Boddy v Boddy, 2018 ABQB 1019

Court of Queen’s Bench of Alberta Citation: Boddy v Boddy, 2018 ABQB 1019 Date: 20181214 Docket: 4801 164028 Registry: Calgary Between: Jillian Leigh Boddy Plaintiff - and - Ian Matthew Boddy Defendant _______________________________________________________ Endorsement of the Honourable Madam Justice Nancy F. Dilts _______________________________________________________ Introduction [ 1 ] The parties were married in January 2005 in the United Kingdom, moved to Canada in 2006 and separated on August 31, 2014. The parties had no children. Both parties are 40 years old. Mr. Boddy is a drilling engineer and Ms.

Perras (formerly Boddy) is in management at a private equity firm. [ 2 ] The trial proceeded on the issues of divorce, the division of matrimonial property, and a claim by Mr. Boddy for retroactive

spousal support for the period of January 1, 2016 to August 1, 2018. [ 3 ] Both parties claim certain exemptions under the Matrimonial Property Act , RSA 2000, c M-8 (the “ MPA ”) and both parties maintain that the other’s post-separation conduct should entitle the asserting party either to an unequal distribution of matrimonial property or to certain adjustments within the distribution of matrimonial property.

There are allegations of delayed disclosure, misuse of joint funds, and improper conduct that negatively impacted the value of matrimonial assets. [ 4 ] Interim distributions were made of some joint property, including by Court Order in March and November 2016. The property remaining for distribution includes $92,713.39 and $13,501.88 currently held by the Court, numerous bank accounts, a vehicle, the proceeds of sale of real property and various investments. The parties had a myriad of bank accounts in 3 countries, many of which have been re-named and between which funds have been moved.

The tracking of the funds in over 20 accounts with current balances ranging from $17.06 to £72,776 was difficult. [ 5 ] There are gaps in the evidence regarding the parties’ property and assets. Mr. Boddy testifies that he lost a material amount of his personal financial records when, in anticipation of separating, Ms. Perras directed her brother to enter the matrimonial home while the home was empty to remove financial records. According to Ms. Perras, her brother took hard copy records including the contents of a filing cabinet, and computer records. Both types of records included Mr. Boddy’s financial records.

In addition, both parties experienced a loss of records when their home was flooded in 2013. Issues [ 6 ] The parties have raised a number of issues: 1. What is the just and equitable date to value the matrimonial property? 2. Is any property excluded from distribution either because it is not matrimonial property or by operation of section 7(2) of the MPA ? 3. What is the just and equitable distribution of the difference in value between the section 7(2) exemption and the market value at the time of valuation? 4.

Is an equal division of the matrimonial property just and equitable taking into consideration the factors set out in

section 8 of the MPA ? 5. Is Mr. Boddy entitled to retroactive spousal support for the period January 1, 2016 to August 1, 2018 and if so, what is the amount of spousal support to be paid? ISSUE 1 - What is the Just and Equitable Date to Value the Matrimonial Property? [ 7 ] The division of matrimonial property is governed by the MPA . The purpose of the MPA is to fairly and equitably distribute the assets of the parties on the dissolution of the marriage.

While the MPA is silent as to the valuation date, the Court of Appeal in Hodgson v Hodgson , 2005 ABCA 13 (“ Hodgson ”), has established that the appropriate date for valuation of matrimonial property is the date of trial. Any inequities that might arise from that date of valuation can be addressed by applying the factors set out in

section 8 of the MPA . [ 8 ] In Hodgson , the Court of Appeal set out a four step analysis to follow to achieve a just and equitable division of property: 1. Determine all the property owned at the date of trial; 2. Determine the property that is exempt under s 7(2); 3. Determine what property falls under s 7(3); and 4. Divide the balance of the remaining assets equally unless it would be unjust and inequitable to do so considering the factors set out in s 8.

ISSUE 2 - Is any property either excluded from distribution as not being joint property or property exempt from distribution under section 7(2) of the MPA ? [ 9 ] Both parties claim that certain property is excluded from distribution either because it was property held for others or is exempt under section 7(2) of the MPA . 1. Assets Not Included

[ 10 ] Property Acquired After Separation : In an Agreed Statement of Facts entered at trial, the parties agreed that bank accounts and real estate acquired by each of them after separation are not subject to division. [ 11 ] Stock Options : Ms. Perras asserts a claim for stock options issued to Mr. Boddy by his employer during marriage. The documents produced at trial indicate that Mr. Boddy was issued stock options on March 3, 2014 and that those stock options remained valid until the earlier of March 3, 2019 or 90 days from when Mr. Boddy’s consulting agreement was terminated. Mr.

Boddy’s evidence was that the consulting agreement was terminated December 2015, with the result that the options expired late March 2016. An email dated May 7, 2016 suggests that the stock options no longer exist and Mr. Boddy’s evidence was consistent with that suggestion. I find that there are no stock options for division and that the stock options were not exercised prior to expiry. [ 12 ] Santander and Vanquis Accounts: At trial, Ms. Perras testified that she maintained investments for her mother which were derived from a loan made to her by her mother prior to marriage.

This evidence was supported by documents produced at trial including an email from Ms. Perras to her mother long before the parties separated, discussing these investments. I find that the following investments do not form part of the matrimonial property: Santander Savings Account #XXX9 and Premium Bonds National Savings & Investments Account #XXX6. [ 13 ] Distributed Funds: Ms. Perras acknowledged at trial that HSBC Account #XXX3 is the property of Mr. Boddy. It is therefore not subject to division and is Mr. Boddy’s property. 2.

Section 7(2) Exemptions [ 14 ] Section 7(2) of the MPA provides: 7(2) If the property is (

a) property acquired by a spouse by gift from a third party, (

b) property acquired by a spouse by inheritance, (

c) property acquired by a spouse before the marriage, (

d) an award or settlement for damages in tort in favour of a spouse, unless the award or settlement is compensation for a loss to both spouses, or (

e) the proceeds of an insurance policy that is not insurance in respect of property, unless the proceeds are compensation for a loss to both spouses, 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. [ 15 ] Old Mutual Wealth #X-XXXXXXX9 : Mr. Boddy claims an exemption for Old Mutual Wealth account #X-XXXXXXX9 managed by Thornton Investment Management Inc. Mr.

Boddy’s evidence is that the original amount of £15,550.00 was contributed entirely by his parents prior to marriage. The evidence includes a letter from the investment manager supporting his evidence. I find that Mr. Boddy has established an exemption for the original contribution amount of £15,550.00 in the Old Mutual Wealth account. [ 16 ] Aviva (Baker Hughes) #XXXXXX0 : Mr. Boddy claims an exemption for Aviva Account #XXXXXX0 valued at £14,702.00 at the date of trial. He testified that this pension was fully funded prior to marriage by his then employer Baker Hughes; that fact was not contested by Ms. Perras.

I find that Mr. Boddy has established that an amount representing the pre-marriage investment in Aviva Account #XXXXXX0 is subject to an exemption under section 7(2) of the MPA . The value of this exemption is discussed below. [ 17 ] Maersk #XXXXXXXXX1 : Mr. Boddy claims an exemption for Maersk Account #XXXXXXXXX1 valued at £21,687.15 at the date of trial on the basis that it was property acquired by him prior to marriage; that fact was not contested by Ms. Perras. I find that Mr.

Boddy has established that an amount representing the pre-marriage investment in the Maersk pension is subject to an exemption under section 7(2) of the MPA . The value of this exemption is discussed below. [ 18 ] Aviva (AGR) #XXXXXXX9A : Mr. Boddy claims an exemption for Aviva Pension #XXXXXXX9A valued at £21,070.00 at date of trial on the basis that it was property acquired by him prior to marriage. Despite Mr.

Boddy’s evidence that the account was partially funded prior to the marriage, the documentary evidence including the 2008 yearly statement from the pension administrator identifies the plan start date as February 1, 2005, after the date of marriage. Based on this documentary evidence, I find that Aviva Pension #XXXXXXX9A is a marital asset fully funded during the course of the marriage. The value of Aviva Pension #XXXXXXX9A at trial is to be divided equally between the parties. [ 19 ] Agreed Exemptions – Jillian Perras : The following exemptions in favour of Ms.

Perras were agreed to: AA Savings Account #XXX6 valued at £$5,174.00 at the date of trial. National Savings & Investments #XXX6 valued at £2,000.00 at the date of trial National Savings & Investments #X8Q valued at £15.00 at the date of trial.

[ 20 ] Scottish Student Loan Company Limited XXX8B : Ms. Perras testified that she received student loan funds of £10,000.00 prior to marriage. At trial, she sought an exemption for the entire amount loaned. [ 21 ] In an undated “traceability

summary” prepared by Ms. Perras and entered as an exhibit at trial, Ms. Perras notes that she spent £8,337.34 of the Scottish Student Loan funds on upgrades to the matrimonial home in Scotland between 2005 and 2006. At trial, Ms. Perras testified that she and Mr. Boddy undertook extensive renovations to the Scotland home and that she paid for some but not all of the upgrades, leaving me to infer that Mr. Boddy also paid for some but not all of the upgrades. [ 22 ] Also entered as exhibits in the trial were

i) Ms. Perras’ Form FL-17 from August 2018 in which the student loan is listed as a debt with a principal amount owing of £7,818.77 and interest of £2,588, ii) her Form FL-17 completed March 2015 where there is no mention of the student loan as either an asset or a debt, and iii) a “matrimonial property

summary” prepared by Ms. Perras in which she claims 50% of the original student loan amount. [ 23 ] I find that the evidence regarding this claimed exemption is inconsistent and insufficient to establish this as an asset to be exempted. A party claiming an exemption under the MPA has the onus of establishing that exemption. Ms. Perras has not done so. Ms. Perras’ claim for an exemption of £10,000.00 is denied. [ 24 ] Royal Bank of Scotland #XXX9 : Ms. Perras claims an exemption of £3,000.00 for what she says were funds owned by her prior to marriage and invested in the matrimonial home.

Remaining in RBS Account #XXX9 at trial is £17.06. There is insufficient evidence to satisfy me that Ms. Perras has a claim for an exemption of £3,000.00. Ms. Perras has produced records to support this claim which evidence payments made by the parties for certain expenses, including a “stamp duty” and treatment of trees on their property. Those documents speak to the payment of expenses and not the establishment of an asset or the enhancement of the value of an asset. This exemption claim is denied.

ISSUE 3 - What is the just and equitable distribution of the difference in value between the section 7(2) exemption and the market value at the time of valuation? [ 25 ] Under section 7(3) of the MPA , the Court is to distribute the difference between the exempted value of the original property and the value of that property at the date of trial in a manner that it considers just and equitable having regard to the factors set out in

section 8 of the MPA . Unlike matrimonial property, there is no presumption of equal sharing and the case law shows consideration being given to a number of factors including whether the actions of either party contributed to the increase in the value of the asset and whether the property was brought into the matrimonial regime and therefore used or available for the mutual benefit of the spouses: Mazurenko v Mazurenko , 1981 ABCA 104 . [ 26 ] Ms.

Perras seeks a division of the some or all of the Old Mutual Wealth Account #X-XXXXXXX9 (valued at £32,030.00 at date of separation and £72,776.00 at date of trial), the Aviva Account #XXXXXX0 (valued at £15,598.00 at date of separation and £14,702.00 at date of trial) and the Maersk Account #XXXXXXXXX1 (valued at £10,109.00 at date of separation and £21,687.00 at date of trial). [ 27 ] Both Mr. Boddy and Ms. Perras testified that neither of them had any oversight of Mr. Boddy’s UK accounts during their marriage. It is uncontroverted that Mr. Boddy’s mother had oversight over Mr.

Boddy’s UK assets throughout their marriage. Old Mutual Wealth #X-XXXXXXX9 [ 28 ] Ms. Perras testified that she was not aware of the existence of the Old Mutual Wealth account until late into the litigation. According to Mr. Boddy, he did not recall owning this account and views the account as being his parents’ money. It is uncontroverted that the Old Mutual Wealth account was fully funded by Mr. Boddy’s parents prior to the marriage as an education fund for Mr. Boddy. It is also uncontroverted that Mr. Boddy has never deposited or withdrawn any funds from this account.

The account was neither a product of the marriage nor viewed by Mr. Boddy (or known to Ms. Perras) to be matrimonial funds. [ 29 ] I find that the increase in the value of the Old Mutual Wealth account was the result of the passage of time and the diligence of others. Given that the account was funded solely by Mr. Boddy’s parents and that he has not viewed the money as his own, it was not brought within the matrimonial regime for the benefit of the spouses. I conclude that it is neither just not equitable to distribute to Ms. Perras any portion of the difference between the exempt amount and the value at trial.

As a result, the Old Mutual Wealth account is entirely exempt from distribution and remains the property of Mr. Boddy. Aviva (Baker Hughes) #XXXXXX0 and Maersk #XXXXXXXXX1 [ 30 ] With respect to Aviva Account #XXXXXX0 and Maersk Account #XXXXXXXXX1, the value of the contribution made by Mr. Boddy into to each account prior to marriage is unknown. [ 31 ] With that context, I am to consider what a fair and equitable distribution is for these accounts.

In reaching my decision, I have considered that the parties, either deliberately or by omission, did not integrate these accounts into their pool of active marital assets. Like all of Mr. Boddy’s UK assets, these assets were under a mandate given to Mr. Boddy’s mother. However, unlike the Old Mutual Wealth Account, both parties were aware of these accounts. Given the length of marriage, it is reasonable to expect that the parties considered these accounts to be assets available to the marriage union.

[ 32 ] Given both parties’ evidence regarding their lack of involvement with Mr. Boddy’s UK accounts, any increase in the value of the assets between separation and trial cannot be attributed to the efforts of either Mr. Boddy or Ms. Perras. [ 33 ] In balancing these various factors, I have determined that it is just and equitable to distribute 33% of the value of each of the Aviva Account #XXXXXX0 and the Maersk Account #XXXXXXXXX1 as at the date of separation to Ms. Perras; this accounts for the fact that a portion of the funds were contributed by Mr. Boddy’s employers prior to marriage.

It also recognizes that Ms. Perras had no connection to these accounts after separation. Ms. Perras is therefore entitled to £5,147.34 and £3,335.97 as a distribution of the Aviva Account #XXXXXX0 and Maersk Account #XXXXXXXXX1, respectively. I am advised by both parties that there are no unique tax considerations with respect to these UK Accounts. ISSUE 4 - Is an equal division of the matrimonial property just and equitable taking into consideration the factors set out in

section 8 of the MPA? [ 34 ] The underlying purpose of the MPA is to recognize the economic partnership that arises in a marriage. That purpose is reflected in the presumption that the parties to a marriage intend to share on an equal basis the benefits derived from and a result of their marriage: Jensen v Jensen , 2009 ABCA 272 .

The presumption of equal sharing for the division of property acquired during the marriage is articulated in section 7(4) of the MPA: 7(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. [ 35 ] The presumption of equal sharing can be displaced if the Court concludes that an equal division would be unjust or inequitable having regard to the factors listed in

section 8, including the contribution by each spouse to the acquisition or improvement of the matrimonial property and whether one spouse has dissipated matrimonial property to the detriment of the other. [ 36 ] Both parties have raised factors they believe should result in an unequal distribution of the remaining assets. Ms. Perras’ Position [ 37 ] Ms. Perras argues that she is entitled to an unequal distribution because: 1. she made extraordinary contributions to the improvement and sale of the matrimonial home and administered the recreational property and investment property after the separation. 2. Mr.

Boddy delayed the sale of the matrimonial home which resulted in the loss of value. 3. Mr. Boddy failed to cooperate regarding the conclusion of the property insurance claim which resulted in financial loss to Ms. Perras. 4. Ms. Perras paid a greater portion of the cost of care for their dog Archie. 5. Under Court Order and on a without prejudice basis, Ms. Perras bore the cost of paying the mortgage on the matrimonial home. 6. Mr. Boddy refused to agree to Ms. Perras using funds from the sale of the Florida investment property to pay down the line of credit. Ms.

Perras continued to service that joint line of credit after separation. 7. Mr. Boddy delayed the sale of the Scottsdale property resulting in ongoing cost. Mr. Boddy’s Position [ 38 ] Mr. Boddy argues that Ms. Perras dissipated the parties’ assets and in particular points to the following: 1. Ms. Perras used joint funds for personal expenses, including to pay personal legal fees and to purchase or lease a vehicle. 2. Ms. Perras kept 100% of the proceeds of the sale of the Florida property which was a joint asset. 3. Mr. Boddy did not receive any portion of the property insurance proceeds.

Decision [ 39 ] I was provided a significant volume of information regarding the parties’ financial history, the marriage and its breakdown. Ms. Perras in particular invested a great deal of time and effort to provide details with respect to her claims some of which was of limited assistance to the question of the division of the matrimonial property. The positions of the parties are fueled by significant distrust and bad feeling, brought on by unfortunate and unproductive behaviour. Neither party can escape criticism for how they handled their interactions and finances after separation.

[ 40 ] A great deal of evidence was presented about the unfortunate games played by the parties to unsettle the other. Other than relevant to demonstrate the extent of the breakdown between the parties, this evidence was largely not relevant. I address below the more serious issues between the parties that are relevant to the distribution of matrimonial property. [ 41 ] Ms. Perras in particular raised a number of claims for compensation that were either relatively minor or one-time expenses with incomplete information, including, as an example, a $300.00 credit purportedly received by Mr.

Boddy for removing a vehicle off an insurance policy, and an expense report submitted by Mr. Boddy to his employer in 2015. These matters do not alter my ultimate conclusion and will not be separately addressed, having concluded that there are a number of puts and takes that were made by both parties that cannot be particularized. [ 42 ] The parties displayed very different philosophies regarding the use of joint funds after separation. Mr. Boddy accessed little joint funds after separation. Ms. Perras on the other hand used joint funds to pay personal expenses and to acquire property for herself.

In this environment, I am satisfied that certain adjustments must be made to fairly and equitably distribute the parties’ matrimonial property. These adjustments are set forth in the paragraphs below. Other than those adjustments, however, the parties shall share equally in the matrimonial property valued as at the date of trial. [ 43 ] In the event that a particular physical asset or account is not specifically addressed in these reasons, the property is to be distributed equally. The parties each hold an RRSP with Investors Group Pension that will require equalizing as a result of this decision.

If possible, those monies should be moved without tax implication to either party. [ 44 ] There will be no further adjustments relating to the distribution of personalty other than noted below. There is no adjustment to be made regarding the Glashutte watch as I am satisfied based on the documents produced that the balance of the purchase price was intended to be a gift to Mr. Boddy. 1. The Sale of the Matrimonial Home [ 45 ] In 2013, the parties’ matrimonial home was heavily damaged in the Calgary flood. The parties undertook major renovations to the basement which were ongoing at the time of separation.

In addition, after separation the parties agreed to renovate the kitchen. [ 46 ] Ms. Perras argues that she should receive $30,000.00 from the proceeds of sale of the matrimonial home before the remaining funds are distributed to compensate her for her efforts in overseeing the renovation and the sale of the home, and to address the loss of value arising from the delay in selling the home. [ 47 ] Other than for one week following separation and until January 2016, Ms. Perras lived in the matrimonial home. Ms. Perras was granted exclusive possession of the home on February 20, 2015.

The matrimonial home was sold in November 2016 under Court Order with the proceeds distributed equally to the parties other than $92,713.39 which was paid into Court. [ 48 ] Ms. Perras testified that prior to separation, she took the lead on the home renovation and that following separation, she and her family members invested significant time and effort into the renovation of the home. She testified that she dealt with contractors, made decisions regarding the renovation and cleaned and staged the home for sale.

On cross examination she agreed that both parties’ families contributed to the renovation of the home prior to separation. [ 49 ] Mr. Boddy’s evidence was largely aligned with Ms. Perras’. He conceded that Ms. Perras kept him informed of decisions about the renovations. He agreed that because Ms. Perras was residing in the home, the oversight of the renovations fell to her. However, he testified that he contributed as he was allowed.

He also testified that prior to separation, his family contributed to the improvement of the matrimonial home both financially and by physical effort. [ 50 ] I find that both parties contributed to the improvement of the matrimonial home prior to separation, and that after separation, the responsibility for the renovations fell to Ms. Perras. I find that the allocation of responsibility was largely under Ms. Perras’ direction, particularly in the early months following their separation. Mr. Boddy contributed to the extent he was permitted to but no more. Moreover, Ms.

Perras had the benefit of living in the home. [ 51 ] Ms. Perras provided evidence as to certain expenses relating to the renovation that she paid for personally rather than through the use of joint funds. Those expenses total $2,745.17. Ms. Perras is entitled to an adjustment of $1,372.59 for Mr. Boddy’s contribution to those costs relating to the renovation of the matrimonial home. [ 52 ] The post-separation relationship between the parties changed greatly following events in January 2015 regarding the sale of the matrimonial home. Ms. Perras testified that she believed both she and Mr.

Boddy were in agreement about selling the matrimonial home at that time and that she was transparent with Mr. Boddy about her intentions to sell the matrimonial home using ComFree, a real estate platform that takes a lower commission than a realtor. [ 53 ] In January 2015, Ms. Perras listed the home for sale by producing Mr. Boddy’s personal identification and establishing an email account in his name without Mr. Boddy’s knowledge or consent. While I accept that in taking these actions, Ms. Perras did not intend to deceive either Mr.

Boddy or ComFree, it was a serious error in judgment which resulted in the further breakdown of the post- separation relationship of the parties. Following these events, Mr. Boddy refused to proceed with the sale of the matrimonial home. [ 54 ] Ms. Perras argues that Mr. Boddy unnecessarily delayed the sale of the home and that the value of the home significantly decreased in the intervening period. Ms. Perras produced two real estate appraisals appraising the matrimonial home at $1,565,000.00 as of February 2015 and $1,350,000.00 at February 2016. In March 2016 on Mr.

Boddy’s application, the Court ordered that the matrimonial home be listed for sale at $1,350,000.00. The matrimonial home sold for $1,150,000.00 in November 2016. Ms. Perras argues that had the parties listed the matrimonial home in January 2015, it would have sold for a higher amount and they would have saved costs.

[ 55 ] I am unable to agree. The responsibility for the delay in the sale of the matrimonial home does not rest solely at Mr. Boddy’s feet. Ms. Perras took a clear risk in proceeding to list the home without Mr. Boddy’s consent. In doing so, she damaged the trust that existed at the time. I am unable to find that Mr. Boddy’s decision to stop the listing of the house in 2015 was imprudent in the circumstances. [ 56 ] Other than the adjustment above, I find that it is neither just nor equitable to credit Ms. Perras with a greater distribution of the proceeds from the sale of the matrimonial home.

There will be an equal division of the proceeds of the sale of the matrimonial home. 2. Interim Expenses on the Matrimonial Home and Line of Credit [ 57 ] On being given exclusive possession of the matrimonial home, Ms. Perras was required to pay the expenses for the matrimonial home on a without prejudice basis. Ms. Perras seeks $6,119.00 from Mr. Boddy for the costs relating to the matrimonial home following separation including the mortgage, insurance and electricity. Other than her testimony, there is no evidence before me to confirm the actual expenses incurred by Ms. Perras on the matrimonial home. Ms.

Perras’ claim amounts to around $300.00 per month for the period February 2015 to November 2016. From January to November, 2016, Ms. Perras leased the home and rented a home elsewhere. [ 58 ] I find that Ms. Perras is entitled to recover a portion of her claim for Mr. Boddy’s share of expenses relating to the matrimonial home. Ms. Perras is entitled to an adjustment of $5,000.00. [ 59 ] In addition, Ms. Perras testified that she was required to service the party’s joint line of credit. At trial, Ms.

Perras was uncertain as to the amount paid by her towards the parties’ joint line of credit; however, she produced evidence of having paid $175.25 against the monthly interest amount on the line of credit in 2015. Assuming Ms. Perras paid that amount for 16 months pending the sale of the matrimonial home, she is entitled to an adjustment in the amount of $1,400.00 being Mr. Boddy’s share of those costs. 3. Personal Property Insurance Claim [ 60 ] The parties lost all or most of the contents of their basement in the 2013 flood.

They made two claims against their home insurance, one relating to the repair of the basement and a second claim for personal property lost or damaged in the flood. The personalty claim totalled $66,241.00. [ 61 ] Ms. Perras testified that under the terms of their insurance policy governing their personal property, they were entitled to and received 75% of the value of the lost items. Ms. Perras testified that the remaining 25%, being $16,560.25, would only be paid on replacement of the remaining items. Ms. Perras communicated with Mr.

Boddy about the need to capture this remaining amount prior to the expiry of the claim but says Mr. Boddy failed to reply. Mr. Boddy says he had no permanent home at that time and so had no place to house any of the yet to be replaced property. In addition, he argues that the parties were incapable of cooperating with each other by the time the property claim had to be completed. While I agree that it was unrealistic to expect cooperation between the parties by the time this claim had to be concluded, both parties had counsel and had the ability to reach some form of resolution had they been willing. Mr.

Boddy’s lack of response and cooperation was unwarranted and they both experienced a loss as a result. [ 62 ] With respect to the insurance proceeds not captured, I accept that Mr. Boddy’s actions led to the loss of the remaining value of the property insurance claim. Ms. Perras is entitled to credit in the amount of $8,280.12, being 50% of the value of the uncaptured insurance proceeds. [ 63 ] Both parties make additional claims regarding property lost in the flood, both arguing that further adjustment should be made in their favour.

I am not prepared to order any further adjustment with respect to the personal property of the parties other than as addressed above. Both parties experienced loss as a result of the flood, exacerbated by their separation. 4. Vet Bills [ 64 ] Ms. Perras testified that she believes she bore a disproportionate amount of the costs regarding Archie’s care. Mr. Boddy disagrees and says he bore whatever costs arose when he had care of the dog. He did not present an accounting of those costs and is not seeking any adjustment. [ 65 ] Transcripts of Ms. Perras’ questioning in April 2016 were produced where Ms.

Perras indicated, at least to that date, that she was not necessarily suggesting that Mr. Boddy owed her money for Archie’s care. The evidence produced by Ms. Perras is that she incurred $2,221.37 in costs for Archie’s care from May 2016 until his death in May 2018. In addition, $3,500.00 remains outstanding for the cost of Archie’s final care. [ 66 ] I find that the parties both covered costs for Archie’s care. Based on the evidence of the parties, I am not satisfied that Ms. Perras bore a disproportionate amount.

The parties shall be equally responsible to pay the outstanding invoice of $3,500.00 for Archie’s final care. 5. US Property Expenses [ 67 ] The evidence at trial was that the parties maintained a US account into which the proceeds from renting out their Scottsdale property were deposited and out of which costs for both the Scottsdale and Florida properties were paid. Evidence produced at trial from July 2015 suggested there were sufficient joint funds in the US account to meet two or three more months of expenses for the Scottsdale condo. [ 68 ] Mr. Boddy produced a

summary of costs paid by him with respect to the US properties. I am satisfied that no further

adjustment is warranted with respect to the maintenance, insurance and condo fees or other expenses relating to the US properties. 6. The Dissipation of Joint Funds [ 69 ] The leading case in Alberta on the dissipation of joint property is Cox v Cox , 1998 ABQB 987 . The Court relied on the Black’s Law Dictionary definition for “dissipate” meaning “to destroy or waste, as to expend funds foolishly”: at para 37. The Court reviewed a number of cases where dissipation was alleged and distilled the following principles, at para 46: 1. Section 7 (4) creates a presumption of an equal distribution of non-exempt matrimonial property, unless it would not be just or equitable to do so.

Section 8(

l) provides that one of the factors that can lead to an unequal distribution is where one spouse dissipates assets to the detriment of the other. 3. Dissipation does not necessarily result where an asset is worth less at trial than it did at separation. Dissipation requires a degree of intent although that intent does not necessarily have to extend to intentionally depriving the other spouse of a fair distribution of matrimonial property. It is sufficient if one spouse intends to dissipate the assets (usually for their own enjoyment), and that dissipation 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 family or to maintain existing matrimonial assets. However, the court will look to see if the spouse could have paid those expenses out of income rather than by depleting assets. Purely personal expenses which do not benefit the other party that are paid out of matrimonial property 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. The replacement 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 or fraudulently in deciding whether it was dissipation. If the sale is done in accordance with pre-separation negotiations it may not be considered 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. [ 70 ] Dissipation can be addressed by awarding an unequal distribution of assets or by crediting to the disadvantaged spouse one half of the amount deemed to have been dissipated. [ 71 ] Mr. Boddy’s position is that Ms. Perras dissipated matrimonial assets to his detriment.

Other than with respect to two accounts, in support of this claim Mr. Boddy points to the difference in value in various bank accounts between date of separation and date of trial. In particular, he says Ms. Perras wrongly dissipated the following amounts: CIBC Joint Chequing Account: $13,354.66 PC Simplii account #XXX9: $ 4,984.17 RBC # XXX8: $ 597.96 RBC #XX2: $ 8,422.76 RBC XXX-XXXX3: $ 222.07 Wells Fargo: $ 1,020.27 US RBC Direct: $ 705.91 Various UK bank accounts: £ 1,250.22 RBS XXX9: £18,252.94 [ 72 ] While Mr. Boddy has proven a change in value in various accounts, I am not satisfied that Mr.

Boddy has established that all of the funds claimed have been dissipated by Ms. Perras. Although Mr. Boddy had the opportunity on cross examination to seek an explanation from Ms. Perras regarding the difference in value in these accounts from date of separation to date of trial, he did not elicit that information. He provided no evidence as to use of the funds by Ms. Perras to satisfy the Court that the amounts were in fact dissipated. Given that Ms.

Perras was largely responsible for administering and paying the costs relating to many of the jointly owned assets, I am not satisfied that all of these amounts were dissipated by Ms. Perras. [ 73 ] However, both in her direct evidence and in her re-direct, Ms. Perras testified that she used joint funds to lease a vehicle. She also testified that she used various joint funds to pay personal legal fees. Based on this evidence, some adjustment is necessary. Except for those adjustments expressly discussed, the remaining funds will be divided equally. CIBC Joint Chequing Account [ 74 ] Ms.

Perras communicated her intention to Mr. Boddy to separate after they flew together to the UK for what was to be a holiday. Ms. Perras informed Mr. Boddy of her decision to separate at the airport on arrival. In anticipation of communicating her decision to separate, Ms. Perras transferred $173,000.00 out of the parties’ joint account into an account in her own name. She testified that she moved the money because she was concerned about having access to the money after separation, particularly because she did

not want Mr. Boddy’s mother to interfere with their finances. The money included insurance proceeds from flood damage to the matrimonial home. She wanted to ensure she retained access to the money to pay for the renovation of the matrimonial home that was underway and to fund capital calls into Azimuth Fund III and IV private equity funds. [ 75 ] Ms. Perras testified that she informed Mr. Boddy in September 2014 (after the fact) that she had moved the money out of their joint account. She testified that for several months, Mr.

Boddy did not inquire into the funds or express concern with her actions. [ 76 ] In early 2015, Ms. Perras was directed by the Court to prepare an accounting with respect to the $173,000.00. That accounting was included as an exhibit at trial. By Court Order, Ms. Perras was not permitted further access to the funds without either Mr. Boddy’s consent or an order of the Court. The remaining funds were distributed equally with $13,501.88, paid into court. [ 77 ] In his discovery evidence read in at trial, Mr.

Boddy admitted that he expected that the costs relating to the renovation of the home would be paid for out of the money in the joint account. However, he objects to $13,354.66 of expenses that Ms. Perras paid for out of the joint account.

Those items were listed in his evidence and in his closing submissions as follows (asterisks added): Azimuth IV capital investment $1,562.00 Naturalizer Shoes* $123.96 Browns Shoes* $417.90 Conair Whirlpool* $50.39 Kensington Art $262.50 Bric’s Suitcases* $1,199.91 Michaels $21,99 IKEA $84.91 Walmart $181.29 Winners $75.54 Furniture Rental $913.50 Walmart $86.80 IKEA $93.10 Winners $215.10 ComFree $1,049.00 IKEA $16.77 Gordon Legal $2,000.00 Damen Hoffman Legal $5,000.00 TOTAL $13,354.66 [ 78 ] Ms.

Perras’ evidence at trial was that she “predominantly” used the joint funds to pay for renovations to the matrimonial home, although she acknowledged that some of the money was used to pay “some other expenses.” Ms. Perras admitted that she used a portion of the money to pay her personal legal fees and to purchase a number of personal items to replace items lost in the flood. Her evidence was also that she purchased or rented a number of items to stage the matrimonial home for sale.

The question of contribution to the Azimuth IV private equity fund is addressed below. [ 79 ] Based on this evidence, I find that Ms. Perras did not unlawfully dissipate funds when she used joint funds for the sale of the matrimonial home; however, her use of funds for entirely personal purchases was improper. Mr. Boddy is entitled to a credit of $3,500.00 for 50% of Ms. Perras’ personal legal fees, $524.50 representing 50% of the ComFree expense, plus $896.08 representing 50% of the value of personal items purchased by Ms. Perras (noted by *), amounting to a total credit of $4,920.58 to Mr. Boddy.

RBS #XXX9 and Personal Vehicles [ 80 ] Acknowledging there was confusion at trial regarding the applicable account number, Mr. Boddy alleges that RBS Account #XXX9 contained over £18,000.00 at the date of separation and now contains £17.06. He alleges that the money was improperly dissipated by Ms. Perras. In her testimony, Ms. Perras confirmed that she used joint monies from a UK account to lease an all-wheel drive vehicle following separation. I find that Mr.

Boddy is entitled to and adjustment of £9,135.00, being 50% of the amount of money existing at date of separation in the parties’ RBS UK account. [ 81 ] Mr. Boddy retained the use of a Ford Edge following separation. The parties disagree on the appropriate value for the vehicle. Mr. Boddy says it is worth $8,000 - $12,000.00 now and was worth $12,000.00 at the date of separation. Ms. Perras says the vehicle is worth $12,000.00 now and was worth $22,000.00 at the date of separation. The parties purchased the vehicle for cash for $35,000.00 in 2009.

I was provided no independent evidence regarding the value of the vehicle. [ 82 ] Given that Ms. Perras is being required to account for the use of joint funds to lease a vehicle at the date of separation, I consider it fair and equitable to value the vehicle in Mr. Boddy’s possession as at the date of separation. Without better evidence, I set the value of the Ford Edge at separation to be $15,000.00. Ms. Perras is entitled to an adjustment in the amount of $7,500.00. Florida Property [ 83 ] Ms. Perras testified that in 2010, she used joint funds to purchase a rental property in Florida in her name only.

Both parties agreed the property was purchased for investment purposes and not as a holiday home. Documents produced at trial evidence that the parties discussed the sale of the Florida property after separation. The rental income from that property was deposited into an account solely in Ms. Perras’ name which was used to pay fees and expenses associated with both the Florida property and the Scottsdale property.

[ 84 ] The Florida property was sold in December 2014. Ms. Perras retained the net proceeds from the sale. Nothing turns on the fact that the property was purchased in Ms. Perras’ name alone. It was purchased during the marriage using joint funds. I find that the Florida property was matrimonial property. Presumptively, Mr. Boddy is entitled to 50% of the net proceeds from the sale of that asset. [ 85 ] Ms. Perras argues that she should be entitled to retain the net proceeds of sale of the Florida property because Mr.

Boddy did not accept his share earlier in the litigation and refused to permit her to use the proceeds to pay down the parties’ line of credit then outstanding. Her position does not displace the presumption that Mr. Boddy is entitled to half of the net proceeds of the sale of the Florida property. Mr. Boddy is entitled to an adjustment representing 50% of the proceeds of sale of the Florida property, net of reasonable costs and expenses relating to that sale. Ms. Perras is to provide Mr. Boddy with an accounting relating to the sale of the Florida property within 30 days.

If the parties cannot agree on the amount of the adjustment to Mr. Boddy, the parties can their positions to me in writing within 30 days thereafter. 7. Other Adjustments [ 86 ] Ms. Perras’ 2014 personal income taxes were reassessed resulting in payment due of $2,950.22. This is a matrimonial debt to be shared by the parties. Ms. Perras is entitled to an adjustment of $1,475.11. 8. Unique Property Manulife Policy [ 87 ] In February 2010, the parties purchased a critical illness policy for Mr. Boddy. The policy is designed to pay certain benefits in the event Mr. Boddy is diagnosed with certain illnesses.

In the event that Mr. Boddy is not paid for a covered condition, he may be entitled to a return of premium at a future date. The monthly premium paid for the policy is $453.13. Bank records produced at trial evidence that Mr. Boddy has personally paid the premiums since February 2015. [ 88 ] Ms. Perras claims she is entitled to share in the value of the policy and she estimates the value of the policy based on a calculation of premiums paid, being $24,922.15 at date of separation and $46,672.39 at date of trial. [ 89 ] Whether and to what extent Mr.

Boddy is paid benefits or is entitled to a return of premium on this critical illness policy is highly contingent on his future health and needs. I have not been provided any evidence to estimate the possible value to either Mr. Boddy or Ms. Perras of this contingent benefit. In the absence of better evidence, it is not equitable to require Mr. Boddy to pay Ms. Perras now for a benefit or return of premium that is highly contingent. In the absence of better evidence, in the event that Mr. Boddy receives or elects to receive a return of premium on the Manulife critical illness policy after separation, Ms.

Perras shall be entitled to share in that return of premium on a proportionate basis, calculated by dividing the number of months that the premiums were paid using joint funds, which I set at 72 months, by the number of months of premium paid in total. In making this decision I acknowledge that it would be preferable to allow the parties to make a clean break following this decision, but I am not satisfied that there is a fair and equitable way to do so on the evidence before me. Azimuth Fund II and IV [ 90 ] Ms.

Perras testified that as an employee of Azimuth, she is expected to invest in Azimuth’s private equity funds. During the marriage and with Mr. Boddy’s knowledge, Ms. Perras committed to invest in two Azimuth funds. She testified that her total capital commitment for Azimuth Fund III is $50,625.00 and her total capital commitment for Azimuth Fund IV is $112,500.00. [ 91 ] Ms. Perras testified that for Fund III, $42,799.00 of joint funds was used to pay the capital commitment; she has paid $7,474.00 into the fund following separation with $352.00 yet to be funded.

With respect to Fund IV, $4,281.00 of joint funds was used to pay the capital commitment; Ms. Perras has paid $77,015.00 since separation with $31,204.00 yet to be funded. [ 92 ] By their nature, private equity funds are illiquid investments, the value of which is dependent on the performance of companies under management of the private equity manager. The funds have a predetermined life span in which liquidity must occur. Until one or more liquidity event occurs, the value of the investment is unknown. At trial, Ms.

Perras testified that she was unable to share any information regarding the performance of the funds to date or their current or expected value. [ 93 ] Given the highly uncertain nature of the Azimuth funds and the absence of expert evidence, there is no present way to value these assets for distribution now. To simply return half of the joint funds invested to Mr. Boddy would overlook Mr. Boddy’s agreement to share in the risk associated with the investments. [ 94 ] Therefore, Mr.

Boddy will be entitled to share in the proceeds from liquidation of each fund as those proceeds are received based on the investment of joint funds relative to the overall investment as follows: Fund III: 42% Fund IV: 1.75% [ 95 ] Therefore, from the date of separation forward, as proceeds from liquidation of Fund III are received, Mr. Boddy shall be entitled to 42% of those proceeds and Ms. Perras shall be entitled to 58%. From the date of separation, as proceeds from liquidation of Fund IV are received, Mr. Boddy shall be entitled to 1.75% of those proceeds and Ms. Perras shall be entitled to 98.25%. Ms.

Perras shall provide Mr. Boddy with whatever accounting she receives from Azimuth at the time proceeds from liquidation of either fund are paid.

Is Mr. Boddy entitled to retroactive spousal support for the period January 1, 2016 to August 1, 2018 and if so, what is the amount of spousal support to be paid? Background [ 96 ] Mr. Boddy is a drilling engineer and was relatively consistently employed until April 2015. In April, 2015 Mr. Boddy’s then employer converted his status from employee to consultant and reduced his hours. In January, 2016 with the downturn in the energy sector, his consulting agreement was terminated. Mr. Boddy did not find steady work again until August, 2018.

He is now working on a one year contract with the Government of Newfoundland. His contract is to expire July 2019. [ 97 ] In 2010, Mr. Boddy became very ill and was ultimately diagnosed with an immunodeficiency disease in 2011. Since diagnosis, Mr. Boddy requires regular transfusions of blood cells. Initially those transfusions occurred monthly; they now occur weekly and in Mr. Boddy’s home. [ 98 ] While Mr. Boddy’s health was significantly compromised in 2010 and 2011, since diagnosis and with regular transfusions, he has experienced improvement in his overall health and has few restrictions.

The only material restriction (other than the burden of undergoing weekly transfusions) is from traveling to certain countries. Mr. Boddy testified that his health has not interfered with his ability to work or to find employment. [ 99 ] Until 2015, Mr. Boddy earned approximately $173,000.00 per year as a salaried employee. In April 2015, Mr. Boddy incorporated a consulting company, Flatcap Resources Ltd. (“Flatcap”), through which he consulted. His income since 2015 has been as the sole shareholder of Flatcap. [ 100 ] In 2015, Mr. Boddy’s line 150 income was $59,723.00. In 2016, Mr.

Boddy’s line 150 income was $71,861.00 including $30,000 in dividend income from Flatcap. [ 101 ] In 2017, Mr. Boddy’s line 150 income was $37,006.00 including $30,000.00 in dividend income from Flatcap. Flatcap’s pre- tax corporate income in both 2016 and 2017 is materially consistent with these income amounts. [ 102 ] Mr. Boddy’s evidence was that following separation, he lived with friends for little to no rent or house-sat where he could. He expected this to be an interim measure the parties’ matrimonial property was divided.

His evidence was that in the 2015 time frame, he was living paycheque to paycheque and that he relied on loans from his family. He testified that his standard of living greatly decreased over this period of time. [ 103 ] Mr. Boddy testified as to his efforts to find employment between 2015 and 2018, including his association with private entities as potential avenues to work. He testified that he worked with recruiters and sent out an estimated 300 applications between 2016 and 2018 in an effort to find employment. Exhibits were entered at trial that evidence some of Mr.

Boddy’s efforts to find employment within his field of expertise. [ 104 ] It appears that despite there having been no interim spousal support ordered, Mr. Boddy through his counsel asserted a claim to spousal support as early as 2015 and that claim was included in his counterclaim. At questioning in April, 2016, Mr. Boddy was asked by Ms. Perras about his claim for spousal support and answered as follows: Q: Did your former counsel contact me in the summer of 2015 highlighting that you were in financial distress and in need of funds? A: I don’t believe so. Q: So you don’t recall a July 23 rd , 2015, letter?

A: No. Q: Did Mr. Onoferychuk contact me in September 2015 asking for spousal support? A: I cannot remember. Q: So what’s your position on spousal support? Did you need it in 2015? A: I do not need it at the moment, no. Q: So you don’t need spousal support A: No. Q: And did you need it in 2015? A: No. (transcripts at page 392 line 19 to page 393 line 7)

[105] In cross examination at a trial, Mr. Boddy testified that he is seeking spousal support for 2016 and 2017 “thereabouts.” In hiswritten argument, Mr. Boddy seeks spousal support for the period January 2016 to August 2018. [106] Ms. Perras urges the Court to conclude that Mr. Boddy voluntarily accepted a reduced role with his former employer. She alsoargues that Mr. Boddy’s efforts to find new employment were insufficient and misleading, and that Mr. Boddy did not diligently improvehis prospects of employment either by how he marketed himself or by advancing his progress towards his MBA.

She criticized hisdecision to look only for jobs in his area of expertise. She also testified about Mr. Boddy’s family’s wealth and a possible businessventure Mr. Boddy had with his father. She also argues that Mr. Boddy has not been transparent with respect to his earnings postseparation, particularly as may have been derived from his association with other private entities. In the majority, Ms. Perras’ evidenceregarding Mr. Boddy’s efforts at employment is highly speculative. [107] Since 2007, Ms. Perras has been continuously employed by Azimuth Capital Management in a management role.

Her incomehas fluctuated, with an earning high of $292,000.00 in 2013 and an earning low of $153,199.00 in 2017. In 2015, Ms. Perras earned$251,436.00 although she testified that her 2015 income included a bonus paid for 2014 performance; in 2016 she earned $154,572.00.Her expected 2018 income is lower than 2017 and likely around $120,000.00. Decision [108] I am satisfied that after January 2016 when his consulting agreement was terminated, Mr. Boddy made appropriate efforts to tryto obtain other employment. However, I find that prior to January 2016 and despite having had his hours reduced, Mr.

Boddy did notseek alternate full time employment. [109] After January, 2016, Mr. Boddy took reasonable steps to increase his likelihood of employment by associating with privateentities that were searching for opportunities. He contacted recruitment firms and he applied directly for hundreds of positions largelywithin his area of expertise. By his own admission, Mr. Boddy’s illness has not negatively impacted his ability to work or to findemployment. [110] I am satisfied that Mr. Boddy’s earnings have been fully disclosed and that his income is an accurate reflection of his earnings. Iam also satisfied that Mr.

Boddy’s lifestyle was altered immediately following separation and that this was exacerbated by his job loss.Mr. Boddy was able to purchase a home after the sale of the matrimonial home and the Scottsdale property, both late in 2016. [111] An award of spousal support on a non-compensatory basis is based on the theory that spouses owe each other a mutual duty ofsupport: Bracklow v Bracklow, (SCC), [1999] 1 SCR 420, at para 20. In determining the issue of entitlement, all of theobjectives of spousal support set out in

section 15.2(6) of the Divorce Act, RSC 1985, c 3 must be considered, with no one objectivebeing paramount: Moge v Moge, (SCC), [1992] 3SCR 813. Spousal support is intended to deal with the economicconsequences of marriage breakdown and to relieve economic hardship resulting from it. Needs and means are considerations to belooked at within the context of these statutory objectives. [112] I am left to determine whether Mr. Boddy is entitled to retroactive spousal support on a non-compensatory basis. In reaching mydecision, I have considered the following: 1. Mr.

Boddy did not actively look for alternate employment before January 2016 despite his consulting hours having been materiallyreduced. 2. Mr. Boddy’s loss of employment was completely unrelated to the breakdown of the marriage, although undoubtedly his job loss wouldhave been less onerous had the marriage survived. 3. Both parties maintained their own careers during marriage. Mr. Boddy experienced no loss of earning power as a result of themarriage or its breakdown. 4. Mr. Boddy relied on some financial support from his family after the marriage breakdown and his loss of employment. Even after hisjob loss, Mr.

Boddy could have accessed other financial resources, with the assistance of the Court if necessary. Although not income,the retained earnings in Flatcap in 2016 of almost $30,000.00 was a potential source of money available to Mr. Boddy. 5. Mr. Boddy was able to purchase a home once the proceeds from the sale of the matrimonial home were distributed in November 2016. 6. The parties were able to accumulate significant assets during the marriage. 7. Both parties bear responsibility for the delay in resolving the matrimonial property division. 8. Until his job loss, Mr.

Boddy considered that he had the financial ability to buy Ms. Perras out of the Scottsdale property or thematrimonial home. [113] Given all of these considerations, I find that Mr. Boddy is not entitled to retroactive spousal support. Concluding Matters [114] The parties are granted a divorce. [115] Given the mixed success on the issues raised, each party shall bear their own costs.

Heard on the 1 st , 2 nd and 3rd day of October, 2018. Dated at the City of Calgary, Alberta this 14 th day of December, 2018. Nancy F. Dilts J.C.Q.B.A. Appearances: Jillian Leigh Perras/ Self represented for the Plaintiff Roderick Onoferychuk for the Defendant