Hunter v Hunter, 2017 ABQB 445

Court of Queen’s Bench of Alberta Citation: Hunter v Hunter, 2017 ABQB 445 Date: 20170714 Docket: 4803 174818 Registry: Edmonton Between: Darrell Hunter Plaintiff/Applicant - and - Bonnie Hunter Defendant/Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Invoking Rule 8.5 in this regular chambers application Mr. Hunter – who has been separated from his wife for 3 years and who expects that the earliest trial date this court can accommodate is late 2019 - asks the court to set these proceedings down for trial and to waive the requirement under Rule 4.16 for participation in a dispute resolution process prior to trial. Ms. Hunter responds that it is premature to set a trial date: she was seriously injured in March, 2017 and is still in recovery.

She asks for the dismissal of the application or the adjournment of the application for a period of 9 months. [ 2 ] Ms. Hunter asks the court for interim spousal support of $5,500.00, retroactive to April 1, 2016; this level of support is at the mid-range of the Spousal Support Advisory Guidelines. Mr. Hunter responds that, on an interim application, it is more appropriate to focus on the needs of the applicant and the means of the respondent than on the SSAG. [ 3 ] Mr. Hunter’s application is adjourned for a period of 9 months.

[ 4 ] But for Ms. Hunter’s accident, Mr. Hunter’s application would be allowed. The harm in setting a trial date now, which would necessarily be far down the road and could take into account the time necessary for Ms. Hunter’s recovery as well as the time necessary to complete pre-trial process, is that it would remove from the list of available dates trial dates which could otherwise be used by litigants who are actually ready for trial today and who clearly need a 9 day slot. The least bad option available here is to adjourn Mr.

Hunter’s application for 9 months; the delay may allow the parties to settle some issues, shorten the estimated trial time, find a more available short trial time slot, and perhaps keep a

schedule similar to that proposed by Mr. Hunter on this application. [ 5 ] Ms. Hunter’s application is allowed, on a go forward basis; her claim for retroactive support is adjourned to the trial. [ 6 ] The need for

summary assessment of applications for interim support has only increased since the SCC decision in Hryniak . Although the SSAG cannot be applied in many interim situations – for example where entitlement to spousal support is fairly contested or where incomes are fairly contested - where the evidence allows the court to make a fair decision, the guidelines can be an extremely efficient resource. The SSAG can predict the outcome of litigation and thereby minimize both stress on the litigants and the cost of litigation to them.

The factors which allow the SSAG to be used on an interim basis in the circumstances here are: the structure of the applicant’s compensatory entitlement; the length of the conjugal relationship, the relative stability of earning and living patterns of the parties over the last several years prior to separation and the availability of matrimonial property from which adjustments for any over- or under- payment can be made when the disputes are finally settled.

Although the SSAG can be used to set a monthly support award, at this stage of the proceedings they cannot be used to set a time limit; the interim spousal support obligation will continue until further order of the court. Because Ms. Hunter’s claim for retroactive support may involve additional calculations relating to a period when the parties’ younger child was living with her, the retroactive portion of her claim is adjourned to trial. [ 7 ] In any event, even if the SSAG were not used here, on a needs and means analysis, Ms. Hunter’s budgeted needs can be met by Mr. Hunter and should be awarded.

Cases and authority cited [ 8 ] By the court : Neighbour v Neighbour 2014 ABCA 62 ; Hryniak v Mauldin 2014 SCC 7 ; Nicholson v Nicholson 2016 ONSC 5573 ; Crowther v Crowther 2014 BCSC 629 ; Martin v Martin 2016 ABQB 425 . 1. Background [ 9 ] The married parties began to cohabitate in 1990, married in 1991, and separated in 2014. Both parties are approximately 50 years old. They are the parents of two children, one of whom is an adult, independent, child and the other who is approximately 16 years old and lives with her father. Ms.

Hunter is not currently paying child support. [ 10 ] In the early years of the relationship, the parties lived in different locations. For at least the last many years of the relationship, Mr. Hunter regularly worked for an oil field company as a result of which he was regularly away from the matrimonial home. His yearly income has been relatively stable at approximately $215,000.00. While Mr. Hunter was away from home, Ms. Hunter had hands-on responsibility at different junctures for a cow/calf operation and for a gravel business. [ 11 ] For many years during the relationship, Ms.

Hunter worked in a secretarial/administrative capacity; the salary she has earned in the last several years is stable at approximately $28,000.00. After separation, Ms. Hunter continued to live in the matrimonial home on which monthly mortgage and other accommodation costs total approximately $1,300. [ 12 ] After separation, the parties began negotiations within a collaborative process. When Ms. Hunter withdrew from that process in January 2016, each of the parties naturally retained new lawyers. A formal settlement offer was made by Mr. Hunter in January 2016; he did not receive a reply to that offer.

No offer has ever been made by Ms. Hunter. [ 13 ] The parties have engaged in some discovery questioning and most of the undertakings resulting from the questioning have been exchanged. There has been no questioning on the undertakings. Ms. Hunter still needs to question Mr. Hunter on his employment benefits, stock options and pension benefits. [ 14 ] The parties have not yet obtained appraisals on various real estate properties, many of which are in Ms. Hunter’s name alone, but which may be part of the matrimonial property. [ 15 ] Pre-trial process has been stalled since March 17, 2017 when Ms.

Hunter was involved in a serious motor vehicle accident as a result of which she was hospitalized until May 24, 2017. She can’t walk, her left foot was shattered, her right femur was broken. She gets around using crutches and a wheelchair. She is on heavy medication. She can’t participate in questioning. There is not yet any medical evidence available about her physical condition, prognosis, and future ability to maintain employment. [ 16 ] As a result of the accident, Ms. Hunter has been on medical leave; however, she is fully paid during that leave. As a result of the accident, Ms.

Hunter’s insurance coverage is paying the mortgage payments on her residence. Ms. Hunter’s vehicle was totalled in the accident; she has no car payments, and indeed she has been paid out for any equity she had in the vehicle. She is currently unable to drive and does not currently own a vehicle. Ms. Hunter lives in a small community approximately 120 kms from Edmonton. [ 17 ] When Mr. Hunter was preparing this application, he inquired from the court’s civil trial coordinator about the availability of a 9 day trial slot. At that time, the first available slot was in April, 2019; Mr.

Hunter expects that, by now, the first availability for a two week trial would be late 2019. I have confirmed his expectation with the trial coordinators; first availability is now late 2019, verging onto 2020. [ 18 ] In support of his application, Mr. Hunter has provided a Form 37 setting out deadlines for the relatively few steps which are still required prior to trial. [ 19 ] Ms. Hunter has provided a monthly budget, no part of which has been challenged by Mr. Hunter.

2. It is premature to set this matter down for trial [4] Mr. Hunter’s frustration at the three year delay in finalizing the domestic dispute is understandable. This does not appear to be a complicated fact situation and it could have, and should have, been finalized by now. [ 20 ] It’s true, of course, that when a collaborative law process is not successful, the parties basically have to start the adversarial process.

One would hope that the collaborative process would at least provide some agreement on some aspects of the dispute such that when the adversarial process begins it doesn’t start from zero; that unfortunately does not seem to have happened here. [ 21 ] Had it not been for Ms. Hunter’s accident, Mr. Hunter’s application would have been granted. The main support for his position is that, even with the benefit of a collaborative law background, there has not been any settlement offer from Ms. Hunter between January 2016 and March 17, 207.

That does not augur well for potential serious progress on the file in the short term. Given the lengthy delays that parties are facing for trial times, there would certainly be time between now and any available trial slot for both parties to comply with a litigation plan of the type suggested by Mr. Hunter. [ 22 ] However, at the moment, Ms. Hunter is not in a physical or emotional condition to fully participate in the pre-trial process. [ 23 ] The harm in setting a trial date now is that booking the time now removes that slot from the list of available trial dates.

Litigants who are actually ready today for trial and who clearly need a 9 day slot, could be pushed into 2021 or 2022 trials. When Ms. Hunter recovers, she may be in a position to settle some of the apparently 150 issues in dispute. [ 24 ] The least bad option available here is to adjourn Mr. Hunter’s application for 9 months. This delay may allow the parties to eventually shorten the estimated time required for trial, thereby finding a more readily available short trial time slot and keeping them on a

schedule similar to that proposed by Mr. Hunter on this application. 3. Spousal Support Advisory Guidelines and interim support [ 25 ] Although they are now part of the infrastructure of domestic disputes, the Spousal Support Advisory Guidelines were adopted as recently as 2008. Since then, judicial treatment of the guidelines has evolved.

If it is reasonable to so characterize it within such a recent history, the “traditional” view of the guidelines can be discerned from our Court of Appeal’s decision in Neighbour : the guidelines may be a useful tool, but they are not the law. [ 26 ] Over the years since the SSAG have been available, there has been a marked difference in the approach of the courts to civil proceedings. In 2014, in Hryniak , the Supreme Court of Canada told us that a culture shift was required in the civil justice system. This need for change is nowhere more obvious than in domestic proceedings.

As can be seen from the discussion of trial times set out above, in Alberta - and I daresay elsewhere in Canada - delays in hearing domestic matters have reached almost unconscionable levels. The SSAG can help relieve those strains. [ 27 ] Mr.

Hunter is, of course, correct in asserting that the weight of the case law establishes that, on an interim application for spousal or conjugal support, a needs and means approach or analysis is what is called for. [ 28 ] However, even at the interlocutory level, the SSAG can help the courts and litigants by speeding decisions concerning conjugal support, at the same time as they make the process more predictable and cheaper. The use of the guidelines is, of course, dependent on the claiming party proving entitlement.

But once that hurdle has been vaulted, what could otherwise be a tortuous process has been greatly simplified.

Nonetheless, on an interim application, there are some situations where resort to the SSAG is not appropriate, for example, where the available disclosure does not allow the court to make any fair assessment of the incomes or alternative means of the parties, or where the assets of the parties are such that any substantive or mathematical error on the interim support order cannot be corrected in the eventual property or other final resolution of the dispute. [ 29 ] At least one contemporary approach to the use of the guidelines, and one which I endorse, is set out in Nicholson : 25 Traditionally, on an interim basis, spousal support analysis has been based upon a need and means analysis.

The analysis concentrates on budgets, current and proposed expenses and incomes. However, with the advent of the Spousal Support Guidelines ("SSG") a strict need and means analysis can be avoided. In King v. King8, Vogelsang J. examined the use of the SSAG on interim orders. At paragraph 12 of that decision, Vogelsang J. quoted point 5 of the Spousal Support Advisory Guidelines: The Revised Users Guide 2016: ...The SSAG formulas reflect both compensatory and non-compensatory bases of entitlement, and their extensive use in the interim context shows that interim awards may also address compensatory objectives.

In general both compensatory and non-compensatory claims should be considered at the interim stage, despite some court's insistence otherwise. 26 Courts are using the SSAG to quantify spousal support on an interim basis9. I adopt the approaches of those cases in using SSAG as a tool to quantify interim spousal support, unless the factual circumstances of a case dictate otherwise.

I do find that in the circumstances of this case, if spousal support is warranted, the SSAG is an appropriate tool, to use to quantify the amount of spousal support. [ 30 ] To a somewhat similar effect are the comments in Crowther : 14 The SSAG are not evidence but they may form part of submissions by a party (Yemchuk v. Yemchuk, 2005 BCCA 406 , at para. 64 ). In Garritsen v. Garritsen, 2009 BCSC 124 , I provided an analysis of the application of the SSAG to interim spousal support orders.

I found that the case law and commentary suggested that the SSAG was applicable to and particularly well-suited for the context of interim support orders, and should only be deviated from in exceptional circumstances. A similar analysis was performed in T.A.D. where Dillon J. stated:

14 It is appreciated that interim proceedings are purposefully

summary, providing "rough justice" during the gap time between the time an action is commenced and trial (D.R.M. at para. 7). For this reason, the SSAG are particularly ideal. In the context of interim child support, the Court of Appeal has commented that the guidelines would apply as a matter of course and that findings related to issues of appropriateness that could only be made at trial, may result in a different result in the interim (Macdonald v. Macdonald, 2002 BCCA 46 , [2002] B.C.J. No. 121 at para. 20 ; D.R.M. at para. 8).

The utility of the guidelines at the interim stage was described by their authors at p. 44: The interim support setting is an ideal situation for the use of guidelines. There is a need for a quick, easily calculated amount, knowing that more precise adjustments can be made at trial. ... Traditionally, interim spousal support has been based upon a needs and means analysis, assessed through budgets, current and proposed expenses, etc. All of that could be avoided with guidelines formulas, apart from exceptional cases. In Ladd v. Ladd, 2006 BCSC 1280 , [2006] B.C.J.

No. 1930, the court applied Redpath to conclude that interim spousal support should be ordered within the range of the guidelines unless there were exceptional circumstances to explain why not. 15 Although the SSAG are only guidelines, they reflect the current law (Yemchuk at para. 64 ). On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance (Bhandal v. Mann, 2012 BCSC 1098 at para. 6 ), and thus the focus on the difference in income, especially where concretely proven, is particularly useful for such orders.

An interim support order should be sufficient to allow the applicant to continue living the same standard of living enjoyed prior to separation if the payor's ability to pay warrants, and an in-depth analysis of the parties' circumstances is better left to trial (Robles v. Kuhn, 2009 BCSC 1163 at para. 12 ; Bhandal at para. 6 ). Where there is a disputed threshold issue, such as whether the parties are spouses for the purpose of the Family Law Act, S.B.C. 2011, c. 25 , then the court will be less likely to award interim support.

However, that issue does not arise when there is no dispute that the parties are married (Bhandal at para. 7 ). [ 31 ] When a court does rely on an interim needs and means analysis, I would adopt the view expressed by my colleague at para. 92 of Martin : “a spouse’s budgeted needs should be met”. 4. Application of the SSAG in the situation here [ 32 ] It is true that, in some ways, Ms. Hunter’s unfortunate accident has decreased her expenses; it is also true that Ms. Hunter appears to have comfortable personal means available for her support.

Nonetheless, for the following reasons, I have concluded that this is a situation in which the SSAG should be used: - Ms. Hunter has established at least the structure of a compensatory entitlement to spousal support even if it hasn’t yet been fully fleshed out yet: these parties began their relationship when they were both young and in a manner in which Ms. Hunter supported Mr. Hunter’s career. In addition, the parties had children together, and it was Ms. Hunter’s responsibility to provide most of the parenting for the children when they were young. In addition to employment and family responsibilities, Ms.

Hunter also took on some responsibilities for family businesses. In those circumstances, it is not fair for an applicant to be limited to their own private or separate resources, rather than to be able to call on the resources of the family partnership; - the parties’ relationship is lengthy and their recent incomes have been stable over time. - there is considerable property here, including property in the wife’s name alone. Therefore, if a full trial were to conclude that Ms. Hunter has been overpaid in interim spousal support, Ms. Hunter has the means to make re-payment to Mr.

Hunter. [ 33 ] Finally, even if the court were to use the historical or traditional needs and means analysis on an interlocutory basis, Ms. Hunter’s budget has been available for questioning and no objection has been taken by Mr. Hunter to any part of that budget. That budget exceeds the interim award requested. [ 34 ] Although the SSAG can be used to set a monthly support award, at this stage of the proceedings, they cannot be used to set a time limit; therefore, the interim spousal support obligation will continue until further order of the court. [ 35 ] Ms. Hunter requests a retroactive order.

I have perhaps misunderstood the situation, but I understood that, for some period of time after separation the parties’ younger child lived with Ms. Hunter and Mr. Hunter was paying Ms. Hunter approximately $2,000.00 monthly in child support. Income from child support would have to be taken into account in a spousal support application, even one based primarily on compensatory entitlement. For that reason, I will not make a retroactive order, but adjourn Ms. Hunter’s application for retroactive support to the trial. [ 36 ] In

summary, from July 1, 2017, until further order of the court, Mr. Hunter will pay Ms. Hunter monthly spousal support in the amount of $5,500.00. 5. Costs [ 37 ] If the parties are not agreed on costs, I can be spoken to within 30 days of the release of this decision. Heard on the 19 th day of June, 2017. Dated at the City of Edmonton, Alberta this 13 th day of July, 2017.

J.B. Veit J.C.Q.B.A. Appearances: Michelle Karasinski, Kurie Queck LLP for Mr. Hunter Shirley A. McNeilly, Q.C., Emery Jamieson LLP for Ms. Hunter