Vallieres v Butt, 2019 ABQB 940

Court of Queen’s Bench of Alberta Citation: Vallieres v Butt, 2019 ABQB 940 Date: 20191209 Docket: 4801 172443 Registry: Calgary Between: Marie Henriette Line Vallieres Plaintiff - and - Andrew McDonald Butt Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice P.R. Jeffrey _______________________________________________________ [ 1 ] The parties disagree on the amount of spousal support that Andrew should pay to Line following the breakdown of their long-term relationship.

They agree that she is entitled to spousal support and that he must pay it to her indefinitely, that is, monthly without any fixed end date. [ 2 ] They disagree on other issues too, but largely because each affects the amount of spousal support payable. I will address those matters in the course of this judgment, which follows the parties’

summary trial. [ 3 ] According to s 15.2(4) of the Divorce Act , RSC 1985, c 3 (2 nd Supp ), in deciding spousal support I must take into consideration the “condition, means, needs and other circumstances of each spouse,” including: (

a) the length of time the spouses cohabited; (

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

c) any order, agreement or arrangement relating to support of either spouse. The condition, means, needs and other circumstances of Andrew

and Line [ 4 ] The parties cohabited for 27 years. It began in early 1990; they wed in early 1991. They separated in January 2017, but remained within the same house, from which their combined resources covered their combined expenses. Line moved out on September 11, 2017. They regard that as the date of their complete separation. Line asks for spousal support from September 11, 2017 onwards. Andrew says it should start January 1, 2018, to match all the other agreements arising from their separation. I will come back to this later in my judgment. [ 5 ] Line is now 62 and Andrew is 55. They raised three children.

In 1999, Andrew and Line began to home educate them, until they reached high school. Andrew handled their math and sciences; Line handled the rest. [ 6 ] The younger two of their children are twins (born July 1998) and both are roughly mid-way through their undergraduate programs at university. Their older child interrupted his studies but is returning to them soon. The parties agree that the twins continue to be children of the marriage, as defined in the Divorce Act , and that the older son is not. [ 7 ] All three young adults reside with Andrew and will continue to do so going forward.

The twins have each earned nominal income and scholarship monies. What they earn becomes their spending money. They remain economically dependant on their parents and reside with their father, who is providing for them, including a vehicle the twins share. They are forecast to graduate somewhere between April 2021 and April 2022. They require more than four years for their degree programs despite taking full course loads, because of having to change their chosen majors. [ 8 ] The older child recently returned to Canada from abroad and plans to resume his university education.

It appears he too is residing with Andrew, but his long-term plans in that regard are not clear. It is clear that the parties are not regarding him as a child of the marriage. From that I infer he is not economically dependent on the parents, though he may receive assistance from one or both in the short term, maybe even the longer term. To the extent that occurs, I find it will be Andrew who provides the majority of that assistance. [ 9 ] The parties have agreed that, commencing January 1, 2018, Line shall pay Andrew the sum of $200 per twin each month, until they cease being children of the marriage.

The parties ask me to identify that date of cessation, for purposes of adjusting the spousal support calculation. [ 10 ] The parties spoke as though the twins will cease being children of the marriage when they are finished their schooling. I find, however, that both will remain children of the marriage for at least a few months post completion of their degree programs. I reach this conclusion based on the twins not having to fend for themselves during their university education, having had less actual work experience by then, and from their not being accepted into their chosen majors.

This has lengthened the time they must each continue at university but also suggests they are not at the top of their respective classes and therefore less likely to land jobs as quickly upon graduation as other graduates. [ 11 ] For the overwhelming majority of their cohabitation, Line was not in the workforce earning an income or pursuing her career. Commencing about 1993 she maintained their home and played the primary role in raising the children.

Prior to that she was working in French language training, including some full-time work with Petro Canada. [ 12 ] Line also started a pre-school during their relationship. She is no longer active in it, but it demonstrates her resourcefulness, initiative, and problem-solving skills. [ 13 ] Later during the relationship Line provided paid instruction and tutoring to those learning French. She does so now through her own business. Gross business revenues have reached about $12,000 for 2019.

She writes off against that business revenue some portion of her home and other costs, which she is permitted to allocate for tax purposes as business expenses. [ 14 ] Andrew says Line has made no effort to grow that business or to supplement it with other employment since their separation.

She did not deny that allegation, presenting no evidence to refute it. [ 15 ] Andrew says Line’s skills are in demand and points to a new contract she signed to provide such training on behalf of an institution connected with the University of Alberta, that came to her only because someone she knew connected her with the opportunity. In other words, she did nothing to seek such added work and only has it because of the effort of the third party. [ 16 ] That contract is for 6 months, at $33.50 per hour, for part-time hours.

The employer recently increased the number of hours and has indicated its interest in extending or renewing the contract. This was not in admissible evidence, just volunteered to me in open court, but the comments are against her economic interests on this application, and so I consider them reliable. The same was true of Andrew’s brief comments in response to my questions about the nature of his various forms of incentive compensation and so I similarly have found them sufficiently reliable to consider here.

Neither party disagreed with or challenged the veracity of what the other told me. [ 17 ] I find that but for the arrival of their children, Line would have advanced in her career as an educator, either French language training or administration, or some combination of the two. Therefore, an achievable income progression and level emerges that, but for the marriage, she is likely to have reached, assuming of course she would have continued in that field.

I consider that assumption to be a reasonable one, given she returned to that endeavour during the latter years of their relationship and has remained in it since. [ 18 ] Andrew is an engineer and for the last number of years has been employed by successive owners of the Alliance Pipeline. During his relationship with Line, Andrew also completed two further degrees, receiving an MBA in 1996 and a PhD in 2014. [ 19 ] For the 4 years prior to 2019, Andrew’s income averaged in the low $400,000s. His employer, Alliance Pipeline, was owned privately, equally by two other companies.

Since the parties’ separation, those two companies dismantled the management and operations of Alliance Pipeline, one taking on operations (and some of the associated Alliance operations staff) and the other taking on the financial and commercial functions (and some of the associated Alliance staff). Andrew was fortunate to retain his employment post

restructuring and now works for the Alliance parent company that took on its commercial activities (Pembina Pipelines Limited). [ 20 ] The change had a few economic effects for Andrew. Among them, his bonus (called “short-term incentive compensation” or, herein, “ STIP ”) was less than half the amount of the year prior (which itself was also lower than the previous year).

This could reflect a general downward trend in discretionary compensation in Calgary, because of the prevailing difficulties in the oil patch and associated pipeline industries, or it merely could reflect differing performance expectations and ratings by his new employer, when deciding on bonuses and similar discretionary income to award.

Regardless of the cause, I find that commencing 2019, Andrew’s discretionary income has declined for the foreseeable future and that an average of his past four years compensation would overstate his actual current and future income. [ 21 ] Andrew’s income is comprised of a fixed component and a variable component. The fixed component is his assured base salary (the “ Salary Income ”); in 2019 it is $224,600. This portion of his income has remained relatively flat for the last few years.

I find it will remain so for the next few years at least. [ 22 ] The variable portion of his income is entirely discretionary year to year (the “ Discretionary Income ”). It is comprised of his STIP, different types of long-term incentive incomes (“ LTIP ”) and an employee savings plan that Andrew could opt into. Both STIP and LTIP are at the absolute discretion of his employer; he is not assured of receiving any such income.

The STIP may not be awarded in any given year, for example, if the employer’s performance overall does not allow it, in management’s view, despite stellar individual employee performance. [ 23 ] Most of the types of LTIP Andrew might receive do not vest immediately, so even though some may be “granted” to Andrew in any one year in respect of the performance criteria for the prior calendar year, they only vest in him (and therefore he only can receive them) if he remains with his current employer for a specified time into the future.

Most only vest in thirds after the passing of each of the ensuing three years, again, as long as he remains with his employer each of those years. By the end of the 3 rd year after the grant, 100% will have vested. The amount granted is discretionary, based on his employer’s ratings against some stipulated performance criteria, one of which is the employer’s perception of Andrew’s performance in that prior calendar year.

His performance in the subsequent 3 years is no longer a factor to his receipt of each third of that grant, but he must remain employed with the company to receive the applicable third over the immediate next three years. If he or his employer terminates the employment, the most he will receive is the portion that vested on any anniversary of the initial award, that occurred prior to the end of his actual employment (including any period of reasonable notice upon termination).

Each successive year he will be eligible for a new such grant, that then vests gradually over the next three years. [ 24 ] One of the types of LTIP for which Andrew is eligible annually is an award of stock options. These have an exercise price set at the time of their granting, and (once vested) can be exercised at any time up to 10 years from the grant (subject to any restricted periods that may be applicable to Andrew, such as perhaps insider trading black-outs).

Neither party offered any evidence of the present value of the stock options awarded since separation that were not already divided as matrimonial property, such as a Black-Scholes formula valuation. [ 25 ] These forms of LTIP Discretionary Income that Andrew is eligible to receive, I find, are designed to incent both his long-term retention with the company and, over that longer term, to tie his economic interests to the company’s economic outcomes to promote behaviours that serve the employer’s longer-term profitability not just its short-term profitability. [ 26 ] Andrew also receives a type of Discretionary Income that is within his control, namely contributions into an employee savings plan.

He can receive an additional dollar from his employer for every dollar he contributes into his company savings plan, up to a maximum per year. The employer contributes it directly into Andrew’s savings plan. [ 27 ] Line and Andrew have already divided their matrimonial property; they completed that process mid 2018, based on valuations as at the end of 2017. They have chosen to divide it equally. Each received assets valued at approximately $468,000.

Each also came away from the division of assets with roughly $316,000 in registered pension savings (such as RSP funds), plus an equal share of their combined QPP and CPP credits. [ 28 ] Line used $350,000 of her share towards the purchase of a residence. The total cost was $550,000. There is no suggestion here of any irresponsible dissipation by Line of her share of the matrimonial property remaining after the substantial down payment on her new residence and her expenses transitioning into that home and to a life separate from Andrew.

Line’s remaining assets are insufficient to generate any income on which she could rely. [ 29 ] Line currently receives pension income that was not split with Andrew in their distribution of matrimonial property. It results from her employment years earlier at Petro Canada. She started receiving that monthly annuity earlier this year, in the amount of $220 per month. After 3 years it shall reduce to $161 per month and continue at that rate until her death. [ 30 ] Line will be entitled to receive $423.11 from CPP/QPP monthly, if she elects to start receiving the payments upon reaching age 65.

If she waits until after reaching age 70 to start, the monthly amount will be $600.82. [ 31 ] Line provided her monthly budget of income and expenses. It states that it is for the 12 months between May 2016 and April 2017, all of which was before she left the house that is now Andrew’s, in September 2017. This could just be a typographical error, or it may reflect predictions more than actual experience upon separation.

In any event, I find a couple of the line items in her personal budget to be somewhat exaggerated (for example the amounts for food, medications, sundries, car operation (some of which is included twice – and this cost does not include such amounts incurred for business purposes), home maintenance and miscellaneous). I find her current monthly expenses to be more in the range of $5,250. [ 32 ] Of that total, Line’s monthly home ownership costs (mortgage, insurance and taxes) are currently $2,037 per month.

It is clear from the amount of her monthly mortgage payment ($1381 per month), given mortgage financing rates since 2017, that a meaningful portion of that payment is reducing the outstanding principal mortgage debt each month, such that over time her home equity will

continually increase, assuming her property value holds constant. [ 33 ] Andrew’s Discretionary Income received during 2017 was included in the division of matrimonial property, for the year ended December 31, 2017.

For example, his STIP and the accumulated amount in his employee savings account were treated as matrimonial property and shared equally. [ 34 ] In July 2018, the parties entered into a Consent Interim Order that, among other things, required Andrew to commence paying spousal support to Line monthly as of January 1, 2018, and Line to pay the monthly child support described earlier. [ 35 ] I find the parties’ incomes for purposes of determining any spousal support due in the past (before any payment of interim spousal support) are: YEAR ANDREW LINE 4 2017 $ 235,212 1 $ 4,000 2018 401,409 2 6,860 2019 319,896 3 15,000 1 The amount for Andrew in 2017 is Salary Income only, net of all Discretionary Income, since all such Discretionary Income prior to January 1, 2018, has already been shared as matrimonial property.

Further, I reduced that Salary Income amount by half of the full amount in his employee savings plan account, since up to half of that total could have been contributed from his 2017 income (see para 53 below) and Line already received an equal share of it. This avoids any risk of ‘double dipping’ by Line, receiving both proceeds of matrimonial property and spousal support from the same dollars. 2 Total income from all sources, according to Line 150 on his Notice of Assessment from CRA.

This includes some cashed out vacation entitlement (in the range of $26,000), some or all of which may have accrued post separation, that was more compensatory for a loss he incurred individually post separation than earned in the usual sense. 3 Comprised of $224,600 Salary Income he is virtually certain to receive by year end 2019, plus all Discretionary Income he received early in 2019 in respect of 2018 performance.

No further Discretionary Income is reasonably expected within 2019. 4 Line’s 2017 and 2018 incomes are comprised entirely of her net income from her personal business and added back to it certain of her home expenses, such as rent, to avoid any double counting of such expenses for these purposes. Her 2019 income adds to her probable self employment income, her contract income for the latter part of the year and her retirement annuity from employment years ago.

In each case the figures are rounded. [ 36 ] Looking ahead, I find that in 2020 and the years immediately following it, Andrew will continue to receive approximately $224,600 as Salary Income. The base salary in this form of compensation scheme is typically set at 80% of market compensation for people fully functioning in comparable roles, for employers to remain competitive with the compensation they provide for comparable responsibility, authority and service.

The other 20% is received, by more senior employees like Andrew in this sort of compensation scheme, from the employee achieving their target level of STIP. More or less than the target amounts of STIP (bonus) are available depending on the employee’s year end ratings and the company’s performance, and the relative weightings of each. As a result, some of the competitive salary is at risk of not being received. In good years, more than a competitive salary can be received. That is the incentivized aspect.

It is this aggregate income (the aggregate of Salary Income plus STIP) to which I consider Line entitled to half, on a net after tax basis, as I describe further below. [ 37 ] The remainder of Andrew’s forms of employment income incent his staying with his employer over the longer term. Resulting Spousal Support Due [ 38 ] According to s 15.2(6) of the Divorce Act , spousal support should: (

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

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

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

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 39 ] The basis of Line’s entitlement to spousal support is compensatory. Through her non-monetary contributions to the relationship, she conferred advantages upon Andrew, from which he now enjoys the more substantial income. Further, over the time of their relationship, she lost her own opportunity to progress in her career. Over this lengthy time, I find their interests have fully merged one with the other.

For the initial years of their separation at least, therefore, their entitlements to their joint earning capacity are equal, as are their responsibilities for adverse economic consequences continuing to flow from their union (the most significant example being the economic needs and plans of their children). Looking out a few years, incentives upon Andrew continuing to earn an income commensurate with his abilities and upon Line to pro-actively strive towards full employment commensurate with her abilities, warrant some degree of differential treatment.

That is, they should more significantly accrue to each of them individually in accordance with their

success or failures in those efforts post separation. [ 40 ] The parties supplied the Court with a helpful range of Spousal Support Advisory Guidelines (“ SSAG ”) calculations and tables, as is their obligation: Wild v Wild , 2019 ABCA 159 at para 9 . [ 41 ] Accurate income figures are available for all years under review up to the end of 2019. When it is available such more accurate income information must be used, absent agreement of the parties otherwise. For example, a previous year’s income cannot be used as a proxy for the current year when the current year’s income is known, all other things being equal.

Those known income figures are listed above. [ 42 ] Further, there is no useful purpose in deeming Line’s income higher than it actually was in the past, for example for work Andrew says that she should have pursued but did not. The effect of course would be to reduce Line’s spousal support entitlement for past years. In this case that would only penalize Line retroactively, not “promote [her] economic self sufficiency” prospectively, which is the statutory objective. [ 43 ] The SSAG self-describe as generating less reliable calculations for payor incomes above $350,000.

The farther incomes are above that ceiling, they report, the greater the tendency for past Court determined spousal support awards to fall in the low-to-mid range for amount. In that regard, the commentary to the SSAG state (emphasis in original): It is wise to calculate the ranges for alternative income levels : for the $350,000 ceiling (as a minimum) and for the full income (as a maximum), as well as for a range of intermediate incomes (to assist … in triangulating an outcome).

This becomes necessary for Line’s spousal support in 2018. 2018 [ 44 ] I set spousal support due Line by Andrew at $10,250 per month for each month of 2018. [ 45 ] Under the SSAG, at $350,000 for Andrew and $6,860 for Line, with adult children and accounting for the tuition and related costs and amounts used by the parties in their calculations, the equal entitlement amount (the high end of the range) is $10,096 per month. At $401,409 for Andrew, this amount increases to $11,481.

At $375,409, that is, net of all the monies he received to compensate for unused vacation, the high end of the range is $10,780. [ 46 ] 2018 was the first full year after their separation. The parties were entitled equally to the entire amount of Andrew’s and Line’s combined incomes, after adjusting for his bearing their combined responsibility for the children’s expenses. I factor in the vacation payout monies he received, that was more compensatory than earned in the usual sense, and recognize the reduced reliability of the SSAG for income levels above $350,000 per year.

Andrew’s income is less than 15% over the $350,000 figure, so I do not consider the table amounts so suspect as to not still reasonably approximate an appropriate amount to more equitably share the adjusted gross income difference between the parties after considering the grossed-up child support amounts (actual and notional). [ 47 ] To the extent this monthly amount ($10,250) exceeds or falls short of what was actually paid under the interim order, an amount shall be due one to the other. 2019 [ 48 ] For 2019, and using the incomes identified at paragraph 35 above, I set spousal support due from Andrew to Line at $8,600 per month. [ 49 ] This is down slightly from the high end of the range, at $9,009.

In 2019, the parties’ older child has returned to the fold and has an adverse economic effect on the parents, but primarily on Andrew, regardless of whether he meets the definition of a child of the marriage, which I reflect in migrating slightly lower in the range under the SSAG.

Both parties bear equal responsibility for the remaining adverse economic consequences of their union (largely, their children’s living and education costs). [ 50 ] Again, to the extent this exceeds or falls short of what was actually paid under the interim order, an amount shall be due one to the other. 2017 [ 51 ] The parties dispute whether any spousal support is payable from September 11 to December 31 2017. [ 52 ] Andrew opposes an award of spousal support for this period, saying it would constitute ‘double dipping’ (since Line already received half of his Discretionary Income and his employee savings plan) in the distribution of matrimonial property.

He says Line never made this claim until October 2019 when her brief for this application was served, containing the revelation. He notes that both their matrimonial property settlement and their agreement on interim spousal support worked off of and from the date of January 1, 2018. Lastly, he argues that she was not disadvantaged over those 3 ½ months in 2017. [ 53 ] To ensure there is no ‘double dipping’ (Andrew paying Line for the same dollars received, once in the division of matrimonial property and again in the calculation of spousal support) I have done two things.

First, I have excluded the Discretionary Income from the income calculation for 2017. Second, I have backed out of his income half the amount indicated as his employee saving plan holding as at December 31, 2017, that was divided between the parties as matrimonial property. A maximum of half of that amount could have come from Andrew’s monthly base salary (the other half received from the employer as the matching portion.) Some of that balance may represent the growth in value of the holding and some may have originated as payroll deductions in years prior to 2017. But

to be certain Andrew is not paying twice on the same dollars, I have backed out the full 50% of the $8,419 used by the parties in their split of the plan as matrimonial property (that is, $4,210). [ 54 ] I find that Line did make a claim for retroactive spousal support prior to February 2017 when she filed her statement of claim, therefore she had placed in issue her entitlement to an amount for spousal support throughout the period of Sept 11 to Dec 31 2017. Lastly, her right to spousal support for that period does not depend on her proving disadvantage during that time.

Such an approach would unjustly enrich payors; it would reward litigants for dragging out the court process. In any event, the evidence suggests that Line did incur substantial expense over the months that included that 3 ½ month period, without any commensurate income.

She contributed to Andrew’s income earning capacity throughout the relationship – their interests had fully “merged” by the time of their separation – such that she was entitled to half his remaining earnings in 2017 that were not dealt with in the property distribution. [ 55 ] That said, the pattern of dealings between them does suggest January 1, 2018, was the basis for their commencement date in all their calculations. I accept that January 1, 2018, was the date for which Andrew took positions on all matters, including spousal support, and was his reasonable expectation heading in to this process.

Andrew may well have ‘left more on the table’ in negotiating other issues, believing his spousal support obligation would not commence until January 1, 2018. [ 56 ] Both positions have merit. Nothing in the written words attached to their settlement of matrimonial property or their consent on interim corollary relief is contrary to either position.

They are silent in that respect. [ 57 ] In these circumstances, I consider the equitable result to be to grant Line an amount equivalent to spousal support for half that period of time (half the three and two-third months), and require it to be paid in 12 equal installments in the future as part of future spousal support. In this way, favourable tax treatment is more likely to be available for these amounts; it is past the time for which the parties can file adjusted tax returns for 2017. [ 58 ] To be clear, I make no award of retroactive spousal support for 2017.

I do, however, make an additional award of spousal support to Line in 2020, that is, retrospectively , to reflect her missed entitlement in 2017. [ 59 ] In calculating the amount of 2017 spousal support, I use the high end of the range with the income inputs at paragraph 35 above. This results in a monthly amount of $6,224. Sept 11 to Dec 31 2017 comprises 112 days. Half of that is 56 days. 56/365 of 12 times $6,224 equals $11,605.48. Calculated another way, half of three and two-third months is one and five-sixth months. One and five- sixth months times $6,224 per month equals $11,410.67.

I set the amount due by Andrew to Line for unpaid spousal support in 2017 between those two at $11,520.

I require that it be repaid as future spousal support in 2020, by Andrew adding 1/12 th of that amount (that is, $960) each month to his spousal support otherwise payable to Line in 2020. [ 60 ] If the parties conclude that this requirement of regular periodic payments prospectively will not suffice for CRA to allow Andrew to be able to reduce his taxable income by this amount and Line to be taxed on this amount as income to her (as are assumed by the SSAG generated amount of $6,224), then I suspend his obligation to do so and the parties must either agree on a lump sum amount in lieu that reflects the added tax consequences to their net disposable incomes in that part of 2017 or, if they cannot agree, return to me with suitable evidence for that valuation.

Ongoing Spousal Support [ 61 ] In my view Andrew should receive any upside of his LTIP increasingly over time, to incent his continued employment for Line’s long-term benefit. Line benefits from him doing so by continuing to share in the Salary Income and STIP.

If Andrew is unsuccessful in remaining with his employer, or if he resigns from his employer, both Andrew and Line lose from the loss of the significant Salary Income and STIP. [ 62 ] Likewise, any increase to Line’s earned income over time should accrue entirely to her, as I find that only the base amounts experienced during and soon after the relationship resulted from their combined contributions.

All incremental amounts going forward will result from Line resuming more active remunerative efforts from which she should solely benefit. [ 63 ] If there is sufficient demand for French language training services such as Line can offer, I find Line capable of earning income from her French language training on a full-time basis. Her favourable feedback from her new contract employer after only a short time engaged there, plus her sustained revenue over many years from her personal business in that field, demonstrate that to me.

What has not been demonstrated is that there is sufficient demand for such services, from which to know that she could quickly move to a full-time equivalent engagement. The fact her new part-time fixed term contract employer was out looking for someone like her, suggests that it is more likely than not that there is more demand than supply for her services. [ 64 ] The $33.50 per hour she receives is a reasonable proxy for the net amount she would earn via her own business, were it practicable for her to become economically self sufficient.

That would look like, roughly, 4 weeks a month for 10 months of the year at probably averaging 35 billable hours per week, or 1,400 hours per year at $33.50 per hour. That is, $46,900 per year. [ 65 ] I find it is not practicable for her to become economically self sufficient, given both her age, the nature of the work (the rotation of private clients from their changing interests), and the time it is likely to take for her to grow her book of business to her maximum capacity.

Line currently has the ability and capacity to increase her income, but I think it unlikely she will achieve economic self-sufficiency before she is eligible to receive increased pension and retirement monies and before the frailties of age begin to diminish her capacity and energy levels. [ 66 ] That is not to say Line need do nothing in that direction, living out her days leisurely while Andrew labours thanklessly.

My approach to spousal support in this case is designed to enable each of Line and Andrew to reap some of the rewards of their own post separation efforts over the longer term, while still accruing to each their rightful equal sharing in the more certain incomes they established during their period of marriage.

[67] I set spousal support in 2020 and the ensuing years until a review is triggered, at $5,860 per month, plus 45% of the grossamount of Andrew’s STIP. The latter amount shall be payable once per year on the first of the month immediately following his receiptof that amount. [68] The $5,860 amount represents the mid-point (the 4th iteration out of 5) that falls between the middle and high numbers on theapplicable SSAG table [the full range is $4,626 at the low end and $6,283 at the top end, using the base salaries of each determinedabove: $224,600 for Andrew and $15,000 for Line].

In my view, this point on the range and using the base salaries of each are suitablefor these next years – the remaining “with adult children” years and before Line is likely to draw on additional retirement monies.Anything either Andrew or Line receives in excess of those incomes, subject to the review parameters below, shall be for his and her ownsole benefits. In this way, Line will bear the natural consequence of, it appears, not having made efforts to increase her income followingthe separation.

But it does not affect her entitlement to the portion of Andrew’s total compensation to which she equally contributed. Toincent Andrew remaining with his employer long term, for which both parties will benefit annually, he shall retain for his sole benefitthose long-term incentives that vest for so long as he remains employed there. He also takes the entire risk on them being at all accretiveover time, over which Line has no control (for example stock options finally vesting and the stock price never thereafter exceeding thestrike price).

It also avoids any adverse consequences, such as tax effects, for Line arising from Andrew’s timing of his monetizingcertain forms of the LTIP. [69] The 45% of gross STIP is to result in an approximately equal sharing after tax, on a net disposable income basis, of theentirety of Andrew’s full market-based salary. The STIP when awarded at performance target levels (not above or below target), whenadded to the Salary Income in a year, comprises Andrew’s full market-competitive base salary. A roughly equal share in this afterseparation is Line’s entitlement.

Line benefits in this way only for so long as Andrew remains employed. She benefits proportionate toAndrew, from his STIP for the year awarded above or below target.

Streaming all the LTIP to Andrew maximizes the incentive on himto remain so employed for as long as possible, for their mutual benefit. [70] Spousal support shall continue at this level in the years after 2020, until a review is triggered or the parties agree otherwise,subject to the mandatory recalculation described next. [71] After Line reaches 65 years of age, the parties shall recalculate spousal support under the SSAG using the actual amount ofAndrew’s then Salary Income and the “without child support” SSAG formula (and see paras 72 to 76, below).

For Line’s income at thetime, her monthly Petro Canada annuity will have already declined, her self-employed income is kept the same (regardless of whethershe has been able to increase it – such increases are entirely to her benefit)(and, of course, any self-employment income on her part neednot stop at age 65, her health permitting), plus she begins to receive her CPP pension and, I find, 5% of her registered pension value,which by then shall have appreciated. Using these figures, I set her total income for use in spousal support calculations, in the full yearfollowing her reaching 65, at $37,500.

The parties shall use the mid-point amount between the middle and high numbers on the applicable SSAG range (the 4th iteration out of 5) as the amount of spousal support then payable monthly, plus Andrew shall continue topay once per year 45% of the gross amount of STIP to Line as spousal support. End date for Child Support [72] The parties also ask the Court to set the end date for child support Line is paying Andrew.

They understand that after thatdate, spousal support will require redetermination, perhaps for example using the “without child support” formula under the SSAG. [73] I conclude that date to be August 31, 2022. [74] August 31, 2022, is four months after the date that the twins shall complete their first university degrees, based on theiractions and experiences to date, which I find will be the end of April 2022. [75] In addition to my comments at para 10 above, the twins’ programs of study are ones that are less likely to lead to employmentimmediately after they finish and, even if they did, it still takes at least a bit of transition time for them to withdraw from their parent’scharge and alone obtain the necessaries of life.

This will happen at different times for each of the twins but, on average it will be, I find,four months each, taking them to the end of August 2022. [76] Therefore, the first date for which a SSAG calculation may be conducted on a “without child support” basis will beSeptember 1, 2022. Future Review(

s) of Spousal Support [77] Spousal support of indefinite term is always subject to variation on demonstration of a change of circumstances: s 17(4.1) ofthe Divorce Act; see also: JLH v RSW, 2017 ABCA 98 at para 32. [78] The right to seek such a variation is triggered, regardless of any other more specific event that a court may order or on whichparties may agree, whenever there is a change in circumstances.

Such a change in circumstances should be “material” and occurswhenever something happens that, had it been known at the earlier time, would likely have resulted in different terms: LMP v LS, 2011SCC 64 at para 32, citing Willick v Willick, (SCC), [1994] 3 SCR 670. [79] Once the twins cease being children of the marriage, their economic impact on Andrew will lessen significantly; additionalfunds will be freed up for possible sharing as spousal support.

This is reflected in the Spousal Support Advisory Guidelines, whichgenerate higher levels of spousal support when using the “without child support” formula than using the “with adult children” formula. [80] Since I have contemplated the effects of both Line’s turning 65 in another 3 years, gaining access to her own added pension

income (which will place downward pressure on the appropriate amount of spousal support) plus the date at which the twins cease being children of the marriage (placing significant upward pressure on the appropriate amount of spousal support), as directed above the parties shall recalculate spousal support payable after these multiple events using my findings above for the income inputs and the “without child support” formula, ceteris paribus .

The appropriate amount of spousal support will be the 4th iteration out of 5 of the resulting SSAG range. [ 81 ] The future circumstances that remain largely unknown relate to Andrew’s retirement, its timing and his resulting income levels exclusive of any monetized or trailing LTIP monies. Therefore, spousal support may be reviewed at such time, to consider whether a variation is warranted. [ 82 ] The following events shall satisfy the threshold for the parties to review spousal support levels, without either party having to demonstrate that it constitutes a material change in circumstances.

These events are of course in addition to any demonstrated material change in circumstances: a. Andrew’s Salary Income increasing or decreasing by more than 15% from $224,600; b. Line being prevented from earning her self-employment income any longer by a reason outside her control, such as health or disability; c. Andrew’s employment changing to another jurisdiction (since SSAGs vary by province to account for differing provincial taxation rates); d. Either party entering into any new relationship affecting their conditions, means, needs and circumstances; and e.

Any significant change in tax laws affecting spousal support payments or income. [ 83 ] The above events do not necessitate a review of spousal support, but enable a party to trigger a review without having to first prove a material change in circumstances.

In the event of a party becoming aware of any such event, that party must disclose it immediately to the other party, regardless of whether the party learning of it wishes to trigger a review. [ 84 ] Within 30 days of notice from a party of any of the events above in paragraph 82, or of either party alleging a material change in circumstances, both parties must disclose all their information relevant to their present and future condition, means, needs and other circumstances. [ 85 ] In any event of that disclosure obligation, the parties must disclose annually to each other by a date they agree upon, all relevant information about their prior year’s income and revenue from all sources. [ 86 ] In the event the parties believe any of my decisions herein may result in consequences I had not intended, or require clarification of any decision herein, they may return to me before a judgement roll is filed and provided they do so within 30 days.

If the parties cannot agree on costs of this

summary trial, they may address me on that also, again provided they do so within 30 days. Heard on the 13 th day of November, 2019. Dated at the City of Calgary, Alberta this 9 th day of December, 2019. P.R. Jeffrey J.C.Q.B.A. Appearances: Robert A. Knight for the Plaintiff Tara G. Tiefenbach

for the Defendant