The first model looks to enabling the parties at some point to be independent and economically self-sufficient on a pragmatic basis.

Thesecond model recognizes that support may be warranted based on need as a matter of fairness. [86] As reflected in various decisions, trial judges are to be flexible and innovative in their analysis of what is fair in thecircumstances, recognizing the vulnerabilities inherent in all marriage arrangements. At times, the division of property may address someof the inequities that may otherwise bolster the claim for spousal support.

The Supreme Court in Moge v Moge, (SCC),[1992] 3 SCR 813 at 866, [1992] SCJ No 107 noted the courts’ overriding discretion which will depend on the particular facts of eachcase, having regard to the factors and objectives set out in the Divorce Act. [87] It has been held that a claim based on disability must be grounded in reliable objective evidence: SMB v LMB, 2006 ABQB141, [2006] AJ No 210 at paras 81-85, aff’d [2007] AJ No 720, 2007 ABCA 232. C. Factors

1. The length of cohabitation and advantages derived from the marriage [ 88 ] Again, the parties had an approximately 18 year marriage to 2015 and are now both in their late forties. Each was able to complete significant educational programs. The Defendant elected not to finish his PhD in favour of a number of projects of his own choosing. He was able to pursue those activities without any pressure to account, or even justify, his choices.

Both parties have enjoyed significant freedom throughout the marriage as a result of significant assistance in the home provided by nannies and housekeepers. [ 89 ] The Plaintiff retains the residual equity from the matrimonial home. The Defendant benefits from a notional advantage in the amount of $81,000, being the equalization amount properly payable by him to the Plaintiff, but which the Plaintiff is willing to forego as representing spousal support payable to the Defendant.

The Defendant also benefits from a $58,583 RRSP rollover, a sizeable half benefit of the Plaintiff’s University of Alberta pension invested in a LIRA for the Defendant, a half benefit from the professional corporation resulting in a net payout sent to the Defendant of $51,667 and two pieces of artwork. He also retains the vast bulk of personal property still in the matrimonial home and two vehicles. 2. Roles of the parties during cohabitation [ 90 ] The parties performed different roles through much of the relationship. The assistance of the nannies allowed them to pursue professional and business activities.

The Defendant appears to have done more shopping and meal preparation, whereas the Plaintiff was primarily responsible for the children’s health, education, after school arrangements and extracurricular activities, including appointments, homework and driving. I reject any inference that the Defendant’s choices were impeded in any way by a sense of responsibility to be a primary care parent, or that he ever filled a primary care role. [ 91 ] Both parties made parental and domestic contributions to the relationship.

The volatility of the Defendant which led to separation has unfortunately complicated any arrangements for reliable access and he has made very limited contribution to the support of the family unit. On a more positive note, he has not made good on an earlier threat to leave the province, and his access visits have become somewhat more predictable. [ 92 ] Apart from parenting, both parties have been active and clearly possess skills of value to the work force that were validated at important times during the marriage.

The Defendant’s work history indicates that he has been capable of generating a respectable income. 3. Management of Finances [ 93 ] The Plaintiff testified that her career as a nephrologist has been structured under her professional corporation and this has remained unchanged for a number of years. The Defendant was gainfully employed but pursued a number of different interests. Neither party was more focused or adept at managing finances. [ 94 ] Of course, the family’s finances were profoundly impacted by the bankruptcy of the Defendant.

That also placed considerable stress on the Plaintiff’s family as they had extended funds that remain unpaid to date. It does not reflect well on the Defendant’s sense of responsibility that he declined to seek any work after bankruptcy because the money would go to the benefit of creditors. While the bankruptcy file was not provided and it is unclear whether any earnings by the Defendant could have benefited unsecured creditors such as the Plaintiff’s parents, what is clear is that even after his discharge, the Defendant repaid no money to them.

In fact, the parents’ residence became home for the Plaintiff and the children after separation. [ 95 ] Overall, the financial problems in this relationship were a consequence of the failed business and bankruptcy; they did not derive from the breakdown of the marriage. 4. Employment Income and Economic Hardship [ 96 ] Since the separation in April 2015, the Plaintiff has continued to work at the University of Alberta with a blend of clinical, research, teaching and administrative responsibilities. She earns about $395,000 per year plus pension and benefits.

She has been solely responsible for the financial support of the family since at least 2010. [ 97 ] The Defendant is well educated, having completed two degrees. He has gained considerable experience in the trades including plumbing, electrical and welding. In addition, he has been certified to install cranes and other modifications on mobile units as requested by dealers. He also completed a Real Estate course at some point. [ 98 ] Nonetheless, the Defendant has not been gainfully employed for over seven years. He initially declined to work because the income would be captured in the bankruptcy.

Upon his discharge, he renovated the home although paragraph 11 of the Court Order dated November 5, 2015 was required to authorize independent services to correct repairs and listed building code deficiencies, and some work remains incomplete. The Defendant reported having made five written applications for employment since January 2015 without success. [ 99 ] The Defendant says he was obliged to reject the only employment offer since the bankruptcy of which he made any mention. That was an offer as a tractor driver at the University Farm at $45,000 per year.

He declined the offer because he had forfeited his driver’s licence for the year ending December 2015. Apart from problems with alcohol, he remains on medications that may at times restrict his ability to drive. Despite an undertaking to provide all employment applications, his evidence spoke neither to any steps taken nor to any future plans. [ 100 ] The Defendant described himself as being extremely needy and compelled to seek the Plaintiff’s approval. It is difficult to link this attitude in any meaningful way to his lack of employment or to his prospects.

The Defendant has shown very little initiative aimed at promoting his self-sufficiency.

[ 101 ] While the Defendant demonstrated an ability to earn up to $55,000 over the years prior to setting up Air Arc, his absence from the workforce since 2010 is largely unexplained. Twenty years after his time in Rwanda and following many years of gainful employment, there is nothing to support an inference of a current disability affecting employment. I adopt the view of the Court in SMB at para 84 to the effect that a party alleging a disability has an onus to lead medical evidence to establish the pathology of the disability and what vocational impact, if any, has resulted from it.

Otherwise, the Court is faced with an evidentiary vacuum which cannot amount to proof, on a balance of probabilities, of a disability or any resulting vocational impact. [ 102 ] It is clear that the Defendant is currently recovering from shoulder surgery. As such, I am able to conclude that it is unrealistic to expect that he will be gainfully employed for at least six months. 5. Any order, agreement or arrangement relating to spousal support [ 103 ] The Defendant continued to reside in the matrimonial home following the departure of the Plaintiff and the children.

He has had no responsibility for the mortgage, utilities or other expenses including the costs of materials for repairs and renovation. The evidence establishes that those costs have exceeded $6,700 per month for the past 27 months, totalling just under $181,000 net of taxes.

Given that the Defendant has had the practical benefit of living in the home, at times with his current partner, I find that at least two thirds of these expenses (or around $120,000) are a direct benefit to the Defendant. [ 104 ] In addition, the Defendant has received $3,000 per month pursuant to paragraph 6 of the Order dated September 11, 2015. The Order of March 30, 2016 confirmed payments for spousal support totalling $27,250. Further payments of $3,000 per month over the 17 months to trial amount to $51,000.

Taken along with expenses for the home costs borne by the Plaintiff, this amounts to around $200,000 net of taxes having been paid by the Plaintiff over approximately 26 months. 6. Other considerations [ 105 ] The Defendant’s volatility obliged the Plaintiff to relocate with the children, leaving him in possession of the matrimonial home and contents for the past two years.

The Plaintiff has supplemented that housing arrangement by providing him with further monthly support, despite having to reside with her parents during this period. [ 106 ] Since separation, the Plaintiff has paid for all expenses in support of the children but has also continued to pay the mortgage, insurance, and taxes, even as the Defendant has been in a relationship with a new partner. Payments on the mortgage have serviced the capital interest in the home as an asset to which I have attributed her entitlement to the equity.

Nonetheless, the payments have also offset the vast bulk of the Defendant’s expenses to the date of trial. [ 107 ] The parties did not lead an extravagant lifestyle during their marriage, although they enjoyed a comfortable living and regular destination vacations. The parties have each taken trips since separation.

It is unclear that the Defendant has borrowed any money, but he has not made any regular contribution towards the expenses of the children of this relationship. [ 108 ] I have already taken the Defendant’s dissipation or poor management of matrimonial assets into account in the consideration of property division. There is no suggestion that this will have any significant long-term impact on the Plaintiff’s ability to support herself in the future, nor on her ability to pay spousal support.

In the circumstances, I decline to consider it again as a factor militating against the Defendant’s claim for spousal support. 7. Conclusion [ 109 ] The Defendant will depart from the marriage with a $58,583 RRSP rollover, a sizeable half benefit of the Plaintiff’s University of Alberta pension invested in a LIRA for the Defendant, a half benefit from the professional corporation resulting in a net payout of $51,667 and two pieces of artwork. He also retains the vast bulk of personal property still in the matrimonial home and two vehicles.

He will not be required to pay the notional equalization amount of $81,000 which would be otherwise owing by him to the Plaintiff. [ 110 ] The Defendant has been left in the matrimonial home since separation and generously supported by the Plaintiff to the date of trial. The Plaintiff has demonstrated both a willingness and ability to pay significant amounts to the Defendant during the past two years when he appears to have needed it the most.

In addition, she has foregone any claim for support of the children during that period. [ 111 ] The Defendant has made no visible effort to contribute to the support of the family unit for a number of years. It is noteworthy that the sense of guilt that the Defendant reportedly expressed to Dr. Coupland for being unsupportive of his family was remarkably absent in his testimony.

For the most part, he projected a strong sense of entitlement to indefinite support. [ 112 ] It is important to emphasize that the fact one spouse makes considerably more than the other does not automatically justify an order for spousal support: Griffiths v Griffiths , 2011 ABCA 359 at para 6 , 19 RFL (7th) 30. [ 113 ] Compensatory support recognizes reimbursement of a spouse for opportunities foregone or hardships accrued as a result of the marriage. Having considered all of the evidence, I find that the Defendant is not entitled to compensatory support. [ 114 ] Non-compensatory factors include needs and means.

Despite the absence of satisfactory medical evidence, I find the facts here do justify some non-compensatory spousal support to the Defendant based on a variety of considerations: the length of the relationship, the vulnerability and stress which the marriage breakdown initially caused the Defendant, and some general difficulties which he can be reasonably expected to experience in re-entering the workforce. [ 115 ] Quantum is complicated by the absence of any budget or realistic projections of future costs of accommodation for the Defendant.

I am obliged to estimate his expenses which I set in the range of $3,700 to $4,200 per month bearing in mind a few important factors:

• he does appear to be in a stable relationship with another woman and her children since March 2016; although their living arrangements may not yet be finalized, it is a fair inference that shared accommodation is both likely and reasonable; • once the divorce is finalized, he will need to find appropriate medical coverage; and • as acknowledged by Dr.

Coupland, many of his patients are gainfully employed during treatment. [ 116 ] As discussed in more detail below, I am prepared to impute income to the Defendant commencing on January 1, 2018 at $55,000, representing the amount he earned over a decade ago and somewhat more than he was offered two years ago as a driver. As conceded by counsel, the Spousal Support Advisory Guidelines are not particularly helpful on these facts.

They might suggest a level of about $5,000 without child support and perhaps $6,000 per month if child support was being paid. [ 117 ] The reality is that the Defendant has already received cumulative value in spousal support in the range of $200,000 which is already the equivalent of three years support even if support at that level was justified.

In addition, I am mindful of the foregoing of the equalization payment and the waiver of any retroactive claim for child support which equates to an additional 15 to 18 months of spousal support. [ 118 ] On the evidence it is fair to infer that the Defendant, despite his recent shoulder surgery, will be capable of earning some minimal amount of income, either through employment or disability payments in the near future. [ 119 ] In all of the circumstances, an order for ongoing spousal support order is warranted on the following limited terms: • monthly payments of $3,000 to continue for the next 12 months from June 1, 2017 to be discontinued effective May 30, 2018; • such amounts shall remain taxable in the hands of the Defendant and tax deductible by the Plaintiff.

V. Child support [ 120 ] As previously noted, the Plaintiff does not claim retroactive child support. She does, however, take the position that the children ought to receive child support from their father commencing January 2018, leaving ample time for him to recover from recent shoulder surgery and make plans for return to the work force. [ 121 ] The Plaintiff points to the Defendant’s earnings prior to the bankruptcy and urges that his income be imputed in the range of $55,000 starting January 2018.

She relies on VLW v JEW , 2007 ABQB 358 at paras 30-34 , 39 RFL (6th) 376, and argues that the Defendant has taken advantage of the situation which cannot be condoned on an indefinite basis. [ 122 ] The Defendant’s counsel urges the Court not to impute an income without reliable evidence of what work the Defendant is ultimately able to perform.

However, such an approach would not address the best interests of the children, nor would it assist the parties in providing answers to the issues presented for trial based on the evidence before the Court. [ 123 ] The Defendant deliberately chose not to provide any medical evidence to establish any disability impacting on his employability, despite numerous time extensions to prepare such a report.

The trial evidence establishes that the Defendant: • is highly educated and intelligent; • earned incomes of around $55,000 for a number of years leading up to 2006; • worked in a variety of positions with supervision and management responsibilities; • has demonstrated ability as a renovator, including uncertified credentials as an electrician, welder and plumber; • has gained business experience, and has been exposed to the harsh demands of the business world; and • needs to continue treatment with Dr.

Coupland for both stress and alcoholism on an indefinite basis. [ 124 ] The Defendant does have a history with PTSD that predates this marriage. Nevertheless, he is obliged at law to use his best efforts to support his children. [ 125 ] For child support purposes, I impute the Defendant’s income at $55,000 commencing January 1, 2018 and set child support pursuant to the Federal Child Support Guidelines at $777 per month. VI. Parenting [ 126 ] Dr. Hindmarch prepared a report for the parties effective October 29, 2015 pursuant to Practice Note 8.

It was entered as an exhibit at trial pursuant to the case management order March 30, 2016 which also specified the Defendant’s access to occur every second Sunday from 12:00 p.m. to 7:00 p.m. and each Wednesday from 4:00 p.m. to 8:00 p.m. That

schedule was reviewable by either party after three months without requiring a material change in circumstances. However, the only term added on January 19, 2017 was to require the Defendant to use a portable breathalyzer when transporting the children during his access periods. [ 127 ] The Hindmarch Report made a number of conclusions and recommendations: • that the Defendant’s deluge of many hundreds of emails would hardly encourage the Plaintiff to be comfortable with the prospect

of lengthy, unsupervised access; • the children were upset that he turned them away because he was entertaining his girlfriend; • it is important to contextualize the Defendant’s PTSD and associated alcohol abuse with the divorce proceedings and limited access to the children to whom he is clearly devoted; • the Defendant consistently denies “responsibility for his own behaviour using projection of blame as one of his primary defense mechanisms”; • while the Defendant denies that the children are afraid of him, they are in fact very afraid of his potential for angry outbursts, even if those outbursts are not directed towards the children themselves, which is an entirely understandable reaction; • shared custody/access is not supportable and the children want to continue the plan of specified access and the safety plan; • an increase in access could be considered after the Defendant’s licence suspension expires if the children’s comfort level increases. [ 128 ] The Defendant seeks shared parenting or at least more generous specified access.

Nothing in his evidence even suggested that the children were interested in or ready for this. Only very recently has he shown any ability to exercise access. From the evidence, the children are only just beginning to show a tentative trust. [ 129 ] Although the Defendant wants the children to be active in sports, dance and music, he has declined to permit any activities to be scheduled that might conflict with his access time. [ 130 ] Once the parties have settled into new residential arrangements, they are encouraged to examine access arrangements that will better co-ordinate with the schedules of each child.

Much remains to be done to re-focus on arrangements which will best serve the interests of the children moving forward. [ 131 ] Unless the parties otherwise agree in writing, they shall continue to adhere to the terms of the Order dated January 19, 2017, including paragraph 7 as to the supply and use of a breathalyser when the Defendant transports the children during access periods. VII.

Conclusion [ 132 ] The parties are granted divorce on grounds of separation for more than one year. [ 133 ] The children shall continue to reside primarily with the Plaintiff with the Defendant to have access as follows: • each Wednesday from 4:00 p.m. to 8:00 p.m.; and • every second Sunday from 12:00 p.m. to 7:00 p.m. [ 134 ] The Plaintiff’s income is set at $395,000 and the Defendant’s income at $55,000 with s. 3 support payable at $777 per month commencing January 1, 2018.

The Defendant shall be responsible for 12.2% of proper s. 7 expenses payable within 30 days of the date that receipts for the same are provided to him by the Plaintiff. [ 135 ] Spousal support of $3,000 per month shall continue to be paid to the Defendant by the Plaintiff until May 30, 2018, to be taxable in his hands and deductible by the Plaintiff. [ 136 ] The Plaintiff is entitled to the Personal Property listed in para 31. [ 137 ] The term of the Order of March 30, 2016 dispensing with the Defendant’s signature on the Dower release to complete the sale of the home shall continue to apply with exclusive authority to the Plaintiff to accept any offer to purchase as she considers proper. [ 138 ] The Plaintiff is entitled to change the listing agent for the home at the end of the exclusive listing, if any, with Ed Lastiwka and to retain such other agent or agents and upon such terms as to list price as she determines in her sole discretion. [ 139 ] The Plaintiff is entitled to retain a solicitor of her choice to complete the sale on her behalf. [ 140 ] The Plaintiff is entitled to the net proceeds on sale of the matrimonial home.

VIII. Further Directions [ 141 ] As the Defendant has no further interest in the matrimonial home, whether by dower or otherwise, the lis pendens registered on title shall be removed forthwith at the expense of the Defendant. [ 142 ] The Defendant shall vacate the matrimonial home no later than August 31, or two days before the possession date on closing of the sale of the home, whichever is sooner. Upon vacating, the Defendant shall immediately notify Plaintiff’s counsel and shall leave the personal items listed in paragraph 31 of this Decision in the home for the Plaintiff to remove. IX. Costs

[ 143 ] The parties alerted me generally to the fact that formal offers have been exchanged in contemplation of trial. At the request of counsel, the Court agreed to encourage the parties to sort out the matter of costs. Included in such resolution, they must deal with costs of $3,500 outstanding in relation to prior orders to be paid or credited to the Plaintiff in all events of the cause.

The Plaintiff has been largely successful on most major issues, including division of property, spousal support and parenting. [ 144 ] If the parties are unable to reach agreement on costs, any application for further direction must be filed within 30 days of this decision. Heard on the 15 th to 19 th days of May, 2017. Dated at the City of Edmonton, Alberta, 26 th day of June, 2017. S.D. Hillier J.C.Q.B.A. Appearances: Tina Huizinga for the Plaintiff David S.

Barker for the Defendant Appendix 1 October 24, 2011 V I A EMA I L: twarner@millerthomson . com WITHOUT PREJUDICE Miller Thomson Barristers & So l i c i tors Attention: Terrence M . Warner 2 700, 1 0155 - 102 Street Edmon ton , Alberta T5J 4G8 D ear S i r : R e : Bankr u ptcy of D ean Derek B a mber We are co u nsel for D r . N eesh Pan n u ( “ Pan n u ”) . We confirm that you are counsel for Faber & Company Inc. in their capacity as Trustee in Bankruptcy (the “Trustee”) of Dean Derek Bamber (“Bamber”)(the “Estate”).

This letter is intended to address the claim by the Trustee to the interest of Bamber in the matrimonial home of Bamber and Pannu located at 12603 Grand View Drive, Edmonton, Alberta (the “House”). The facts as we understand them are as follows: 1. At all material times Bamber and Pannu were married and occupied the House as their matrimonial home. 2. At the time of acquiring the House in September 2005 a Mortgage in the principal amount of $522,000.00 was granted to Canadian Imperial Bank of Commerce (“CIBC”) (the “CIBC Mortgage”) to secure funds which were advanced for the purpose of purchasing the House. 3.

Through late 2005 and 2006 Bamber together with John Neufeld as his partner where starting up a business which ultimately operated through Air Arc Manufacturing Ltd. (“Air Arc”). 4. Pannu has never been a director or shareholder of Air Arc and has never received any benefits from Air Arc by way of salary or otherwise. 5. In or about February 2002, CIBC granted to Pannu and Bamber a line of credit (the “CIBC LOC No.1”) in the maximum amount of $30,000.00. 6. CIBC LOC No.1 had been used by both Pannu and Bamber however by the beginning of 2006 CIBC LOC No.1 had been paid down to a $0.00 amount outstanding. 7.

Bamber then used CICB LOC No.1 to make advances to, or otherwise pay expenses of Air Arc. 8. Bamber accessed CICB LOC No.1 using a bank card. Throughout this period of time Pannu did not have a bank card to access CICB LOC No.1 and never did access CICB LOC No.1. 9. All amounts outstanding on CICB LOC No.1 when it was paid off in full were as a result of drawings by Bamber for the benefit of Air Arc. 10. The amounts outstanding under CIBC LOC No.1 where paid off in November of 2010, in the amount of $10,224.52 from the proceeds of a Bank of Nova Scotia (“BNS”) mortgage, which will be explained later. 11.

During the time that Pannu was in medical school she required access to a Line of Credit to assist with various expenses. As a result, a further Line of Credit in the amount of $80,000.00 was obtained from CIBC (CIBC LOC No.2) 12. CIBC LOC No.2 was used by Pannu and Bamber to pay personal expenses however the majority of the expenses where likely related to Pannu’s medical training 13. In or about December of 2005, CIBC requested that CIBC LOC No.2 be secured. 14.

It is the recollection of Pannu and Bamber that it was perceived that they did not have sufficient equity in the House at that time to provide security to CIBC. As a result, Pannu approached her parents Barinder and Parkash Pannu and asked if they would grant a mortgage on their house (“the Pannu Residence”) to secure CIBC LOC No.2 which they agreed to do.

15. On January 6, 2006 a mortgage was registered on the Pannu Residence for the sum of $80,000.00 to secure CIBC LOC No.2 (the “Pannu Mortgage”). 16. CIBC LOC No.2 was subsequently paid down to a $0.00 balance by Pannu. Thereafter Bamber accessed CIBC LOC No.2 and used the funds solely for his own purposes and to make advances to or pay expenses of Air Arc. 17. CIBC LOC No.2 was paid off on September 24, 2010 in the amount of $66,770.34 from the proceeds of a mortgage granted to BNS, which will be explained later. 18.

At all times, Bamber agreed to be solely responsible for any of the amounts outstanding on CIBC LOC No.1 and CIBC LOC No.2. 19. A Line of Credit in the sum of $80,000.00 was obtained by Bamber and Pannu from BNS on an unsecured basis (“BNS LOC No.1”). 20. SNS LOC No.1was used for personal purposes and is included in this letter solely to provide an explanation as to the use of the funds advanced under the BNS mortgage which will be explained later in this letter. 21. BNS LOC No.1 was paid off in September 2010 from the proceeds of a Mortgage granted to BNS which will be described later.

At the time of paying BNS LOC No.1 the amount outstanding was $53,107.47. 22. In or about May 2007 Bamber approached Pannu and proposed that a line of credit be obtained from BNS in the amount of $100,000.00(“BNS LOC No.2”) with, the money being used by Bamber for Air Arc. 23. In order to obtain the line of credit as aforesaid, it was necessary that the House be mortgaged in favour of BNS in the amount of the line of credit. 24. Bamber agreed that he would be solely liable to repay BNS LOC No.2 and agreed that his equity in the House would be charged with the mortgage in favour of BNS to secure BNS LOC No 2. 25.

A mortgage in the amount of $100,000.00 was granted to BNS and registered on the title to the House on May 15, 2007. 26. In July 2007 the BNS LOC No.2 was increased to $250,000.00 and a new mortgage in the amount of $250,000.00 was registered against the title to the House on July 13, 2007 (BNS LOC Mortgage) and the initial mortgage securing the LOC was discharged on July 26, 2007. 27. Bamber again agreed that he would be solely responsible for the payment of the increased BNS LOC No.2 and that his interest in the House would be solely responsible for the BNS LOC Mortgage. 28.

All draws on BNS LOC No.2 were by Bamber who had exclusive possession of cheques for drawing on BNS LOC No.2 and exclusive possession of the bankcard for BNS LOC No.2. All drawings were for his benefit and used to advance monies to or pay expenses of Air Arc. 29. Pannu never drew any money from BNS LOC No.2 and received no benefit from the advance of funds under BNS LOC No.2.

30. In or about August 2008 Bamber borrowed from Dr. Raj Pannu and Swinder Pannu (“Pannu’s uncle and aunt”) the sum of $150,000.00 ( the “Raj Loan”) for use in relation to Air Arc. 31. By August 2010, the amount due under the Raj Loan was approximately $118,000.00. 32. In or about August 2010 Pannu borrowed $118,000.00 from her father Barinder Pannu (“Barinder") and paid the Raj Loan. 33. On or about January 2008, Bamber borrowed $30,000.00 from Barinder for use in Air Arc. 34.

The $30,000.00 was advanced by Barinder providing a cheque in the sum of $30,000.00 with the payee blank and delivering the cheque to Bamber. 35. Bamber completed the cheque by inserting the name Air Arc Manufacturing Ltd. 36. From time to time Bamber and/or Air Arc have borrowed from Neesh Pannu Professional Corporation (“Pannu PC”) various sums of money and there is presently due and owing to Pannu PC the sum of $267,927.46 . 37. At the time of Bamber’s bankruptcy, there existed a joint CIBC Visa held by Bamber and Pannu. 38.

The joint CIBC Visa was paid off the amount of in $59,075.91in or about September 2010 from the proceeds of a mortgage granted by BNS which will be explained later in this letter. 39. The vast majority if not all of the amounts due on the CIBC Visa were as a result of charges by Bamber for the benefit of Air Arc. 40. By a Transfer of Land dated July 28, 2010 Bamber transferred to Pannu the title.to the House and title registered in Pannu’s name on August 10, 2010. 41.

On September 30, 2010 a Mortgage in the principal amount of $880,000.00 was registered against the title to the House in favour of BNS (the “BNS Mortgage”). 42. The proceeds from the SNS Mortgage were used and paid as follows: a.

Payment to CIBC of $440,766.37 to pay out the initial CIBC Mortgage; b. $59,075.91 to pay off the CIBC Visa; c. $66,770.34 to pay off CISC LOC No.2 and obtain a discharge of the security held on the Pannu Residence d. $10,224.52 to pay off CISC LOC No.1; e. $53,107.47 to pay off BNS LOC No.1; and f. $250,555.39 to pay off BNS LOC No.2 and obtain a discharge of the BNS LOC Mortgage Total $880,000.00.

43. At the time of obtaining the BNS Mortgage the House was appraised for the purposes of financing at a fair market value of $1,100,000.00. With respect to the foregoing, we enclose for your information the following: a. Historical title to the House; b. Historical title to the Pannu Residence, c. Statement with attached copies of cheques and attached copies of statements of Air Arc's bank account all relating to BNS LOC No.2; d. Unexecuted copy of a promissory note respecting the Raj Loan; e. Copy of the cheque from Barinder to Pannu for $118,000.00; and f.

Copy of the cheque from Barinder for the $30,000.00 loan to Bamber. Although the foregoing demonstrates the complicated financial dealings of Bamber, we believe that Bamber’s obligations can be summarized. As at August/September 2010 when the title to the House was transferred to Pannu and the BNS Mortgage was registered, funds advanced and obligations dealt with, the situation was as follows: a. Bamber and Pannu were each jointly liable for the CIBC Mortgage which was paid out in the amount of $440,766.37; b.

Subject to our comments below, Bamber and Pannu were jointly liable to BNS on account of BNS LOC No.2 secured by the BNS LOC Mortgage on their House; c. Subject to our comments below, Bamber and Pannu were jointly liable for the following obligations: i. CIBC LOC No.1in the amount of $10,224.52; ii. BNS LOC No.1in the amount of $53,107.47; iii. CIBC Visa in the amount of $59,075.9 (Pannu takes the position that the total of the amount due on CIBC LOC No.1 are the Bamber exclusively) d. Bamber was indebted to Pannu for $118,000.00 plus accrued interest on account of the payment by Pannu of the Raj Loan; e.

Bamber was indebted to Pannu in the sum of $66,770.34 on account of the CIBC LOC No.2 for which Bamber was initially indebted to Barinder, Swinder and Pannu and which was paid off by Pannu; f. Bamber was indebted to Barinder in the sum of $30,000.00 plus interest; and g. Air Arc and Bamber or some combinations thereof were indebted to Pannu PC in the sum of $267,927.46. In

summary, it is our position that Bamber was indebted to Barinder for $30,000.00·plus interest and Pannu in the amount of approximately $300,000.00 plus interest and indebted to Pannu PC for some portion of $267,927.46. In other words, the obligations of Bamber to Pannu and her father likely exceeded $500,000.00. PANNU’S POSITION ON THE VALUE OF THE HOUSE It is Pannu’s position that the Estate has n

[…]