Sellers v Sellers, 2019 ABQB 969

Court of Queen’s Bench of Alberta Citation: Sellers v Sellers, 2019 ABQB 969 Date: 20191217 Docket: 4803 168694 Registry: Edmonton Between: Ronald Frederick Sellers Plaintiff - and - Danielle Michelle Sellers Defendant Corrected judgment: A corrigendum was issued on January 13, 2020; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.E. Richardson _______________________________________________________ Introduction [ 1 ] This decision follows a two-day

summary trial where both Mr. Sellers and Mrs. Sellers were the only witnesses. [ 2 ] Most, but not all, the issues to be determined are agreed upon. They both agree to a divorce. The conditions precedent are met and a divorce is granted. [ 3 ] They both agree that the issues of ongoing and retroactive child and spousal support and the division of matrimonial property are to be decided. These were the issues set out in the order for

summary trial. During final argument Mrs. Sellers abandoned her claim to parenting and unjust enrichment (for the pension accrual period to include the five weeks of cohabitation immediately before the

marriage). Both these issues were raised for the first time in her counterclaim, filed on June 7, 2019. No evidence was called at the trial on either issue. [ 4 ] Also raised for the first time in the counterclaim was the issue of occupation rent. Mr. Sellers objects to this issue being considered because it was not set out in the order for

summary trial. As a consequence, he did not provide any evidence in his affidavit or in his testimony to address this issue. The Counterclaim was filed well after the

summary trial order. Mr. Sellers was therefore prevented from responding to these claims. [ 5 ]

Summary trials are designed to afford swift access to justice where the issues and much of the evidence are agreed upon by the parties. Fairness requires that each party be given an opportunity to prepare and respond to any issue raised. Occupation rent was not properly part of the

summary trial requested by both parties and accordingly will not be considered in this decision. Background Facts [ 6 ] The parties were married on December 18, 2000 after living together for 5 weeks. They have one child, born August, 2002. They separated on March 14, 2014. [ 7 ] Since the date of separation, the child has lived full-time with Mr. Sellers. Both parents are to be commended for cooperatively working out parenting arrangements. Parenting has been more of a challenge since July 2018 when Mr. Sellers and the child moved to British Columbia.

Despite this move, the parties have worked together to ensure the child has time with both his parents. [ 8 ] At the time of the marriage, Mr. Sellers was employed in the Canadian military and remains so employed to this day. From 2000 to 2013, Mrs. Sellers worked as an electrician, obtaining a Red Seal journeyman electrician designation in 2009. [ 9 ] The evidence in the trial was complicated by the fact that throughout their marriage and separation, the parties lived with much chaos.

There was financial chaos within the marriage that was exacerbated after the separation: living on credit, bank loans that were not paid on time, or at all, foreclosure on the St. Albert property, garnishee of Mr. Sellers wages, Mrs. Sellers frequent change of employment and her reliance on Employment Insurance (EI) and Assured Income for the Severely Handicapped (AISH) at various times. [ 10 ] Some of the division of property in this case involves the division of debt. While both parties are presently working, neither has appreciable assets, but for Mr.

Sellers’ military pension. [ 11 ] As well, each party failed to comply with some disclosure requests arising out of questioning. Whether this was deliberate or whether it was simply due to the lack of record keeping because of the chaotic nature of their financial lives is irrelevant. It is sufficient to note that some of the claims by each party were not supported by documents that had been requested. [ 12 ] The Sellers family unit operated as a dual income family, with each parent working full-time.

After the child’s birth both parents took a leave from work, the mother taking maternity leave and the father taking a total of 5 months off after the child’s birth to be at home. [ 13 ] After their respective parental leaves in early 2003, both parents returned to full-time employment. The child was enrolled in daycare during the day. Both parties agree that child care and household duties were shared relatively equally when the parties were at home. [ 14 ] Mr. Sellers position with the military required many long absences from home. After the child was born, Mr.

Sellers was twice deployed to Afghanistan for months at a time. He was also sent to Germany, the Canadian Arctic and Gagetown, New Brunswick for exercises and training, for periods of one week to several months at a time. His work obligations took him away from home for approximately 2.5 years of the child’s life, to the date of separation. The parties separated when the child was 11.5 years old. During his absences from the family home, the child remained in daycare and Mrs. Sellers continued to work full-time. In addition, she completed the majority of renovations on their first home (“the St.

Albert townhouse”). [ 15 ] In 2010, Mrs. Sellers was diagnosed with bipolar disorder. This illness required hospitalization several times throughout the marriage and after separation. Notable hospitalizations occurred in 2010, 2013, 2014 (on the day after the date of separation) and 2015. [ 16 ] In January 2013, Mrs. Sellers was laid off of her long-term position as a journeyman electrician.

But for a brief period post separation from October 2014 to March 2015 and again in September 2015, she has not worked as an electrician since, instead working a series of volunteer, part-time and then full-time positions, concluding with her most recent year long position as a full-time labourer beginning in August 2018. Both parties remain employed in full-time positions at the date of trial. [ 17 ] The following are the agreed upon line 150 incomes for each party: AGREED LINE 150 INCOMES Mr. Mrs. 2010 $72,345 $41,601 2011 $82,048 $48,261 2012 $90,522 $47,097

2013 $117,919 $25,275 (Mrs. Sellers laid off Jan 2013) 2014 $93,429 $33,369 (March 14 - date of separation) 2015 $101,824 $42,884 2016 $97,679 $31,219 2017 $112,790 $27,871 2018 $108,795 $48,911 Child Support [ 18 ] Since the date of separation, the child of the marriage has lived exclusively with the father. He remains a child of the marriage pursuant to s 2(1) of the Divorce Act , R.S.C. 1985, c3 (2 nd Supp ). No exceptions exist to remove the presumption that the mother pay child support as set out in the Federal Child Support Guidelines, SOR/97-175 ( FCSG ). [ 19 ] Mr.

Sellers is claiming child support from September 1, 2014 to June 30, 2018 plus the proportionate share of s 7 expenses based upon an imputed income to Mrs. Sellers of $45,000 per year. The June 5, 2018 order dealt with child support for July 1, 2018 to the date of trial. Mrs. Sellers agrees to pay s 3 child support according to her line 150 income. Mrs. Sellers’ seeks one adjustment to accommodate the increased cost of exercising her parenting time now that the child has moved to B.C. [ 20 ] Mr. Sellers argues that an imputed income of $45,000 for the mother is appropriate.

He claims she has been purposefully under employed since the date of separation, given her Journeyman electrician ticket. Although he argues that a full-time electrician could earn much more than $45,000 a year, his position accommodates Mrs. Sellers’ need for less strenuous work and is based on her 2018 and 2019 line 150 income which slightly exceed $45,000. [ 21 ] In order to impute income for child support purposes, the court must be satisfied on a balance of probabilities, that Mrs.

Sellers was under employed with the specific intention of avoiding her child support obligations ( Hunt v Smolis-Hunt , 2001 ABCA 229 paras 40-42 ). [ 22 ] I am not prepared to find on a balance of probabilities, that Mrs. Sellers was intentionally unemployed or underemployed for the purpose of avoiding her legal obligation to financially support her son.

While there is no direct or expert medical evidence that her bipolar disorder made her unable to maintain employment, there is evidence that her fractures from employment often arose concurrent to her hospitalizations (for example 2015). [ 23 ] At the date of separation, Mrs. Sellers had been unemployed for 15 months, her only stretch of lengthy unemployment during the almost 14 year marriage. She obviously needed some time to reengage with the labour force. She was also suffering from bipolar episodes which necessitated hospitalizations in 2013, 2014 and 2015.

These hospitalizations made it more difficult for her to secure and maintain employment. [ 24 ] She was also required after separation to move out of the matrimonial home and stabilize her health. By the fall of 2014 she was employed full-time as an electrician. That position ended in the spring of 2015 and afterwards, it took her almost two years of trying new jobs and accessing social supports (EI and AISH) before she landed on full-time sustained employment.

On the evidence, this is reasonable and does not betray an intention to avoid child support obligations. [ 25 ] As well, there is evidence that during 2015 and 2017, Mrs. Sellers purchased a bass guitar and rented a drum kit for the child, along with paying for music lessons for the child. The evidence does not support a finding that Mrs. Sellers was intentionally avoiding her obligation to financially support her child. [ 26 ] Mrs. Sellers’ income will not be imputed.

Section 3 child support, pursuant to the FCSG will be paid by Mrs. Sellers while the child remains a child of the marriage. [ 27 ] Mr. Sellers requests retroactive child support back to September 2014. D.B.S. v. S.R.C. , 2006 SCC 37 sets out the test that applies to any request for retroactive child support. The court must look to the reasons for the delay in seeking child support, the conduct of the payor parent, the circumstances of the child and any hardship to the payor. [ 28 ] There was no evidence called to address the delay in the father seeking child support.

I note that he claimed support in his Statement of Claim filed in July 2014. However, thereafter he did little to advance his request. Both parties agree that the mother paid $261 per month in child support according to the June 23, 2015 order, which set interim spousal support at $500. Counsel explained that this order was a notional spousal support order of $761 per month with a reduction for child support payable by the mother of $261 per month, which accounts for the $500 support payment in the order.

This order was in place for 18 months, with the mother having paid at total of $4,698 during this time. [ 29 ] In June 2018, the father sought an order to permit the child to move to British Columbia with him and child support from the mother was ordered as part of that interim order. The mother has been paying $160 or $200 (the math in the order is not clear due to the transportation offset) per month since that time. [ 30 ] Therefore, for two and a half years of the five years since separation, the mother has been paying child support on an interim basis.

There is no evidence to explain why the father (whom the child has lived with exclusively since the date of separation) delayed

taking steps to advance his claim for child support in the intervening two and a half years. [ 31 ] I am also concerned that ordering retroactive child support to September 2014 will cause Mrs. Sellers financial hardship. Accordingly, and taking into account that for half of the time since separation Mrs. Sellers has paid child support, the claim for retroactive child support is denied. [ 32 ] Mr. Sellers also seeks child support relating to Boy Scout fees and bowling league fees claiming these fees are extraordinary expenses for extracurricular activities pursuant to s 7(1)(

f) of the FCSG . [ 33 ] I am not prepared to find that these expenses constitute extraordinary expenses under s 7(1.1)(

a) or s 7(1.1)(

b) of the FCSG having regard to the means of the spouses and the combined family income. The expenses claimed are small and do not exceed what the father can reasonably cover given his income plus the table amount of child support that the mother is ordered to pay. Also, the overall costs of these programs and the length of time the child participated in the programs is limited. Finally, these expenses are equivalent to expenses Mrs. Sellers paid in 2015 and 2017 when she acquired instruments and music lessons for the child. [ 34 ] Mrs.

Sellers seeks $2,500 every year as an amount to afford access to the child while he remains in B.C. The child is school aged and his vacation time has been and will be constrained by school holidays. These are peak travel times, which result in higher airfares. She claims undue hardship under s 10 of the FCSG . [ 35 ] The first step in assessing undue hardship is to determine whether there exist circumstances capable of creating undue hardship if s 3 child support is ordered: FCSG , s 10(2).

I find that it is an undue hardship for the mother to have to pay for quarterly flights for her or the child to fly to and from Victoria/Edmonton in order to afford access to the child. Step two is to consider the household income ratio between the parties. Mrs. Sellers’ 2018 line 150 income is 45% the 2018 line 150 income of Mr. Sellers. However, since October 2014 to the date of trial, Mr. Sellers has been living with a new partner.

He has refused to provide any details of her income or household income contribution saying only that she occasionally contributed to household bills like utilities and “helped” with groceries. He testified that she is employed and runs a day home. It is therefore impossible to properly set out the household income ratio between the parties. [ 36 ] The FCSG allows the court to draw a negative inference on the party who refuses to provide the court with their household income. Accordingly, even without his new partner’s income, Mrs. Sellers income for 2018 was 45% that of Mr. Sellers.

His new partner is employed which would increase his household income so that the ratio in favour of Mrs. Sellers would be even smaller. I find that there is an undue hardship to Mrs. Sellers given that travel between Alberta and British Columbia is now required for her to have parenting time. Accordingly, child support will be reduced by $2,400 per year (or $200 per month) to account for travel expenses. [ 37 ] Based on her line 150 income in 2018, Mrs. Sellers will pay child support of $402.38 per month. Reduced by the $200 per month to access travel costs, Mrs. Sellers will pay to Mr.

Sellers child support of $202.38 per month commencing January 1, 2020. [ 38 ] The parties will exchange their respective Income Tax Returns and Notices of Assessment for the previous calendar year by June 30 th each year until the child is no longer a child of the marriage. The table amount of child support will be adjusted effective July 1 st each year to reflect Mrs. Sellers’ income from the previous calendar year. The amount of child support will be the s 3 table amount, less $200.

Division of Marital Property [ 39 ] The Matrimonial Property Act , RSA 2000, c M-8 , ( MPA ) governs the division of matrimonial property.

Section 7(1) authorizes the Court to distribute between the spouses all of the property owned by both spouses and by each of them. [ 40 ] The presumptive date of valuation for the purposes of matrimonial division is the date of trial: Hodgson v Hodgson , 2005 ABCA 13 at para 10 . [ 41 ] Any difficulties resulting from delays between separation and trial can be resolved using the s 8 factors: Kazmierczak v Kazmierczak , 2001 ABQB 610 , aff’d 2003 ABCA 227 . [ 42 ] Section 7(4) presumes an equal division of non-exempt matrimonial property unless that presumption can be rebutted by demonstrating the existence of one or more of the factors in s 8. [ 43 ] The s 8 factors include the following: (

a) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent; ...(

c) the contribution, whether financial or in some other form, made directly or indirectly by or on behalf of a spouse to the acquisition, conservation or improvement of the property; (

d) the income, earning capacity, liabilities, obligations, property and other financial resources (

i) that each spouse had at the time of marriage, and (ii) that each spouse has at the time of the trial; (

e) the duration of the marriage; (

f) whether the property was acquired when the spouses were living separate and apart;

... (

i) a previous distribution of property between the spouses by matrimonial property order; ...(

l) that a spouse has dissipated property to the detriment of the other spouse; and (

m) any fact or circumstance that is relevant. [ 44 ] Mr. Sellers seeks an unequal division on the basis that Mrs. Sellers dissipated marital property and he seeks his pension valuation date to be the date of separation. He also wants credit for the amount that the mortgage on the matrimonial home was reduced after separation as a result of him being solely responsible for making these payments. [ 45 ] Mrs. Sellers also argues that Mr. Sellers dissipated marital property and she seeks that the costs awarded as a result of a judgment be attributed solely to him. Valuation date - Pension [ 46 ] Mr.

Sellers acknowledges the presumption that marital property is valued at the date of trial however, he relies upon the decision of Page v Teichgraber , 2014 ABQB 711 [ Page ] to support his argument that his pension accrual period should be the date of separation and not as at the date of trial. [ 47 ] Mrs. Sellers argues that the valuation date of the pension should be the date of trial. Counsel stated that if the Court decides to divide the pension at the date of trial, Mrs.

Sellers would forego retroactive spousal support and if the court decides to divide the pension at the date of separation, retroactive spousal support should be awarded. [ 48 ] The pension will be divided equally from the date of marriage to the date of trial. [ 49 ] The court in Page divided a pension from the date of marriage to the date of separation but this was on the joint agreement of counsel (see para 11). Joint submissions furnish no precedential value.

This case does not stand for the proposition that applying s 8 factors results in valuation of a pension as at the date of separation. [ 50 ] The Court of Appeal in Keen v Christian-Keen , 2015 ABCA 314 settled the issue of the valuation date for a pension in a case where a trial was adjourned for lack of courtrooms and the eventual trial judge made a finding that the applicant’s pension should be divided at the date of the actual trial, not the date of the first (adjourned) trial.

The court said, “It is unfortunate that the original trial had to be adjourned because of a lack of judicial resources, but that is no reason to deviate from the rule that assets are valued as at the time of the trial” (para 16). [ 51 ] Mr. Sellers also argues that the application of the s 8 MPA factors results in a conclusion that his pension should be divided as at the date of separation. Specifically, he argues that Mrs. Sellers did not contribute to the growth of his pension or his ability to earn pension entitlements after the date of separation.

That is incorrect. [ 52 ] In the whole of the almost five years between the date of separation and the date of trial, Mr. Sellers paid spousal support for only 18 months (July 2015-December 2016). [ 53 ] In the time between their separation and the date of trial, the parties’ lives and assets were intertwined. They continued to own two houses, the townhouse (until 2016) and the matrimonial home (until 2018). [ 54 ] As well, Mrs. Sellers had a legal claim to half his pension for the 13+ years of the marriage. From the date of separation to the date of trial, her half of his pension entitlement also grew.

Valuing the pension at the date of separation would not acknowledge the growth in her share of his pension. [ 55 ] Mr. Sellers was able to advance his career in the military in part because he was able to take multiple overseas deployments for long stretches of time, and take training outside Alberta. His career advancement came with an increase in rank and salary and pension. These absences for work purposes were possible because Mrs.

Sellers remained at home, albeit working full-time. [ 56 ] Nothing in the facts or the application of the s 8 factors displaces the presumption that the accrual period of the pension is the date of marriage to the date of trial. Dissipation of Marital Property by Mrs. Sellers [ 57 ] Mr. Sellers argues that Mrs. Sellers dissipated marital property in two significant ways. The first is Mrs. Sellers’ purchase of video games over iTunes before the separation, in the amount of $10,000.

The second is her non-payment of the minimum required payment on the Home Equity Line of Credit (HELOC) that was secured against the St. Albert townhouse, which non-payment resulted in foreclosure on the property and the loss of $57,100 of marital equity in the townhouse. [ 58 ] The case law defines dissipation as to destroy or waste, including to expend funds foolishly with a concurrent element of bad faith or neglect.

In Cox v Cox , 1998 ABQB 233 , the court identified several relevant principles to consider when assessing dissipation, including: • Dissipation requires a degree of intent although that intent does not necessarily have to extend to intentionally depriving the other spouse of a fair distribution of matrimonial property. It is sufficient if one spouse intends to dissipate assets (usually for their own enjoyment), and that dissipation arises to the detriment of the other spouse,

• There must be actual detriment to the other spouse, and • The law generally does not find dissipation if the reduction in assets was due to reasonable expenditure made on behalf of the family or to maintain existing matrimonial assets. However, the court will look to see if the spouse could have paid those expenses out of income rather than by depleting assets. (

a) Video Game Purchases [ 59 ] Mrs. Sellers video game purchases claimed as dissipation by Mr. Sellers were expensed before the date of separation. Lander v Lander , 2011 ABQB 414 , stands for the proposition that dissipation can occur before the date of separation and the same factors as post separation dissipation apply. [ 60 ] There is a dispute on the evidence about the amount of Mrs. Sellers’ video game purchases before the separation. [ 61 ] Mr. Sellers’ materials state that she spent $20,000 to $30,000 on video games in 2013 and early 2014. He testified that he believed Mrs.

Sellers spent $10,000 on video game purchases through the same period because she told him that was the amount she spent. No documentary evidence was presented to support either amount. [ 62 ] Mrs. Sellers testified at trial that she was ill during this time (hospitalization in July 2013) and “has no idea how much” she spent. She testified that after the separation, while she was unemployed for a short time, she spent about $1,300 over a four-month period. She relied upon credit card and bank statements (entered into evidence) in coming to this conclusion.

She testified that while she was unemployed, she enjoyed spending time during the day playing video games. She denied at trial that her pre-separation spending was anywhere close to $10,000. She also testified that after the date of separation, between August and November 2015 while she was unemployed, she spent $600 in total in 4 months on video game purchases and had bank statements that supported this amount.

She testified that this general amount was her usual spending when she was unemployed and had time to increase gaming. [ 63 ] She acknowledged during her testimony that during her questioning she agreed with the suggestion from Mr. Sellers’ counsel, that she spent approximately $10,000 in video game spending. She also testified during questioning she agreed with the suggestion that she spent between $20,000 and $30,000 before, but she explained she agreed with that range at the time because Mr.

Sellers had told her that is what she spent. [ 64 ] Located in her medical charts that were entered at trial is a record of her telling medical professionals during her hospitalization in 2014, that she spent $10,000 in video game purchases. In another medical chart for the same three-week hospitalization, there is a record that she told staff that from May 2012 to March 2014 she spent $4,000 in video game expenses.

Likewise, the medical charts and notes show that she told health care professionals that she spent $1,000, then $4,000, then $4,000 to $10,000, then “a few thousand” dollars video gaming. [ 65 ] I cannot rely upon these self-reported estimates given that the medical professions note her presentation included being “paranoid, grandiose, delusional, unrealistic and with a loss of memory”.

She is described further in these records as “lacking insight and having impaired judgment”. [ 66 ] I also cannot rely upon her acknowledged spending of $10,000 in questioning because she agreed with the amount as put to her by counsel. Mrs. Sellers is someone who avoids conflict in the face of authority. This was her explanation for not contacting the lender to discuss her HELOC arrears, and her explanation for not contacting AISH to advise of her full-time employment.

Her testimony that she agreed with the $10,000 amount of video game spending because it was suggested to her by counsel is credible. [ 67 ] There is no credible evidence to support a finding that Mrs. Sellers spent anywhere near $10,000 on video game costs pre- separation and there is no evidence to support a finding that any video game expenses engaged an intention by Mrs. Sellers to dissipate assets.

b) Non-Payment of HELOC [ 68 ] Mr. Sellers also argues that post separation, Mrs. Sellers dissipated marital property by failing to make payments toward the HELOC that was secured against the St. Albert townhouse. This failure resulted in foreclosure proceedings and a loss of $57,100 in marital equity in that property. As a result of the foreclosure, there were no funds remaining to distribute to either party. [ 69 ] In 2010, the mortgage on this property was converted to a HELOC. Six months after separation, in September 2014, Mrs.

Sellers moved into this property and pursuant to a consent order she was responsible for paying the bills for this property. These included the condo fees, the property taxes and maintaining the HELOC in good standing. At the time, monthly interest only payments of $650 were required to keep the loan in good standing. [ 70 ] Mrs.

Sellers agrees that she did not make the required interest only payments at times but argues that it was not dissipation as she had no intention to dissipate this equity and put the townhouse into foreclosure, it was simply a case that she did not have the funds to make the required minimum monthly payments. [ 71 ] Mr. Sellers has the onus of proving this dissipation on a balance of probabilities. Given the claim of Mrs. Sellers, it is necessary to examine the chronology of payments and her employment status. [ 72 ] She moved into the townhouse in September 2014.

The HELOC payments for September and October were withdrawn from a joint account that was populated with Mr. Sellers’ income only. In October she began working full-time as an electrician, having secured her employment post separation. Despite this, in November 2014 she “missed” a payment entirely. In December she made the requirement payment but remained in arrears for the previous month. [ 73 ] In 2015 from January to March she made the required minimum monthly payment. She remained employed as a full-time

electrician during these months. She remained in arrears for November 2014 nonpayment. [ 74 ] In March 2015 she was laid off from her electrician position. She had also been hospitalized for one week in February as a result of a bipolar episode. Upon release from hospital, she testified that her medication regime was altered and her bipolar illness became, and remains, stabilized. [ 75 ] In April 2015 she made no payment. In May she made less than the minimum payment. In June 2015 she made the minimum monthly payment and then in July, no payment was made.

During these months from her lay off in March 2015 until August 2015, she worked at Costco for 3 months and was again, laid off. Because of her periods of unemployment in 2015, she had an EI claim that took some time to process. Her EI claim was paid out in August 2015 and she used those funds to bring the HELOC up to good standing by paying out all the arrears that had accumulated. [ 76 ] By July 2015 she was receiving $500 in spousal support as a result of the June 23, 2015 order. These payments were received until December 2016. In August and September 2015, she made net RRSP withdrawals of $14,387.

In October 2015 she started work with Canem and stayed there until moving to a temporary agency in November 2015. She was employed with the temp agency until August 2018. Despite these funds, she did not make any HELOC payments in September and October 2015. [ 77 ] In November 2015 she made less than the minimum payment. It was also in this month that Mrs. Sellers received a notice from the bank of their concern about the HELOC not remaining in good standing.

She testified that she did nothing in response to receiving this first notice because “she doesn’t like to get into trouble”. [ 78 ] In December she made no payment and in January and February 2016, she made less than the minimum payment. In March 2016, she was served with a statement of claim by the lender to foreclose on the property as a result of the HELOC default. Only after being served with the statement of claim did she call the lender, at which point, she testified, they did not want to negotiate a repayment plan.

As a result, she stopped making any payments saying she “couldn’t stop the foreclosure”. [ 79 ] Mr. Sellers argued that her nonpayment of the HELOC was an attempt to divest herself of assets in order to qualify for AISH. It is correct that in the medical evidence, there were discussions with Mrs. Sellers in early 2015 about the fact that she did not qualify for AISH as a result of having too many assets. However, in August 2015 she used her EI funds to pay off the arrears.

As a result, I am not prepared to find that her nonpayment of the HELOC was intended to rid herself of the townhouse asset so she could receive AISH. [ 80 ] Mrs. Sellers says that she wanted to stay in the townhouse and “attempted to make regular payments”. However, her actions speak louder than her words. In 2014 and early 2015 she actually was short of funds. She was in and out of the workforce and she had a relatively large EI claim that was slow to be approved. As a result, she missed a few payments, and made less than the mandatory payment at times.

However, as soon as her EI claim was paid out, she took enough of those funds to pay off her arrears on the HELOC and bring the loan back into good standing. [ 81 ] She likewise in the fall of 2015 came into another lump sum of money, from cashing in her RRSP. She had the recent experience of not being able to make her HELOC payments. Instead of directing some of this money to the HELOC she testified that she exhausted these funds on “excessive spending”. She was employed throughout October 2015-March 2016 when the statement of claim was served on her. She was receiving $500 in spousal support every month.

Her line 150 income in 2015 was over $42,000 and in 2016 it was over $31,000 and she was only supporting herself. [ 82 ] During the time from August 2015 until March 2016, Mrs. Sellers had the funds and the ability to make the HELOC payments as required. She chose to direct her income to other spending. [ 83 ] I find that Mrs. Sellers dissipated the equity in the St. Albert townhouse by choosing to not make the required minimum payments between September 2015 and March 2016 when she had the financial ability to make these payments.

As a result, the amount she dissipated is the amount of equity that existed in the townhouse on the date of separation, which was $57,100. She will be responsible for the full amount that she dissipated. Mr. Sellers Dissipation [ 84 ] Mrs. Sellers argues that Mr. Sellers dissipated marital property by not paying the Personal Line of Credit (PLOC) that was used for marital spending. As a result of the nonpayment, he incurred $11,853 in costs that was taken out of the proceeds of the sale of the matrimonial home in August 2018 when the property was sold.

She argues that this was dissipation and that this costs award should not be divided equally between them. [ 85 ] The 2014 order giving exclusive possession of the matrimonial home to Mr. Sellers and exclusive possession of the St. Albert townhouse to Mrs. Sellers required each party to pay the debt servicing on their respective properties. The PLOC was secured against the matrimonial home. Mr. Sellers made all the required payments from the date of separation until June 2015. At that time the balance on the PLOC was $52,359. Mr. Sellers made no PLOC payments after June 2015.

He testified that after the June 23, 2015 spousal support order he simply did not have funds to make all his payments so he made the payments he was required to pay, which he considered to be the promissory note (to a friend who lent him the funds to pay out his motorcycle loan) and the spousal support order. [ 86 ] The $52,359 balance on the PLOC was eventually recovered by the lender because in 2016 they received a judgment against Mr. Sellers for nonpayment of the PLOC and this amount was garnisheed from his wages over approximately 2 years. [ 87 ] It was not reasonable for Mr.

Sellers to stop making the PLOC payments. While he claims that after the June 2015 spousal support order, his income was insufficient to meet his financial obligations, that was in large part due to the fact that in October 2014, immediately after Mrs. Sellers vacated the marital home, Mr. Sellers invited his new partner and her three minor children to live with him. He testified that although his new partner was working, her financial contribution to the household was limited to occasionally

buying groceries and helping with utilities. He also testified that his new partner did not receive child support from the father of her children. So his single income went from covering himself, his son, marital debts and spousal support to adding the financial obligation for four other people, all of who came without any real financial contribution to this new household. [ 88 ] In these circumstances, Mr.

Sellers made an intentional decision to stop paying the PLOC, a marital debt and one he was required to pay pursuant to the June 2014 order and he will be responsible for the full amount he dissipated. [ 89 ] I find that Mr. Sellers dissipated marital property in the amount of $11,853, the costs award from the judgment garnisheeing his wages for the nonpayment. This amount will not be divided in the marital property statement. Other s 8 Factors [ 90 ] Dissipation is only one of the factors under s 8 MPA to be considered in distributing marital property.

In this case both parties dissipated marital assets. [ 91 ] During the course of the marriage both parties worked full-time and were well employed. It is only during the last 15 months of the marriage that either party was unemployed. During her time of unemployment Mrs. Sellers was hospitalized twice, for extended periods, suffering from bipolar symptoms. As a family unit, both parties cared for the child and looked after household responsibilities. Mr. Sellers’ work took him out of town, and away from the day to day life of the family for months at a time. During this time Mrs.

Sellers continued to work full-time maintaining the household and caring for the child. This arrangement characterized the entire marriage, but for the last year when Mrs. Sellers was laid off and ill. [ 92 ] Both Mrs. Sellers’ training and skill as an electrician made her the ideal candidate to undertake renovations to their first home (the townhouse). While Mr. Sellers helped with these renovations, his long absences for work meant that Mrs. Sellers contributed more to this effort. [ 93 ] Mr.

Sellers argues that after the date of separation, as a result of mortgage payments on the matrimonial property that he made, the mortgage was reduced by $31,328. He seeks that this amount be credited to him alone because this was “property” he acquired after the date of separation when the parties were living separate and apart. [ 94 ] I agree that this amount is equity he built up post separation. He remained in the matrimonial home and maintained the required payments while assuming day to day care of and sole financial responsibility for the child of the marriage.

In addition, he paid the September and October 2014 HELOC payments that Mrs. Sellers was responsible for while she was living in the St. Albert townhouse. He also paid all the condo fees and property taxes on that property for 2014. He also paid Mrs. Sellers vehicle insurance, cell phone and health benefits for the 2014 calendar year. In doing so he assumed these expenses post separation for Mrs.

Sellers, which allowed her time to find employment while at the same time continuing to make mortgage payments on the matrimonial home to ensure that the child of the marriage did not have the added disruption of moving after his parents separated. [ 95 ] The Alberta Court of Appeal recently commented that “Displacing the presumption of equal distribution is not reached lightly. There must be some ‘real imbalance’ in each party’s contribution or as found in the other factors [in s 8 MPA ]” ( Stuve v Stuve , 2019 ABCA 142 at para 13 ).

Given the presumption and considering the impact of the s 8 factors as set out above, the marital assets and liabilities will be divided as set out below. [ 96 ] The matrimonial home was sold in 2018 generating $36,118 in net proceeds. This amount will be divided equally. Mr. Sellers has already received $27,000 of the proceeds and Mrs. Sellers has received $3,000. There remains $6,118 in Mr. Sellers’ counsel’s trust account. The $36,118 in net proceeds of the matrimonial home will be divided equally. [ 97 ] In the year after the date of separation, each party withdrew the entire amount of their respective RRSPs.

The amounts were equivalent, but not equal. Each party will have the net amount withdrawn reflected as an asset in the matrimonial property sheet. [ 98 ] The vehicles were discussed at trial and basically agreed to on each of the marital property statements presented to the court. The Nissan Titan was purchased during the marriage and has remained in Mr. Sellers’ possession. The value is agreed to be $10,000. There is presently a $10,000 secured debt against the vehicle. Mr. Sellers seeks the entire purchase price of the vehicle to be reflected in the property statement.

I disagree because he has had the use of the vehicle for the past 5+ years. There is a dispute about the number and type of vehicles that Mrs. Sellers had at the date of separation and has now, however, the combined value of the vehicles is agreed to be $2,500. This amount will be included as her asset in the property statement. [ 99 ] The motorcycle details are also virtually identical between the parties. Mr. Sellers will have this asset reflected as $9,000 with a corresponding liability of $9,000. This motorcycle was sold by Mr. Sellers for $9,000 well before the trial date. [ 100 ] Mr.

Sellers deposed that he gave Mrs. Sellers a $300 Canada Savings Bond. Mrs. Sellers presented no evidence on this asset. It will be reflected in the property statement as her asset. [ 101 ] Mr. Sellers paid the entire cost of the PN7 report that was prepared, even though the court ordered that the cost be shared equally by way of a consent order dated August 7, 2014. In May 2015, Mrs. Sellers was successful in getting this changed due to her lack of employment and Mr. Sellers was ordered to pay the whole amount in order to ensure the report was completed. Despite this, Mrs.

Sellers acknowledges that she is responsible for half of the $1,500 cost of this report and this will be reflected in the matrimonial property statement as her debt. [ 102 ] Both parties agree that Mr. Sellers is entitled to an exemption under s 7(4) MPA for half of the $5,000 pre-marital RRSP withdrawal of funds that were used as the down payment for the purchase of the St. Albert townhouse, the initial matrimonial home.

Liabilities [ 103 ] In January 2017, Mrs. Sellers started receiving AISH. She argues that this is a marital debt because if she were receiving spousal support during this period, she would not have had to access the AISH program. [ 104 ] AISH is a financial and health benefits program for people with a permanent medical condition that prevents them from earning a living. As a result, the program is designed so that recipients are entitled to earn a limited amount each month without AISH benefits being affected. Mrs.

Sellers knew this because in 2017 when she started on AISH, she testified that she would often only accept work through the temp agency for the first few days of the month, until she had reached the maximum threshold earnings for AISH recipients. [ 105 ] In August 2018, Mrs. Sellers started working full-time at Cambian as a labourer earning $24 per hour. She did not report this employment or the income from this position to AISH, knowing that this made her ineligible to receive benefits.

She testified that she called AISH two days before the trial to report that she had been working full-time for the previous 11 months.

She testified that she knew that failing to report her income was a breach of the AISH rules and she failed to report because she “didn’t like getting in trouble”. [ 106 ] As a result of her employment, she will have to repay all her AISH income for this time, resulting in a debt of approximately $15,135. [ 107 ] A debt incurred after separation is not a marital debt unless it has benefited the other spouse in some tangible way: Knudson v Knudson , 2015 ABCA 398 [ Knudson ]. [ 108 ] This debt is not a marital debt. Mrs.

Sellers knew the rules of the program and structured her temp agency work in a manner that allowed her some employment (the first few days of the month) and also allowed her the security of AISH. For the past year she was able to work full-time, earning $24/hour. She knew that this level of earnings made her ineligible for benefits. During 2017 her line 150 income was $27,871 and in 2018 it was $48,911. AISH benefits are not taxable so these line 150 amounts do not include her AISH payments. [ 109 ] The AISH debt did not benefit Mr. Sellers in any way. It was not necessary for Mrs.

Sellers to acquire this debt given her line 150 income and her limited expenses during the 11 months in question. The debt itself came more than four years after the date of separation. Mrs. Sellers will be solely responsible for her AISH debt. It will not be included in the matrimonial property statement. [ 110 ] Mrs. Sellers seeks the inclusion into marital debts of four personal loans she acquired after the date of separation (Leon’s, personal loan x 2, Spring Financial). There is an absence of any evidence that could lead to a conclusion that these post separation debts benefited Mr.

Sellers in any tangible way per the Knudson threshold, supra . These debts are not marital debts. They will not be included in the matrimonial property statement. [ 111 ] At the date of separation, Mr. Sellers was ordered (by way of the June 2014 order) to maintain the payments on the PLOC which consisted of marital debts. At the date of separation, the best evidence on the amount owing was $51,296. Mr. Sellers stopped making these payments in 2015, and as a result, interest accrued and he was eventually subject to a default judgment and his wages were garnisheed.

As a result of the garnishee, $11,853 in costs was added to the amount owing and I have already found Mr. Sellers to be solely responsible for this amount. He will also be responsible for the amount that the PLOC increased as a result of his nonpayment. The evidence was that the amount garnisheed from his wages, before the costs award is include was $9,285 ($60,581-$51,296).

Spousal Support [ 112 ] The Divorce Act provides: 15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall 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.

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse 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. [ 113 ] Determining spousal support involves the exercise of judicial discretion: Corbeil v Corbeil , 2001 ABCA 220 at para 47 .

[114]

Section 15.2(4) permits the Court to determine whether income should be imputed as part of a spouse’s means for the purposeof spousal support. This necessarily involves an assessment of whether that spouse’s actions, as they relate to his or her employmentsituation, are reasonable in the circumstances: Jean v Jean, 2006 ABQB 938 at para 113, and Olson v Olson, 2016 ABQB 533 at para95. [115] Mrs.

Sellers is seeking compensatory and non-compensatory spousal support for a duration of almost 14 years, equal to thelength of the marriage. [116] The Divorce Act recognizes two separate avenues for entitlement to spousal support. Compensatory spousal support is theprimary basis for support. It is a statutory principle that accounts for the economic advantages and disadvantages to each spouse as aresult of their roles within the family unit, Moge v Moge, (SCC). Non compensatory spousal support acknowledges theeconomic disadvantages to either party as a result of the dissolution of the marriage.

Non compensatory support is needs based where aneconomic need of one spouse exists relative to the marital standard of living the parties enjoyed together. Embedded in the concept ofnon compensatory spousal support is the truism that ex-spouses can rarely enjoy exactly the same standard of living as they enjoyed as amarital and economic unit. [117] Mrs. Sellers has a moderate compensatory entitlement to spousal support. While the family operated as a dual income unit,with equal parental involvement with the child, Mr.

Sellers’ position with the military required him to often be absent from the familyfor long periods of time. Mrs. Sellers was the mainstay in maintaining the home and caring for the child during his absences. As Mr.Sellers took more training and overseas postings, his rank and salary increased. He was always the primary earner in the family. Although Mrs. Sellers was able to obtain a journeyman electrician designation, there was no evidence that this apprenticeship programdemanded financial resources or time away from the family. Mr.

Sellers’ career was not constrained by his parenting responsibilities andthis is an advantage the marriage and Mrs. Sellers’ role in the family, afforded him. [118] Mrs. Sellers also has a non compensatory entitlement to spousal support. Non compensatory considerations include the lengthof the marriage (almost 14 years), and a drop in the standard of living of one spouse post separation and economic hardship. Mrs. Sellers’mental illness is captured in the non compensatory analysis.

The courts have recognized that mental health struggles can impact aspouse’s ability to achieve self-sufficiency (Riad v Riad, 2002 ABCA 254 para 40). [119] As well, courts have found that the “other circumstances” to be considered in spousal support awards under s 15.2(4) DivorceAct include the mental health of both spouses (Kuszka v Kuszka, 2006 ABQB 169 para 8, and Desimone v Straub, 2010 ABQB 462 para120). [120] Mrs. Sellers suffered from a mental illness since her first hospitalization in 2010 – some four years before the date ofseparation.

Although the evidence was that she was not diagnosed with bipolar disorder until 2010, both parties agree that the 2007event and hospitalization was mental health related that resulted in a treatment regime that included prescription medication to stabilizeher mood. She had further hospitalizations during the marriage for her now diagnosed bipolar disorder in 2010 (3 weeks) and 2013 (2-3weeks). By the date of separation, she was not mentally well, because the day after the separation she was hospitalized again for abipolar episode. [121] Mr.

Sellers argues that her bipolar episodes, particularly the ones that resulted in hospitalizations, were self-inflicted as she wasnon compliant with medication and as a result, her mental illness does not warrant non compensatory entitlement. I disagree. Mrs.Sellers agreed that she was non complaint before each of her hospitalizations but explained that her illness was marked by memorylapses, even more so as she got sicker, and as a result she would forget to take her medication.

She also testified that at times the sideeffects of her medication made her stop her regime and that for one medication she had physical difficulty swallowing the pills.

Theseare reasonable explanations, especially when considered in conjunction with the medical reports that describe her presentation for eachhospitalization as “paranoid, grandiose, delusional, lacking insight, having impaired judgment, unrealistic and with a loss of memory”.The fact that since spring 2015 her illness has without interruption been stable and that she reports this to be a result of a change inmedication that is administered by a health care professional in an injection format, supports her claims that her earlier non compliancewas not intentional. [122] Mr.

Sellers argues as well that there is insufficient objective evidence to warrant a finding that her illness affected her ability towork. Again, I disagree. Although she testified she never lost a job as a result of her illness, she testified that her long-term employmentat Hark Electric (until her 2013 lay off) was with a family friend whose generosity accommodated her need for “less stressful work”assignments. Also, her hospitalizations certainly made it difficult immediately upon separation for her to find work. [123] At the date of separation Mrs. Sellers was ill and had been unemployed for 15 months.

She left the marital home in September2014 and had only a part-time job and little emotional or financial support. [124] Her line 150 income in 2014 is a testament to her struggles to regain employment and stabilize her illness, as well as the stridesshe made in both these areas over the previous calendar year. Regardless of this minor success, her 2014 line 150 income has to beviewed in comparison to the total family income that was available to her in 2013, the last full year of marriage. In 2103, even with herlay off and illness, the line 150 family income was over $143,000.

From this she went to a single person in 2014 with a line 150 incomeof just over $33,000. [125] She also left the marriage with an 8 year old vehicle that required expensive repairs. Mr. Sellers on the other hand remained inthe matrimonial home and continued to drive (and pay for) a new Nissan Titan truck and a relatively new Harley Davidson motorcycle. [126] Her economic situation changed dramatically after separation. His economic situation changed very little. [127] Mr. Sellers will pay spousal support to Mrs. Sellers. Mrs.

Sellers’ entitlement to compensatory and non compensatory supportis moderate. [128] The Spousal Support Advisory Guidelines (SSAG) are unlike the FCSG in that they provide broad discretion to the trial judge to

set the amount and duration of spousal support. [ 129 ] Mrs. Sellers has done well to reengage with the labour force in a way that has assisted in her achieving a measure of self- sufficiency as contemplated by s 15.2(6)(

d) Divorce Act . [ 130 ] Mrs. Sellers will be obligated to pay child support until the now 17 year old son of the parties is no longer a child of the marriage. I also recognize that a young person can move in and out of the “child of the marriage” designation based on their post- secondary plans after age 18. No evidence was led on what the child’s plans are for future schooling, training or employment. Accordingly, the “with child support” SSAG will be used as a framework for the spousal support order. [ 131 ] The quantum will be set at low end of the SSAG . The amount of spousal support will be $900 per month.

The duration of spousal support will be for 6 years. Both the quantum and the duration take into account the age of the parties at present, the dual compensatory and non compensatory entitlement, the fact that Mrs. Sellers’ bipolar disorder has been stabilized since 2015 and she has recently been able to maintain long term full-time well paid employment. It also considers that she will be paying child support and that the father has since the date of separation maintained and will maintain primary financial responsibility for the child. Finally, the duration of spousal support also takes into account that Mrs.

Sellers will benefit from the decision to determine the pension accrual period to the date of trial and therefore will obtain some compensatory benefit for the five years between the date of separation and the date of trial, and Mr. Sellers will enjoy a corresponding contribution to her for that period. [ 132 ] The claim for retroactive spousal support was abandoned in the

summary trial brief and in final argument in the event that the court decided to divide the pension division equally and set the accrual period to the date of trial, as opposed to the date of separation. This issue was decided in Mrs. Sellers favour so it is not necessary to address retroactive spousal support. [ 133 ] The matrimonial property statement reflecting the division of matrimonial property results in Mrs. Sellers making an equalization payment to Mr. Sellers of $55,828.

I am considering her lower income, the AISH debt she will have to repay and the child support she will be paying in deciding how to determine the payment of spousal support. I am going to offset the amount of the equalization that Mrs. Sellers owes Mr. Sellers against the spousal support award. Because there are tax consequences of the spousal support award to both parties (Mr. Sellers can claim a deduction and Mrs. Sellers must claim it as income) a 0.7 factor will be applied for a 30% tax rate. The $900 per month will be reduced to $630 per month after tax, and multiplied the 72 month spousal support award.

The result, $45,360, is being paid to Mrs. Sellers as a lump sum of spousal support by setting it off against the $55,828 Mrs. Sellers owes to Mr. Sellers in the matrimonial property equalization. This leaves $10,468 owing by Mrs. Sellers to Mr. Sellers to equalize the matrimonial property. This payment will be made to Mr. Sellers within 2 years of this Order. [ 134 ] If the parties cannot agree on costs, they may each submit a one-page letter to the court by no later than January 10, 2020 setting out their respective positions and I will issue a further endorsement on that issue.

Heard on the 26 and 27th day of June, 2019. Dated at the City of Edmonton, Alberta this 17 th day of December, 2019. S.E. Richardson J.C.Q.B.A. Appearances: S. D. Armstrong for the Plaintiff Kristin Plester for the Defendant

_______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice S.E. Richardson _______________________________________________________ This Corrigendum is issued in order to correct an error in the categorization of the dissipation amounts in the Matrimonial Property Settlement. This correction also requires a revision of paragraph 133.