Bentley v Bentley, 2017 ABQB 53

Court of Queen’s Bench of Alberta Citation: Bentley v Bentley, 2017 ABQB 53 Date: 20170126 Docket: 4803 167498 Registry: Edmonton Between: Nadine Carolyn Bentley Plaintiff - and - James Sidney Bentley Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H. Goss _______________________________________________________ Table of Contents I Introduction . 3 II Child Support 4 A Income . 4 1 Law .. 4 2 Evidence . 5 a Wife . 5

b Husband . 7 3 Argument 8 4 Analysis . 9 B Basis for Determining Quantum .. 9 1 Law .. 9 2 Argument 10 3 Analysis . 10 III Division of Matrimonial Property . 10 A Law .. 10 B Evidence . 14 1 Assets . 14 a Matrimonial Home . 14 b Kelowna Condo . 15 c Vehicles . 15 d Registered Investments . 16 e Non-Registered Investments . 16 f Bank Accounts . 16 g Tools and Household Contents . 17 h Ring . 18 i Animals . 18 j Collector Points . 18 2 Liabilities . 19 a RBC Homeline Plan (HELOC) 19 b RBC Personal Loan (Mazda) 20 c Credit Cards . 20 d Scotiabank Line of Credit 21 e RBC Personal Loan (Toyota Tundra) 21 E Analysis . 21 1 Exemptions . 21 a Matrimonial Home . 21 b RRSPs . 22 c Motorcycle . 22 d Ring . 22 2 Dissipation . 22 a 1976 AMF 125 Motorcycle . 22 b RRSPs . 23 c Bank Account 23 d Homeline Plan . 23

e Scotiabank Line of Credit 24 3 Children’s Property . 24 4 Undisclosed Asset 24 5 Division . 25 IV Spousal Support 28 A Law .. 28 B Argument 30 C Analysis . 31 V Costs . 32 I Introduction [ 1 ] This is an action for child support, spousal support and division of matrimonial property. [ 2 ] Nadine Bentley (the Wife) and James Bentley (the Husband) commenced cohabitation in Calgary in December 1996 and were married in Kamloops, B.C. on May 16, 1998. [ 3 ] The parties separated on December 29, 2013. [ 4 ] Therefore, the parties cohabited for over 17 years and were married for 15 of those years.

They have shared custody of the three children of the marriage who now range in age from 12 to 17 years old. [ 5 ] Both parties remained in the matrimonial home until late July 2014 when the Court granted an exclusive possession order to the Husband. [ 6 ] From July 2014 to March 2016, the Wife received spousal support of $1,500 per month and child support of $2,091 per month, pursuant to a Consent Order dated July 7, 2014, based on guideline incomes of $120,000 for the Husband and $20,000 for the Wife. [ 7 ] A February 26, 2016 Order stayed a portion of the child and spousal support payments on an interim without prejudice basis effective March 1, 2016.

The payments continued to accrue but were not to be enforced so long as the Husband continued to pay child support of $1,400 per month and spousal support of $1,000 per month until further order of the court. All of the court ordered payments have been made. [ 8 ] The Wife was 42 years old at the date of trial and the Husband was 47 years old. II Child Support A Income 1 Law [ 9 ] The Federal Child Support Guidelines ( FCSG ) provide: 19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse... [ 10 ] The majority in Hunt v Smolis-Hunt , 2001 ABCA 229 at para 42 , 286 AR 248 held that s. 19 should be interpreted so as to impute income where the obligor has pursued a deliberate course of conduct for the purpose of evading child support obligations.

Proof is required of a specific intention to undermine or avoid support obligations, or circumstances which permit the court to infer that the intention of the obligor is to undermine or avoid his or her support obligations. [ 11 ] In confirming this approach in Taylor v Taylor , 2009 ABCA 354 , 464 AR 245 the Court explained: 14 …persons who are involved in divorce proceedings are entitled to change employment. Individuals, including those obliged to pay

support, are free to pursue work that provides not only income but also a sense of self-worth and emotional well-being. It must also be kept in mind that the best interests of children are often best served when the identity, self-worth and emotional well-being of both parents are carefully considered: Smolis-Hunt at para. 68 .

We add that in circumstances where the parties have agreed on a shared custodial regime this factor gains in significance because the children will essentially spend equal time with each parent. [ 12 ] The payor’s history of support payments is a relevant factor in inferring the requisite intention: Hunt at paras 74-75 .

In the context of a parent who has generally paid support on time and in appropriate amounts, as opposed to a parent who has never paid or has paid only sporadically, a change of employment is less likely to be considered a deliberate attempt to evade child support: Taylor at para 16 . [ 13 ] In applying the Spousal Support Advisory Guidelines ( SSAG ), the courts have applied the methodology set out in the FCSG for determining a payor spouse's income: Kostin v Eaket , 2012 ABQB 756 , [2012] AJ No 1325 at para 142 , citing Laurain v Clarke , 2011 ONSC 7195 , 16 RFL (7th) 316 at paras 27- 28 .

Similar factors must be considered when it is alleged that the payor has pursued a deliberate course of conduct for the purpose of undermining or avoiding spousal support obligations: Richards v Richards , 2013 ABQB 484 at para 119 , 568 AR 302. 2 Evidence a Wife [ 14 ] The Wife graduated from high school and took training in 1994 to become a travel agent, obtaining her certificate in January 1995. She has no other training or certificates. She was a travel agent with Aero Travel in Calgary from 1996 until her maternity leave in 1999. She did well at this job, even describing herself as “aggressive”.

She described it as a “dream job”. [ 15 ] While she was on maternity leave, the Husband got a job in Edmonton. He moved in October 1999 while the Wife remained in Calgary to oversee the sale of their Calgary home. The Wife moved to Beaumont along with their first child in March 2000. [ 16 ] In 2000, the Wife worked part-time as a bartender, at a liquor store and at a Chrysler dealership. She was named top sales agent in her second month at the dealership.

In 2001, she worked at Marlin Travel until she was required to take an early maternity leave. [ 17 ] After the second child was born, the Wife tried a home based business and then babysat 10 days per month. She then got a job working at the Nisku Inn as a waitress three nights per week. [ 18 ] In 2004, the third child was born and the Wife took a year-long maternity leave. She then returned to working part-time at the Nisku Inn in 2005 until she broke her leg and crushed her knee.

Thereafter, she babysat children for a period again until she started working part-time at Uniglobe Travel in 2007 as a Destination Wedding Specialist. [ 19 ] The Husband testified that he helped with childcare during periods when the Wife was employed. The Wife testified that she always prepared dinner before leaving for work and the Husband would feed the children, bathe them and put then to bed if she was working. She would then do the dishes when she returned home from work.

At night she was the one who attended to the youngest child when he awoke. [ 20 ] For a six-month period, the Wife worked from home with Uniglobe, as problems had developed with their childcare provider. In October 2009, the Wife was forced to quit her job with Uniglobe as she could not find childcare and working from home was not feasible. The Wife said this was a joint decision between the Husband and the Wife.

The Husband confirmed on cross-examination that he agreed with the Wife’s decision to stay home with the children. [ 21 ] In March 2010, the Wife started providing childcare for others at her home and in March 2013 she started dog sitting as well. [ 22 ] The parties separated on December 29, 2013, but continued to reside together in the matrimonial home. The Wife testified that immediately following this separation, the Husband asked her how much money was needed each month to cover all of the bills. She provided him with this information on sticky notes.

The Husband deposited only enough money in the joint account to cover the bills that were in his name. The bills in the Wife’s name went unpaid in February 2014. [ 23 ] In June 2014, the Wife discontinued her day home service. [ 24 ] In late July 2014, the Wife moved out of the matrimonial home into a rental home. She continued her dog sitting business, now called Dog Town, advertising and adding some retail and increased mobile services to grow her business. [ 25 ] On July 29, 2015, the Wife moved to another larger rental property owned by her late friend’s husband’s company. She pays rent to that company.

The Wife was able to make changes to the property to suit her dog sitting business, including renovating the garage, clearing a two acre dog park area and painting the fence. [ 26 ] The Wife tracked her dog sitting commitments with handwritten journals and on her phone. She was paid by cheque, e- transfer or in cash. Once she had finished calculating her monthly revenue, she discarded her handwritten journals. She provided her bookkeepers with her monthly revenue and expense information and receipts.

She confirmed on cross-examination that she has received tips from time to time but at Christmas she usually receives gifts, such as chocolates. [ 27 ] The Wife’s current bookkeeper, Jeffrey Lin, was called as a witness at trial. He confirmed that he prepares the Wife’s personal and business income tax returns. He relies on the gross monthly income and expense information provided to him by the Wife. He does not receive source documents for the gross monthly income reported to him. No amount was provided to him for 2015 or 2016 for tips. He testified that receipts must support the expense information. Mr.

Lin sorts and categorizes the receipts. The receipts for maintenance and repairs included receipts for paint and other items purchased at Home Depot or Rona. The receipts for supplies

included office supplies, dog food, dog bedding, and other purchases from Pet Smart. [ 28 ] The Wife’s acknowledged 2014 Line 150 income is $17,418.40 ($10,823.00 + $6,583.59), including spousal support. The Wife acknowledged she received personal benefits from her day home and dog sitting business. In 2014, she received personal benefit of 50% of telephone, utilities and motor vehicle expenses, amounting to $10,357.95. When those benefits are included, her income is $27,776.35. [ 29 ] In 2015, the Wife’s line 150 income was $14,746.55.

The spousal support payments she received that year are not included in her 2015 income tax statement. When personal benefits amounting to $6,872.39 are added back, her 2015 gross income is $21,618.94. The Wife testified that her business expenses were high in 2015 as she renovated the garage and cleared the property that year to accommodate her business needs. [ 30 ] The Wife calculates her 2016 income as being $6,895.14, including acknowledged personal benefits of 75% of home insurance, electricity, heat and internet, 50% of vehicle maintenance and fuel, and 25% of auto insurance and phone expenses.

However, she accepts an imputed guideline income of $25,000 for 2016. b Husband [ 31 ] The Husband obtained a degree in Mechanical Engineering Technology in 1989. He then obtained a Certificate in Automated Manufacturing. He acquired his Machinist Red Seal in 2004. [ 32 ] In 1999, while the family was living in Calgary, the Husband was offered a job with Millennium Oilflow Systems and Technology Inc. in Edmonton. He was told that he would be part of the company, and would receive shares and bonuses. He took the job after discussing it with the Wife.

They both saw it as an opportunity as he would get equity in the company. The family moved to Beaumont. [ 33 ] The Husband worked at Millennium for 15 years from November 28, 1999 to January 2016, initially as Foreman and Shop Supervisor. He ultimately attained the position of Vice President Manufacturing in 2011. He testified that there was no big “piece of the pie” in the end as the economy shrunk and the owner was in debt. In 2013, the ownership of the company changed.

The Husband testified on cross-examination that he received no bonuses or only small bonuses from Millennium. [ 34 ] The Husband commenced employment as a Service Technician at Akhurst Machinery Ltd. on February 1, 2016, where he is currently employed. [ 35 ] The Husband testified that he left his job at Millennium because of stress, anxiety and insomnia. The constant stressors he identified were a lack of resources to comply with delivery dates and project dates, and under-skilled tradespeople working under him.

He wore many hats, as he was responsible for the organization of sales, manufacturing and shipments around the world. He did a lot of engineering design work. He was a direct supervisor responsible for managing people and training in four or five departments. He had one supervisor and 25 employees working under him on two shifts. If there were problems, he would be called day or night. He would wake up between 4:00 a.m. and 5:00 a.m., be unable to sleep, and go either to work or to the gym. [ 36 ] The Husband’s evidence at Questioning and Trial was that he suffered from these conditions since 2001 or 2002.

He saw a doctor about these concerns and was prescribed anti-depressants and sleeping pills starting in approximately 2001 or 2002. He did not seek any opportunities through Millennium to change his job description or remedy these issues and confirmed on cross-examination that these issues did not cause him to miss any work. He had only had two sick days in his 15 years at Millennium. [ 37 ] The Husband testified that his health issues continue to go up and down. He described his health as 6/10 overall. He suffers from stress, anxiety, back issues and chronic neck issues.

Some days he cannot hold wrenches. [ 38 ] At Akhurst, the Husband does not manage any employees. He reports to the Vice President. He takes service calls directed by a service coordinator. When he is not on service calls, he trains himself on new equipment. He does not sit in front of a computer all day long. He still has aches and pains as he is getting older, but in his view the stress level is less than half of what it was at Millennium. He still has difficulty sleeping and gets headaches in his neck area.

He currently takes Cymbalta. [ 39 ] Akhurst pays the Husband $35 per hour, plus $10 per hour for time paid by Akhurst customers/suppliers for any billable customer work. He is paid time-and-a-half for overtime which can be banked for additional time off. He confirmed on cross-examination that he has banked some overtime hours. Mileage expense for the use of his vehicle is reimbursed on a “per kilometer” basis. His compensation will be subject to annual review. After the first calendar year of employment, the Husband will receive a matching contribution to his RRSPs of up to 1% of his prior year’s T4 income.

Akhurst also pays year-end bonuses when financial results permit. Akhurst has paid bonuses for several years, with the exception of 2007/2008. The factors or considerations it employs in determining the bonuses to be paid were requested in Questioning but were not ultimately provided. [ 40 ] The Husband’s 2014 line 150 income was $131,206.35 and his 2015 line 150 income was $133,336.35, representing monthly income of $11,111. [ 41 ] A paystub for period start date of February 8, 2016 from Millennium reflects year-to-date income of $14,063.16 including vacation pay of $3,486.22.

The Husband was unsure whether this was his last paystub from Millennium. I am satisfied that this is probably his last paystub from Mellennium. [ 42 ] The Husband began work for Ackhurst on February 1, 2016. His year-to-date pay from Akhurst as at October 31, 2016 was $62,409.94. He acknowledged earning $2,572.50 in additional billable time from February to October which should be added to his gross income.

The Husband also acknowledged that there were additional deposits from Akhurst to his TD unlimited chequing account ending in 2689 from February to October 2016 totaling $6,217.97 that were not reflected on his pay stubs. The Husband testified that he has not

been given a bonus in 2016 and that no bonus has been promised to him. The Husband does not know when or if Akhurst will pay any bonuses as he did not discuss this with them. 3 Argument [ 43 ] The Wife argues that there have been problems obtaining the Husband’s disclosure, and that she eventually had to obtain a Court order compelling him to disclose. The Wife invites the Court to draw an adverse inference where there is a lack of disclosure and where the Husband was not forthright in his testimony. [ 44 ] She also points to the Husband’s indication in a December 7, 2015 email that he loves hard work.

He stated at Questioning in October 2014 that he did not intend to leave Millennium. He confirmed at Questioning in February 2016 that he was never told that he was at risk of being laid off. She submits that his decision to leave Millennium is suspect, given its timing in the context of this litigation. [ 45 ] The Wife submits that the Court should impute income of $100,000 per year to the Husband.

She argues that he voluntarily left his position of 17 years with Millennium, where he was earning approximately $130,000 per year, for a job at Akhurst, where he earns a base salary of only $82,000 per year, in order to minimize his support payments. She points out that he left his position at Millennium after trial dates had been set for this litigation over spousal support and property.

He confirmed on cross-examination that he takes issue with paying spousal support. [ 46 ] The Husband submits that his income should be set at $92,000 for 2016 and $85,213 for 2017. [ 47 ] The Husband argues that the Court should find the Wife’s gross income in 2014 was $40,049.53 (gross income from all sources including rental income) with purely business-related expenses of $20,342.21. In 2015, her gross income was $48,142.04 (gross business income and rental income) with purely business-related expenses of $25,680.93. In 2016, her gross business income to the end of October was $50,699.02.

He submits that because November and December are historically busy months in the dog care business, gross income of $20,000, plus possible tips, for those two months, is not unrealistic. He also argues that there is some evidence that the Wife is not fully reporting her income because, despite admitting some “tips” received, her accountant was not provided any income information related to “tips”. 4 Analysis [ 48 ] The evidence before me does not establish that the Husband has had a specific intention to undermine or avoid support obligations, nor does it permit me to infer such an intention.

I am mindful that the Husband takes issue with paying spousal support. However, he has provided an explanation for his change in employment, and I cannot say that explanation is inconsistent with the evidence, nor that it is unreasonable. Persons who are involved in divorce proceedings are entitled to change employment and individuals obliged to pay support are free to pursue work that provides greater emotional wellbeing. The Husband testified as to the effects of employment-related stress on his health. He testified that the stress is much less in his current job.

The parties have shared custody and therefore both parties’ wellbeing is particularly important as it affects their ability to parent their children. [ 49 ] The sum of the Husband’s year-to-date pay from Ackhurst as at October 31, 2016, additional billable time and additional deposits from Akhurst amount to $71,200.41. These amounts were received between February 1, 2016 and October 31, 2016, a total of 9 months. This reflects a gross income of approximately $7,911 per month or $87,021 for the 11 months in 2016 during which the Husband was employed by Akhurst. The Husband also received $14,063 from Millennium.

Therefore, based on this evidence, his total income for 2016 is $101,084. Based on his income from Akhurst in 2016, his line 150 income for 2017 will likely be around $95,000. [ 50 ] I am also not satisfied that the Wife is attempting to avoid her support obligations, nor that she is not fully reporting her income. She has made a fair assessment of her personal benefits from her business expense deductions. Those have been added back into her income. The evidence does not establish that she has underreported her tips. I find a guideline income for 2016 of $25,000 is reasonable on the evidence before me.

This 2016 guideline income will be utilized for 2017 until her 2017 income can be determined. B Basis for Determining Quantum 1 Law [ 51 ] The FCSG provide: 9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 52 ] Simple set-off is the starting point for determining the amount of child support in a shared custody situation, but it is not the end of the inquiry. One of the overall objectives of the FCSG is to avoid great disparities between households, to the extent this is possible. The parties must lead evidence relating to ss. 9(

b) and (c), such as budgets and the actual expenses of both parents, for the Court to consider: Contino v Leonelli-Contino , 2005 SCC 63 at paras 49-53 , [2005] 3 SCR 217. 2 Argument

[ 53 ] The Wife is satisfied with the amount of child support paid to the date of trial, and she abandoned her claim at trial for arrears of child support and retroactive child support. [ 54 ] The Wife argues that the parties’ child support obligations should be based on an imputed income to the Husband and an imputed income to her of $25,000, but in any event should be a minimum of $1,341 to $1,400 per month if the straight set-off amount is lower. [ 55 ] The Husband argues that the $1,400 payable under the February 26, 2016 order was too high.

He seeks an order retroactive to March 1, 2016. 3 Analysis [ 56 ] There is no evidence before me as to the children’s budgets or needs, nor the actual expenses of each parent in relation to the shared custody arrangement.

Therefore, I am unable to determine whether there are any increased costs arising out of the shared custody arrangements or whether the conditions, means, needs and other circumstances of either spouse and of any of the children necessitate further adjustment to the straight set-off amount of child support. [ 57 ] Child support shall be based on a straight set-off in the amount of $1,341 per month commencing March 1, 2016 until December 1, 2016 and $1,359 per month starting January 1, 2017, subject to adjustment upon confirmation of actual 2017 incomes. [ 58 ] The parties shall provide to each other annually the information required under s. 25 of the FCSG .

III Division of Matrimonial Property A Law [ 59 ] The Matrimonial Property Act , RSA 1980 cM-8 ( MPA ) provides: 7(1) The Court may, in accordance with this section, make a distribution between the spouses of all the property owned by both spouses and by each of them.

(2) If the property is ...(

c) property acquired by a spouse before the marriage,... the market value of that property at the time of marriage or on the date on which the property was acquired by the spouse, whichever is later, is exempted from a distribution under this section.

(3) The Court shall, after taking the matters in

section 8 into consideration, distribute the following in a manner that it considers just and equitable: (

a) the difference between the exempted value of property described in subsection (2), referred to in this subsection as the “original property”, and the market value at the time of the trial of the original property or property acquired (

i) as a result of an exchange for the original property, or (ii) from the proceeds, whether direct or indirect, of a disposition of the original property; ...(

d) property acquired by a spouse by gift from the other spouse.

(4) If the property being distributed is property acquired by a spouse during the marriage and is not property referred to in subsections (2) and (3), the Court shall distribute that property equally between the spouses unless it appears to the Court that it would not be just and equitable to do so, taking into consideration the matters in

section 8. 8 The matters to be taken into consideration in making a distribution under

section 7 are the following: (

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; ...(

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; ...(

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. [60] The Court of Appeal clearly confirmed in Hodgson v Hodgson, 2005 ABCA 13 at para 29, 361 AR 190 that the appropriatedate of valuation for division under the MPA is the date of trial, not the date of separation, and the courts are to deal with any inequitiesthat might arise by applying the factors set out in s. 8. [61] In Jensen v Jensen, 2009 ABCA 272, [2009] AJ No 878 at paras 20 and 23, the Court confirmed that Mazurenko vMazurenko (1982), 1981 ABCA 104 , 30 AR 34, 124 DLR (3d) 406 (CA), leave denied [1981] SCCA No 108 remains the lawin Alberta.

There is a presumption of equal distribution of non-exempt property acquired during the marriage and therefore unequaldistribution is an exception. The Court explained that the MPA is designed to protect against inequities arising from dissolution ofmarriage and to recognize a social and economic partnership. It is not a realistic requirement that the contributions of each party be equalfor the Court to order an equal division. The presumption of equal division should only be rebutted in the clearest of cases when, havingregard to the s. 8 factors, it would be unjust and inequitable to make an equal division.

The courts are not to weigh each party's respectivecontribution or undertake a microscopic analysis of the respective roles each party played to determine who did more. The MPA does notrank the s. 8 factors. [62] A substantial contribution need be no more than beyond de minimis, a matter of the evidence in any particular case, in orderfor the general rule of equal distribution to apply: LeBlanc v LeBlanc, (SCC), [1988] 1 SCR 217, [1988] SCJ No 6 atpara 13. [63] The matrimonial debts are treated in the same manner.

A debt is generally considered to be matrimonial debt if it was relatedto the acquisition of matrimonial assets, or to the maintenance of the lifestyle of the parties: Carmichael v Carmichael, 2007 ABCA 3,[2007] AJ No 1. Each spouse is equally responsible for all liabilities assumed by the couple as a matrimonial unit. In most cases, howthese liabilities were incurred and whether or not they were incurred in one spouse's name or both is irrelevant. Therefore, it will usuallynot be sufficient for one spouse to avoid liability simply by claiming that he or she took no

part in the financial decision from which thedebt arose. A debt arising out of the marital compact will not be attributed to only one of the spouses unless circumstances justify andnecessitate doing so: Ross v Ross, 2007 ABQB 167, [2007] AJ No 296 at para 85. [64] An exemption can be traced forward into new property so long as there is a reasonable nexus between the exempt propertyand the replacement property.

No precise and exact tracing is required, and de minimis breaks in the chain can be tolerated: Harrower vHarrower (1989), (AB CA), 97 AR 141, [1989] AJ No 629 at para 18 (CA); Lovich v Lovich, 2006 ABQB 736,[2006] AJ No 1271 at para 38. However, such an inference cannot be drawn in a vacuum.

The party claiming an exemption must provideevidence of circumstances which logically permits the drawing of an inference: Hughes v Hughes, 1998 ABCA 409 at para 30, 168DLR (4th) 112. [65] The value of an exemption is reduced to half if it is placed in joint ownership with the other spouse, or if the spouse gifts it tothe other spouse or treats it as a matrimonial asset.

The half that has been shared is treated as matrimonial property subject to thepresumption of equal division under s. 7(4) of the MPA: Harrower at para 19; Lovich at para 57. [66] There is no presumption of equality in distributing property under s. 7(3): Hodgson at para 20.

Rather, the Court mustdetermine a just and equitable distribution, after taking the s. 8 factors into consideration. [67] In Cox v Cox, 1998 ABQB 987, [1998] AJ No 1282 at para 46, the Court distilled the following principles as underlying thefactor in s. 8(l), that a spouse has dissipated property to the detriment of the other spouse: 46 ...3. Dissipation does not necessarily result where an asset is worth less at trial than it was at separation.

Dissipation requires adegree of intent although that intent does not necessarily have to extend to intentionally depriving the other spouse of a fair distributionof matrimonial property. It is sufficient if one spouse intends to dissipate the assets (usually for their own enjoyment), and thatdissipation arises in detriment to the other spouse. 4. There must be actual detriment to the other spouse. 5. The law generally does not find dissipation if the reduction in assets was due to reasonable expenditures made on behalf of the familyor to maintain existing matrimonial assets.

However, the court will look to see if the spouse could have paid those expenses out ofincome rather than by depleting assets. Purely personal expenses which do not benefit the other party that are paid out of matrimonialproperty may also be considered dissipation (even though prior to separation they might have been matrimonial expenses). 6. If an asset is sold or otherwise reduced, the courts will not consider this dissipation if the proceeds can be traced to another asset. Thereplacement assets form part of the assets available for distribution. 7.

If assets are sold for less than fair market value, the courts may determine whether the sale was done improvidently, hastily orfraudulently in deciding whether it was dissipation. If the sale is effected in accordance with pre-separation negotiations it may not beconsidered dissipation. 8. The total amount actually dissipated "to the detriment" of the spouse is one-half of the amount by which the asset was reduced.

9. Ultimately it is in the discretion of the trial judge, based on the consideration of all the facts, to determine whether or not dissipation exists. [ 68 ] Dissipation is another word for waste. Merely disposing of property is not dissipation; there must be an element of bad faith, neglect or extravagant spending on personal expenses: Metz v Metz , 2004 ABQB 528 , [2004] AJ No 925 at paras 37-38 .

The same standard of objectively prudent management based on evidence of activity prior to separation is generally applicable to a spouse's use of matrimonial property after separation: Hennesey v Hennesey , 2005 ABQB 883 , [2005] AJ No 1703 at para 83 . [ 69 ] In appropriate cases, a court may draw an adverse inference from a party’s failure to provide some evidence where the party himself or his opponent claims that the facts would thereby be elucidated: JH Wigmore, Evidence in Trials at Common Law (NY: Little, Brown, 1979) vol 2 at 192.

B Evidence [ 70 ] Both parties agree that the Wife had primary responsibility for caring for the children and the household finances during the marriage, while the Husband was the primary breadwinner. [ 71 ] The Husband testified that he has been very involved with raising the children, including going for walks with them, taking them to the zoo, having them with him in the garage, helping coach soccer, taking them to baseball, Cubs, Beavers, et cetera. The children were involved with and helped where they could with various renovation projects.

In the evenings when the Wife was working, he would parent the children. He acknowledged that the Wife did most of the cooking but testified that he would help with the cooking, dishes, clean up and bath time. The Husband was involved with managing the youngest boy’s health concerns when he was a baby.

The baby slept in his car seat in their bedroom and thereafter the Husband slept in his room with him for six months. [ 72 ] The Husband also testified that he did substantial renovations over the years on the matrimonial homes. [ 73 ] The Husband testified that he started sleeping in a separate room apart from the Wife in 2011 because they had two dogs (50 pounds and 70 pounds) who slept in their bed and he was sometimes having difficulty sleeping. Christmas 2013 had been difficult as the Wife was caring for seven dogs in her dog sitting business and they had five dogs of their own.

The parties had done some renovations to their yard to accommodate the Wife’s dog sitting business. The parties continued to reside together in the matrimonial home after the separation and the Wife continued to operate her dog care business, focusing on her mobile business, out of the matrimonial home until July 2014, when an exclusive possession order was granted to the Husband. [ 74 ] The Husband confirmed in Questioning that he stopped depositing his paycheque into the joint account within the first couple of months of 2014.

He confirmed on cross-examination that he diverted his paycheque to a new account in January 2014, depositing a smaller amount into the joint account to cover some of the bills, such as his credit card bills, which he asked the Wife to ensure were paid, as he used his credit card for work. He testified at trial that he did not recall the Wife asking him for money or providing him with a list of what bills she needed to pay, but he did confirm that there were sticky notes on his computer.

The Husband did not know how the Wife paid some of the bills, such as the children’s cell phone bills and bills in the Wife’s name alone, in 2014. 1 Assets a Matrimonial Home [ 75 ] I found the Husband to be somewhat vague as to the tracing of the equity in the parties’ successive homes. Nevertheless, I am satisfied that the evidence establishes the following sequence of events. [ 76 ] The Husband made a down payment of $15,230 in January 1999 on the parties’ first home in Calgary, which they also jointly owned.

The down payment came from the sale of the Husband’s home in Carsland, Alberta in November 1998. [ 77 ] The Wife brought a dining room table and a washer/dryer into the marriage. She testified that she also purchased all the furnishings for the home. She argues that this was her financial contribution to the first matrimonial home. She claims no exemption for her initial contribution. [ 78 ] The parties sold their Calgary home in 2000 and used the proceeds of sale for the deposit on the first Beaumont home.

The Wife purchased the furniture and inside items for this house while the Husband purchased the tools and other items kept in the garage. The Husband did car restorations. [ 79 ] The parties’ first Beaumont home required renovations. The Wife testified that she was looking after their first child, the home and working in the evenings, but still tried to help the Husband with the renovations.

She confirmed on cross-examination that they both worked equally on their first home renovations. [ 80 ] The parties remained in their first Beaumont home until May 2003 when they purchased the current matrimonial home for $215,000, again in Beaumont. They have joint title. The equity from the first Beaumont home was used to purchase the matrimonial home. [ 81 ] They made improvements to the matrimonial home as well, including adding an above- ground swimming pool with cedar deck, an insulated single car garage, a shed, a pool house, a swing set, new flooring, repainting the house and doing landscaping.

The Husband did the majority of the renovations while the Wife cooked meals, looked after the children and did all of the gardening. [ 82 ] The parties obtained a joint appraisal for the matrimonial home and both agree with the appraised value of $440,000.

b Kelowna Condo [ 83 ] The parties obtained a joint appraisal of their interest in the Kelowna condominium, purchased on August 17, 2009, and both agree with the appraised value of $80,000. Title to the Kelowna condo is in the Wife’s name alone. c Vehicles [ 84 ] The only evidence of value for the Wife’s 2012 Mazda 3 was the Black book value of $10,024. [ 85 ] The 1998 Nissan Pathfinder is no longer in the Wife’s possession.

Her evidence was that she donated it to the Kidney Foundation after the motor gave out. [ 86 ] The Wife purchased a 2012 Jeep Patriot in July 2016 for $10,433.75. [ 87 ] The Husband purchased a Toyota Tundra from his former employer. His testified that he got a good deal and acknowledged that it was worth a couple thousand more than the $9,999 that he paid for it. The only evidence of value was the Black book value of $14,085.

I accept this as being the current value. [ 88 ] The Husband acknowledged in re-direct that he is in possession of a van worth $1,200. [ 89 ] The Husband attributed a value of $150 to a 1967 Honda 90cc Motorcycle in his possession. The Wife accepts this value. [ 90 ] The Husband listed a 1971 Norton Commando Motorcycle worth $3,000 in his August 18, 2014 Statement of Income, Assets and Liabilities. He acquired it in 1985 or 1986. He stated that he and his brother “sort of inherited” it. The motorcycle was described as “a project”. In 2007 or 2008 he was offered $1,500 for it.

At trial he testified that it was worth $2,500. He thought it was worth $500 at the date of marriage. I find $2,000 to be a reasonable value for this asset. d Registered Investments [ 91 ] The Wife’s Investors Group RRSP (including RESPs) valuation on December 31, 2013 was $100,035.24. The value on October 30, 2016 was $89,721.15. [ 92 ] The Wife had purchased RESPs for each of the children of the marriage for a total of $38,352.33 as of December 31, 2013, utilizing her RRSPs. This asset is in the Wife’s name with each of the children named as beneficiaries.

The RESPs are valued at $46,433.92 as of October 30, 2016. Therefore, the Spousal RRSP is $43,287.23. [ 93 ] The Husband’s Investors Group RRSP valuation on December 31, 2013 was $24,138.56. The value on September 30, 2016 was $9,497.95. He claims a full exemption for this amount. [ 94 ] It is suggested by the Wife that a notional tax of 24% be used to take into consideration the tax that will ultimately have to be paid by the parties on these funds on withdrawal. The Husband agrees but suggests a notional tax rate of 20% as the Wife’s income is lower.

The notional tax rate shall be 24% as the Wife will presumably be taking steps toward self-sufficiency and her taxable income, while receiving spousal support, will include the support payments. e Non-Registered Investments [ 95 ] The Wife gave evidence that she closed her Scotiabank TFSA ending in 8796 after separation. [ 96 ] The Husband has an RBC TFSA ending in 7970 containing $25.31 as of November 18, 2016.

He confirmed on cross- examination that he has had this account for at least a year and has made no additional contributions beyond the initial $25. [ 97 ] The Husband did not provide an updated annual statement showing the current value of the investment component of his Universal life insurance policy. He confirmed on cross-examination that he overlooked or missed it. The most current value as at July 31, 2014 was $1,386.83. That Statement shows an increase of $331.17 from the previous year’s balance.

The Wife argues that if the same annual increase is assumed for 2015 and 2016 as occurred from 2013 to 2014 then the current value as at July 31, 2016 can be estimated of $2,049.17.

In light of the Husband’s failure to disclose an updated statement, I will adopt the approach proposed by the Wife. f Bank Accounts [ 98 ] The Wife testified that she closed her Scotiabank Money Master Account ending in 1484 after the separation. [ 99 ] The Wife’s RBC personal account ending in 9938, which she opened after separation, had a balance of $4,859.19 as at November 2, 2016. [ 100 ] The Wife’s Scotiabank Basic Account ending in 5388 was opened after separation.

It had a balance of $71.41 on November 1, 2016. [ 101 ] The Wife’s RBC business bank account ending in 5875 opened after separation had a balance of $0 as of October 7, 2016. [ 102 ] The Wife’s RBC business bank account ending in 4795 opened after separation had a balance of $0.92 on October 31, 2016. [ 103 ] The Wife’s RBC personal account ending in 4095 had a balance of $0.10 from March 1, 2016 to July 6, 2016. The Wife testified that it is now closed.

[ 104 ] The Wife’s RBC Day to Day Account ending in 4103 had a balance of $0 from January 1, 2016 to July 6, 2016. The Wife testified that it is now closed. [ 105 ] The parties’ joint Scotiabank One account ending in 1522, which was used by both parties until just prior to their physical separation, was closed in June 2014. [ 106 ] The Husband’s TD Unlimited chequing account ending in 2689 had a balance of $474.14 on November 21, 2016. [ 107 ] The Husband’s Scotia One account ending in 3024 was opened after separation. The most recent statement reflects a balance of $7.51 as of November 2014.

The Husband testified that he closed this account in November 2014. [ 108 ] The Husband testified that the Scotiabank Money Master account ending in 3581 was a savings account for both parties. He confirmed on cross-examination that he had sole access to this account after December 2013. It had a balance of $3,404.08 on February 17, 2014 and $15 on October 9, 2014. The Husband stated at Questioning and confirmed on cross-examination at Trial that he took cash withdrawals out of the account and used the money to pay bills, including bill payments on the joint HELOC account.

There were also two deposits to this account in February 2014 totaling $965. The Husband no longer holds any accounts with Scotiabank. [ 109 ] The Husband opened an RBC chequing account ending in 8857 after separation. The most recent disclosure provided by the Husband to the Wife regarding this account indicates a balance of $1,703.07 on June 30, 2016. g Tools and Household Contents [ 110 ] There is significant disagreement between the parties as to the value of the tools and household contents. The Wife took a few household items when she left the matrimonial home.

She also was given and purchased a few household items, much of it secondhand, for her new residence. The Wife has valued these at $1,300. [ 111 ] The Husband confirmed on cross-examination that each of the three lists of tools and household contents he provided in response to both undertakings and a court order were not complete, as there was “just so much stuff”. He explained that he made the lists from memory, as opposed to taking an inventory of all of the tools and household contents.

The total value of all of the items not duplicated on the Husband’s three lists is $7,429. [ 112 ] The Wife testified that she was certain there were items missing from the lists provided by the Husband. He refused her request for access to the matrimonial home to make a list of the tools and household contents herself. She then entered the home without permission and took 286 photos of the tools and household contents in the matrimonial home. She valued each of the items she identified based on average valuations obtained from Kijiji. The Wife’s total is $16,545.

She was not cross-examined on her list or on her valuations. The Wife testified that most of the items on her list are not included on the Husband’s lists. [ 113 ] The Wife’s list was put to the Husband on cross-examination and he identified three items from her list that he did not believe were in his possession.

The total value of those three items is $360, leaving a balance, according to the Wife’s valuation, of $16,185. [ 114 ] The Wife submits that the Court should add the values in the Husband’s three lists, which were not included in her list, for a total of $23,614. [ 115 ] On re-direct the Husband added that there were many tools on the Wife’s list that were given to him by his brother, but he did not specifically identify them.

He testified that he attributed a total value of $1,160 to the items on the Wife’s list. [ 116 ] The tools and household contents are worth $23,614 according to the Wife’s valuations and $7,189 according to the Husband’s valuations. Given the conflicting evidence on the valuation of these items, I assess a value based on the average of the two valuations of $15,000 for the tools and household items remaining in the matrimonial home. h Ring [ 117 ] The Husband includes a wedding ring, worth approximately $5,000 at the time of purchase, in the list of the Wife’s assets based on a read-in.

The Wife submits that this is a reference to her engagement ring. There was no evidence at trial regarding this ring. i Animals [ 118 ] The Wife owns a horse named Music that she testified is worth $800 and a saddle and tack worth $800. She also owns a dog, named Puddle, worth $200. j Collector Points [ 119 ] The parties collect Air Miles, Aeroplan Miles and Westjet dollars. No evidence was given as to the value of these miles or dollars. [ 120 ] The Wife had 0 cash miles and 14,580 dream miles as of December 13, 2016. The Husband had 63 cash miles and 828 dream miles at some point in 2016.

The Husband testified that the parties used Air Miles for travel during the marriage and the Wife and the three children used Air Miles points to travel to Mexico in November/December 2014. The Husband has not used any Air Miles since the date of separation. [ 121 ] The Wife accumulated 11,956 Aeroplan Miles from January to December 2015 and 305 Aeroplan Miles from January to

December 2016. The Husband had collected 9,589 eligible Aeroplan Miles on December 5, 2014. He accumulated 286 Aeroplan Miles from June 2015 to June 2016. The Husband testified that he had 10,619 Aeroplan miles as of November 21, 2016. The Husband has not used any of his Aeroplan Miles since the date of separation. [ 122 ] The Husband has 663 Westjet dollars as of June 28, 2016. He has redeemed some of his Westjet dollars since the date of separation. 2 Liabilities [ 123 ] The Wife testified that she paid the bills and looked after all of the finances during the marriage once their first child was born.

Her evidence was that the Husband would put his fingers over his ears and say, “I don’t want to know” when she tried to discuss the finances with him. The Husband had access to all of their accounts. He described himself as very thrifty and stated that he would check in periodically with the Wife regarding her handling of their finances. It was not a concern in their marriage. He testified that the Wife would often say that they would have the house paid off at 45. a RBC Homeline Plan (HELOC) [ 124 ] The parties took out a four-year term mortgage of $155,000 in 2003.

In 2006, they refinanced, taking out a five-year term mortgage in the amount of $195,000. On April 24, 2009, they jointly took out an RBC Homeline Plan loan (HELOC), secured against the matrimonial home, with a limit of $310,000. They immediately paid out the balance owing on their mortgage of just under $150,000 using the HELOC. [ 125 ] The additional room on the line of credit was seen by the parties as a safety net in case the Husband lost his job. The economy was slow and he had taken a 10% wage cut. They were landscaping the front yard and money was tight.

The Wife had said that the interest rate would be lower on the line of credit and that it would expedite paying off the mortgage. The Husband was content to let the Wife make the arrangements. He recalled meeting the Wife at the bank to sign the necessary documents. The Husband testified that he told the bank that they did not need the extra funds and recalled that someone at the bank advised him that he could reduce the credit limit anytime.

He never took steps to reduce the credit limit. [ 126 ] The Wife testified that in July 2009 the parties decided to use the remaining credit on the HELOC to purchase a revenue property. They purchased an interest in the Kelowna condo on August 6, 2009 for $115,000. [ 127 ] The Kelowna condo is a 1/6 fractional ownership in the Royal Private Residences entitling the owner to stay there for 10 weeks per year, or trade the time for another “family of five” property.

If not utilized or traded, the weeks are put into the rental pool. [ 128 ] The Wife confirmed on cross-examination that the decision to purchase the Kelowna condo was discussed, agreed to and the Husband said, “you look after it”. The Husband’s evidence at Questioning and at trial was that he had been a part of discussions with the Wife about purchasing a rental property prior to the purchase of the Kelowna condo interest and initially denied but then confirmed that it was possible that he was shown pictures of the Kelowna condo on the computer before it was purchased.

Then on cross-examination the Husband denied that the parties had discussed purchasing the Kelowna condo before it was bought but confirmed that he had been shown photos. [ 129 ] They purchased an interest in the Kelowna condo on August 6, 2009 for $115,000. The Husband testified at trial that he was not aware of the condo purchase until the day after it was purchased. He testified that he did not know that the Wife had used the HELOC to fund the condo purchase. He stated that he found it easier just to agree to things the Wife wanted and move forward, not to rock the boat.

The Husband did not see the Purchase Agreement until after separation. The Husband trusted the Wife in her handling of the finances. [ 130 ] The Husband’s evidence at Questioning and trial is internally inconsistent regarding the discussions prior to this purchase. I find that the evidence establishes that the parties did discuss and agreed to purchase the Kelowna condo, and the Husband left it to the Wife to look after the details of the purchase. [ 131 ] The Wife testified that the Husband, the Wife and the children stayed at the condo once, three days after the purchase was finalized.

The Husband confirmed that he stayed in the condo for one night shortly after it was purchased. Since then, the Wife has stayed there twice more with girlfriends. As well, they have traded weeks several times, the Wife and one son staying in Mexico and Florida. The Husband has not stayed at the Kelowna condo other than that first night. The Husband confirmed at Questioning that the Wife never told him that he could not stay at the condo. He never asked to stay at the condo.

He has had no involvement at all with the condo. [ 132 ] The parties’ interest in the Kelowna condo generated revenue in 2014 of $3,159.94 but resulted in a net loss of $516.96 after monthly fees and expenses were taken into account. In 2015, the condo generated net revenue of $4,131.60 but after monthly fees and expenses the revenue was only $453.24.

It is anticipated that the investment will not generate revenue in 2016 as the net revenue for the first half of the year is $964 but monthly fees and expenses were $1,595.88 before taxes for that same period. [ 133 ] The Wife testified that the remaining credit of $45,000 on the HELOC, after the mortgage was paid out and the Kelowna condo interest was purchased, was simply used up by the parties living beyond their means, including spending on renovations to their home, travel and gadgets.

The Husband confirmed that they enjoyed a good lifestyle. [ 134 ] The Husband testified that he checked the HELOC account on December 10, 2013 and learned for the first time that $308,000 was outstanding, the HELOC had been used to purchase the Kelowna condo and no contributions toward the principal had been paid for 5 years. After Christmas 2013, he put a freeze on that account. [ 135 ] The balance owing on the HELOC as of December 9, 2016 stands at $309,750.96. The Husband is making interest payments only on it.

b RBC Personal Loan (Mazda) [ 136 ] The Wife obtained a personal loan from RBC to purchase her 2012 Mazda.

The balance owing on October 22, 2016 was $7,730.61. c Credit Cards [ 137 ] The balance owing on the Wife’s Capital One Platinum MasterCard ending in 5138, which then became 9820 in January 2015 and finally became 1638 in February 2016, is $12,771.73 as of October 17, 2016, the most recent credit card statement entered into evidence. [ 138 ] The balance owing on the Wife’s American Express Card ending in 84003, which was previously 83005, is $1,100.32 as of October 15, 2016. [ 139 ] The balance on the Wife’s RBC Visa Gold ending in 5041, which became 3051 on June 19, 2014 and then became 1013 on July 19, 2016, is $12,757.46 as of November 2, 2016. [ 140 ] The balance owing on the Wife’s BMO MasterCard ending in 8333, which includes cards ending in 2162 and 9905, is $5,339.85 as of October 5, 2016. [ 141 ] The Husband testified that he has only one credit card left, a Westjet RBC World Elite MasterCard ending in 2752.

He thought it had a balance of $1,000 to $1,500 but he did not enter any credit card statements into evidence. The Wife argues that his guess as to the balance owing on his credit card is insufficient proof of this debt, given his lack of disclosure and his evasiveness in cross-examination. I agree. d Scotiabank Line of Credit [ 142 ] The Wife took out the Scotiabank Line of Credit in December 2013 with a limit of $19,000. She confirmed that she did not discuss this with her Husband as he did not want to talk about finances.

She testified that the monies from this line of credit were used to consolidate and pay out their credit card debt to reduce the interest rate payable on the debt. The monies went into the parties’ joint Scotiabank account. The Scotiabank statements from November 1, 2013 to February 20, 2014 were entered into evidence. They reflect a deposit of $18,500 on December 2, 2013 and a series of payments, totaling $17,983.41, on five credit cards on the same date. The wife has made all of the payments on this debt since it was incurred.

The balance owing on this LOC is $18,215.43 as of November 14, 2016. e RBC Personal Loan (Toyota Tundra) [ 143 ] The Husband obtained a personal loan from RBC to purchase his Toyota Tundra with an interest rate of 10.25%. Only one document was provided, showing a balance owing on November 21, 2016 of $6,052.59. This balance does not reflect the November minimum payment of $271.69 or interest accruing on the outstanding balance. Based on the best information before the Court, I find the liability as at trial to be $5,700.

E Analysis 1 Exemptions a Matrimonial Home [ 144 ] The Wife argues that the Husband has not established an exemption regarding the monies he invested in their home purchases. In the alternative, she submits that the $15,230 that he invested in their first home was partially gifted to the Wife as their Calgary home was in joint title.

Accordingly his exemption was reduced by half to $7,615. [ 145 ] The Husband argues that his contribution of $15,230 to the first home is clearly exempt, and there is sufficient evidence upon which the Court can infer that this contribution flowed into each subsequent home. [ 146 ] I find that the exempt monies can be traced into each successive home acquired by the parties. There is no evidence that this money was squandered or that equity in each home was not maintained. I further find that the Husband gifted half of the original contribution when the first title was registered in the parties’ joint names.

At that point, the exemption was reduced to $7,615.51 and the Husband is entitled to an exemption in that amount. [ 147 ] The Husband estimated that he spent over 1,937 hours on improvements to the matrimonial home. He confirmed on cross- examination that he did not expect compensation for his hours worked. However, he argues that his significant labor contributions toward the renovations should be considered a factor in awarding him the increase in the value of his exemption in the matrimonial home.

The Wife argues that her work and contributions to the family were equally extensive and valuable and that their assets should be divided equally when this factor is considered. [ 148 ] I have found that both the Husband and the Wife worked very hard and equally contributed in their own ways to the matrimonial unit. Taking the s. 8 factors into account, I find that the increase in the value of the Husband’s exemption should be divided equally. b RRSPs

[ 149 ] The Husband testified that he had some RBC and Scotiabank RRSPs prior to the marriage that he transferred into his Investors Group investment which is now worth $9,497.95. There are no statements from around the date of marriage to establish the value of these assets at that time. However, there is evidence before the Court of three transfers to Investors Group totalling $11,525.33: $7,279.43 on September 13, 1999, $1,927.48 on March 2, 2000, and $2,318.42 on February 14, 2001.

The Husband confirmed on cross- examination that the documents he produced at trial reflected some duplication and confirmed that there were only these three transfers. [ 150 ] The Wife argues that some of these transferred funds may have accumulated during co-habitation or during the marriage prior to the transfers. The September 13, 1999 transfer document reflects periodic investments of $150. Over the 33 months from the date of marriage in May 1998 through to the last transfer in February 2001, the total contributions at $150 per month would have amounted to $4,950.

Therefore, interest aside, the husband would have only a total of $6,575.33 at the date of marriage. The Wife argues that the interest earned on the $11,525.33 over those 33 months, at a conservative rate of 5%, is around $1,584.73. However, interest would not have accrued on contributions until after they were made, and some of the interest earned on the $11,525.33 would be attributable to contributions prior to the marriage.

In the absence of evidence in this regard, I will deduct $300 from the $6,575.33 to represent interest on the contributions made over the 33 months. [ 151 ] The Husband’s RRSP exemption is $6,275.33. c Motorcycle [ 152 ] The Husband acquired the 1971 Norton Commando Motorcycle in 1985 or 1986.

I find that it is exempt. d Ring [ 153 ] As the ring, be it an engagement or a wedding ring, was a gift given by the Husband to the Wife prior to the declaration of the marriage, I find that it is exempt from distribution as property of the Wife acquired prior to the marriage: McManus v McCarthy , 2007 ABQB 783 , [2007] AJ No 1486 at para 16 . 2 Dissipation a 1976 AMF 125 Motorcycle [ 154 ] The Husband acknowledged on cross-examination that he sold a 1976 AMF 125 Motorcycle in his possession for $40.

The Wife argues that he dissipated this property and the value of this item should be included for the purposes of matrimonial distribution. I am not satisfied that the evidence establishes that the Husband dissipated this item to the detriment of the Wife. b RRSPs [ 155 ] The Wife submits that the RRSPs should be valued as at the date of separation, as both parties have used portions of their Investor’s Group RRSP investment funds to fund this litigation.

The Wife has also used these funds to purchase her Jeep and the Husband testified that he used $2,000 from his RRSPs to pay for his s. 7 FCSG child support obligations. [ 156 ] I am not satisfied that the RRSPs should be valued as at the date of separation on the basis of expenditures by both parties for legal fees. There is no evidence before me of the amount spent by either in this respect. Further, I am not satisfied that the Wife’s purchase of her 2012 Jeep Patriot from these funds necessitates or justifies a valuation of this asset at the date of separation.

The asset purchased will be captured in the division of property as an asset owned by the Wife. [ 157 ] I am also not satisfied that the Husband’s use of these funds to pay his outstanding s. 7 child support obligations should lead to an adjustment to this asset in the absence of a finding of dissipation of other assets under his control. The value of his RRSPs at the date of trial for the purposes of division of property is $9,497.95. c Bank Account [ 158 ] The Scotiabank Money Master account ending in 3581 was a savings account for both parties. This account had a balance of $3,404.08 on February 17, 2014.

The Husband made cash withdrawals from this account after separation to pay bills. The most recent statement provided shows a balance of $15 on October 9, 2014. The wife argues that this account should be valued as at the date of separation because the Husband withdrew funds from this account to the exclusion of the Wife. [ 159 ] I am not satisfied that the Husband has dissipated this account to the detriment of the Wife. The Husband made two deposits to this account and testified that he used the monies withdrawn to pay bills, including payments on the joint HELOC account.

The date of trial will be the date of division of this asset, although the value of that asset is only known as at October 9, 2014 in the amount of $15. That is the best evidence available. d Homeline Plan [ 160 ] The Husband argues that the Wife purchased the Kelowna condo utilizing the joint Homeline account without his approval. He relies on the fact that there is no evidence of his approval, the Kelowna condo is in the Wife’s name alone, and it was bought at a time when the Husband had taken a 10% wage cut. The Husband said he thought she had purchased it with her own funds.

The investment was a poor one, reflected in the greatly reduced value of that investment since purchase and the evidence of little to no revenue and losses yearly on the investment. The Wife has had exclusive possession of the condo, associated points, and rental income therefrom since the date of separation.

[ 161 ] The Husband further argues that the additional $45,000 of indebtness on the HELOC should also be considered in the s. 8 analysis as the Husband assumed there was no debt and some of those monies could have gone to set up the Wife’s business or to purchase furniture. [ 162 ] The Wife argues that if the Court accepts that the Husband did not know about the Kelowna condo purchase and her use of the Homeline Plan to fund that purchase, he was wilfully blind.

His choice not to keep himself informed of their financial circumstances should not relieve him from an obligation to share in that debt incurred in the marriage. There is no evidence that the Wife acted in bad faith, or was neglectful, foolish or reckless. [ 163 ] The Wife submits that there is no evidence that any part of the additional $45,000 of indebtness went to fund the Wife’s business or to purchase furniture. The parties simply lived beyond their means. [ 164 ] The evidence establishes that the Wife was responsible for all of the financial aspects of their matrimonial property.

The Husband testified that he trusted her in that role absolutely and the Wife testified that she attended to that role absolutely. There is no evidence before me that the Wife took advantage of her autonomy in that role. [ 165 ] While I accept the Husband’s evidence that he did not know that the Wife utilized the Homeline Plan to purchase the condo, I accept the Wife’s evidence that the Husband knew about the purchase and told her to “look after it”, as that is entirely consistent with how all financial matters were handled in their marriage.

In my view, if the Husband did in fact believe that the Wife could afford to purchase the Kelowna condo with her part-time pet sitting income, this was wishful thinking, at best. e Scotiabank Line of Credit [ 166 ] The Husband argues that the Wife took out the Scotiabank LOC without the Husband’s knowledge just weeks before announcing that she wanted a divorce. The Husband submits that he was unaware of the level of debt at the date of separation.

He argues that, given his thrifty propensities, the level of debt may have been more properly characterized as debt related to the wife’s business start-up and should be her responsibility. [ 167 ] The evidence is clear that the LOC was used to pay down credit card debt. There is no evidence that the credit card debt was accumulated by one spouse to the detriment of the other. This liability is matrimonial debt. 3 Children’s Property [ 168 ] The Wife argues that the RESPs belong to each of the children and the amount invested for them should not be added to her portion of the investments.

She testified that she has no intention of using these funds herself. The Husband agrees that this asset was purchased for each of the three children but argues that this should be divisible property as there is no evidence before the Court of the propensity of the children to attend post-secondary education. [ 169 ] There is no dispute that the RESP asset was purchased for the benefit of the three children. I find that it is not part of the divisible matrimonial property.

This asset will be administered exclusively by the Wife for the benefit of the three children. 4 Undisclosed Asset [ 170 ] The Husband testified and confirmed on cross-examination that his RBC chequing account ending in 8857 is his only RBC account, other than his TSFA ending in 7970. He testified that he used to have a second RBC account which was closed in March 2014. Statements for his RBC chequing account ending in 8857 for the periods February 7 to December 5, 2014 and from July 3, 2015 to June 20, 2016 reflect branch to branch transfers on almost a monthly basis with an account ending in 1288.

The total of the branch to branch deposits from 1288 to 8857 is $22,828.80 over this period. The Husband was unable to explain where the deposits came from. The Wife argues that this leads to the conclusion that he has another RBC account. [ 171 ] The Wife submits that the total of these deposits from another undisclosed account should be included in the matrimonial property division as they reflect an undisclosed asset.

The Wife further suggests that the source of these funds in the undisclosed account may relate to the shares in Millennium that the Husband’s former employer promised when he first moved from Calgary. When asked in cross-examination whether he had received additional monies from Millennium beyond his last disclosed paystub, the Husband appeared to be unsure as to how to answer the question.

Again, based on the significant lack of disclosure, the Wife suggests that an adverse inference be drawn and that this sum of $22,828.80 be attributed to the Husband in the division of property. [ 172 ] I find that the Husband was not able to explain or demonstrate the source of these deposits. The evidence leads to the conclusion that there is another undisclosed RBC account ending in 1288. It is unclear whether it would be appropriately treated as income or an asset. There is no entirely satisfactory means of addressing an undisclosed asset of an unknown value.

Given the lack of evidence from the Husband in this respect, I find it is appropriate to attribute the sum of $22,828.80 to him as an additional asset in the property division. 5 Division [ 173 ] The evidence before the Court establishes that both the Husband and the Wife worked very hard throughout their relatively lengthy marriage and both made substantial economical and emotional contributions to the success of their family. [ 174 ] I have considered the length of the marriage, the income, earning capacity, liabilities, obligations, property and other financial resources of the spouses at the time of marriage, and at the time of the trial, in addition to all of the issues discussed above in relation to particular assets.

[ 175 ] I conclude that the presumption of equal division should apply in the circumstances. [ 176 ] The following table outlines the Court’s conclusions on division of assets and liabilities.

ASSET HUSBAND WIFE TOTAL Real Property Matrimonial Home $440,000 $440,000 Kelowna Condo $80,000 $80,000 Vehicles 2012 Mazda 3 $10,024 $10,024 1998 Nissan Pathfinder $0 $0 2012 Jeep Patriot $10,433.75 $10,433.75 Toyota Tundra $14,085.00 $14,085.00 Van $1,200.00 $1,200.00 1967 Honda 90cc Motorcycle $150.00 $150.00 1971 Norton Commando Motorcycle $2,000.00 $2,000.00 Registered Investments Wife’s Investor’s Group RRSPs $43,287.23 $43,287.23 Husband’s Investor’s Group RRSPs $9,497.95 $9,497.95 Non-Registered Investments Wife’s TFSA 8796 (closed) $0 $0 Husband’s RBC TSFA 7970 $25.31 $25.31 Husband’s Universal Life Insurance $2,049.17 $2,049.17 Bank Accounts Wife’s Scotiabank Money Master 1484 (closed) $0 $0 Wife’s RBC Personal Account 9983 $4,859.19 $4,859.19 Wife’s Scotiabank Basic Account 5388 $71.41 $71.41 Wife’s Business Account 5875 $0 $0 Wife’s RBC Business Account 4795 $0.92 $0.92 Wife’s RBC Personal Account 4095 (closed) $0 $0 Wife’s RBC Day to Day Account 4103 (closed) $0 $0 Joint Scotiabank One Account 1522 (closed) $0 Husband’s TD Unlimited Chequing Account 2689 $474.14 $474.14 Husband’s Scotiabank One Account 3024 (closed) $0 $0 Husband’s Scotiabank Money Master 3581 (closed) $0 $0 Husband’s RBC Chequing Account 8857 $1,703.07 $1,703.07 Husband’s Additional RBC Account $22,828.80 $22,828.80 Miscellaneous Tools and Household Items $15,000.00 $1,300.00 $16,300.00 Ring $5,000.00 $5,000.00 Horse, Saddle and Tack $1,600.00 $1,600.00 Dog $200.00 $200.00 TOTAL ASSETS BEFORE EXEMPTIONS $509,013.44 $156,776.50 $665,789.94 EXEMPTIONS Husband’s exemption in the matrimonial home $7,615.00 1971 Norton Commando Motorcycle $500.00 Husband’s RRSPs at the date of marriage $6,275.33 Ring $5,000.00 TOTAL EXEMPTIONS $14,390.33 $5,000.00 $19,390.33 TOTAL ASSETS AFTER EXEMPTIONS $494,623.11 $151,776.50 $646,399.61 LIABILITIES Notional 24% Tax on RRSP investments $773.43 $10,388.94 $11,162.37 RBC Homeline Plan $309,750.96 $309,750.96 Wife’s RBC Car Loan (Mazda) $7,730.61 $7,730.61 Wife’s Capital One MasterCard $12,771.73 $12,771.73 Wife’s American Express $1,100.32 $1,100.32 Wife’s VISA $12,757.46 $12,757.46 Wife’s BMO MasterCard $5,339.85 $5,339.85 Husband’s Credit Card $0 $0 Scotiabank LOC $18,215.43 $18,215.43 Husband’s RBC Car Loan $5,700.00 $5,700.00 TOTAL LIABILITIES $316,224.39 $68,304.34 $384,528.73

ASSETS LESS LIABILITIES $178,398.72 $83,472.16$261,870.88EQUALIZATION $130,935.44$130,935.44$261,870.88OWING BY HUSBAND TO WIFE $47,463.28 [177] Each party will keep the assets currently in his or her possession and each shall be fully responsible for the current debts aslisted in the table, holding the other party harmless. [178] There will be an equalization payment from the Husband to the Wife of $47,463.28. This payment shall be made in full on orbefore March 31, 2017.

If such payment is not made in full by March 31, 2017, the matrimonial home shall be immediately listed forsale with the Wife to receive the balance owing on the equalization payment from the net sale proceeds prior to the Husband receivingany of the remaining net sale proceeds. [179] The parties’ Air Miles, Aeroplan and WestJet miles or dollars will be divided equally at source, effective December 2016 withthe parties to share equally any cost associated with such division. IV Spousal Support A Law [180] The Divorce Act, RSC 1985, c 3 (2nd Supp) provides: 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure orpay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for thesupport of the other spouse. ... Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or untila specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. Factors

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

a) the length of time the spouses cohabited; (

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

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

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

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

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

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [181] All of the objectives of spousal support must be considered; none is paramount: Moge v Moge, (SCC), [1992] 3SCR 813, [1992] SCJ No 107; Bracklow v Bracklow, (SCC), [1999] 1 SCR 420, [1999] SCJ No 14. [182] Entitlement to spousal support on compensatory grounds is based upon what happened during the marriage and its breakdown.Both spouses should profit from the joint venture of marriage.

Compensatory spousal support is intended to provide redress to therecipient spouse for economic disadvantage arising from the marriage or the conferral of an economic advantage upon the other spouse: Corbeil v Corbeil, 2001 ABCA 220, [2001] AJ No 1144 at para 45; Chutter v Chutter, 2008 BCCA 507, [2008] BCJ No 2398 at para50. The financial consequences or benefits of the entire period of cohabitation must be considered, not just some limited period duringwhich the parties agreed that one party would not enter the workforce: Heimsoth v Heimsoth, 2009 ABCA 129, [2009] AJ No 371 atpara 25.

The courts have been willing to take judicial notice of the fact that a spouse who has foregone vocational pursuits for asignificant period because of family priorities will not be able to re-enter the workforce at the level that he or she would likely havereached otherwise: MacLean v MacLean, 2004 NBCA 75, [2004] NBJ No 363 at para 48. [183] Non-compensatory support is based upon what happened after the marriage or post-marital need relative to the standard ofliving enjoyed prior to the collapse of the marriage.

It is focused on a spouse’s actual ability to fend for herself and the effort that hasbeen made to do so. The focus is on the interdependence, expectations and obligations resulting from the marriage. Spousal support is

intended to provide economic stability and a predictable level of income that would allow the recipient to budget, plan, and move forward along the road to self-sufficiency, beyond mere subsistence living. The longer a marriage endures, the closer the spouse’s economic union and the greater the presumptive claim to equal standards of living upon its dissolution.

One spouse should not be allowed to leave a marriage of long duration in a substantially better economic position than the other: Riad v Riad , 2002 ABCA 254 , [2002] AJ No 1338 at paras 33-34 . [ 184 ] In terms of quantum and duration of support, the SSAG are a useful tool as a starting point or cross-check but they do not enjoy the force of law: Taylor at para 51 . The formulas use income sharing as the method for determining the amount of spousal support, not budgets.

The SSAG are particularly helpful as they take into account not only the parties’ incomes, but also any tax implications, child support paid, et cetera. However, the court must ultimately consider the factors and objectives in the Divorce Act , and not use SSAG to fetter its discretion: De Winter v De Winter , 2013 ABCA 311 , [2013] AJ No 972 at para 28 ; Sawatzky 2008 ABCA 355 , [2008] AJ No 1171. In each case, the court must consider the range suggested by the SSAG and whether there are unique considerations that would take it above or below the range.

Those unique considerations may include inability to pay due to excessive debt obligations, illness and disability, or features of the property division. [ 185 ] The SSAG also provide a range with respect to the duration of spousal support. Where there are children of the marriage, the range is ½ to 1 year for each year of co-habitation. Another factor is the age of the children. The lower end duration is the longer of one half the length of the marriage or until the youngest child begins full-time school.

The outside duration is the later of when the youngest finishes school or the duration determined under the without child formula of ½ to 1 year of support for each year of co-habitation. Where there are dependent children, the Court will often order indefinite spousal support, subject to review tied to the age of the children, to some period of adjustment after separation, or the order may simply be left to variation. However, the costs of a review hearing can be a financial burden on parties. [ 186 ]

Section 15.2(6) (

d) of the Divorce Act does not require that a spousal support order ensure absolute self-sufficiency, but simply that it seek to promote self-sufficiency "in so far as practicable". In determining what is practicable, regard must be had to all of the circumstances, including the recipient’s age and gender, skills and education, or lack thereof, opportunities for retraining, and realistic prospect of finding not just a job, but employment which enables her/him to become self-sufficient.

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