McLeod v McLeod, 2017 ABQB 581

Court of Queen’s Bench of Alberta Citation: McLeod v McLeod, 2017 ABQB 581 Date: 20170927 Docket: 4803 176368 Registry: Edmonton Between: Beverly Karen McLeod Plaintiff/Applicant - and - Donald Scot McLeod Defendant/Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice R. Khullar _______________________________________________________ I.

Issue [ 1 ] The Applicant applied in morning chambers for an interim matrimonial property order directing that the parties share equally in season tickets for Oilers hockey games, including playoffs, for the 2017/2018 season. The primary argument made by the Respondent resisting this application is that this Court has no jurisdiction to grant an interim matrimonial property order or if it has jurisdiction, it should not exercise that jurisdiction in this case.

For the reasons below, I reject that argument and I order an interim distribution of the matrimonial property of the Oilers tickets for the 2017/2018 season including playoffs, if applicable, and that the tickets be shared equally between the parties to this litigation.

II. The Evidence [ 2 ] The only evidence upon which this application is based are affidavits sworn by Ms. McLeod on July 7, 2017, and a response affidavit sworn by Mr. McLeod of August 3, 2017. From these affidavits the following undisputed facts can be determined: 1. The parties were married on June 28, 1980 and separated in August 2015. 2. Ms. McLeod has not worked outside the home since 1982, with the agreement of Mr. McLeod. She is almost 60 years old. 3. As of August 2016 Mr. McLeod has been paying Ms. McLeod $15,000/month, an amount he deemed reasonable for spousal support. 4.

The parties have had the benefit of Oilers season tickets for 11 years. The Oilers season tickets have been in Mr. McLeod’s name. Ms. McLeod had the rights to make inquiries about the Oilers tickets, but they were not in her name. 5. Prior to last season (2016/2017), the tickets were used primarily by Mr. and Ms. McLeod, and their family and friends. Ms. McLeod loves going to the games. The tickets were an asset used for family enjoyment. 6. During the last season (2016/2017), Mr. McLeod provided Ms. McLeod with a third of the regular season tickets and determined which tickets she would receive.

She only received one set of playoff tickets at the last minute. 7. Mr. McLeod has refused to provide her with any of the tickets for the 2017/2018 season. [ 3 ] While not in the affidavits, it is undisputed that at issue are two tickets to the games. III. Law [ 4 ] I am satisfied that the parties have resided in Alberta, lived separate and apart for a year, that a Statement of Claim has been issued under the Divorce Act , RSC 1985, c 3 (2nd Supp), and as such, this Court has jurisdiction under the Matrimonial Property Act , RSA 2000, c M-8 (“ MPA ”), ss 3 and 5(1)(c). A.

Are the Oilers Tickets Property [ 5 ] A threshold issue is whether Oilers season tickets qualify as property. Mr. McLeod argues that what he has is the “right” to acquire hockey tickets but queries whether that qualifies as property under the MPA . He suggests that this Court only has jurisdiction under the MPA if Mr. McLeod has actual possession of the season tickets. However, Mr. McLeod’s affidavit states: 3. I have always been the primary owner of my Oilers Seasons Tickets. I spoke to the Oilers ticket office on July 11, 2017, and they confirmed this.

Bev had nothing to do with my original acquisition of the Oilers tickets. 4. Bev’s name was added to my Oiler [sic] Account, not as an owner. Bev could not make any changes or adjustments to my Oilers Account. Bev was only able to make inquiries about my account as I had allowed her access to do so. [ 6 ] The evidence of Mr. McLeod is that he is the owner of the Oilers season tickets. Clearly Mr. McLeod understands he owns something which entitles him to the Oilers tickets.

Whether that is the actual possession of the tickets, the control of the Oilers Account, or a “right” to purchase the tickets, I find that is property which falls under the MPA .

Section 9 of the MPA , and the remedial powers contained therein regarding how to divide various property interests, is consistent with a purposive

interpretation of property. It cannot be limited to the possession of the physical tickets, as suggested in argument. Other jurisdictions have also recognized season tickets to be matrimonial property, see for instance LeClair v. Leclerc , [2003] O.J. No. 2046, at para 107 ; 2003 CarswellOnt 1802 . [ 7 ] In addition, the Oilers tickets squarely fall within the definition of household goods under s 1(

b) of the MPA : (b) “household goods” means personal property (

i) that is owned by one or both spouses, and (ii) that was ordinarily used or enjoyed by one or both spouses or one or more of the children residing in the matrimonial home, for transportation, household, educational, recreational, social or esthetic purposes. [ 8 ] The evidence establishes that the tickets were enjoyed for recreational or social purposes. It is important to note that what is at issue are season tickets: this implies the same seats for every game over many years.

While the evidence does not disclose the location of the tickets, there may well be an attachment to the particular seats that is not easily replaced by other tickets. [ 9 ] These tickets have been owned for 11 years, were clearly acquired during the marriage, and fall within the definition of household goods under the MPA . As such, the Oilers season tickets are property that may be divided by the Court. B. Jurisdiction to Make an Interim Order for Distribution of Matrimonial Property [ 10 ] Mr.

McLeod fairly acknowledges that there is conflicting authority on the jurisdiction to issue interim matrimonial property

orders. Nevertheless, Mr. McLeod argues that this Court has no jurisdiction to grant an interim order and in doing so relies on Y.K. v. C.K. , 1993 ABCA 221 , 48 RFL (3d) 1, and Lundquist v Lundquist , 2014 ABQB 140 , 2014 CarswellAlta 417 [ Lundquist ]. Neither of these authorities is particularly persuasive. The former is a decision by Justice Côté sitting alone on an application for a stay pending appeal. While the legal issue to be advanced on appeal was whether the MPA has jurisdiction to allow for an interim matrimonial property order, the stay was denied because of a lack of irreparable harm.

After reviewing the argument about interim orders, Justice Côté commented (at para 7): ...it seems to me that it is arguable that there may have been some jurisdiction for the chambers judge to do what he did, in the sense that one might argue that what is not prohibited is at common law permitted. [ 11 ] To the extent that this decision is relevant, it would seem to contemplate the Court does have jurisdiction to grant an interim order. [ 12 ] The second decision, Lundquist , was a decision based on an application in morning chambers.

The Court specifically notes that it could see nothing in MPA that allowed for interim property distribution absent the consent of the parties and it “was not provided with any case authority supporting the Plaintiff’s application” (at para 12). [ 13 ] In contrast, this Court was provided authorities for the proposition that this Court does have the ability to grant an interim matrimonial property order. This authority is found in the wording of the statute itself under s 9(3)(

j) which states: 9(3) To give effect to an order under this

section the Court may do any one or more of the following: (

j) make any other order that in the opinion of the Court is necessary. This was the provision relied on by Justice Acton in Gartner v. Ewasiuk , 2002 ABQB 797 at para 7 , 2002 CarswellAlta 1080 [ Gartner ], to substantiate such an order. In that case there were ample net assets available that exceeded the interim distribution when the wife applied for interim distribution and a preservation order for the property. It was appropriate because the husband in that case was transferring and encumbering the matrimonial property, and the wife was disadvantaged.

The interim order was one way of ensuring she obtained some assets and gave her financial resources to be able to challenge the steps taken by the husband. [ 14 ] Building on Gartner , Justice Veit in S.L.T. v. A.K.T. , 2007 ABQB 81 , 35 RFL (6th) 124 [ S.L.T. ], concluded that not only does s 9(3)(

j) give the Court jurisdiction (at para 33), but the inherent jurisdiction of the Court to fashion remedies to carry out the intention of the legislation is another source of jurisdiction (at para 34). [ 15 ] Justice Veit granted the interim distribution of shares in a company, in the context of a larger matrimonial property dispute. She noted there was no prejudice to either party if an interim award were to be made, but more was required for the Court exercise its jurisdiction to grant such an award.

In that case other factors included a saving of trial time, forcing the parties to share the income stream from the company resolved and avoided a number of other intricate and expensive issues for the parties, and thereby permitted the parties to focus on the key contentious issues at trial. [ 16 ] Further, while the issue of jurisdiction was not squarely before our Court of Appeal, it recently stated ( Fleming v Fleming , 2016 ABCA 88 at para 22 , 616 AR 217): It seems that the appellant is mistaken as to the meaning and effect of an interim distribution.

An interim distribution simply means that matrimonial property was distributed to one or both parties prior to trial and pending the final resolution of property division. They are effectively an advance on the parties’ ultimate entitlement to their share of the matrimonial property under the Matrimonial Property Act as determined at trial. [ 17 ] In addition, the

Interpretation Act , RSA 2000, c I-8, s 10 mandates that: 10 An enactment shall be construed as being remedial, and shall be given the fair, large and liberal construction and

interpretation that best ensures the attainment of its objects. [ 18 ] If the object of the MPA is to ensure a just and equitable distribution of matrimonial property, then surely being able to make an interim order to achieve that end in the appropriate circumstances, is consistent with this goal. This approach echoes the reasoning of Justice Veit in S.L.T. . , where she said that once the Legislature granted rights under the MPA : “...this Court, as a superior court of inherent jurisdiction, has the right to fashion remedies that carry out the intention of the Legislature” (at para 34). C.

Should an Interim Order be Granted in this Case? [ 19 ] Mr. McLeod argues that if the Court does have jurisdiction to grant an interim property order, it ought not to do so in this case, relying on the following: • T.L.P. v. F.J.P. , 2007 ABQB 600 at paras 39-42 , 2007 CarswellAlta 1344, rev’d on other grounds 2008 ABCA 334 [ T.L.P. ], and on an assertion that Mr. McLeod acquired the tickets for thanking clients and promoting his business; and • Ms. McLeod is receiving spousal support of $15,000 and can purchase her own tickets, and he offered to arrange this for her. [ 20 ] The decision in T.L.P. is not helpful.

In that case, at the conclusion of a trial dealing with divorce, spousal and child support, and matrimonial property, the Court addressed the issue of Edmonton Oilers tickets. The Court found that the defendant’s employer paid for the Oilers tickets and they belonged to the employer, and therefore did not form part of the matrimonial property. By implication, if they had belonged to the defendant in that case, it does seem they would have been considered matrimonial property. [ 21 ] Further, the assertion that the tickets were used to thank clients and promote Mr. McLeod’s business is contrary to Ms.

McLeod’s uncontradicted evidence that the Oilers tickets were used primarily by family and friends. [ 22 ] Lastly, Ms. McLeod’s spousal support is not relevant to the entitlement to the matrimonial property. [ 23 ] In deciding to exercise my jurisdiction to grant an interim order, I note the facts in this case are not like Gartner or S.L.T. but the unique nature of the property at issue is what persuades me to grant the interim order. The property is unique because at issue are season tickets. A ticket loses its value once a game has occurred.

A matrimonial property order cannot retrospectively adequately account for loss of opportunity to enjoy past season’s tickets. Given that some of the value comes from the present use, it is appropriate to make an interim order. Failing to do so would mean that the ability to enjoy the property interest is lost, and could not be justly or equitably distributed at the conclusion of the MPA proceedings. In addition, there is no evidence that either party would be prejudiced in terms of the net assets available for distribution at the time of a final order.

Obviously this decision in relation to the Oilers season tickets will have to be taken into account by the Court upon a final distribution of property under the MPA . [ 24 ] In these circumstances where Mr. McLeod concedes he is the owner of the Oilers season tickets, and the season tickets were purchased during the marriage, and the evidence is that they are used primarily by family and friends, I find that this is property brought within a marriage and should be subject to division on an interim basis. IV.

Conclusion [ 25 ] Given the analysis above, I find that this Court has jurisdiction to grant an interim order for distribution for the personal property of Edmonton Oilers 2017/2018 season tickets and I order that: 1. The parties shall share equally in the Edmonton Oilers 2017/2018 season tickets, including playoff games, if applicable. 2. The parties shall alternate choices for game tickets with the Defendant choosing first the game for which he wants tickets, the Plaintiff choosing second for her game, and the parties alternating choices thereafter until all regular season tickets have been assigned.

In the event there are playoff tickets, the Plaintiff shall choose her game first, the Defendant second, and alternating thereafter. 3. This interim order will have to considered by the Court when it comes to a final distribution of matrimonial property, and an accounting for the cost of the tickets will have to occur. [ 26 ] As Ms. McLeod has been successful in her application, she is awarded costs. Heard on the 8 th day of August, 2017. Dated at the City of Edmonton, Alberta this 27 th day of September, 2017. R. Khullar J.C.Q.B.A. Appearances: Lori J. Johnson, Q.C.

Johnson Turner Lefaivre for the Plaintiff Dale E. Tumbach TC Family Law Group for the Defendant