SSA v OB, 2017 ABQB 545

Court of Queen’s Bench of Alberta Citation: SSA v OB, 2017 ABQB 545 Date: 20170911 Docket: 4801 165163 Registry: Calgary Between: SSA Plaintiff - and - OB Defendant ______________________________________________________ Reasons for Decision of the Honourable Mr. Justice C.M. Jones _______________________________________________________ Introduction [ 1 ] The parties seek resolution of issues relating to spousal support, property division, parenting and access. They also both seek a Decree of Divorce. [ 2 ] The parties were married in Egypt on January 1, 1996. Their marriage was arranged.

They separated on September 6, 2012. [ 3 ] OB originally immigrated to Canada in 1989. He sponsored SSA for immigration to Canada. She came to Canada in January of 1997. [ 4 ] The parties have three children: D, born October 31, 1997; N, born October 24, 1999; and Y, born May 7, 2004. [ 5 ] OB’s relationship with his children has become increasingly strained. Though he occasionally spent time with his son, his daughters have refused to have any contact with him.

As of the date of this trial, his son has also refused to spend time with him. [ 6 ] At various times during the relationship, SSA worked as a teacher, a babysitter, a letter sorter, in retail, a daycare worker and, currently, as a behavioural therapist. She holds a bachelor’s degree in French literature. She obtained this degree prior to marriage to OB. OB is a civil engineer and holds a PhD. [ 7 ] SSA obtained an emergency protection order in September of 2012. OB vacated the matrimonial home at that time.

The children have continued to reside with SSA. [ 8 ] Suspicions about SSA’s marital status at the time of their marriage led OB to make inquiries in Egypt. He alleged that SSA was already married when the two of them went through a marriage ceremony in Egypt. Though he originally sought to challenge SSA’s entitlement to support and property on the basis that SSA’s marital status precluded the entering into of a valid marriage, he abandoned that position, at least for Canadian purposes. He acknowledges that this Court should treat the parties’ marriage as valid.

He accepts this Court’s jurisdiction to issue a decree a divorce, determine property entitlement, order spousal support and decide parenting and access. [ 9 ] After immigrating to Canada in 1997, the parties, at various times, lived in Montreal, Ottawa, Saudi Arabia, Toronto and finally, Calgary. Currently, SSA continues to reside in Calgary while OB resides in Red Deer.

[ 10 ] The parties’ evidence regarding how they deployed various monies they received and the circumstances surrounding the receipt of those monies is vague and largely unsubstantiated.

In particular, OB’s evidence regarding movement of monies among various accounts, the use to which those funds were put, the purpose and intent underlying the receipt and disbursement of monies referred to below as the “Gift Amount” and the application of monies representing salary and dividends paid to his daughters by OB Engineering, a company described in more detail below, is contradictory and inconclusive. [ 11 ] SSA’s evidence regarding deployment of her inheritance is also unverifiable.

Her estimates of the current value of her various accounts was similarly vague and some of the information relating thereto was dated. [ 12 ] Two volumes consisting of one hundred separate tabs were, with the exception of Tab 68 discussed below, admitted as Exhibit 1. All references to Tabs in this judgment are references to Tabs in Exhibit 1. The Parties’ Financial Arrangements During Marriage [ 13 ] SSA testified that OB handled the families’ finances. She testified that she deposited her paychecks in a joint account.

At various times in her testimony, she claimed that she first opened an account in her name alone in 2004, 2006 and, finally, 2007. She claims that OB would not discuss financial matters with her. [ 14 ] OB worked for OB Engineering at various times during his work history and claims to currently be working for that company. He claims to be paid an hourly wage and receives about 30 hours of work per week. [ 15 ] SSA testified that she was not privy to the details relating to OB Engineering.

She takes the position that OB’s interest in it, whatever that might be, should be treated as matrimonial property. [ 16 ] On cross-examination SSA testified that during the marriage, she paid for food and clothing while OB paid all expenses associated with maintaining their residence. [ 17 ] Commenting on the chart table at Tab 88, a chart prepared by OB showing respective contributions to the purchase of the home, she testified that the amount that OB claims to have contributed may have come from her. [ 18 ] OB testified that he and SSA were separate as to finances from the beginning of their relationship.

He testified that he did not inform SSA of his “business relationship” with his parents. [ 19 ] Tab 22 purports to depict OB’s income. He testified that income amounts shown for 2008 and 2009, inclusive, represent amounts paid to him by OB Engineering. In 2011 and part of 2010 he was employed in a company called Technip. The Matrimonial Home [ 20 ] SSA claims to have contributed about $55,000.00 or $60,000.00 USD to the purchase of the matrimonial home from monies she claims to have received from an inheritance. I discuss that “inheritance” in paras 51-55, below.

She also claims to have contributed $16,000.00 CDN from her RRSP. That home was purchased in August of 2011 for $426,000.00. The purchase price was composed of a cash down payment of $126,000.00 and mortgage funds of $300,000.00. She testified that, since separation in September of 2012, she has paid all taxes and expenses in connection with the matrimonial home as well as servicing the mortgage. [ 21 ] Tab 88 contains a table which purports to show how much each of the parties contributed to the purchase of the matrimonial home.

It depicts OB as contributing $65,000.00 towards the down payment as well as contributing $4,000.00 towards legal fees and $6,000.00 towards furniture. It shows OB as contributing $15,300.00 towards property tax and service of the mortgage between August 2011 and September 2012. [ 22 ] The table shows SSA as having contributed $55,000.00 to $60,000.00 USD towards the purchase price and a total of $48,375.00 towards property tax and service of the mortgage between October 2012 and March of 2016. [ 23 ] The table at Tab 88 purports to show total contributions by OB of $90,300.00 and by SSA of $103,375.00.

There are no backup records substantiating these contributions. It also asserts that in 2015 the house was assessed for property tax at $544,500.00. SSA did not challenge this assertion. OB would have me utilize this value in attributing assets to SSA for the purposes of property division. The 2017 property tax assessment showed a value of $514,500.00, which SSA urged me to adopt: Tab 89. I choose to utilize the 2017 assessment as it seems more reflective of value as at the date of trial. [ 24 ] Tab 90 contains a TD Canada Trust annual mortgage statement.

It shows a balance owing on the mortgage of $264,272.61 as at December 30, 2016. The parties agree on this figure for these purposes. That is the figure I use for purposes of determining the net value of the matrimonial home ($250,227.39 = $514,500.00 - $264,272.61) for purposes of property division. OB Engineering and the Receipt of Funds by the Parties’ Daughters [ 25 ] OB has worked on and off for OB Engineering, a company he co-founded with his brother, AB, since 2007. He testified that he currently works roughly thirty hours per week for OB Engineering supporting its various projects.

He claims his hours are limited because of a scarcity of work at this time. [ 26 ] AB swore an Affidavit on October 28, 2016. In that Affidavit, AB deposed at clause 5 that OB “was granted 30 Non-Voting shares in exchange for entering into a Business Consultant Agreement with the Company. OB elected to have his shares granted equally among his three children with himself acting as their trustee.”

[ 27 ] At clause 9 of his Affidavit, AB states that on April 1, 2009, OB Engineering declared a dividend of $10,000.00 to each of OB’s three children. At clause 12 of his Affidavit, AB states that shares held for OB’s three children were “cashed in” for consideration of $6,000.00 each. OB claims that this amount was paid to each daughter’s bank account. He provided no evidence supporting his assertion that such accounts ever existed. [ 28 ] It appears that when OB Engineering was formed in 2007, OB decided to attempt to split income with his two adolescent daughters, and possibly his son.

Tab 74 shows that D, then approximately 11 years old, received $15,458.00 as employment income in 2008 from OB Engineering. She also received employment income of $11,728.00 in 2009, dividend income of $10,000.00 in 2010 and dividend income of $6,000.00 in 2011, all from OB Engineering. [ 29 ] At this same tab, I note that N, then approximately 9 years old, received employment income of $15,458.00 in 2008.

At tab 75 we learn that N, then 10 years old, received employment income from OB Engineering of $12,268.00 in 2009, as well as dividend income of $10,000.00 in 2010 and $6,000.00 in 2011. [ 30 ] SSA testified that she was not aware of these payments until after the fact. OB testified that these monies were deposited into accounts for his daughters. He testified that his daughters had debit cards and could access monies in these accounts. He gave no evidence regarding the location of these accounts. [ 31 ] Tab 85 contains an Affidavit sworn by D on September 11, 2016.

At clause 2 she deposes that she received a salary of $15,458.00 in 2008 and $12,268.00 in 2009. She also deposes that she received income of $14,400.00 in 2010 and $8,460.00 in 2011. [ 32 ] D seems to have mistakenly referred to N’s employment income for 2009 ($12,268.00). She has, for purposes of 2010 and 2011, referred to the taxable amount of dividends she received instead of the actual amount. [ 33 ] At clause 3 of her Affidavit, D deposes that she only became aware of these amounts in 2016.

At clause 4 she deposes that she never received these amounts and has no knowledge of where these funds are. [ 34 ] OB disputes the Affidavit sworn by his daughter, D. He claims that both of his daughters were actively employed by OB Engineering, despite their young ages, and were aware of the fact that they were getting salary and dividends from OB Engineering. [ 35 ] I speculate that OB took advantage of his daughter’s lower marginal tax rates by diverting income (salary, dividends, share repurchase proceeds) he might have otherwise received to his daughters.

The apparent absence of any knowledge on the part of D and SSA of these transactions leads me to conclude that OB may have accessed the after-tax amounts for his own use. The Gift Amount [ 36 ] OB received $325,000.00 USD from his father and mother (the “Gift Amount”), apparently to invest: Transcript at p 111, lines 25-28. He also referred to these funds as a “living inheritance”: Transcript at p 128, line 21. [ 37 ] Tab 46 contains a statement for account #26080320 maintained with Scotiabank group. The $325,000.00 USD received by OB sometime in 2003 was deposited into this account.

As of June 13, 2011, the date of issue of the statements, the account held $450,000.00 USD. The GIC held in this account is stated to mature on March 13, 2012 at a value of $454,053.70 USD. [ 38 ] On June 30, 2012, the total value of the two GICs in this account was $456,127.43 USD. The Canadian dollar equivalent on that date was approximately $463,288.00. It appears that this account was closed on September 21, 2012, shortly after the parties separated. [ 39 ] SSA testified that she was not informed by OB of the existence of this account during the term of their marriage.

While he acknowledged that the original amount which he received grew due to investment returns, he claimed that he contributed moneys he brought to the marriage to the amount gifted by his father and mother. He did not specify how much.

It is impossible to trace the respective contributions of OB, his father and mother to the amounts ultimately distributed from this account. [ 40 ] To compound uncertainties regarding those monies, the discussion reflected at ps 114 to 117 of the Transcript leaves unresolved whether these monies were (1) a gift to OB, (2) monies he was to invest for the benefit of himself, his parents and his brother or (3) monies impressed with a trust in favour of his family. [ 41 ] OB’s counsel suggested that the best characterization of these monies was that they were impressed with a trust for his family (father, mother and brother) and were advanced to him to invest in Canada.

When concerns arose with respect to SSA’s potential claims, these monies were divided among OB, his brother and his father. [ 42 ] Ultimately, upon further questioning, OB stated that these monies were given to him outright, unconditionally: Transcript at p 123, line 35. He stated that it was his money to invest: Transcript at p 123, line 40. He denies that the original $325,000.00 USD which he received was income to him. [ 43 ] He testified that almost immediately upon separation he paid $150,000.00 USD to his father and $125,000.00 USD to his brother from funds in this account.

When cross-examined about why, shortly after SSA obtained an emergency protection order, he divided and distributed this investment, he testified that he was shocked by the EPO. He claims he paid “them” back the money, though he kept part of these funds and divided the balance between his brother and his father. [ 44 ] Tab 46 contains information relating to the dispersal of funds arising from the Gift Amount. It contains copies of drafts for: 1) $150,000.00 USD issued to his father; 2) $125,000.00 USD issued to his brother; and

3) $150,000.00 USD issued to himself. [ 45 ] These drafts appear to have been issued, and this Scotiabank account closed, in September of 2012, after the parties separated. Tab 46 contains a statement which indicates that this account was closed on September 21, 2012. [ 46 ] The exchange rate on that date was $1 CDN to $1.024395 USD.

Therefore, $425,000.00 USD distributed on that date would have been worth $414,879.03 CDN. [ 47 ] It is not clear why the Canadian dollar equivalent held in this account on June 30, 2012 was approximately $463,288.00 but the Canadian dollar equivalent of what was distributed to OB, his father and his brother on or about September 21, 2012 was only $414,692.64. [ 48 ] OB testified that he did not disclose the $450,000.00 on deposit with Scotiabank, when queried by SSA’s former lawyer in 2013, because he had “given it back to them”. [ 49 ] I note that SSA’s current counsel applied for disclosure in October of 2015, which OB was advised by his counsel to provide [see Tab 9]. [ 50 ] OB takes the position that SSA did not contribute anything to the growth of these monies while on deposit.

SSA’s “Inheritance” [ 51 ] At Tab 68, OB offers his version of amounts which he claims SSA inherited. The tab purports to depict the location of these assets, their business name, value in USD in 2001, growth, and the monthly income they produce. [ 52 ] OB would have us believe that SSA inherited assets worth $1,250,000.00 USD, which have appreciated in value to $4,580,000.00 USD and which produce monthly income of $8,900.00 USD. No evidence was offered by OB in support of these assertions.

SSA disputes these assertions, and did not agree to the admission of this chart. [ 53 ] SSA testified that she received between $120,000 and $150,000 USD upon liquidation of her father’s interests in properties and businesses. Exhibit 8 is a letter purportedly signed by George Lamei, accountant. It states that he was responsible for “distributing the legacy of SMMES who died on April 21, 2001.” It states that SSA received: 1) USD $60,000.00 in 2001 2) USD $50,000.00 in 2010 3) USD $20,000.00 in 2008. [ 54 ] SSA’s evidence is at least supported by a letter from a third party, though that letter is itself hearsay.

OB’s chart at Tab 68 is not supported by other evidence. I decline to make any use of it. [ 55 ] As far as SSA’s evidence is concerned, there are no financial records to verify the receipt of these amounts and no paper trail which would allow the Court to determine how these monies, if they were indeed received by SSA, were applied. Post-Separation Financial Arrangements [ 56 ] OB claims that the parties established their own accounts upon separation. He claims SSA reneged on her agreement to pay amounts owing on the mortgage for a period of two months.

He claims he closed the parties’ joint accounts, opening accounts in his own name. [ 57 ] Tab 55 contained a letter from Tangerine (formerly ING Direct). It confirmed that joint savings account #3021327992 was closed out at OB’s request on February 20, 2013. He would not acknowledge that this account belonged to him during cross- examination. [ 58 ] Yet, he claims that this ING account had between $40,000.00 - $50,000.00 in it in April of 2012, not $155,000.00 as alleged by SSA’s former counsel, Mr. Hoag, in his letter of July 15, 2013: [see Exhibit 7].

Despite refusing to acknowledge that this account belonged to him, he claims that the moneys in this account represented moneys he transferred from other accounts in order to raise a down payment. [ 59 ] In his letter of July 15, 2013, Mr. Hoag asks OB about this account: [Exhibit 7, para 11]. Mr. Hoag points out that records show that withdrawals of $50,000, $46,000 and $50,000 took place days apart in April of 2012. Additional withdrawals appear to have taken place in May of 2012. Mr. Hoag asked OB for proof of what these withdrawals were used for. [ 60 ] OB confirmed that Mr.

Hoag’s assertions regarding this account were “possibly” accurate. OB suggested that he had a lot of expenses. These would have occurred prior to separation. He asserted that he did not remember if he had disclosed these withdrawals. He testified that he did not produce information for this account because he was not the primary account holder. [ 61 ] Tab 16 contains materials relating to an application for production dated September 7, 2016. OB claims he tried to get this information. A further application was made by SSA on November 4, 2016 to compel compliance with the Order of September 7, 2016.

Tab 17 contains an unfiled copy of an Order by Justice K. Nixon.

[ 62 ] OB testified that he has not kept records confirming the closing out of his various accounts. As with other “gaps” in the evidentiary record, this circumstance makes tracing funds virtually impossible. SSA’s Current Financial Situation [ 63 ] SSA claims that OB stopped making contributions to the maintenance of the home when he moved out in September 2012. She claims to now be paying all such amounts, including car insurance, from her own account.

She claims to be paying $1,350.00 per month on the mortgage which she testified is an open mortgage. [ 64 ] Tab 59 contains a collection of statements for SSA’s RBC personal banking account #01436-4500510. It would appear that this account is utilized by SSA for most of her financial transactions. My review of these statements did not disclose any transactions which struck me as unusual, though it is difficult to assess precisely where deposits came from and what some withdrawals were used for. [ 65 ] SSA also had a US dollar savings account with RBC. Tab 60 contains statements for this account.

The source of these moneys was not put in evidence before me. I note that in May and June of 2015 SSA withdrew approximately $14,500.00 USD from this account. It appears these monies were used to pay for her and her three children to visit the Middle East. There was a further cash withdrawal of $7,300.00 USD in July of 2015. [ 66 ] SSA had other RBC accounts. Tab 61 contained statements for RBC personal savings account #01436-501689. Tab 62 contained statements for RBC personal banking account 03132-514035. [ 67 ] SSA also had two accounts with ATB Financial.

The first account, #00004943301, is referred to as a “Pay as you go” account. The second account, #00004943302 is referred to as “Springboard Savings account”. [ 68 ] SSA included a statement of income, assets and liabilities dated September 9, 2015, at Tab 65.

It discloses the following: i. self-employment income of $3,000.00 per month; ii. child support of $528.00 per month; iii. the matrimonial home, then valued at $544,500.00; iv. a Nissan vehicle; v. two RBC accounts, one for $16,000.00 CDN and a US dollar account holding $16,345.96 USD; vi. an ATB account holding $10,000.00; vii. an RRSP valued at $21,257.25; viii. business interests valued at $8,000.00; and ix. an RESP valued at $5,442.00; [ 69 ] It also depicts the following debts: i. TD Mortgage in respect of the matrimonial home $278,000.00; and ii. RRSP homebuyers payback $16,500.00.

Of course, these values had changed by the date of trial. [ 70 ] I note the statements for an RBC RESP, located at Tab 67, describe the parties’ two youngest children, N and Y, as beneficiaries of this plan. [ 71 ] Tabs 56 and 57 contain income tax documentation.

SSA’s historical line 150 income is as follows: Line 150 Gross Business Income Net Business Income i. 2012 $22,195.66 $42,622.50 $22,101.17 ii. 2013 $32,238.80 $73,809.69 $32,095.82 iii. 2014 $28,414.49 $65,928.14 $28,259.45 iv. 2015 $26,487.19 $49,562.29 $24,447.19 [ 72 ] Only her tax return for 2015 depicted the expenses she claimed in arriving at her net business income. On average, SSA’s expenses amount to approximately 54% of her gross billings.

The limited information provided by SSA makes it difficult to determine if there is a personal benefit associated with any expenses allegedly incurred for business purposes. [ 73 ] Her 2015 return does reflect a calculation of business use of expenses associated with the house. In that return SSA incurred expenses of $15,513.77 in relation to the home. She claimed $11,635.33 as personal expenses, leaving a deduction from gross business

income of $3,878.44. She performed a similar calculation for capital cost allowance claims and for automobile expenses. [ 74 ] Tab 57 contains Notices of Assessment for the 2013, 2014 and 2015 taxation years.

I see nothing in these notices of assessment which would suggest that the Canada Revenue Agency took issue with SSA’s reporting of business expenses. [ 75 ] At Exhibit 9, SSA asserts that her assets, as at the end of February 2017, are as follows: 1) RBC USD 01436-4500658 (February 2, 2017) USD $1,771.88 2) TFSA RBC 587935974 (December 31, 2016) $3,774.16 3) RRSP RBC 553821042 (December 31, 2016) $28,294.71 4) RBC account 03132 – 5140355 (February 2, 2017) $12,856.45 5) RBC account 01436 – 5004510 (February 2, 2017) $2,752.09 6) ATB account 00004943301 (February 15, 2017) $22.84 7) ATB account 00004943302 (February 15, 2017) $7,050.46 8) RBC RESP 603810748 (December 31, 2016) $9,489.75 [ 76 ] I decline to include the RESP in SSA’s assets for division purposes because these amounts are held for the children.

OB’s Current Financial Situation [ 77 ] On direct examination, OB testified that he stayed for six weeks in a hotel after he left the matrimonial home at a cost of $150.00 per night. He then rented a condo on a short term basis at a cost of $1,800.00 per month. He had to furnish this condo and he stayed there ten months. He further testified that in the first few months following separation he had to spend approximately $60,000 to cover his living expenses.

He testified that he is and has been in poor health, and suffers from diabetes, kidney issues, hypertension and a heart condition, which he claims to be taking a lot of medication for. [ 78 ] He testified that he was laid off from his job without explanation within a few days of the emergency protection order, obtained by SSA, being issued against him on September 7, 2012. He claims he received a $10,000.00 termination package from this employer. [ 79 ] He moved to Ottawa where his brothers and parents lived.

He testified that he lived in Ottawa for more than one year and then moved to Red Deer where he now lives and where he rents accommodation for $1,200.00 per month. [ 80 ] He testified that he sought work in other Provinces and overseas but with no success. Confronted with what he claims were living expenses of $8,000.00 per month, he claims he accessed moneys in various accounts. [ 81 ] He claims that he withdrew $43,000.00 from his RRSP in 2013 because he was not working. Again, he claims that deposits of $22,100.54 into this account reflect consolidation of amounts from other accounts and not employment income.

OB would not provide any indication of which accounts various deposits came from. [ 82 ] When cross-examined with respect to the deposits (to various accounts) depicted at Tabs 38, 41 and 49, OB again testified that these deposits did not come from employment income but rather from the consolidation of various accounts. [ 83 ] An exception is BMO account #2641 3972-890, shown at Tab 49. OB claims that the sum of $16,199.51 deposited into that account partially reflects amounts from RRSP withdrawals and employment insurance income.

OB testified that the various accounts which were consolidated are listed in his Statutory Declaration found at Tab 20. He testified that he withdrew between $3,000 and $4,000 from his son’s RESP after separation. His explanation for doing so was incomprehensible: Transcript at p 211, lines 26 to 28. [ 84 ] OB’s most recent statement of income, assets, liabilities and his monthly budget of expenses, dated July 14, 2016, is contained at Tab 21.

This may be contrasted with the same statement, dated July 2, 2013, also found at Tab 19. [ 85 ] On July 2, 2013 some ten months after the parties separated, OB’s statement of income, assets and liabilities discloses the following as of that date:

a) he anticipated receiving income of $29,000.00 from employment insurance and RRSP withdrawals that year, in contrast to his income of $153,410 for the 2012 taxation year.

b) he disclosed what he asserts was a 19% interest in overseas real estate which he claims to have inherited in 2011. He valued this interest at $17,000.00. He valued the parties’ matrimonial home at $487,500.00, of which he claimed a 50% interest. Presumably, this value was the estimated value of the matrimonial home on July 12, 2013.

c) he claims to have had savings of $78,000.00 and no other assets.

d) this statement shows debt of $296,000.00 registered against the matrimonial home by way of mortgage and debt of $25,000.00 under a home buyers plan. [ 86 ] OB swore a statutory declaration on June 10, 2016: Exhibit 1, Tab 20. This document describes the status of various bank accounts. With the exception of CIBC account #82-70236, of the fifteen bank accounts noted, OB claims that he never held an interest in five of them and that nine of the fifteen accounts had been closed.

Most of the accounts that were closed were closed in 2013, with one account (Scotiabank 320) having been closed in September of 2012, about the time the parties separated. [ 87 ] As noted above, Tab 21 contains OB’s statement of income, assets and liabilities as of July 14, 2016. He disclosed income of $41,530.00 in 2015 from OB Engineering.

[ 88 ] He described holding the following bank accounts as of that date: CIBC #82-70236 $1,731.55 BMO #2641-3972890 $4,978.23 BMO #2641-4791425 $7,128.44 ING #3022204120 $18.71 ING #3022204144 $1,073.00 [ 89 ] He also listed his RRSP ($10,270.82) and showed a value of $537,000.00 for the matrimonial home as of that date. [ 90 ] His statement dated July 14, 2016 depicts liabilities not shown on his statement dated July 2, 2013. In addition to the mortgage and the home buyers plan, OB disclosed a vehicle lease liability of $5,328.00. [ 91 ] At Tab 22, OB states his income for the years 1997 to 2015.

OB claims that his two high income years (2007 - $127,098.00 and 2012 - $153,410.00) were anomalies. In 2007 he was employed by Fluor Corporation. In 2012 he was employed by Snamprogetti. During some of this period he was engaged as a consultant by OB Engineering. Tabs 23 through 27 provide backup information to support OB’s income claims for these years. [ 92 ] CIBC account #82-70236 reflects some activity. Tab 31 contains various bank statements for this account for the period January 1, 2013 to August 31, 2013.

OB testified that most of the deposits to this account represent amounts consolidated from other accounts. OB offered no explanation of why he had a number of other accounts and why he decided to consolidate them nor did he offer any explanation for the withdrawals from this account. For example, withdrawals from this account totaled $24,065.64 in January of 2013. OB did not provide a detailed reconciliation of amounts withdrawn from other accounts and deposited into this account. [ 93 ] With respect to his current indebtedness, OB provided a statement of his CIBC personal line of credit at Tab 32.

It depicts indebtedness of $45,274.63 as at January 27, 2017. [ 94 ] At Tab 34, OB provided a series of statements in respect of his CIBC Dividend Card. This credit card statement purports to breakdown the cardholder’s expenditures by category. Notwithstanding this breakdown it is largely impossible to identify the precise nature of each expenditure. [ 95 ] OB appears to have acquired a new or additional CIBC credit card on or around February of 2015. Tab 34 contains statements for that card but no statements for the CIBC Dividend Card beginning in February of 2015.

The Parties’ Positions on Resolution SSA [ 96 ] SSA seeks sole custody of N and Y. She wishes to be able to apply for passports for these two children and to travel internationally without OB’s consent. [ 97 ] She asserts that she has been the primary care parent, that OB is estranged from his children, that he has declined to deal with ongoing access and that his children do not want to have contact with him. She proposes that he be granted access as the children wish. [ 98 ] With respect to the matrimonial home, she wishes to value the property based on the 2017 property tax assessment of $514,500.

She claims to have contributed $55,000 to $60,000 from inherited funds to the purchase of this property. Accordingly, she asserts a claim to $30,000 (being half of $60,000) plus one-half of the balance of the net equity. Recall that she also claimed to have contributed $16,000.00 from her RRSP. [ 99 ] SSA holds a RESP with a balance of $9,489.75.

This asset is not, however, divisible between the parties as SSA holds these monies as trustee for the parties’ children. [ 100 ] SSA takes the position that divisible assets include her interest in the matrimonial home, after taking into account the parties’ exemptions, together with the financial assets listed above. [ 101 ] She asserts that OB’s divisible assets include the Gift Amount in the amount of $450,000 USD.

She argues these monies were not a gift from OB’s parents and enjoy no exemption. [ 102 ] She asserts that the Gift Amount was not acquired during the course of the marriage and was the product of a joint business venture which OB had with other members of his family. She offers no evidence to support that assertion. SSA asserts that if the full $450,000.00 USD is not divisible then at least the increase from $325,000.00 USD to $450,000.00 USD, being $125,000.00 USD, is divisible. The cheque, apparently dated July 14, 2003, representing payment of $325,000.00 USD is contained in tab 52.

That copy is impossible to read. Assuming it actually reflects OB’s testimony, it was received by him in 2003 during the course of the marriage. [ 103 ] SSA asserts that OB had the burden of establishing where the $93,000.00 which he deposited into the various accounts in the spring and winter of 2013 came from. Contrary to OB’s assertions that the sum of $93,000.00 represents the total of amounts deposited by him in various accounts (or consolidated into a single account), SSA believes these amounts represent income which OB has earned. She notes that Justice K.

Nixon ordered OB on November 4, 2016 to secure information regarding various accounts. That Order is contained at Tab 16. OB failed to provide that information. [ 104 ] With respect to ING Direct account #3021327992, SSA disputes OB’s evidence that the balance of this account was between $40,000 and $50,000, as opposed to the $155,000 mentioned in Mr. Hoag’s letter found at Exhibit 7. SSA argues that the “best evidence”

of this amount is Mr. Hoag’s letter, combined with a lack of any production by OB which would refute Mr. Hoag’s assertions.

She asserts that this account (#3021327992), which OB claims was closed down, should form part of divisible property since nothing has been produced by OB to refute SSA’s assertions. [ 105 ] With respect to OB Engineering, SSA asserts that OB Engineering is a divisible asset, or at least some (unspecified) portion of it, in respect of which she is entitled to half. [ 106 ] As she has sought but been denied profit and loss statements for OB Engineering she would have me draw an adverse inference.

I note SSA had originally scheduled an application to compel production of financial information regarding OB Engineering. She elected, however, to proceed with the trial before me rather than wait to see if that information could be made available. [ 107 ] Exhibit 6 consisted of a statement for accounts #3300532931, #3510083190 and #3510085951. These accounts belong to OB Engineering and are for the period August 1, 2011 to September 30, 2011. The total of these accounts is $166,042.00. This material is of negligible value in understanding OB’s relationship with this company.

SSA asserts that these monies are divisible matrimonial property. [ 108 ] With respect to alleged matrimonial debt, SSA asserts that the amount of $43,274.00, shown at Tab 93, should be attributed to OB alone. OB argues that it is matrimonial debt, as it was incurred to replace the standard of living he lost when he left the matrimonial home. [ 109 ] With respect to spousal support, SSA asserts that she has demonstrated entitlement to receive it.

She points out that she was the person primarily responsible for raising the parties’ three children. [ 110 ] She asserts that she worked at menial jobs before becoming a behavioural therapist. She claims her current gross income is approximately $50,000.00 per annum. [ 111 ] She claims to be entitled to spousal support on both a needs basis and a compensatory basis. She is currently supporting herself but believes she is entitled to support from OB.

She claims compensation because she was out of the work force for a considerable period of time while raising the parties’ three children. [ 112 ] SSA would have me impute annual income of $125,000.00 to OB. She would have me order him to pay $3,000.00 per month for a period of five years. OB [ 113 ] OB agrees that I should grant the parties a divorce. He argues that he should have joint custody of the parties’ two youngest children. He believes there is no evidence of difficulties arising in connection with his decisions and that he should be consulted regarding major decisions affecting the children.

He does, however, agree that his parenting time should be as agreed to by the children. [ 114 ] With respect to SSA’s request to be permitted to travel outside the country with the children without OB’s consent, he wants to receive information regarding any proposed trip. He undertakes not to unreasonably withhold his consent. [ 115 ] With respect to spousal support, he contests the imputation to him of income of $125,000.00 per annum. He argues that the two high income years 2007 and 2012, are not representative of his pattern of income. He argues that there is no evidence that he has disguised his income.

He notes that the average of his incomes over the period (1997-2015) is less than the income of $49,500.00 which I imputed to him for child support purposes. OB argues that he would not have sought work with other companies that paid him a higher salary if his prospects of earning significant moneys at OB Engineering were realistic. [ 116 ] He disputes SSA’s entitlement to receive spousal support. He asserts that SSA became capable of earning a reasonable living as a behavioural therapist while the parties were co-habiting. OB claims that SSA only contributed financially to the marriage during its early years.

He claims that he paid for large household expenses, as well as groceries, and that SSA’s standard of living improved because of the marriage. He asserts that under the spousal support advisory guidelines, no spousal support would be payable based on an income of $49,000.00 for him and an income of $39,000.00 for SSA. [ 117 ] With respect to division of property, he argues that the matrimonial home should be valued at $544,500.00, not the 2017 property tax assessment value.

He agrees with the amount owing on the mortgage. [ 118 ] With respect to exemptions, he states that the cheque, depicted at Tab 87, in the amount of $117,000.00 applied to the purchase price of the home, represented his contribution of $65,000.00 and SSA’s contribution of $55,000.00, with $3,000.00 added by him as part of his contribution to the total of $120,000.00 applied to the purchase price. [ 119 ] He claims a net exemption of $5,500.00 in his favour based on the parties’ alleged respective contributions of $65,000.00 (OB) and $55,000.00 (SSA).

For the sake of simplicity, likely in light of uncertainties surrounding who contributed what, OB suggests I treat the parties equally. [ 120 ] OB claims he owes $23,000.00 on a home buyer’s loan. Presumably, this $23,000.00 forms part of the CIBC line of credit reflected as owing by OB at Tab 88. [ 121 ] He disputes SSA’s assertions that the Gift Amount should be characterized as employment income.

He claims that there is no presumption of equal division of the increase of $125,000.00 associated with this receipt. [ 122 ] OB asserts that, since he kept the Gift Amount separate and did not co-mingle these monies, the $125,000.00 increase is not divisible. He points to the fact that he did not inform SSA of his receipt of this amount. [ 123 ] SSA says that $93,000.00 deposited into OB’s accounts following the separation should be treated as income. OB claims that

this sum does not represent net deposits to his accounts. Rather, he claims it reflects a combination of deposits to accounts andwithdrawals from accounts. It is virtually impossible to reconcile this assertion with the evidence placed before the Court regarding OB’sunilateral actions regarding the movement of monies among accounts. [124] He claims that the assets depicted at Tab 93 which he attributes to himself, as updated by amounts shown in Tabs 31, 32, 33, 50,52 and 53, are accurate as of the date of trial. [125] He claims that he has not dissipated assets.

He asserts that SSA should not be entitled to advance a claim for unjust enrichmentbecause her contributions were small. He believes the parties should be entitled to equal division of the net equity associated with thematrimonial home. [126] He responds to SSA’s assertion that he failed to produce documentation relating to ING Direct account #3021327992 bypointing out that SSA had access to this (joint) account. He claimed that ING advised him that these statements are no longer available.He claims that amounts in this account dwindled over time. He rejects Mr.

Hoag’s assertions in his letter of July 15, 2013 (Exhibit 7) thatthis account ever contained $155,000.00. He claims he does not know where Mr. Hoag got this number but that his comments arehearsay in any event. [127] He claims he no longer has access to information relating to the accounts into which he claims he deposited employmentincome and dividends for D and N. He claims he received the same response from ING (now Tangerine) and Scotiabank but that RBCdid not respond at all to his request for historical information.

Analysis [128] I will deal first with major findings of fact which affect the outcome of this matter. This task is made more complicated by thediscrepancies in the parties’ evidence, the dated nature of that evidence and the lack of corroboration for various factual assertionsadvanced by the parties. 1. The Matrimonial Home [129] OB claims to have contributed approximately $65,000.00 towards the down payment on the house. SSA claims to havecontributed $50-60,000 towards this, either including or in addition to $16,000.00 from an RRSP. The total down payment raised is$117,000.00.

When matrimonial property is purchased jointly, the law in Alberta is to infer an intention on behalf of each partner to giftone half of their contribution to the other: Brokopp v Brokopp, 1996 ABCA 4 , [1996] 181 AR 91, 116 WAC 91. The giftedhalves are divisible and the remainders are exempt from division. As there is no evidence of the exact sums provided by either partytowards the down payment, and as the alleged amounts are very similar, I conclude that whatever exemptions may exist in regards to thehouse cancel each other out. 2. The Gift Amount [130] SSA would have me treat $450,000.00 USD as divisible.

At the very least, she would have me treat the increase from$325,000.00 USD to $450,000.00 USD ($125,000.00 USD) as divisible property. [131] SSA argues that the Gift Amount represents income from business interests which OB held with other members of his family.As such, she claims it forms part of divisible property. No evidence was put forward in this regard. [132] OB argues that all of the funds from this investment were entirely exempt, both the original $325,000.00 USD and the$125,000.00 USD increase, yielding the sum of $450,000.00 USD depicted as the amount invested on June 13, 2011.

To the extent hekept $150,000.00 USD of whatever was ultimately distributed from this account, he claims it enjoys an exemption from division underthe Matrimonial Property Act, RSA 2000,c M-8, by virtue of being a gift received by him during the marriage. [133] On the one hand, OB argues that the Gift Amount represented a “living inheritance”. On the other hand, he claims the monieswere received in anticipation of him holding them as investment monies on behalf of his family. [134] He claims not to have co-mingled it with the parties’ other assets.

Indeed, he never disclosed the receipt of the amount to SSA.However, he readily admits that after SSA obtained an emergency protection order he was sufficiently worried that SSA might assert aclaim to it that he divided it up between his father, his brother and himself. [135] I do not believe OB. He withheld information about these monies from SSA. He has provided no evidence to support hisassertion that the Gift Amount represented monies to which other members of his family could assert a claim.

There is no evidence of atrust arrangement governing these amounts while OB held them. [136] In my view, the appropriate characterization of the Gift Amount is that it represents income or gain from business activities ofwhich OB was a part during the course of the marriage. I determine this amount to be income or gain from other business activitieswhich he conducted with his father and his brother. I do not accept that it was a gift. [137] It is not possible to determine the exact proportions in which OB, his father and his brother were to share in these sums.

I simplyattribute the Canadian dollar equivalent of $150,000.00 USD (the amount he received by cheque on or about September 21, 2012) or$146,427.89 CDN, together with $48,409.60, being the difference between the Canadian dollar equivalent held in this account on June30, 2012 ($463,288.63) and the Canadian dollar equivalent of what was distributed to OB, his father and his brother on or aboutSeptember 21, 2012 ($414,879.03). The total is $194,837.49.

[ 138 ] I determine this to be the value of the economic benefit to OB from accessing family investments, during the course of the marriage, which do not enjoy any exemption from division by virtue of being a gift or inheritance. 3. SSA’s Inheritance [ 139 ] Tab 68 set forth OB’s depiction of SSA’s inheritance. SSA disputes these assertions and I did not admit them as evidence. Exhibit 8 was a letter, purportedly written by an accountant who claims to have been responsible for distributing her father’s estate.

That letter claims that she received a total of $130,000.00 USD. [ 140 ] SSA’s evidence is to be preferred over that of OB because at least she has been able to provide some independent verification of her numbers. It strikes me as odd that OB would have access to detailed financial information about SSA when, as he asserts, the two of them were separate as to finances. [ 141 ] In any event, I do not find it necessary to attribute any portion of the $130,000.00 USD to SSA for property division purposes.

I believe these monies, the most recent receipt of which happened in 2010, were likely co-mingled by SSA with the parties’ other financial assets and/or used by her to meet family expenses. It is impossible to trace those moneys into some other asset which SSA owns today. 4. The $93,000.00 [ 142 ] In closing argument, counsel for SSA indicated that he had determined that OB had deposited approximately $93,000.00 into various accounts in his name over the spring/winter 2013. The issue is how to characterize these amounts.

SSA would have me attribute the full $93,000.00 to OB for matrimonial property division purposes. [ 143 ] Counsel for OB disputes this characterization. He argues that the $93,000.00 represents consolidation of moneys in other accounts controlled by OB and not income. [ 144 ] As with much of the parties’ financial information the origins and disposition of this sum of money are largely impossible to determine with any degree of accuracy.

It would be irresponsible for the Court to hold SSA to a lower burden of proof than OB. [ 145 ] The characterization of this amount as either new income or a consolidation from existing accounts is pure speculation. I decline to add this amount to OB’s share of divisible property. 5.

Amounts Allocated to the Parties Daughters from OB Engineering [ 146 ] I determine these amounts as follows: D $15,458 – 2008 T4 income $11,728 – 2009 T4 income $10,000 – 2010 Dividend income $6,000 – 2011 Dividend income $43,186.00 N $12,268 – 2009 T4 income $12,500 – 2011 T4 income $10,000 – 2010 Dividend income $6,000 – 2011 Dividend income $40,768.00 [ 147 ] These amounts total $ 83,954. To that I add $12,000.00 representing amounts allegedly paid to the D and N on repurchase of their shares.

AB states in his Affidavit that OB’s son, Y, also received $10,000.00 and $6,000.000 dividends, but there is no independent evidence of this. [ 148 ] I find it difficult to believe that children of this age could have contributed that much value, at least as it relates to their employment income, to the operations of an engineering firm. Dividends are another matter. They are not paid in respect of services provided but rather are a distribution of a corporation’s net equity to its shareholders. It appears that OB directed that shares which would otherwise have been issued to him be issued to his children.

There is no evidence that his children paid for their shares. There is no evidence that they knew they owned shares in OB Engineering, that they received dividends on those shares, that they were entitled to proceeds when their shares were repurchased or that they knew they ostensibly received employment income.

[ 149 ] Accordingly, I think it is reasonable to conclude that the issue of shares to the parties’ children was illusory and that OB received the full economic benefit from these shares. Further, OB cannot point to the location of monies representing the after-tax retention of salary and dividends received from OB Engineering by his children. We do not know if those monies are still held for his children and his daughter D swore an affidavit in which she deposed that she knew nothing about these monies. I think it a reasonable inference that he appropriated these moneys to himself.

Accordingly, I attribute the sum of $95,954.00 to OB. 6. OB’s Debt of $45,274.00 [ 150 ] OB claims to have incurred this debt as a result of the parties’ separation. He claims to have spent $150.00 per night for six weeks on a hotel. Then, he claims to have rented a condominium unit for 10 months at a rate of $1,800.00 per month. In addition, he claims to have incurred about $10,000.00 in costs relating to the acquisition of furniture and other household items. He claims he needed to acquire these items because he was denied access to the matrimonial home.

He claims to have also incurred legal fees and travel costs. However, OB testified that he covered these costs in part by accessing funds in ING Direct account 3021327992: Transcript, at p 220, lines 9 -14. [ 151 ] OB’s counsel asserted that what makes this matrimonial debt is that OB had to incur it to replace the standard of living he enjoyed before he was required to leave the matrimonial home. [ 152 ] I decline to characterize this debt as a matrimonial debt for property division purposes. OB has not provided any receipts in support of his contentions regarding the use of these monies.

Further, shortly after separation he started accessing BMO account #2641 3972 890 to, as he testified, meet his living expenses. Lastly, SSA appears to have derived no benefit from these monies. OB shall be solely responsible for this debt. 7. OB Engineering [ 153 ] To attribute any value associated with this company to OB I would have to conclude that he has some economic interest in it beyond being an employee.

He might have such an interest, indirectly, because he may be in a position to influence its activities, including the payment of salary, dividends and the disposition of corporate funds. [ 154 ] Certainly, he had sufficient influence at an earlier stage to divert salary and dividends to his daughters, at least for income tax purposes.

Without having the opportunity to review financial statements for this company, it is impossible to determine if there is a realistic possibility that the company is earning revenue or incurring expenses which directly or indirectly benefit OB. [ 155 ] The only evidence before the Court in this regard is OB’s testimony that he has no interest in the company beyond that of being a salaried employee. I decline to attribute any value associated with OB Engineering to OB.

Conclusion [ 156 ] The following distribution chart depicts my resolution of the parties’ entitlement to matrimonial property: Assets SSA OB RBC RRSP # 553821042 $28,294.71 CIBC RRSP # 03022 $8,027.33 Matrimonial Home $514,500.00 RBC # 01436-5004510 $2,752.09 RBC # 01436-4500658 US Dollar Account ($1,771.88 USD X 1.33) = $2,356.60 RBC # 01436-5016894 $1,569.51 RBC # 587935974 TFSA $3,774.16 RBC # 03132-5140355 $12,856.45 ATB # 00004943301 $22.84 ATB # 00004943302 $7,050.46 Tangerine # 3022204120 $0.04 Tangerine # 3022204144 $0.13 CIBC # 82-70236 $2,000.00 BMO # 2641-3972-890 $2,500.00 BMO # 2641-4791-425 $1,969.85 Other Assets Gift Amount $194,837.49 Salary/Dividends/Share repurchase from OB Engineering $95,954.00 Total Assets $573,176.82 $305,288.84 Liabilities Mortgage $264,272.61 CIBC Visa # 4502200221500177 $799.85 BMO MasterCard # 5192696005071669 ($35.00 USD X 1.332369) = $46.63 RBC Visa # 451401........2452 $1,631.37

Total Liabilities $265,903.98 $846.48 Net Worth $307,272.84 $304,442.36 Difference $2,830.48 Assets SSA OB [ 157 ] SSA shall transfer half of that, being $1,415.24, to OB. [ 158 ] SSA seeks spousal support. She also seeks sole custody of the children and the ability to obtain passports for the children and travel internationally without the consent of OB. [ 159 ] With respect to the issue of custody, she argues that she has been the children’s primary caregiver since separation. The children are estranged from OB. According to SSA, the children do not wish to have any contact with OB.

As noted above, she proposes that access be determined by the parties through mutual agreements in consultation with the children. [ 160 ] With respect to the spousal support, SSA asserts that she is entitled to spousal support because she withdrew from the workforce to raise three children. She has worked at a variety of menial jobs until she acquired her present position. She asserts hardship. She claims entitlement on both a needs and compensatory basis. As noted above, she asserts that she was economically disadvantaged by the marriage. She seeks to have the Court input income to OB of $125,000.00.

She seeks support in the amount of $3,000.00 per month for five years. [ 161 ] OB seeks joint custody with respect to the children. He does not disagree that SSA’s position regarding parenting time. If the children travel outside of Canada he wants to be informed of the details. He wants to be in a position to sign any travel consent forms. He suggests that his permission to travel would not be unreasonably withheld. [ 162 ] With respect to spousal support, he challenges SSA’s evidence that she has been disadvantaged by the marriage.

He further argues that based on the parties incomes which he argues are roughly equal, no spousal support would be payable under the spousal support advisory guidelines. [ 163 ] I have determined that SSA’s parenting proposals reflect the best interests of the children. She shall have sole custody of them. OB’s access shall be as agreed by the parties, after consultation with the children. [ 164 ] With respect to spousal support, I have determined that SSA is not entitled, on either a needs basis or a compensatory basis, to spousal support.

I do not find that she was disadvantaged by the marriage by virtue of the fact that she withdrew from the workforce to raise children. I cannot say that these efforts delayed her ability to obtain further education and become a behavioural therapist. [ 165 ] I am not prepared to impute income above the $49,500 I previously imputed to OB for child support purposes. I am not satisfied that he is capable of earning more than that amount.

I conclude that the parties are able to earn approximately the same amount of income. [ 166 ] I seek to achieve final disengagement for these two individuals, both in terms of financial entanglement and parenting. I wish to relieve the parties of the tyranny of small differences. This conclusion is, in my mind, reinforced by the dated evidence of financial transactions undertaken by the parties and, in some cases, the complete lack of evidence other than uncorroborated testimony. [ 167 ] Arguments over equalization based on unverifiable contributions to the purchase of the matrimonial home serve no purpose.

The parties’ apparent contributions to the acquisition of the matrimonial home are sufficiently close to call it a “wash”. [ 168 ] In the result, SSA shall take the matrimonial home and assume the mortgage. [ 169 ] There shall be no transfers of money or other property between the parties other than SSA’s payment of $1,415.24, to OB. [ 170 ] The parties shall bear their own costs. Heard on the 21 st day of February, 2017 and the 22 nd day of February, 2017. Dated at the City of Calgary, Alberta this 11 th day of September, 2017. C.M. Jones J.C.Q.B.A. Appearances:

Mr. Fraser Gordon for the Plaintiff Mr. Nicholas Van Duyvenbode for the Defendant