IMD v RAD, 2019 ABQB 963

Court of Queen’s Bench of Alberta Citation: IMD v RAD, 2019 ABQB 963 Date: 20191216 Docket: 4803 167083 Registry: Edmonton Between: IMD Plaintiff/Respondent - and - RAD Defendant/Applicant Corrected judgment: A corrigendum was issued on December 17, 2019; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction

[ 1 ] Graesser J. granted a comprehensive family-law order on October 17, 2014. Forty-nine months later, the order was entered. In the meantime, circumstances had changed. Both parents seek parenting and support changes as a result of those changes. [ 2 ] The mother seeks to narrow the father’s parenting role.

She also seeks ongoing child support based on the parties’ current incomes and retroactive child support (ss 3 and 7), as well as a ruling that she has no obligation to reimburse the father for certain mortgage-related expenses borne by him. [ 3 ] The father seeks to enlarge his parenting role (from every-third-week access to shared), to set the quantum of support arrears (less than the mother seeks), to set the mother’s share of claimed joint-debt payments by him, and to set ongoing child support. [ 4 ] The parties agree that no further spousal support is payable by the father but disagree on whether any retroactive spousal support is payable. [ 5 ] I dismiss both applications to change the current parenting, award retroactive child support in line with the father’s actual incomes in 2014-2018, dismiss the mother’s bid for s 7 support, largely dismiss the father’s bid to tag the mother with co-responsibility for post-separation mortgage and tax payments (finding that she is so responsible from January to October 2014), award spousal support arrears through to the end of 2017, declare that no further spousal support is payable, and direct ongoing child support (s 3 and s 7) in line with the parties’ current incomes, all as explained further below.

B.

Changed circumstances [ 6 ] The ground indeed shifted after October 2014: • the matrimonial home was foreclosed on; • the father lost his job, which had required extensive out-of-town work (home every third weekend); • as a result, he moved home full-time his parents (where he had resided every third weekend to that point); • he obtained a new job, which does not require multi-day out-of-town work or nights shifts; • his income has dropped considerably over the past four years; • he has not resided with his parents since 2017, when he set up a household with his new partner; and • the mother has a new partner. [ 7 ] I find that, at minimum, the father’s changed employment and residential circumstances constitute material changes in circumstances bearing on parenting and child support.

C. Positions on parenting [ 8 ] Under Graesser J.’s October 2014 order, the children reside primarily with the mother, with the father having access every third week from Saturday morning until Thursday evening. [ 9 ] The mother wants to narrow that access to weekend-only, every third week. She cites the following evidence (drawn from her August 12, 2019 affidavit): … both boys [ages 7 and 10] have indicated to me that they do not want to continue with the current

schedule because they have to wake up at 6am when they are home and they have a 45-minute to one-hour drive to school. [Father lives in Fort Saskatchewan; mother in Edmonton.] There has been an issue with attendance at school with the [father] failing to take them to school on certain days and that has impacted their education, something I must compensate for when the children at home with me. There is also a lack of consistency and implementation of their regular

schedule with the current parenting scheme, and the children have expressed their desire to see it change.

I agree that a change to parenting is necessary to ensure that the children have a stable life and consistency in their home as the disruptions have taken their toll on both children. … [B] is allergic to any animal with fur, and the [father] has a dog and a bunny …., and when he spends time at the [father’s] home, [B] has allergic reactions which have been observed by the [father] and which he finally acknowledged. [The father] has previously refused to acknowledge [B’s] allergies and unfortunately I do not think it is in [B’s] best interests to be exposed to his allergens just because the [father] wants to avoid child-support obligations which I believe is the reasons he is seeking additional time with the children.

The concern I have with respect to [the father’s] drug and alcohol use as a form of self-medication for the pain from [a particular] disease remains, and it was an issue the [father] faced prior to us separating [in July 2013] and I believe he still suffers from. … I am unsure as to how to deal with ensuring that the boys are safe when they are with the [father], and I have not seen anything that shows that the [father] has taken any positive steps towards addressing his dependencies. … while the [father] has a partner …, I do not know this individual, nor have we spoken to each other except meeting once, and I cannot be sure that she will not enable the [father] and that she will ensure that he is not engaging in anything that is harmful to the boys or puts them at risk.

[10] By way of further background, the mother points (in her July 24, 2018 affidavit) to concerns arising from asserted“longstanding substance-abuse issues” (i.e. the father’s), to Graesser J. having permitted unsupervised access for the father only while hestill resided with his parents and on the condition they were not away for “extended periods of time”, and to her perceived concern (atthat time) that the father “may be consuming alcohol excessively and using street drugs, and there is no way for me [i.e. the mother] toknow whether that is occurring while he has the boys in his care.

There has been no confirmation of any steps on his part to get clean andmaintain his sobriety.” She also asserts that the father was “mentally and emotionally unstable” during their relationship and that thatcontributed to its demise. She states that “I am extremely concerned about the impact of these issues on our boys … I do not … want theboys exposed to drugs or alcohol, or for them to model their behaviour on his.” [11] In support of his bid for shared parenting, the father deposes (in his August 27,2019 affidavit) that: … The initial parenting

schedule was put in place while I was working shifts, including some night shifts. However, I have now beenworking for two years in my current position and my hours are much more stable than the shift work of my previous job. Additionally, Iam able to request flexibility to accommodate any parenting time that I can secure with the boys. The [mother] … requested a drug test from me in 2018. Despite having no basis for their demand, I complied with their request. I attachthe results as Exhibit “F” which show that I am completely clean. The [mother] still believes that I am abusing drugs or alcohol however.

My partner and I recently had a baby. I am taking my parental responsibilities seriously and am not indulging in drugs or alcohol in anyway. Between the boys and my infant daughter, there is no way that I will allow myself to have that kind of addiction problem. The[mother] has no evidence that I attempt to use drugs or alcohol as a kind of self-medication. Similarly, my current partner is the mother toa newborn daughter and so she has abstained from alcohol throughout her pregnancy. The [mother’s] claim that she may be an enablingforce in my life is outrageous and her mistrust of my partner is unfounded.

My partner is a caring responsible person who cares for herchildren, and cares for [M] and [B] with equal attention. Both the [mother] and I are now in stable relationships. This means that no matter who they are with, the boys are part of a household.The [mother’s] claim that I am prioritizing my infant child over my other children is completely false. While there is a certain amount oftime and energy involved in caring for an infant, that does not mean that I have neglected [M] or [B]. D.

Shared-parenting analysis Basic principles [12] The Alberta Court of Appeal set the stage in Cavanaugh v Balkaron[1]: [7] In Young v. Young, (SCC), [1993] 4 S.C.R. 3, L’Heureux-Dubé, J. (dissenting on other issues) described howcourts in the late 1800's and early 1900's relied on certain assumptions as to parental suitability to determine child custody disputes. Forinstance, the understanding that mothers were naturally the better parent, particularly of infant children, gave rise to the tender yearsdoctrine, which dominated child custody decisions for decades.

Another assumption, that older children would be better off with parentsof the same sex, later yielded to the belief that all children would be better cared for by their mother. [8] These assumptions have since given way to the principle that the best interests of the child is the determining factor.

Indeed, s.16(8) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) requires that a court must consider this factor alone when making a custodyorder: In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage asdetermined by reference to the condition, means, needs and other circumstances of the child. [emphasis added] [9] The best interests of the child is also the sole determinant in applications to vary custody orders: Divorce Act, s.17(5). [10] While the interest of maximizing parental access is important in making a custody order, s. 16(10) of the Divorce Act makes thatfactor subject to the best interest of the child: In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contactwith each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness ofthe person for whom custody is sought to facilitate such contact. [emphasis added] [11] The relationship between the best interests of the child and the principle of maximum contact with both parents was explained byMcLachlin, J. (as she then was) in Young at para 204: By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge shouldensure that this contact is maximized.

The modifying phrase “as is consistent with the best interests of the child” means that the goal ofmaximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, itmay be restricted. But only to that extent. Parliament’s decision to maintain maximum contact between the child and both parents isamply supported by the literature, which suggests that children benefit from continued access ... . [12] To be clear, there are no longer any presumptions or default positions that regulate decisions as to custody and access.

The soledeterminant is the best interests of the child. While other principles may be considered, particularly where both parents are equallysuitable, they must be viewed and determined from the standpoint of the best interests of the child. … [emphasis added] Relevant factors

[ 13 ] In AB v CD [2] , Veit J. identified a number of factors helpful in gauging the merits of a proposed shift to shared parenting: [4] The father’s application for a shared parenting regime is allowed: the son has a strong relationship with his father. Indeed, the younger child’s problems manifested themselves most seriously relatively shortly after the father left the matrimonial home. There is no evidence that a return of the father to a more regular presence in his son’s life will have any negative effect on the child. On the contrary, the summer shared parenting regime has presumably been without incident.

Each of the parents has demonstrated a willingness to provide for the emotional and educational needs of their younger child. The psychiatric and psychological assessment of the younger child will continue during the school year; if it appears that a shared parenting regime during the school year is having negative effects on the child, then the situation will be re-assessed. … [33] In coming to this [pro-shared-parenting] conclusion, I have taken the following into account: - the father has always been actively involved in his children’s lives.

The younger child’s problems manifested themselves most seriously relatively shortly after the father left the matrimonial home. The fact that the father does not agree with the mother’s assessment of the younger child’s situation does not mean that he is unwilling, or unable, to meet the emotional and educational needs of both of his children; this willingness is established by his having chosen one of the medications recommended by the psychiatrist who assessed the child. Were in not for the younger boy’s special needs, shared parenting would be the obvious parenting regime.

It is the younger child’s needs, his best interests, which will determine the appropriate parenting regime; - the parents agree, and I agree with them, that the children should be kept together; - both parents have the willingness, and ability, to provide for the needs of their children. … - each of the parents is available, with the assistance of others, to parent their children on a daily basis; - the father agrees that the children should remain in the schools which they are currently attending.

He and his current partner will attempt to relocate their residence to make travel to and from that school somewhat shorter. The mother’s concern over the length of daily travel to and from school is not an important enough factor - when balanced against the maximum contact principle - to outweigh the benefits of shared parenting; - the mother places unwarranted reliance on the following two sentences in the psychoeducational assessment: Continued collaboration amongst home, school and therapist will likely be very beneficial for . . .

This may help to provide continuity and to increase the likelihood that he generalizes what he learns in one-to-one counselling to the school environment. There is no suggestion that the father, just like the mother, will not cooperate with the school, the psychiatrist, and the other help providers to improve his younger son’s chances of having a happy and fulfilled life; - there are no contra-indicators to shared parenting .

For example, although the accommodation which the father can provide is not as luxurious as that at the mother’s home, the accommodation which he can provide is adequate for the children’s needs. [emphasis added] [ 14 ] In PJG v ZIG [3] , Tilleman J. performed a similar analysis: [21] …As detailed above, contact with both parents is to be maximized with the best interests of the child.

The test demands a contextual analysis weighing the individual characteristics of each families’ unique circumstances. [22] Though there is no limit to what might be relevant in a particular case, s18(2) of Alberta’s Family Law Act , S.A. 2003, c. F-4.5 provides a list of factors that are commonly relevant in determining the best interests of the child.

These factors include the physical, psychological and emotional safety of the child, his or her unique needs, the history of care for the child, the child’s cultural and religious upbringing, the child’s expressed views and preferences, the existence and impact of any family violence on the child, the nature and strength of relationships in the child’s life, and the ability and willingness of either parent to fulfill the needs of the child and facilitate their development. These factors highlight the broad nature of the analysis.

Child’s views factor [ 15 ] Tilleman J.’s comments in PJG v ZIG on the child’s views are particularly instructive here: [27] Stressing the interests of the children above does not diminish the rights of adult parents in a family dispute, nor does it suggest "best interests of the child" is per se antagonistic to the best interests of the adult; nor does it let the independent assessor like Dr. Fong assume the final decision in the matter--that decision is up to me.

But I do say that these two girls' voices on the substance of this lawsuit most consequential to them (their family) is difficult to resolve in the adversarial process unless their views are unfettered, uncompelled, and weighed with some neutrality against the arguing parents' views. [28] Parents disputing their children’s best interests in a courtroom places the trial judge in a difficult position, not only because of his or her normal role of supervising an adversarial courtroom but also because of the difficulties in: (

a) filtering out the best evidence given the adversity of divorcing parents, and (

b) cloaking himself with the talents of a trained professional in child psychology, child development, and family dynamics. The more desirable assessment of the children’s crucial needs is best left to the out-of-court agreement between unagitated and collaborative parents, but this did not happen. In result, and having read Dr. Fong's report carefully, I agree with his assessment regarding custody, parenting time, and residential placement. [29] The evidence, including hearing both parents testify in Court, suggests both parties are suitable parents. Dr. Fong’s report

concludes both parties are capable, have unique parenting skills, have a history of engagement in the children’s lives, and that bothsought to remain active parents since the breakdown of the marriage. … … As a result of what I heard in Court plus what Dr. Fong concluded, I am convinced that there are no realistic concerns over the children’sphysical, psychological, and emotional safety. [30] The wishes of the children are a factor in determining their best interests. The children are at an age [9 and 10] where theiropinions on the matter ought to carry some weight.

As detailed above, R. has expressed a preference for an equal shared parentingregime. Expressing this opinion with the recognition that her mother did not share the same view requires a level of maturity. Dr. Fongwas of the opinion that R.’s preference was informed by her positive relationship with both parents, stating that “both parents are loving and caring for her and she enjoys this”.[21] I fully agree. In A.C. v.

Manitoba (Director of Child and Family Services), 2009 SCC 30 , [2009] 2 S.C.R. 181 at paras. 92-93, Abella J.stated that as maturity increases so should the deference given to the child’s opinions and that this view is consistent with internationalstandards: The statutory factors reflect decades of careful study into children’s needs and how the law can best meet them. We have come, withtime, to understand the significance of so many relevant considerations which had been previously hidden behind formulaic solutionslike “the tender years doctrine”.

With our evolving understanding has come the recognition that the quality of decision making about achild is enhanced by input from that child. The extent to which that input affects the “best interests” assessment is as variable as thechild’s circumstances, but one thing that can be said with certainty is that the input becomes increasingly determinative as the childmatures. This is true not only when considering the child’s best interests in the placement context, but also when deciding whether toaccede to a child’s wishes in medical treatment situations.

Such a robust conception of the “best interests of the child” standard is also consistent with international instruments to which Canada isa signatory. The Convention on the Rights of the Child, Can. T.S. 1992 No. 3, which Canada signed on May 28, 1990 and ratified onDecember 13, 1991, describes “the best interests of the child” as a primary consideration in all actions concerning children (Article 3).

Itthen sets out a framework under which the child’s own input will inform the content of the “best interests” standard, with the weightaccorded to these views increasing in relation to the child’s developing maturity. Articles 5 and 14 of the Convention, for example,require State Parties to respect the responsibilities, rights and duties of parents to provide direction to the child in exercising his or herrights under the Convention, “in a manner consistent with the evolving capacities of the child”. Similarly,

Article 12 requires StateParties to “assure to the child who is capable of forming his or her own views the right to express those views freely in all mattersaffecting the child, the views of the child being given due weight in accordance with the age and maturity of the child” [emphasis inoriginal] As such, though not the only factor in my analysis, R.’s preference for shared parenting is a very important consideration. [32] In my opinion, allowing continued shared parenting provides needed stability in the children’s lives and protects some of theirother interests.

The shared parenting arrangement allows the children to continue attending their school in Calgary, the school wheretheir friends are located and where their father is employed. Dr.

Fong reported that the children have many friends in Calgary but little in Strathmore.[22] Allowing the children to continue to attend their school in Calgary also provides the unique benefit of the children beingin close proximity to their father, a characteristic that the children appreciate: They find it helpful to have a parent close by in the school and spend time with him after school.[23] [33] Given the direction Parliament has given the Court in s.16(10) of the Divorce Act, maximum contact ought to be ordered where itis consistent with the children’s best interest. The report of Dr.

Fong details that both parents are suitable and have unique skills that thechildren can benefit from. The children have also expressed love and affection for both parents and a preference for shared parenting.Though there is conflict between the parties, equal shared parenting is still in the children’s best interest. To avoid parental conflict asmuch as possible, a detailed parenting

schedule is ordered below. Expert assessments [16] Many examples are available of an Alberta court factoring an expert’s views into a shift-to-shared-parenting analysis. In DBF v BF[4], which involved a requested shift to shared parenting, C. J.

Jones J. had earlier directed a Practice Note 7 intervention: The parties are directed to retain a psychologist for the purpose of conducting the Intervention which shall evaluate, determine, and makea recommendation to the Court as to what the impact on T would be of a change in parenting arrangements from the current arrangementto the arrangements being proposed to this Honourable Court, by the Defendant, which is a shared parenting arrangement. [17] In McTavish v McTavish[5], Veit J. directed a custody assessment before deciding how parenting should be changed (fromshared parenting to primary with one parent). [18] In M v A[6], which (in part) involved a proposed shift to shared parenting of (in addition to another child) a child with seriouslearning and behavioral issues, Veit J. concluded that the latter’s “situation was sufficiently grave to warrant neutral assistance” and sodirected the appointment of a lawyer for the child “who might be in a position to retain an expert to give the court recommendationsfrom the child’s perspective or from a neutral perspective as to what would be in [his] best interests.” [19] In Filipkowska v Wojtkowicz[7], in response to a request for shared parenting in a high-conflict scenario, Veit J. asked a

parenting expert to make recommendations on “whether, and if so how, shared parenting would be in the children’s best interests.” [ 20 ] In Mendrikis v Mendrikis [8] , the parties themselves had obtained an open custody assessment (conducted by a Dr.

Hindmarch) on which they apparently based a parenting agreement, from which one parent later sought to depart. [ 21 ] In Hunt v Hunt [9] , Poelman J. reviewed a parenting case history which included a “Family Law Practice Note 8 – Parenting Time / Parenting Responsibilities Assessment, which had recommended shared parenting. [ 22 ] In BLH v SBH [10] , a costs decision, Lee J. commented on a parenting assessment prepared earlier in the family litigation: [13] In the present case, both parties had agreed to the joint custody assessment done by Dr. Rowe, and both parties paid equally for the assessment. [14] Dr.

Rowe’s assessment was completed on August 26, 2002 and he recommended joint custody and shared parenting responsibilities by the parties for their children, but that the primary residence of the children be with the wife, and the husband be provided with generous access. [15] As discussed in my Reasons for Judgment in this case, while Dr.

Rowe’s report was an important aid to the Court, the Court had a more extensive opportunity to see and hear from the parties, and heard much more current evidence than was contained in the assessment which had frankly become somewhat dated by the time this matter came to trial. [ 23 ] In CEM v RWR [11] , Veit J. relied in part on a custody assessment: [16] As indicated above, Parliament and the courts have held that a parenting regime which maximizes the contact between children and their parents is generally in the best interests of children.

These positions reflect the weight of expert opinion evidence. [17] Here, the custody assessment reviewed the potential impediments to shared parenting and concluded that, at least until the children reach school age, there are none. I accept that conclusion. [ 24 ] In Chouinard v Skippen [12] , Ross J. had to decide how costs of a parenting report would be borne.

In the course of her costs judgment, she recounted some of the file history, including Germain J. having ordered that “ if the Applicant, Murray Lewis Skippen, elects to have a home study completed”, a psychologist should be appointed pursuant to Practice Note 7 to prepare a bilateral custody and access assessment (the “Germain Order”, emphasis added). [ 25 ] In VSG v TAH [13] , Dunlop J. used “Voice of the Children” reports to assist in gauging the appropriate parenting structure.

Commuting-time factor [ 26 ] In CZ v RB [14] , the ABCA upheld Labrenz J.’s decision approving a father’s application to shift from access (for him) to shared parenting, including a commuting aspect: [33] The hearing judge considered a wide variety of factors in addressing the children’s best interests. He concluded the drive between the residences did not render shared parenting untenable. He was concerned that the mother would continue to thwart the father’s parenting time.

He found that the father and AM provide a loving home to the children and that the girls would benefit from rich time spent with their younger half-sister. [34] The hearing judge saw and heard the witnesses and considered all the evidence in reaching his conclusion.

No misapprehension of the evidence has been established, much less one that affected the result. [ 27 ] In his oral decision in that matter (delivered on January 8, 2019), Labrenz J. held the following on the commuting aspect: I should also add to my reasons for my decision that I am not convinced that the difficulties caused by the geographical separation between Cochrane and Airdrie are a reason to deny a form of shared parenting. Realistically, in good weather, the drive from Cochrane to Airdrie is about a 30-minute drive. It is not an unreasonable drive.

Longer drives between homes within the confines of the City of Calgary can be, and are routinely encountered. Certainly the time it takes to drive is no reason to avoid what the Court views to be a benefit to the children in their best interests, and that it -- and increasing parenting time for Mr. [B]. [p 19, lines 12-19 of the transcript]. [ 28 ] In Hayes v Hayes [15] , Veit J. examined a “long commute” scenario: [19] The father’s proposal is the one which best responds to the children’s best interests.

The only concern raised by the mother about the father’s proposal relates to the higher exposure of danger to the children arising from highway travel. [20] The father’s decision to leave Cochrane for Canmore has made things harder for the children: when they are with him, they probably have to get up somewhat earlier than when they are living in the family home in Cochrane.

No evidence was led on the dangers of highway driving versus the dangers of urban driving; it may be common sense, however, that highway driving involves longer periods of time in a vehicle, thereby increasing the exposure to accidents, and that motor vehicle accidents at highway speeds are likely to be more serious than urban motor vehicle accidents.

Nevertheless, given the absence of evidence of the father having bad driving habits and given that the highway driving will occur in non-winter conditions, the advantage to the children of being with their father more frequently, and during school nights as well as on week-ends, thereby giving them the opportunity of experiencing their father’s parenting skills in relation to attitudes towards schooling, the balancing of the disadvantages of overnight access between alternate week-

end access are outweighed by the benefits to the children of such access. The father’s proposal for access is endorsed. [ 29 ] As did Graesser J. in SLG v PGG [16] : [13] There are a number of factors to consider on this application, although the primary consideration is what is in G.’s best interests. The starting point for my analysis is to recognize that G. is bonded with both parents, expresses love for both parents, and seems to be happy and behaving appropriately in the family context, at school and socially.

No concerns have been expressed with respect to G. other than the fatigue he experiences as a result of the time spent traveling to and from Edmonton on his father’s access weeks. Ms. G.’s travel during her access weeks has stopped. [14] This is a situation where shared parenting would be in G.’s best interests but for the distance between the parents. The early awakening time, the early morning travel time, the amount of time at day care before school and the amount of travel time back to Holden has those school days subsumed by travel and school, with no time for much else.

His father reports that G. spends much of the time in the car sleeping, such that it cannot be described as father-son bonding time which might otherwise be beneficial. [15] I expressed during case management, and especially when I continued the shared parenting arrangement past kindergarten, that the arrangement was temporary and not sustainable. I recognize that there are many situations where a child spends a considerable amount of his or her school day traveling to and from school.

Many children get up early in the morning to facilitate transportation to school, and many children are taken to daycare well before school starts because parents have jobs to get to. [16] While such arrangements are necessary in some circumstances, when they can be avoided, that would generally be in the best interests of the child. Here, the only justification to have G. do so much travelling is to accommodate shared parenting.

In these circumstances, the benefits to G. are doubtful, and unless the benefits outweigh the disadvantages, other alternatives should be considered. [Decision, at para 30: child to live with father in Holden; mother to have three-weekends-per-month access.] … [36] This arrangement is reviewable on a change in circumstances. I would consider it a change in circumstances if Ms. G. moved to a location close to Holden such that a shared parenting arrangement would not involve significant travel time for G.

A significant deterioration in G.’s behaviour or his performance at school would also constitute a change in circumstances warranting a review of the arrangements. [ 30 ] And Lee J. in Frank v Peschau [17] [7] There is also the issue that the children [ages 5, 8, and 10] would have to spend a great deal of time travelling between whichever residence they reside in, particularly the father’s residence, to their elementary school as a result of a parallel parenting plan.

It is agreed by both parties that the children should remain in their current elementary school, but the distance travelled by the father with the children to that school on a daily basis if he were to have a shared or parallel parenting time is significant, and would not necessarily be in the best interests of the children.

While the mother also must take the children a fair distance to their elementary school, that distance is still significantly less than the distance that the children would be travelling each day with the father. [ 31 ] And Maurice J. in Lax v Lax [18] : The respondent left the matrimonial home in Eastend and went to live in Shaunavon with the children. The two towns are 20 miles apart. Since the separation, the primary residence of the children has been with the respondent in Shaunavon. Stephanie is in grade one and Colleen attends play school at Shaunavon.

If the petitioner is granted custody he would enroll them in school at Eastend. At the time of the trial, the petitioner had access to the children, from after school, every Wednesday to Thursday morning, and, from after school, on Friday to Monday morning, three weekends a month. … The petitioner should have as much contact with the children as is consistent with the best interests of the children. The present contact between the petitioner and the children is not in their best interests.

Each Wednesday, at approximately 4:00 p.m., he picks up the children at Shaunavon and drives them to Eastend where they spend the night. On Thursday morning he drives them back to Shaunavon in time for school. According to the evidence, which I accept, Colleen is not given any breakfast to allow her to sleep until just before they leave for Shaunavon, and Stephanie, who has to get up at 7:00 a.m. to allow her time to get ready for school, is generally tired and crabby during the day . Overnight access on Wednesday is not in the children's best interests.

As noted, the petitioner has access to the children three weekends a month from approximately 4:00 p.m. on Friday to approximately 8:45 a.m. on Monday morning. The results on Monday mornings are the same as they are on Thursday mornings -- Colleen gets no breakfast and Stephanie is tired and crabby during the day. Overnight access on Sunday is not in the children's best interests. Even the petitioner recognizes that all of this travel is tiring, as one of the reasons he gave for requesting custody was that he felt he was doing too much driving back and forth.

Application of those principles here [ 32 ] I first note as follows: 1. in his affidavit, the father did not mention anything about the importance, or possible importance, of the relationship between the boys, on the one hand, and their half-sibling (i.e. the daughter of the father and his new partner); 2. the same for the relationship between the boys, on the one hand, and the father’s new partner.

He deposes that she is a caring and responsible person who cares for her own child (or children) and for the boys with equal attention, but he does not offer any evidence on the strength or importance of the noted relationship to the boys;

3. the mother’s evidence includes her understanding of the boys’ wishes relating to parenting arrangements (as noted above). The father’s evidence did not address his understanding of their wishes or how they might be met or accommodated under his proposed parenting plan (i.e. assuming their wishes have been accurately portrayed); 4. the mother’s evidence details M’s allergies to various things, including certain pets at the father’s residence, and M’s allergic reactions.

The father’s evidence does not address this issue e.g. how M’s allergies have been, are being, or might be managed or otherwise addressed in his household; 5. the father does not detail any particular social or recreational activities pursued by the boys at his home or that might be pursued by them there or describe what he does with the boys i.e. how he engages with them or activities he pursues with them, or even that he would pursue with them if they were with him on a shared-parenting basis; 6. the mother’s evidence that, while in his care to date, the boys have missed school on account of the father not taking them.

The mother’s July 2018 affidavit included (at exhibit

D) playschool-attendance sheets for B. It was not entirely clear that all of the noted absences occurred during the father’s parenting time or were caused by the father’s decision not to take him to school.

However, the mother deposed (at para 16) that: “the [father] was unable to and did not bring [B] to school and daycare when he had the children for his parenting time”; 7. in her July 2019 affidavit, the mother again deposed: “There has been an issue with attendance at school with the [father] failing to take them to school on certain days and that has impacted their education, something I must compensate for when the children at home with me.” She did not particularize the absences, but the father did not even address this subject in his affidavit; 8. as noted, the mother deposes to the boys “not [wanting] to continue with the current

schedule because they have to wake up at 6 am when they are home [presumably meaning at the father’s home] and they have a 45-minute to one-hour drive to school.” While the boys’ wishes might be gleaned in other (possibly preferable) ways (discussed further below), I note that the father does not address this subject in his affidavit either e.g. to provide (as applicable) a different account of wake-up and commuting times, the boys’ “morning performance” (e.g. their ability to “get rolling” even with earlier-than-usual wake-ups), or otherwise how they could likely manage entire weeks of longer commuting to school (i.e. during the father’s weeks if shared parenting were approved); 9. the travel times here – according to the father, 30 minutes from his home to school (ideal traffic conditions); 40 minutes (tangled conditions)) – are not, at first glance, unduly long, at least compared to some of the commutes examined in the above cases.

It is not a factor, on its own, that undercuts the father’s proposed shift to shared parenting; 10. the mother deposed (July 2019 affidavit, para 24) about a “lack of consistency and implementation of [the boys’] regular

schedule with the current parenting scheme, and [the boys] have expressed their desire to see it change” (apparently in the direction of more parenting for the mother). While (once again) she could have provided more details and the boys’ views might have been canvassed otherwise (see below), the father did not address the subject at all e.g. his understanding of the “regular schedule” (i.e. per the mother), how he follows it when the boys are at his home or, if not, how the

schedule he follows is appropriate, acceptable or adequate or even how it is preferable for the boys, or otherwise why the mother’s “schedule-consistency” concern is unfounded or overstated; 11. when it comes to the mother’s concerns about possible ongoing substance-abuse issues for the father and his new partner’s possible “enabling” behaviour, this is speculation.

Nothing in the record raises a red flag of ongoing issues on this front for the father; accordingly, I place no weight on this claimed “risk factor”; and 12. the parties did not point to any expert assessment of their respective proposed parenting plans; neither did they request that any such assessment be performed. [ 33 ] Fundamentally, the father has not mounted much, if any evidence, about why moving to shared parenting is in the boys’ best interests. His evidence is essentially that his employment changes allow him to spend more time with them i.e. that he has the time for greater contact.

He also deposes that, whatever his substance-abuse issues may have been, he is not plagued by them now i.e. he has the ability to parent more extensively i.e. his abilities to parent are not diminished by substance-abuse issues. [ 34 ] However, he does not explain, or try to explain, why shifting to shared parenting, or even to greater contact for him, would actually be in the boys’ best interests.

His position is (effectively): “I am ready, willing, and able to shared-parent; we should accordingly parent that way.” [ 35 ] That position treats the maximum-contact principle as all-governing: “if I have more time and no longer a reduced ability to parent, I should get more parenting time.” But the Divorce Act tells us, as reflected in some of the cases cited above, the objective is “maximum contact consistent with the children’s best interests .” [ 36 ] Having effectively received no evidence of how a shift to shared parenting would serve the boys’ best interests, I dismiss the father’s application for such parenting. [ 37 ] In so deciding, I am not placing any particular weight on the boys’ apparent views, more on the lack of evidence from the father on the possible issues reflected in their apparent views (e.g. overly long commutes).

In other words, I am not finding that the commute to school is unworkable; I am finding that the father did not provide evidence supporting a counter-perspective. Mother’s application to change the current parenting [ 38 ] I also dismiss the mother’s bid to reduce the father’s current parenting (eliminating any school-day parenting): • some of her concerns are vague, as noted above. For example, concerning “inconsistent parenting”, she did not detail her concerns or even that she had both informed the father of particular “best” or “preferred” parenting practices and asked that they be adopted in

both households; • concerning the boys’ views on such things as the commute to school and their overall residence preference, it is preferable to have their views canvassed by an independent party (e.g. psychologist or other expert, or via a voice-of-the-child report) i.e. so that any undue parental influence is factored out; • as noted above, the mother presented no evidence of continuing substance-abuse problems for the father; • the “with father” school days are already relatively limited: four out of a fifteen-day cycle; and • continuation of the current plan will allow the father to demonstrate that he and the boys are in fact able to manage (for example) the school commute and otherwise to particularize that his parenting indeed adds value to the boys’ lives and (from his perspective) that an eventual shift to shared parenting may be warranted.

E. Retroactive child support [ 39 ] The father acknowledges that he underpaid child support between 2014 and 2018. His arrears calculation (his August 2019 affidavit, exhibit “B”) uses his actual income in those years, which decreased sharply, from $160,771 and $156,857 in each of 2014 and 2015, respectively, to $33,657, $73,938, and $58,189 in 2016, 2017, and 2018, respectively.

In other words, he seeks to have child support float downwards with his income. [ 40 ] Graesser J.’s October 2014 order obliged the parties to exchange copies of income-tax returns and CRA notices of assessment on or before June 30 th of every year as long as there was a child of the marriage. If a tax return was not filed, the defaulting party was obliged to provide the other with copies of T4 slips and any other income-reporting slips. [ 41 ] As far as I can tell, the parties did not exchange any of that information.

As well, the record does not reflect the father otherwise informing the mother of his (higher than anticipated) income in 2014 or 2015 or the reductions in his income in 2016-2018. [ 42 ] In these circumstances, the mother may have had a “certainty-based” argument for retroactive support for 2016-2018 at the level directed by Graesser J. in 2014 i.e. despite reductions in the father’s income. [19] [ 43 ] However, at the application the mother agreed that the father’s support obligation should track his actual income i.e. as though he had made timely disclosures of his income changes and the parties had agreed to revised support or the court had directed such adjustments on variation applications. [ 44 ] This cuts both ways: while the father’s chart reflects his actual income in 2014 and 2015 (i.e. $160,771 and $156,875, respectively), it shows $1,303 as the monthly child-support amount.

That figure is associated with income of $91,386, which Graesser J. had set as the father’s income in October 2014, presumably on the basis of 2013 income-tax information or other “in advance of 2014 tax year” information. [ 45 ] That order also directed the father to provide his 2014 T4 (employment-income information slip) to the mother by March 15, 2015. The record does not disclose whether the father provided that document by the deadline.

As noted, it does not appear that either party made the required “end of June” income-tax disclosures through the years. [ 46 ] With the father not advising the mother of the sharp increases to his income in 2014 and 2015 until (as far as I can tell by reviewing the record) his August 2019 affidavit and not voluntarily increasing his child-support payments congruently with those increases in those years (i.e. above the stipulated $1,303 monthly), and with no evidence that the mother had any window into his financial circumstances in those years (i.e. to see those income increases even without disclosure by him), the mother is entitled to payment of child support congruent with his considerably-higher-than-anticipated income in 2014 and 2015. [20] [ 47 ] In other words, the father’s child-support arrears shall be calculated based on his income as reported in the exhibit “B” chart in both the higher-than-anticipated (2014 and 2015) and lower-than-anticipated years (2016-2018). [ 48 ] As for the actual payments made, the parties’ evidence -- father’s in exhibit “C” to his August 27, 2019 affidavit (e-transfer history 2014-2019); mother’s in exhibit “C” to her August 2019 affidavit and a MEP worksheet and other calculation worksheets forming part of her concise letter – differed only slightly. [ 49 ] First, the father’s payment history reaches back before October 2014; the mother starts tracking in October 2014 (month of the Graesser J. order).

Given the mother not seeking support for any months before October 2014, I do not explore that time period further. [ 50 ] Second, for a handful of months, the reported payments are different. Comparing the father’s e-transfer details to the mother’s “worksheet for calculation of arrears”, I see differences for October 2018 (mother reports $1,808 payment; father reports $1,000); October 2018 (mother reports $900; father $600); and December 2018 (mother reports $600; father $300). [ 51 ] Third, the father’s payment information did not extend beyond February 2019.

The mother reported a payment for March 2019 of $600. Her information did not extend beyond that month. [ 52 ] The father argued that his payment evidence, anchored in e-transfer details, was more reliable than the mother’s (summary information without back-up). [ 53 ] I agree that the e-transfer-supported payment history is more accurate. Accordingly, in the calculation of retroactive support, the father shall be credited per his payment report starting in October 2014, through to February 2019.

[ 54 ] If the parties cannot agree on the “per Guideline” child support required at the agreed-on 2014-2018 incomes for the father, they can seek my direction via letters (one-page maximum) to my assistant outlining their respective positions, sent within 10 days of the release of this judgment. F.

Section 7 expenses [ 55 ] In her concise letter, the mother included a claim for s 7 arrears. However, her application did not reference such a claim (at least not specifically). More significantly, she did not provide satisfactory evidence of any such expenses. [ 56 ] At the application, the mother referred on this subject to an earlier affidavit of hers on the court file (sworn July 24, 2018).

However, for the only expense referenced (day care), it provides no receipts or other details, other than in an exhibit (“E”) described as a “statement of payments made by the [father] as well as the corresponding dates and amounts since November 2015.” The statement includes a few pages (19-22) of “synopsis” financial information, including amounts apparently paid for daycare between “June and December.” However, no year is provided, and neither (as noted) are any other details. [ 57 ] I also note that the mother’s child-support calculation sheets (concise-letter attachments) did not include any s 7 expenses. [ 58 ] I find that the mother’s claim for reimbursement of s 7 expenses fails for lack of detail.

G. Matrimonial debt (mortgage shortfall) [ 59 ] After the parties separated, the father paid various amounts on the parties’ mortgage on their jointly owned residence. At some point after separation, neither party was residing in the residence. The father hatched a plan to rent it to third-party tenants and apply the rent to the mortgage. Some rent was apparently generated, but the property eventually fell into foreclosure.

Father’s position on responsibility for post-separation mortgage payments [ 60 ] The father sees the mortgage debt as “matrimonial debt” i.e. as an obligation arising from or associated with the marriage and incurred for the family’s benefit, and asserts accordingly that it should be borne equally by the mother and him. By his calculations, she owes him approximately $20,000 i.e. to equalize the post-separation burden of that debt.

Here is his position in detail (reproduced from his August 27, 2019 affidavit, paras 14-19): Justice Graesser’s Order states that I was to maintain the mortgage on the matrimonial home. However due to my support obligations I could not do so and the mortgage fell into arrears. By the time I lost my job, the house was in foreclosure. I also note that a subsequent Order is attached to the Applicant’s Affidavit. This subsequent Order required that the home be listed and sold.

It was impossible to abide by this Order since I could not keep up with the mortgage payments in a way to secure the house for a typical listing period. After the Applicant walked away from the home, I could not stop the foreclosure by myself. The Applicant appears to blame me entirely for the home’s financial problems and refuses to recognize her role at all. She walked away from the home despite her name remaining on title, and then she appears to assign all blame for the foreclosure to me as well.

She claims that I received all the benefit from renting the home; however, the fact that the mortgage was not brought into good standing and foreclosure proceeded anyway indicates that any benefit that I may have received was minimal. The Applicant claims that she has suffered a financial hardship as a result of the sale and foreclosure of the home. In reality, the majority of the financial consequences have been borne by me. I made all of the mortgage payments, both prior to Justice Graesser’s Order and after.

In total, I paid $4,902.00 in 2016, $14,562.00 in 2015, and $16,492.00 in 2014 towards the mortgage, as shown in [mortgage statements, Ex “D”]. The foreclosure documents list both of us as Defendants; however I alone was held responsible on a number of occasions. The Affidavit of Default from the foreclosure attached a number of documents as Exhibits which show my name alone as the person responsible [Ex “E”]. While the Applicant claims that her 2018 tax return was consumed by garnishment, I can confirm that both my 2017 and 2018 tax returns were treated in exactly the same manner.

The MIF Deficiency Judgment totaled $9,280.83 against me, which is significantly higher than the Applicant’s reported hardship. I believe that the mortgage burden should be shared equally between the Applicant and myself. The above mortgage payments, combined with the MIF Deficiency Judgment, minus the Applicant’s garnishment of $3,623.47 totals $41,613.36. If each of us bears this burden equally, that is $20,806.68 each.

I suggest that an equitable solution is to apply a credit to my arrears for this amount, so that my total amount of arrears becomes $19,515.32, minus the amount that I have paid off since February of 2019. [ 61 ] The father’s evidence also includes the following: 1. the mortgage balance stood at approximately $281K as of December 31, 2013, $276K as of December 31, 2014, $271K (December 31, 2015), and $272K (December 30/16); 2. he made combined mortgage-and-tax payments of approximately $16.5K (December 31/13 to December 31/14), $14.5K (December 31/14 to December 31/15), and $4.9K (December 31/15 to December 30/16); 3. per one of Graesser J.’s October 17, 2014 orders, the house was ordered listed at $314.9K;

4. per the same order, the parties were directed to sign a listing agreement by October 24/14. (Failure meant the listing could proceedin the absence of the defaulter’s signature); and 5. per the TD Bank’s affidavit of default, the original mortgage balance was $303K, the mortgage was high-ratio, the mortgage arrearsstarted with payment defaults in May 2016, the Bank demanded clearance of the initial arrears ($2,916) by June 20, 2016, and themortgage arrears stood at $281K as of March 31, 2017. [62] The mother argues that resolving this issue should be deferred until the larger issue of matrimonial-property division isaddressed. (It was not the subject of the recent application.) In any case, she asserts that she was effectively ousted by the father from anyinvolvement in or responsibility for the house after separation, that she pressed for early sale of the property (to no avail), that as a resultthe father should bear the full burden of post-separation costs associated with the mortgage, and that that is confirmed by the followingcomponent of the Graesser J. order noted earlier (from October 17, 2014): The [father] shall continue to service the mortgage and other expenses in relation to the matrimonial home from the rental incomecurrently being generated.

The [father] shall be responsible for any shortfall between the expenses of the house and what is recoveredfrom the tenant. [emphasis added] [63] She also states: The [father] obstructed the sale of the home. [He] wanted the home to be sold at an unreasonable price based on the comparativeanalysis of other homes in the area at the time, thereby leading to it not being listed. Despite this fact, I cooperated and signed the listingdocuments to facilitate the sale of the home. As a result, due to the actions of the Plaintiff, the matrimonial home is no longer an asset fordivision.

I believe that the [father] either intentionally dissipated this and other assets to deprive the boys and [me] or was simply tooirresponsible to honour his obligations. Either way, his conduct is concerning as far as it relates to his lack of responsibility. [mother’sJuly 24, 2018 affidavit, para 38] … the [father] was court ordered to maintain the payments for the maintenance of the home and in exchange I would receive a lowerspousal support amount of $500 monthly which was significantly less than what the Court would otherwise have ordered.

The [father] did not abide by the Court’s order including failing to make the mortgage payments and refusing to allow the viewings forthe home to be sold so that we could recover some equity. And due to his actions, the major asset that we had was lost. Finally, due tothe foreclosure proceedings, the home was sold by the bank forcefully, something which the [father] had the ability to avoid, and hisrefusal to cooperate with a sale that could have preserved the equity and potentially benefitted our children is the reason the boys do nothave the benefit of anything from the home.

The foreclosure has damaged my credit significantly and severely limited my ability tosecure a home for the children and [me] or pursue options to better our circumstances. [Mother refers to her 2018 tax refund of $3,623.47 being garnished by CMHC as partial recovery of the mortgage shortfall] … The [father] changed the locks to the matrimonial home such that neither the children or I could access it, and he alone had access to it.The [father] even rented out the matrimonial home, and I am unaware of that if any amounts were paid in rent, nor did I see a dime fromthe rental income.

I am not sure if the [father] reported the rental income and, regardless, he was the only one that benefitted from thehome being rented out. [last four paragraphs from mother’s August 12, 2019 affidavit, paras 14-16 and 18] [64] The home had been ordered sold by Manderscheid J. on March 11, 2014. That order allowed the father to rent the house tothird-party tenants on a month-to-month basis.

It also required the father to (among other things) “maintain records of all rental incomereceived and expenses incurred and to provide details of the same to the [mother].” That order was followed by another Graesser J. orderon October 17, 2014 approving the listing of the property with a particular realtor and at a particular listing price and setting variousconditions for its sale and the holding of the net proceeds. (Again, as noted, no sale was concluded before the foreclosure sun set.) [65] I explore below the principles governing matrimonial debt and, specifically, responsibility between separated spouses orpartners for post-separation mortgage and other property-carrying costs.

Matrimonial debt generally [66] In Kretschmer v Terrigno[21], the Alberta Court of Appeal outlined the general approach to matrimonial debts in propertydivision: [19] The purpose of the Matrimonial Property Act, RSA 2000, c M-6 is to recognize “marriage as an economic partnership,founded on the presumption that the parties intend to share the fruits of their labour during and as a result of it, on an equal basis.” :Jensen v Jensen, 2009 ABCA 272 at para 1. Later in the same decision, the Court elaborated that the Act is designed to“protect against inequities arising from the dissolution of marriage”.

This is accomplished, in part, by the equitable division ofmatrimonial property.

The exercise, put simply, is to ascertain what matrimonial property is available for distribution, its value, whatexemptions are available, their value, and how the property should be divided: see Hodgson v Hodgson, 2005 ABCA 13 . [20] In undertaking that exercise, a trial judge is necessarily involved in ascertaining and distributing the net assets of the parties.While s. 7 of the Act does not expressly refer to debts, this Court has held that the obvious intention of the regime is to divide “netmatrimonial property”, which by definition includes a consideration of debt: Carmichael v Carmichael, 2007 ABCA 3 at para21; Abbott v Abbott, 2006 ABCA 204 .

The goal of the Act could not be achieved by dividing assets and ignoring the liabilitiesthat may be associated with them, either with specific assets or with the value of the matrimonial property generally. ... [67] In Kazmierczak v Kazmierczak[22], the Court of Appeal held:

[58] We treat a debt charged against an asset and incurred to acquire or improve that same asset as a deduction from that asset’s value.And had there been any debts shown to have been incurred during marriage before separation for family purposes and still existing, wewould have apportioned them between the parties. (There were none, in fact.) Mortgage payments and other property-carrying costs [68] In DP v TP[23], the Court of Appeal adverted to the impact of one spouse continuing to live in the matrimonial home on aclaim against the other spouse for contribution to property-carrying costs: [14] [The trial judge] directed further that at the time of sale of the matrimonial home Mrs.

P. was to be given credit for the totalamount of the mortgage payments made by her and one half of the taxes. Mr. P. objects to these directions by the trial judge.… [15] It is our view that Mrs. P. should not be given credit for the total amount of the mortgage payments made by her or for onehalf of the taxes. The effect of this direction would be that Mrs. P. could live in the matrimonial home until the youngest child reachedthe age of 19 years with minimal expenses for accommodation, in spite of the fact that Mr.

P. had an interest in that home. [We] wouldtherefore set aside this direction by the trial judge. [69] At the trial level in Kazmierczak[24], Slatter J. (as he then was), in the course of examining occupation-rent principles,observed: The spouse in occupation will generally not be entitled in the matrimonial property proceedings for any credit for the mortgage paymentsand taxes paid by him or her. Those payments should be a part of the support equation.

The only possible exception is with respect to theportion of the mortgage payment that actually goes to reduce principal, as notionally one-half of that payment is made on behalf of thenon-occupying spouse. See Balzar v. Balzar [(1990), (MB QB), 67 Man. R. (2d) 196].

However, if the party inoccupation has not adequately maintained the property, and has essentially eroded its capital value, a set-off for the excessive wear andtear might be called for. [70] Balzar v Balzar[25] examined post-separation accounting of residence-related expenses: [21] The law appears to be well-settled that an occupying party will be entitled to reimbursement for one-half of the principalreduction of the mortgage, but will only be entitled to claim current expenses, such as mortgage interest, taxes, insurance and repairs, ifthat person submits to a claim for occupation rent. (Mastron v.

Cotton, (ON CA), [1926] 1 D.L.R. 767 (Ont. S.C.,Appellate Division); Osachuk v. Osachuk, (MB CA), [1971] 2 W.W.R. 481 (Man. C.A.)). [22] While it appears that a party may, in the absence of a claim by the other for expenses, claim occupation rent if ousted from theproperty, that is not the situation here. [23] Once expenses are claimed by the occupying party, the claim for occupation rent is not absolute. It can be denied if there arechildren living in the home, as it can be viewed as a form of maintenance for the children. [71] In Doege v Doege[26], Manderscheid J. held: [77] Mr. Doege argues that Mrs.

Doege should be charged occupation rent because she had the benefit of occupying thematrimonial farm from the date of separation to the date of trial, and Mr. Doege had to obtain his own accommodation, and incur thatexpense. [78] Marceau J in Seeman v. Seeman, 2010 ABQB 30 , stated that an occupation rent claim is generally only applicablein response to a claim by the property occupier for expenses incurred in maintenance of the property: at para 13, citing Busenius v.Busenius, 2006 ABQB 162 at paras 45-46, 156 A.C.W.S. (3d) 159. Slatter J (as he then was) in Kazmierczak v.

Kazmierczak,2001 ABQB 610 , 292 A.R. 233, aff’d 2003 ABCA 227 , also stated that Courts should only award occupation rent inthe family law context with great caution: at para 90. [79] Slatter J went on to say: [para 95 of Kazmierczak, reproduced above] [80] In this case, Mrs. Doege has not claimed for contribution towards the expenses she incurred while maintaining thematrimonial home since separation. I therefore reject Mr. Doege’s counterclaim for occupation rent. Moreover, I find that it is just andequitable to credit Mrs.

Doege for half of the principal mortgage reduction since separation: Kazmierczak. [72] In Milne v Milne[27], Veit J. held: [118] However, there remains an issue about whether Mr. Milne should be given credit for the mortgage payments that he made on theproperty after separation. On the one hand, Ms. Milne was a joint owner of the property and was liable to jointly pay the mortgage. Onthe other, Mr. Milne had exclusive possession of the property without paying any occupation [rent] to Ms. Milne. I have concluded thatMr.

Milne should be given credit for half the mortgage payments he made after the date of separation: those payments ended up bybenefitting Ms. Milne as a joint owner of the property. Although Mr. Milne did not pay Ms. Milne occupation rent, the retroactivespousal support to which he has become liable through this decision does, in some measure, replace the notion of occupation rent. [73] In Bos v Bos[28], Ross J. held: [31] After the separation, Mr. Bos continued to live in the matrimonial home. ... [32] ...Mr. Bos has paid for the mortgage, property taxes and other expenses of the matrimonial home.

He has made some,relatively minor, improvements to the home, spending $6576 on the driveway.

[33] Mr. Bos argues that he should receive credit for one-half of the post-separation mortgage payments and property taxes that hehas made ($39,189), or the reduction in the mortgage principal since the separation, approximately $32,000. Alternatively, he claims anunequal share (60% - 75%) of the increase in value of the home since the marriage. He argues that this approach is fair since it isbecause of his efforts that the parties are able to share the increased value in the home. ... ... [35] Mrs. Bos responds that any contributions Mr.

Bos has made to the matrimonial home since separation are off-set by the valuehe received by living in it. She points out that he viewed the amount of the mortgage payments as an appropriate rental amount when shelived in the home prior to the marriage; there is no reason why this would not also apply to him when he lived in it post-marriage. Iagree. Mr. Bos argues that Mrs. Bos has not made a claim for occupational rent, which must be specifically pleaded. But Mrs. Bos is notseeking occupational rent. In my view it is perfectly appropriate that, when I consider Mr.

Bos’ post-separation contribution to theconservation of the matrimonial home (s. 8(c)), I should also consider the incidental benefit that he received as a result of thatcontribution (s. 8(m) “any fact or circumstance that is relevant”). … [40] I have found, and indeed the parties agreed, that their contributions during the four-year period of cohabitation justify an equaldivision of property, whether or not the presumption of equality applies. The subsequent four-year period of separation does not changemy assessment of a fair division. Mr.

Bos paid the mortgage payments and property taxes, but he also had the benefit of living in thehome. He made a relatively minor improvement to the driveway. There was no evidence that this had any discernable impact on thecurrent value of the matrimonial home, and the cost involved in this improvement was not sufficient to change my assessment. In myview it is just and equitable that all of the matrimonial property, including the increase in value of the matrimonial home, be dividedequally. [74] In Underhill v Underhill[29], Clackson J. held: [19] Mr.

Underhill has been paying the monthly principal and interest on the mortgage and the property taxes since separation. Hemakes these payments bi-weekly but for purposes of the trial, the parties seem to be agreed that I should consider Mr. Underhill to havebeen paying $900.00 a month to service the mortgage and taxes. Ms. Underhill was renting accommodations from the separation untilDecember 2004 when she commenced living with her new husband. She has paid an average of $600.00 a month for thoseaccommodations. [20] The mortgage statements entered by Mr.

Underhill show that he has reduced the principal owing on the mortgage by $22,263.15since separation. He argues that Ms. Underhill should not get the benefit of that sacrifice on his part. Ms. Underhill argues that Mr.Underhill has been living rent free in the matrimonial home and should be assessed an occupation rent for that privilege. She argues hehas had the use of her equity and should compensate her for that use. [21] Occupation rent is a discretionary remedy. Whether it should be awarded will depend upon the circumstances of the case. That isthe upshot of the Alberta Court of Appeal’s decision in Hantel v.

Hilscher (2000) 2000 ABCA 84 , 255 AR 187. I think thatJustice Slatter best captured this approach to the remedy in Kazmierczak, supra where he said this in para. 90: In my view, care must be taken in carrying forward the common-law concept of occupation rent into the family law context. Non-familyjoint tenants generally do not have mutual obligations of support for each other, and for children. In the family law context, such mutualobligations of support are generally present, and would usually dominate and outweigh the common-law property rights associated withjoint tenancy.

Occupation rent should only be awarded in the family law context with great caution. [22] In this case, had Mr. Underhill not occupied the home, it would likely have been sold long ago. Had it been sold, the equity inthe property would have been much less than the sum which I have found exists at this point. Presumably Mr. Underhill would have alsorented at a rate comparable to the average monthly rent paid by Ms. Underhill.

As I see it, had that happened, the parties would havebeen no better off in terms of cash flow and would have realized only a small gain on the sale of their home. [23] Rather than living on Ms. Underhill’s equity, payments made by Mr. Underhill have in fact increased Ms. Underhill’s equity inthe home. In my view, this is not an appropriate case for occupation rent. In effect, the payments made by Mr. Underhill on the mortgagewere payments of rent except that Ms. Underhill benefits from those payments. [24] In fact, in my view, Mr.

Underhill is entitled to some recognition of the fact that his payments and his expenditures and labour tokeep the property up, subsequent to separation, have given both parties a benefit. That recognition is accomplished by directing that theequity in the property be divided unequally between the parties. Mr. Underhill is declared to be entitled to 60% of the equity in thematrimonial home and Ms. Underhill is declared to be entitled to 40% of the equity in the matrimonial home. In my view, that bestreflects the contributions made by Mr.

Underhill and the fact that the home was purchased in 1998 just two years before the partiesseparated. [75] In Pickett v Walsh[30], Renke J. held: [134] After the parties separated, Ms. Pickett rented accommodations. Mr. Walsh remained in the Greenbrier Property. The childrenremained in the home with him. The Greenbrier Property was mortgaged. The last mortgage payment was made in June 2012. So, unlikeMs. Pickett, after separation Mr. Walsh made neither rent nor mortgage payments. Should Ms. Pickett receive some additionalcompensation from Mr.

Walsh in the nature of occupation rent? [135] In my opinion, occupation rent was not payable by Mr. Walsh. I rely on the first principle identified by Slatter J, as he then was,in Kazmierczak v Kazmierczak, 2001 ABQB 610 , affd 2003 ABCA 227 at para 96 (QB): (

a) The spouse who is not in possession generally should not be entitled to occupation rent if the other spouse is occupying the

premises with the children of the marriage, and is not making a claim for support or a contribution towards the expenses of the house. The children were with Mr. Walsh. He did not make a claim for spousal support or for a contribution towards the expenses of the house.Ms. Pickett’s expenses [have] been taken into account in the spousal support awarded to her. I also refer to my comments respecting theGreenbrier Property debt above. [76] Here are Renke J.’s earlier comments about that property: [114] The Greenbrier Property was subject to two mortgages.

The first mortgagee had indicated in June 2012 that it would not renewits mortgage because the value of the property was less than the amount owed. The parties were not in a position to remortgage theproperty. Since it was going to be foreclosed no mortgage payments were made after June 2012. The parties obtained a court orderpermitting the sale of the home to pay the mortgage debts. The home was sold and the mortgage debts discharged. Both parties wereresponsible for the mortgage amounts and both benefitted by the payment of the mortgagees. [115] Ms. Pickett’s concern is that Mr.

Walsh remained in the house without paying the mortgage while she had to pay rent. Mr.Walsh, though, was looking after the children of the marriage. He was responsible for the upkeep of the home and putting it into acondition in which it could be sold. Ms. Pickett benefitted from the non-payment of the mortgage; she didn’t pay personally.

I find nounfairness in these circumstances warranting recognition in the property division. [77] In Murphy v Murphy[31], Dellapinna J. held: [29] The Respondent proposed that the value of the matrimonial home be reduced by $7,597.53 representing municipal taxes thataccrued up to the date of trial.

He also proposed that the home’s value be reduced by a further $5,196.00 representing five years’ worthof house insurance premiums that were incurred from 2011 to 2015. [30] I find that the municipal taxes on the matrimonial home that accrued post-separation and the insurance premiums that accruedpost-separation fall within the definition of matrimonial debt because they were incurred for the purpose of preserving and protecting thematrimonial home.

The presumption is that matrimonial assets (net of matrimonial debts) will be divided equally between the parties,however, I have concluded that in the circumstances of this case, an equal division of those debts would be unfair and unconscionable[circumstance contemplated by ss 13(

b) of the Matrimonial Property Act –

section omitted]. [31] After the parties separated the Respondent continued living in the matrimonial home while the Petitioner had to seekaccommodation elsewhere. For more than four and a half years the Respondent had the use and occupation of the matrimonial home tothe exclusion of the Petitioner. During that time he paid the Petitioner no spousal support (in fairness, she did not ask for any) or anyoccupation rent or any payments as may be allowed pursuant to subsection 11(1)(

b) of the Matrimonial Property Act. For four and a halfyears the Petitioner did not have the use of the matrimonial home and did not have access to her share of the equity in the home. [32] The evidence did not include a comparison of the parties’ shelter expenses, however I was told that the Petitioner was required topay rent for her accommodation (at least after she moved from her parents’ home) and the Respondent was living in the matrimonialhome mortgage free.

The house insurance premiums and the municipal taxes were some of the few shelter expenses that he had. [33] In June 2012 the Petitioner paid $4,750.00 on the parties’ municipal tax bill outstanding at that time. Of the $4,750.00 that shepaid, $1,907.33 was for municipal taxes that accrued after the parties separated.

Ignoring her contribution to the post-separation taxes,the cost of the municipal taxes and insurance to the Respondent (from the date of separation to the date of trial) came to less than$233.00 per month. ... [35] Therefore, while the insurance premiums and municipal taxes may be matrimonial debts, they were also the Respondent’s postseparation shelter expenses. I find that in the circumstances of this case it would be unfair and unconscionable to require the Petitioner toshare in those expenses. They will therefore be the sole responsibility of the Respondent. [36] As Goodfellow, J. said in Cameron v.

Cameron, (N.S.S.C.) (affirmed on appeal) at paragraph 26: “The fact that an indebtedness may meet the test of being labelled a “matrimonial indebtedness” does not automatically result in asharing of that indebtedness.

That determination must be made on a determination of whether or not the division of matrimonial assets inequal shares would be unfair or unconscionable….” [emphasis added] Dissipation arguments (“not responsible for mortgage arrears or other losses”) [78] In Grant v Grant[32], Read J. examined competing “dissipation” arguments, which shed light on when responsibility for theloss of home equity should be shared. Here is the key excerpt: [59] The current value of the Matrimonial Home is a bit difficult to determine since it is in foreclosure.

An application for a finalorder of foreclosure was slated for February 18, 2016, immediately after the end of this trial. The best evidence before me was that itscurrent gross value is $899,000. This number is based upon the mortgage company’s alternative position in the foreclosure application:to reduce the sale price to this amount. What equity the parties have in this home is also open to question since what they actually realizewill be determined not only by the ultimate purchase price but also by the amount owing on the foreclosure.

This is, of course, a movingtarget since accrued interest and the cost legal fees will be added to the amount owing once the sale is completed. [60] Additionally, and particularly with respect to the value of the matrimonial home, both Mr. Grant and Ms. Grant made whatamounted to arguments that the other had dissipated the value of this property since the date of separation.

[61] Mr. Grant argued that Ms. Grant had delayed putting the property up for sale, delayed in making price reductions when thesewere suggested by the realtor, failed to keep the property neat and uncluttered so as to facilitate sale, and brought in renters whosepresence has made the property more difficult to show. All of this, it was argued, resulted in few showings of the property and it haslanguished on the market for close to two years. Meanwhile, the price of houses in Edmonton may have dropped. [62] Ms. Grant argued that Mr.

Grant disobeyed the March/May Order by failing to pay the mortgage, thereby forcing theforeclosure and by failing to pay for costs of needed repairs and finishing in the Matrimonial Home or otherwise aid her in finishing it soas to make it more saleable. … [72] In my view, however, dissipation has not been proven by either party. There is neither evidence of fraud, deceit, or profligatespending nor evidence that matrimonial property has been destroyed or wasted or that a party spent money lavishly or foolishly onfinishing the Matrimonial Home or on things other than the mortgage. Mr.

Grant has struggled to pay all of the expenses of the familyand Ms. Grant’s delay is only foolish in retrospect, because of the changes in the housing market. [73] There is no reason not to divide the Matrimonial Home equity equally. Neither party can apparently afford to redeem the home,and both are content to allow the foreclosure to continue.

In my view, the best way of dividing the equity in these circumstances is simplyto allow the foreclosure to be completed with each party to be paid one-half of the remaining equity at the end of the day. [As I see it, byextension this would mean responsibility of each party for one-half of any shortfall, if any.] [79] Similarly, see Brickner v Brickner[33]: [44] In Montour v. Pope-Baker, 2007 SKQB 97 … (2007),

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