Unterschultz v Clark, 2020 ABQB 755

Court of Queen’s Bench of Alberta Citation: Unterschultz v Clark, 2020 ABQB 755 Date: 20201207 Docket: 4803 171276 Registry: Edmonton Between: PENNY MARY-LOU UNTERSCHULTZ Plaintiff/Cross applicant - and - ANDREW GREER CLARK Defendant/Applicant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice A. W. Germain (case management) _______________________________________________________ A. Introduction [ 1 ] Mr. Clark and Ms. Unterschultz have been in matrimonial conflict for several years.

Initially assigned to hear an application for spousal support, my role expanded to case management. The case has been about the settlement of property between the litigants and spousal support. Further family details may be gleaned from Unterschultz v Clark , 2019 ABQB 681 .

[ 2 ] In the spring of 2020, concurrent with the Covid-19 lockdown at the courts, the Chief Justice determined that case management would end in most family law files and be replaced by new procedures favouring early intervention and a docket approach. These new processes would direct litigants to a source of court assistance that had the best chance of case resolution. [ 3 ] In result it is anticipated this is my last case management ruling in this extremely complex file.

A final hearing on October 22, 2020 (continued briefly on October 26, 2020) is with the specific consent of the Associate Chief Justice and was triggered by repetitive requests on the part of Mr. Clark for a stay of the enforcement of unpaid spousal support to allow him to get a return of his Alberta driver’s license and perhaps his passport. With this permission, the respondent Ms. Unterschultz cross-applied for other case management relief. B. Background [ 4 ] Ms. Unterschultz is owed (both periodic and by lump sum) significant spousal support. Mr.

Clark resists paying on the basis that it is unwarranted and that the amounts set exceed his reasonable prospect of payment, and always have. [ 5 ] Matrimonial property issues were resolved by an out-of-court arbitrator. [Arbitrator’s Award January 18, 2019] The Arbitrator viewed Mr. Clark as a man of significant economic substance, so the Arbitrator’s award reflects that. The Arbitrator’s ruling was challenged by way of judicial review.

The Justice hearing the judicial review directed the matter back to the Arbitrator for better reasons justifying a lump sum spousal support award of $5,000,000.00, but generally, and otherwise, left the Arbitrator’s decision unvaried. [ Clark v Unterschultz , 2020 ABQB 338 ] [ 6 ] The supplemental reasons of the Arbitrator explained the award but left both the lump sum quantum and the periodic amounts undisturbed. [Arbitrator’s Award September 21, 2020] [ 7 ] In October 2020, one of my colleagues dealt with a related matter to determine Mr.

Clark’s direct or indirect entitlement to a portion of the proceeds of sale of a commercial building in Calgary. [ WHG Investments Ltd v Unterschultz , 2020 ABQB 621 ] [ 8 ] Finally, on the eve of this application Mr. Clark made an assignment in bankruptcy. His Trustee did not participate on October 22, but conveyed a message through Mr. Clark’s counsel inviting the Court to make the required rulings. The Trustee did participate on October 26. C. What’s in Issue? [ 9 ] Mr.

Clark has extensive spousal support arrears, and has faced enforcement from the Maintenance Enforcement Program [MEP] threatening both his driver’s license and his passport. Mr. Clark is seeking a stay of enforcement of his support payment obligations and the significant historical arrears. To the extent I am able, he is asking that I encourage the MEP to help him get his driver’s license back. [ 10 ] Conversely, Ms. Unterschultz is applying to have the Arbitrator’s Award registered as a judgement of the Court of Queen’s Bench, have some aspects of it clarified, declare Mr.

Clark a vexatious litigant, get a divorce, list property for sale, and other procedural remedies. 1. The Application for a Stay i. The Position of the Parties [ 11 ] Mr. Clark asserts that he is unable to pay spousal support, or other debts. He filed an affidavit indicating that he owes approximately $25 million against assets of possibly 2.5 million dollars.

Despite this, he needs his driver’s license to work up north which would at least earn him $5000.00 per month, some of which could be diverted to spousal support. [ 12 ] He asks for the equitable relief of the Court on the basis that he cannot pay and has been unable to make appropriate arrangements with MEP, so all we are effectively doing is adding to his economic grief by restriction to his driver’s license. [ 13 ] The position of Ms. Unterschultz is that the Court does not have power to order the government to return a driver’s license and that there is no equitable reason for a stay in this case because Mr.

Clark has failed to negotiate in good faith with MEP, and is paying little toward spousal support. [ 14 ] MEP takes no position on the stay application but asks that if I stay maintenance, I conform to the judicial powers granted by

section 32 of the Maintenance Enforcement Act, RSA 2000, c M-1 . ii. Ruling on the Application for a Stay [ 15 ] Mr. Clark has shown limited willingness, over the years of case management supervision, to reasonably and practically make any effort to pay spousal support. He simply does not pay. Worse, he prefers other creditors over his spouse. [ 16 ] Generally, he is not the type of individual who is entitled to equitable relief from the Court. Collecting from Mr. Clark, even with considerable MEP resources, will be difficult, made more so by his recent assignment in bankruptcy. The most practical way for Mr.

Clark to get his driver’s license back is to negotiate a settlement with MEP to pay that which he owes. Even if he cannot pay all of the arrears, MEP will adopt a reasonable approach if he is making a reasonable effort based on his needs and means.

[ 17 ] At some point, he may apply for a further review of his ongoing support obligation but that will require a special chambers application or a trial of an issue. A judge other than myself will deal with that issue. Mr. Clark must know, as a successful businessman and a leader of the Edmonton business community, that he will have a strong obligation to show that he has been fair and appropriate in the manner in which he dealt with his wife’s spousal support claim.

Simply saying: “I’m broke” is not going to get that job done. [ 18 ] Despite this, I have decided that there is so much in play in this litigation including competing creditor claims, further potential appeals and court challenges, and the involvement of the Trustee, who may also impose cash flow restrictions on Mr. Clark, that I will grant a stay on the payment of spousal support in this matter, for a short period of time, conditional on Mr. Clark paying a portion of his monthly salary and a portion of his government pension benefits to MEP for spousal support.

Further, I will recommend to MEP that they authorize the return of Mr. Clark’s driver’s license. I will not detail this further in these reasons as that order has already been signed, served, and to the best of my knowledge, at the date of the release of these reasons, Mr. Clark has his driver’s licence back. 2. The Application of Ms. Unterschultz to Register the Arbitrator’s Award i. The Position of the Parties [ 19 ] The initial Arbitrator’s Award was issued in 2019, followed by his more recent reasons supporting lump sum spousal support, which responded to the concerns of the judicial review Justice.

All parties agree that under the Arbitration Act , RSA 2000, c A-43 , I should attempt, to the greatest extent possible, to track the lawful rulings of the Arbitrator in a judgement of the Court of Queen’s Bench. As always: “the devil is in the details”. [ 20 ] These ‘details’ that require focused attention may be summarized as follows: • The division of property resulted in a significant equalization payment. Is Ms.

Unterschultz entitled to a charge or lien on her equity in the various assets until she is paid her equalization payment? • Do I have the jurisdiction to grant an order which gives effect to the Arbitrator’s decision to turn any unpaid property equalization payment into lump sum spousal support in the event of bankruptcy? • The Arbitrator placed certain assets in escrow, with charging conditions, to assist in securing the awards. Do I have jurisdiction to grant these orders? [ 21 ] Ms. Unterschultz indicates that the award must be registered as Mr.

Clark has effectively breached the order by selling shares in a corporation, which he was implicitly prohibited from doing, and the failure to register the award is prejudicial to Ms. Unterschultz. [ 22 ] Mr. Clark’s position is that the award should be filed as a judgement but should not be as extensive as Ms. Unterschultz wishes. Mr. Clark raises numerous drafting and wording concerns. He raises legal issues and asserts that I can neither re-craft the award nor add detail and provision to it, particularly to the extent that it may affect some of Mr. Clark’s other creditors.

The drafting concerns will be dealt with by me simply selecting one version or the other; however, it is necessary for me to deal with specific issues identified in paragraph 20. [ 23 ] First, I must determine whether Ms. Unterschultz may resist the transfer of her equity in matrimonial property assets to Mr. Clark unless that transfer is subject to a charge for the equalization payment. To do otherwise would unjustly benefit Mr. Clark’s other creditors. She wants the order to clarify, (and include a security charge) that Mr. Clark cannot get the property without payment of the equalization payment. [ 24 ] Mr.

Clark resists this. His

interpretation of the Arbitration Award is that the property transfer was absolute by the use of the phrase, ‘deemed to own’, and that the unpaid matrimonial property debt is an unsecured debt. This argument is for the benefit of the creditors but nevertheless made by Mr. Clark, despite his assignment. [ 25 ] Second, the Arbitrator indicated that if, at the end of the day, any portion of the equalization payment ($1,472,749.50) remained unpaid, it would become characterized as lump sum spousal support for enforcement purposes. Ms.

Unterschultz asserts that there is nothing wrong with this process which meshes with the dynamics of family law. Mr. Clark’s position on this is that the conversion of a simple debt of $1.472 million into a preferred spousal support arrangement cannot be legally enforceable in Canada as it constitutes a preference of creditors and that I should not confirm that paragraph in my order tracking the Arbitrator’s award. [ 26 ] Finally, one creditor, Black Earth Products Inc. [Black Earth] was told of this application (presumably by Mr. Clark or his counsel) and seeks to address the Court.

Black Earth is a recent creditor of Mr. Clark having acquired by assignment a package of security and a personal guarantee from an earlier creditor. Black Earth sought leave to participate in the portions of my decision that could affect them. Black Earth’s position is that it is not appropriate for me as a judge confirming an Arbitrator’s Award to convert a general unsecured claim into a potentially preferential claim of unpaid spousal support. Nor can I direct an order that prejudices general creditors despite the Arbitrator’s ruling which might imply that outcome. ii.

Setting the Terms of the Arbitrator’s Ruling as an Order of the Court of Queen’s Bench [ 27 ] To make this portion of my reasons understandable I have attached to these reasons: • a copy of the Arbitrator’s matrimonial property spreadsheet; • a highlighted draft copy of Ms. Unterschultz’ proposed order;

• a highlighted draft copy of Mr. Clark’s proposed order; and, • finally, the order that I issue in this case. [ 28 ] One option, in areas requiring clarity, is to refer the matter back to the Arbitrator. I have concluded this is not appropriate. Counsel did not want this; second, Mr. Clark has made an assignment in bankruptcy so the Trustee must know what she has to work with, and the time delay would exacerbate this already difficult situation.

I propose therefore to make the rulings required in this case management conference. [ 29 ] I wish to first deal in a general way with disputes relating to the technical wording of the order. Many arguments raised were simply judgement writing craftsmanship. I have heard from both parties and the order that I will release reflects my decision-making process as to the unique wording.

However, it is necessary for me to expand this case management decision, by dealing specifically with the substantive submissions raised by counsel during the discussion of what should be included in the order confirming the Arbitrator’s award. [ 30 ] I articulate my general understanding of the task ahead. The Arbitrator in this case was chosen for his expertise in family law; this expertise plus many years of experience mean that I should grant an order that encapsulates the spirit and intent of the Arbitrator’s Award and be appropriately deferential to his ruling.

The test is not whether I would have reached the same decision but rather to confirm the decision, unless: 49(7) If the award gives a remedy that the court does not have jurisdiction to grant, or would not grant in a proceeding based on similar circumstances, the court may (

a) grant a different remedy requested by the applicant, [ 31 ] So as a general proposition I should (wherever possible) track the wording of the Arbitrator’s Award unless doing so would be prohibited by the Act, exceeds my jurisdiction, or fails the common-sense test. [ 32 ] Another observation is that when an Arbitrator deals with a purely monetary award, it is easier to craft that judgement than where the Arbitrator had to deal with a wide array of legal, factual, and public policy issues.

The Arbitrator reviewed the property owned by the litigants at the date of his arbitration, and created a typical spreadsheet, valuing the property, identifying the recipient, then calculating the equalization payment. [ 33 ] The Arbitrator is a senior member of the family law bar and well-versed in the practice of family law in Alberta. He went through the usual processes to determine which property each litigant was most closely identified with, then leave that property in their respective ledgers. He utilized a spreadsheet [attached] to determine what the equalization payment would have been.

He made three factual observations: that which Ms. Unterschultz will retain, that which Mr. Clark will retain, and the size of the equalization payment. These three concepts are in balance! By example, the Arbitrator could have determined that more property in the possession of Mr. Clark would be transferred to Ms. Unterschultz to bring a more equal matrimonial property asset division with a smaller equalization payment. [ 34 ] He chose not to do this and instead utilized an equalization payment. Mr.

Clark asserts that as the Arbitrator’s ruling used the phrase “deemed to own” and did not express any conditionality about the division, it must mean that the property transfer was absolute, making Ms. Unterschultz an unsecured creditor and effectively taking her property for the benefit of Mr. Clarks’ creditors. Boiling Mr. Clark’s view down to its lowest common denominator and using street talk, Mr. Clark proposes that: “he gets the gold from the gold mine, while Ms.

Unterschultz gets the shaft.” This is appropriately apt in this case because the Arbitrator assumed no net value in a dormant gold mine owned indirectly by Mr. Clark, which Mr. Clark subsequently, (and arguably in breach of his obligations) sold for significant value! [ 35 ] In my view, the creditors can be in no better position that they were prior to the Arbitrator’s Award, in circumstances such as these. This shapes my ruling. [ 36 ] The Arbitrator expressed the matrimonial property division as follows: 63.

In attempting to reconcile the property statements urged by the parties, the Arbitrator determines that the present assets deemed to be owned by the parties and subject to division are reflected in [the spreadsheet]. 64. In formulating the Arbitrator’s Matrimonial Property Statement and consequential distribution of property, matters in

section 8 of the Matrimonial Property Act were considered to achieve a just and equitable result. 65. It is the decision of the Arbitrator that there shall be an equalizing payment due by Andy to Penny in the sum of $1,472,749.50. [ 37 ] I do not interpret this as definitively transferring property effective as of the date of the Arbitrator’s Award without the corresponding payment. Rather, he was identifying property of similar value, the equalization payment being the equivalent to the stated values for the various assets claimed by Mr. Clark.

The above paragraphs taken in the totality of the issues that were raised in the arbitration make clear that when the Arbitrator was deeming property to be in each of the two camps he was dealing specifically with, and rejecting, an argument that property already disposed of should remain identified as the property of Mr. Clark. [ 38 ] Further, his reference to a ‘just and equitable distribution’ melts if Mr. Clark can take the property for the benefit of his creditors without the property being in some fashion charged with the offsetting equalization payment.

To interpret the award in such fashion, defies common sense! The litigants’ counsel and the Arbitrator were all senior family law counsel of the Alberta bar. They would’ve participated in many processes where the judge does the calculation and then the lawyers using trust conditions would send the documents of transfer over to the other side in trust for payment. Counsel for Mr. Clark even admits this reality in his written correspondence to me. This presumption of regularity or practice consistency has to prevail. You cannot have one without the other.

[39] I conclude that it was the intention of the Arbitrator that the normal niceties between counsel would be exercised andexhibited to bring about the transfers of the various assets. This would at the very least imply a vendor’s lien on the assets Ms.Unterschultz was to transfer to Mr. Clark to satisfy the property division.

While an account receivable is a form of property, it is notequivalent equitably to an actual interest in property while an equalization payment properly secured is. [40] Authority exists that an unpaid charge can exist in these types of transactions in the face of an assignment of bankruptcy.Millar v Millar (1991), 1991 ABCA 261 , 117 AR 238 (CA) was a matrimonial property case that was complicated with abankruptcy after judgment.

The matrimonial property judgment ordered the wife to transfer her interest in the jointly owned matrimonialhome to her husband in consideration of the husband paying money to the wife. Before the money was paid, the husband made anassignment into bankruptcy. The court allowed her to attach some of the proceeds from the sale of the property. [41] In Hebert v Hebert (1988), (NS SC), 88 N.S.R. (2d) 107 (Trial Division), where it was too late to unravel asale confirmed by court order, the court nevertheless allowed an unpaid vendor’s lien to secure the payment owing.

In Hebert there wasspecificity in minutes of settlement confirmed by court order that property would be transferred forthwith. On bankruptcy, the non-bankrupt spouse wished to unravel the agreement to protect the monies the bankrupt had not paid. While the Court was disinclined tounravel the sale that was documented as forthwith, the Court nevertheless preserved a vendor’s lien on the property making the non-bankrupt spouse a secured creditor. Hebert also reviews historic legal principles that the lien can only be displaced by the party claimingthat it does not exist, to clearly prove the lien was waived. Mr.

Clark offers no proof of this, and in fact attempted in the courts torepudiate the Arbitrator’s award that he now seeks to claim made the property division unconditional. Both Millar and Hebert recognizethat the practice of lawyers of sending a release or transfer of assets in trust for payment was important. While that did not yet occur here,it is because Mr. Clark was litigating the arbitration. To suggest that Ms.

Unterschultz would not have sent transfer or release documentsin trust for payment is preposterous. [42] I also considered whether the Arbitrator’s attempt to convert any unpaid matrimonial property equalization payment into anadd-on to the lump-sum spousal support in bankruptcy was in fact his adjudicated waiver of Ms. Unterschultz’s vendor’s lien. Thatinterpretation was not urged upon me and it would require clear and specific wording for an arbitrator to remove vendor’s lien rightswhich are the right of Ms. Unterschultz, other than by the clearest express language.

Rather, I conclude that his attempt to convert anyresidual unpaid equalization payment into a preferred debt was reflective that an unpaid equalization payment (howsoever caused)would’ve affected his lump-sum award or the periodic support award. [43] Ms. Unterschultz holds an unpaid vendor’s lien in her interest in the assets until and unless the equalization payment is madeor satisfactory arrangements are made to deal with it. [44] In short, I reject Mr. Clark’s submission that the matrimonial property identified in the

schedule is his propertyunconditionally. It will become his property (his Trustee’s property) when the transactions relating to its transfer from one to the otherare complied with, including the satisfaction of an unpaid vendor’s lien. Until that occurs, Ms. Unterschultz is under no obligation torelease, discharge, or transfer her interest in any of the property identified in the Arbitrator’s Award as the asset of Mr. Clark. [45] Even if this obvious vendor’s lien entitlement and my

interpretation of the Arbitrator’s Award would not have ended the issue,then pursuant to Arbitration Act section 49(7)(a), I would not grant an unconditional sale order in similar circumstances but insteadwould have clarified that Ms. Unterschultz’s interest in the property does not transfer in equity until the equalization payment is paid orotherwise resolved by settlement. It is inappropriate to characterize the equalization payment as an unsecured debt. This was not theintention of the Arbitrator because that is not how matrimonial property divisions work!

When the Arbitrator sets the value of that asset,that is final subject to appeal; when he indicated what goes where that too is final, provided the equalization payment is made. There isno obligation on the part of Ms. Unterschultz to simply transfer assets in which she is in equity a co-owner, in exchange for an unsecuredcreditor’s arrangement. [46] I must also address the flip side of this issue. Mr. Clark suggested that if he, in some fashion, did not get the assets stipulatedin the equalization schedule, Ms. Unterschultz should not get hers. This argument breaks down when one realizes that Ms.

Unterschultzhas fully paid for her assets because they were adjusted with the netage being the equalization payment. She is entitled to both legal andequitable title to the assets identified (subject to the encumbrances - if any also identified), and the Court should support her, includingdirecting the Registrar of Land Titles to register any transfer of land by court order and any holder of any other asset to react to an orderconfirming Ms. Unterschultz’s title in those assets. [47] Mr. Clark’s claim to Ms.

Unterschultz’s assets is extinguished by the Arbitrator’s Award and this is not an inconsistenthandling of the two sides of this equation because Ms. Unterschultz has paid Mr. Clark his equity in those assets. When Mr. Clark paysMs. Unterschultz her remaining equity then his assets will become the Trustee’s assets to deal with. [48] Before leaving this issue, I must also identify whether the equalization payment is a blanket charge globally against all of Mr.Clark’s assets or whether in the event that only some are liquidated Ms. Unterschultz can get only her equity in the asset.

A vendor’s lienis not like a blanket charge. It is this greater claim that Ms. Unterschultz seeks but which I reject. On any given asset she is only entitledto 50% of the total equity in the asset, applied against her vendor’s lien. She is unable to utilize funds generated from more lucrativeassets to satisfy her lien on others. This is identified in my order but to utilize a straightforward example: one of the assets identified asbelonging to Mr. Clark in the arbitrator spreadsheet was $317,123 identified as Tim Clark Cattle (line 12). Ms.

Unterschultz’s lien on thecattle could not exceed 50% of the value or $158,562. Hopefully this paragraph will allow the litigants and the Trustee to negotiateappropriately and in good faith if there is no path forward to paying Ms. Unterschultz her property adjustment payment in one lump-sum.The one exception to this limitation of division, is that by blanket order (paragraph 72 of the arbitrator’s award), the Arbitrator did chargethe debt created by his award against the main corporate asset of Mr. Clark, his shares in a corporation-AGPHL.

This charge will goforward in the Queen’s Bench order recognizing that it is under attack by Black Earth so priorities between that creditor and Ms.Unterschultz will have to be resolved by agreement or subsequent litigation. [49] The Arbitrator made an order of periodic support of $5,000 per month, (down from the $20,000 per month interim orders)plus a $5 million lump sum spousal support. He dealt with this $5 million lump sum briefly in paragraphs 69 and 70 of his award and it

was this issue for which he was directed to provide further and better reasons. The related issue is the proposed conversion of any unpaid matrimonial property payment into lump sum spousal support. The Arbitrator stated: 73. In the event of Andy’s declared bankruptcy or insolvency, the unpaid balance of the equalizing payment herein shall convert to an award of further retroactive spousal support to enable registration and enforcement by MEP. [ 50 ] Black Earth, who received permission to address the Court as a creditor, opposes this conversion in principle as does Mr. Clark.

As a fallback position, Black Earth invites me to effectively treat any shortage as an unsecured award but give Ms. Unterschultz leave to litigate this issue on application. Ms. Unterschultz submits that the Arbitrator’s intention to convert any unpaid matrimonial equalization payment to lump-sum spousal support is consistent with the family law practice, that ongoing periodic support is predicated on the anticipated earning power of a matrimonial property equalization payment and lump-sum support.

Where circumstances erode these values then adjustments must be made. [ 51 ] The Arbitrator recognized that at the end of the day some portion of the equalization payment may not be paid. Perhaps his thinking was that in the face of a bankruptcy the assets would be devalued by bargain hunters, or that the bankruptcy trustee might decline to take an asset of dubious value and seek an adjustment by negotiation against the equalization payment. There could have been other reasons. The Arbitrator obviously perceived that Mr.

Clark was doing all that he could to arrange his business and personal affairs to avoid the legitimate claims of Ms. Unterschultz. As such, he directed that the equalization payment would become an additional lump sum support payment if it was not paid. [ 52 ] Again, I return to the Court practice in the matrimonial arena. In any matrimonial property division and support application a court first of all determines what the division of property will be and what the size of the equalization payment is. This has a direct impact on the size of the support award either by way of lump-sum order or periodic support.

The Arbitrator reduced periodic support to $5,000 per month in anticipation that the matrimonial property equalization payment would be paid. Had that not been paid or had it been a smaller amount, he may well have ordered a larger amount as lump sum spousal support or periodic support. Therefore, I understand the thinking of the Arbitrator. The anticipation that the equalization payment would be paid and that it would earn or generate a certain amount of income would allow Ms. Unterschultz to support herself.

In that context, the transfer of some of the unpaid equalization payment as additional lump sum support may seem reasonable or logical. [ 53 ] However, the courts generally do not prefer giving one creditor an advantage over another creditor simply by a declaration in the event of a bankruptcy. Nor do the courts prefer giving a creditor an advantage over a debtor who elects to go bankrupt. It is the type of clause which if found in an agreement would immediately result in relief against forfeiture as a punitive measure when one feels the need to make an assignment in bankruptcy.

It seems to me that the unpaid amount, if any, after payment to Ms. Unterschultz pursuant to her unpaid vendor’s lien, should be an unsecured debt. I would again rely on section 49(7) of the Arbitration Act as this proposed conversion is not an order that I would have granted. However, Black Earth’s proposed compromise [see para 57 of this ruling, suggested wording paragraph 13] is not unreasonable. [ 54 ] I will accept the Black Earth submission that, on notice, Ms. Unterschultz should not be precluded from making that application.

While I have doubt about the ability to convert an unpaid vendor’s lien into a preferred spousal support payment, another judge may see it differently on more expansive argument. [ 55 ] The final major issue, and one most engaging to Black Earth, is that the Arbitrator’s Award in paragraphs 72 and 74 arguably could affect Black Earth rights even though they were not participating in the Arbitration. [ 56 ] Paragraph 72 and 74 states: 72 . The amounts owed to Penny hereunder shall form a charge against Andy’s shares in AGPHL . Such shares shall be held in escrow, or by Mr.

Tumbach’s offices on such terms as may be agreed between the parties. 74. Andy shall cause AGPHL to serve upon Norcan Development Corporation, an assignment of any future monies payable, in favour of Penny until amounts owing to her satisfied in full. [ 57 ] Black Earth in fact proposed alternate wording that would make clear that their rights cannot be affected by the decision of the Arbitrator. Their proposed wording tracking the numbering of Ms. Unterschultz’s proposed draft order follows: 8.

The Defendant shall forthwith provide to the offices of his trustee in bankruptcy (the “Trustee”) all share certificates owned personally by him, or his corporations, to be held in trust with the Trustee, and such certificates shall not be released to any person unless otherwise agreed by Ms. Unterschultz, the Trustee, and Black Earth Products Inc. (“Black Earth”), or pursuant to a court order granted upon an application brought with notice to the Defendant, Ms. Unterschultz, the Trustee, and Black Earth. 10. The funds payable by Norcan Holdings Corporation in respect of A.G.

Partner Holdings Ltd. (“AGPHL”) in the amount of $271,771 shall continue to be held in trust with VWPL’s solicitors as ordered by this Court on October 15, 2020 in ABQB Action No. 1903 21016 and shall not be disbursed to any person unless otherwise agreed by Ms. Unterschultz, the Trustee, and Black Earth, or pursuant to a court order granted upon an application brought with notice to the Defendant, Ms. Unterschultz, the Trustee, and Black Earth. 13.

The Plaintiff has leave to apply to this Court in the context of the Defendant’s bankruptcy proceedings in Action No. 24-2682047 / Estate No. 24-2682047 on notice to the Defendant, the Trustee, Black Earth, and every other person affected by such application for an order that the unpaid balance of the amounts owing pursuant to paragraph 4 herein shall convert to a further award of retroactive spousal support.

15. This Order is granted without prejudice to the rights and remedies of Black Earth under the General Security Agreement from AGPHL dated February 10, 2016, the Securities Pledge Agreement from AGPHL dated February 10, 2016, and applicable law, and shall not be construed to limit Black Earth’s rights, remedies, or priority status in connection therewith. [ 58 ] Our Court of Appeal has confirmed that an arbitrator cannot prejudice creditors [ MJS Recycling Inc v Shane Homes Limited , 2011 ABCA 221 at paras 1 , 28-31]. However, here we are talking about Ms. Unterschultz’ interest, not Mr. Clark’s.

Matrimonial property cases occur all the time where creditors do not participate. In fact, it is clear that the Arbitrator did not intend to affect third- party rights because he documented debts, mortgages, and security in his equalization schedule. The concern however is that the wording in his award, paragraphs 72 and 74, could implicitly affect the rights of creditors such as Black Earth. While he can certainly charge Mr. Clark’s equity to secure Mr. Clark’s family law debt he cannot do so by prejudicing pre-existing secured creditors.

In the main therefore, I lean toward the wording of Black Earth for the paragraphs in controversy and with my own modifications will adopt some of them. The Arbitrator’s wording shall be modified in this area in my order as follows: The amounts owed to Ms. Unterschultz by this order (the vendor’s lien on the assets, the remaining equalization payment and the unpaid support) shall form a charge against Mr. Clark’s shares in AGPHL, with such charge displaced only in the event that Black Earth establishes a legal recognized entitlement of priority. [ 59 ] Ms.

Unterschultz also wishes a specific provision allowing MEP to follow any other corporate interests that Mr. Clark may have in a long list of described companies. Viewing the intention of the Arbitrator to secure, if possible, the large support award made in this case, that request is not unreasonable and probably flows as a matter of creditor asset tracing even without this specificity. I will expand the list of collection targets but only to the extent of M. Clark’s legal and equitable interests in these corporate targets. [ 60 ] I am also mindful of Ms.

Unterschultz’ submission that Black Earth as a successor creditor is relying on security that was obtained without her consent despite the existence of the matrimonial lawsuit claiming an interest in the property, so nothing in my order should preclude that argument from being made. Black Earth’s security may be built on a crumbling foundation. Others will have to decide that issue. 3. The Application for a Declaration that Mr. Clark be declared to be a Vexatious Litigant [ 61 ] Ms. Unterschultz asserts that Mr.

Clark has vexatiously appealed or challenged every ruling of the Court, including appealing and challenging by way of judicial review rulings of the Arbitrator. He then abandons the process once he is required to deliver court briefs. Her assertion is that this is all designed to ensure that she never receives a penny and that Mr. Clark fulfils his threat that he would never give her a penny. I did not require Mr. Clark to comment on this issue. i.

Ruling on this Issue [ 62 ] It is rare for a litigant retaining competent legal counsel throughout, and advancing what he perceives as his legal rights, to be declared a vexatious litigant. A declaration of a vexatious litigant is one who continues to relitigate the same issues even after they have been finally decided by the Courts. Abandoning appeal positions close to the date of the appeal hearing is not in and of itself evidence or indicia of a vexatious litigant; nor is an application to review spousal support that was made on an interim basis. [ 63 ] Further, Mr.

Clark was throughout represented by prominent members of the bar, all who took an oath of office not to pursue frivolous or vexatious matters. This type of application is tantamount to criticizing the ethics of Mr. Clark’s counsel in a public and aggressive way. [ 64 ] Ms. Unterschultz’s application to have Mr. Clark declared a vexatious litigant is dismissed. [ 65 ] As a companion to this, Mr. Clark applied to cross-examine Ms. Unterschultz on her affidavit. The only possible merit to a cross-examination was on the vexatious litigant application. Mr.

Clark was advancing an application to stay spousal support enforcement, and both parties agreed that the order, which is based on the Arbitrator’s award, should be reviewed and granted. I declined leave to examine on the affidavit due to cost and time delay which became academic after reviewing this portion of the application. 4. Application to list Property [ 66 ] Ms. Unterschultz applies to list property currently either in Mr. Clark’s name or in joint names both in Alberta and in British Columbia. This portion of the application was adjourned to allow the Trustee to make submissions.

The Trustee opposed listing the property for sale at this time preferring instead to investigate further and reach out to the creditors. This is not an unreasonable approach; the application to list property is dismissed. 5. Granting of a Divorce [ 67 ] Both Mr. Clark and Ms. Unterschultz wish a divorce from the other. With my ruling now incorporating the Arbitration Award into a judgement of the Court of Queen’s Bench there would appear to be no public policy reasons preventing either of them to apply for a divorce.

On its face, they have the grounds of having lived separate and apart for longer than the requisite time. Counsel indicated they would cooperate with each other to bring this about and I assume the divorce will advance on the uncontested desk divorce application

process. If the parties have difficulty with this in the absence of case management they can apply in family law docket court for advice and directions. D. Costs [ 68 ] Neither party applied for costs. E. Conclusion [ 69 ] This has been a difficult case involving two realities. On one hand, Mr. Clark indicates that he is broke, while on the other hand Ms. Unterschultz alleges (not without circumstantial evidence) that Mr. Clark has been wilfully and deliberately hiding his assets, avoiding her as a creditor, and preferring other creditors. The amounts at stake in this case are large.

A significant portion of this claim has now been resolved. The property has been divided subject to tying up loose ends, spousal support has been determined, and it is now going to be the Trustee’s job to sort out the remaining competing claims. [ 70 ] Case management is ended on this matter. [ 71 ] If the parties continue to view this case as complex and needing a case manager they can reapply to Associate Chief Justice Nielsen to see if he will appoint a new case management justice.

I have been involved in this file for many years and it would be desirable that the matters are reviewed with a new perspective making my continued involvement impractical. In light of the involvement of the Trustee, a judge from the commercial group might be preferable. Heard on the 21 st and 26 day of October, 2020. Dated at the City of Edmonton, Alberta this 7 th day of December, 2020. Adam W. Germain J.C.Q.B.A. Appearances: Tina Huizinga for Ms. Unterschultz Michael Kinash for Mr Clark Claire Gerein for MEP Peter Bychawski for Black Earth Products Inc.

PROPOSED FORM OF ORDER on behalf of Ms. Unterschultz Clerk’s stamp: COURT FILE NUMBER 4803 171276 COURT OF QUEEN’S BENCH OF ALBERTA JUDICIAL CENTRE EDMONTON PLAINTIFF PENNY MARY-LOU UNTERSCHULTZ DEFENDANT ANDREW GREER CLARK

DOCUMENT JUDGMENT ADDRESS FOR SERVICE AND CONTACT INFORMATION OF PARTY FILING THIS DOCUMENT HUIZINGA Di TOPPA COLES & LAYTON Barristers & Solicitors 2 nd Floor, 12225-105 Avenue Edmonton, AB T5N 0Y3 Telephone: (587) 520-8229 Facsimile: (587) 520-8215 Attention: TINA HUIZINGA File No. 33,479-00 _______________________________________________________________________ DATE ON WHICH ORDER WAS PRONOUNCED: __________, 2020, Edmonton NAME OF JUDGE WHO MADE THIS ORDER: Mr. Justice A.

Germain ________________________________________________________________________ UPON THE APPLICATION of the Plaintiff ; AND UPON the matter having proceeded to binding arbitration and awards having issued arising from same on January 21, 2019 and February 28, 2019 and March 25, 2019; AND UPON the issue of lump sum spousal support having been remitted back to the arbitrator to reconsider the lump sum award and provide adequate reasons and directing that the Arbitrator has authority to change or set aside the lump sum award in the event that he concludes, after reconsideration of the law and facts, that there is no legal or factual basis to justify the $5,000,000 lump sum award ; AND UPON the arbitrator having issued a further award arising from same on September 21, 2020; AND UPON being advised that the Defendant declared personal bankruptcy on October 21, 2010, but the Trustee does not object to the application to set the terms of the arbitration award and takes no position on same; AND UPON the court having heard representations, received materials and submissions through counsel on behalf of Black Earth, a creditor arising from the sale of CHI; AND UPON the court having heard received special chambers materials, hearing oral submissions from counsel on October 22, and 26 (including from the Trustee in Bankruptcy), as well as further written submissions, and having reserved decision; IT IS HEREBY ORDERED AND ADJUDGED THAT : 1.

The Defendant shall pay to the Plaintiff lump sum spousal support in the sum of $5,000,000.00; 2. The Defendant shall additionally, pay arrears of periodic spousal support to the Plaintiff in the sum of $400,000, as of December 31, 2018; 3. Commencing January 1, 2019, and continuing on the first of each month thereafter, the Defendant shall pay to the Plaintiff the sum of $5,000 per month in periodic spousal support. The periodic spousal support shall be reviewable upon all of the amounts owing under this judgment have been satisfied.

Thereafter, or sooner if a clearer picture of the Defendant’s financial circumstances emerges, periodic support on a means and needs basis may be reviewed.

4. The Defendant shall pay to the Plaintiff the sum of $1,472,749.50 as a property equalization payment. [ 72 ] 5. The Defendant shall, as soon as practicable, take all steps necessary to remove the Plaintiff’s name from the mortgage obligations secured against the matrimonial home and Vernon properties, In the event his failing to do so results in any claims or liability upon the Plaintiff, the Defendant shall indemnify and save her harmless in relation to those claims, including any associated legal expense. Each party shall otherwise be responsible for any debts in their sole names. 6. The Plaintiff shall retain the following assets : (

a) The condominium registered in the Plaintiff’s name; (

b) The Shuswap cabin interest; (

c) Cash in bank accounts in the Plaintiff’s sole name; (

d) The Plaintiff’s TD investments in her sole name; (

e) The Plaintiff’s Richardson GMP RRSP in her sole name; (

f) The 2010 Lexus (

g) The vehicle purchased by the Plaintiff post-separation; (

h) Furniture and household effects in the Plaintiff’s possession; 7. The Defendant shall retain the following assets, subject to the amounts owing by the Defendant to the Plaintiff herein : (

a) The matrimonial home, (

b) The Vernon bare land; (

c) The Defendant’s interest in the Sherwood Park home; (

d) The Defendant’s shareholdings in A.G. Partner Holdings Ltd.; (

e) The Defendant’s interest in the Joint Venture with Tim Clark; (

f) The Defendant’s TD Waterhouse investments; (

g) The Defendant’s Richardson GMP investments; (

h) The vehicles in the Defendant’s sole name; (

i) The cattle; (

j) Furniture and household effects in the Defendant’s possession 8. The Defendant shall forthwith provide to the offices of the Trustee in Bankruptcy, all share certificates owned personally by him or his corporations, to be held in escrow, or in trust with the Trustee, on terms agreeable to both parties, pending satisfaction of all amounts owing to the Plaintiff under this judgment. The amounts owing under this judgment shall be a charge against the shares. 9. The Defendant shall immediately deliver to the Plaintiff the Toscana share certificates in the Plaintiff’s name; 10.

The Defendant shall cause AG Partner Holdings Ltd., to serve upon Norcan Holdings Corporation an assignment of any further monies payable in favour of the Plaintiff until such time as the amounts owing to the Plaintiff under this judgment are paid in full; 11. Pending all amounts being paid under this judgment, the Defendant shall provide to the Plaintiff the following disclosure:

(

a) On a quarterly basis, all back accounts and cancelled cheques for all accounts operated by AGPHL; (

b) A monthly revenue and expense

summary for CHI for so long as the AG Partner Holdings Ltd. holds shares in CHI; (

c) Detail of any borrowing of AGPHL or any of its subsidiaries from conventional financial institutions or otherwise; (

d) Financial statements for AGPHL or any of its subsidiaries as they become available; 12. The Defendant is prohibited from drawing against his personal shareholder loans or shareholder loans of AGPHL without advance notice and approval of the Plaintiff; 13. In the event of a bankruptcy or insolvency of the Defendant, the unpaid balance of the amounts owing pursuant to paragraph 4 herein shall convert to a further award of retroactive spousal support; 14. The Defendant shall be prohibited from attending the Shuswap cabin; 15.

The Defendant shall pay costs to the Plaintiff in the sum of $458,225.45, to be enforceable by MEP. 16. The Defendant shall pay to the Plaintiff interest on the amounts owing in Paragraphs 4 and 15 herein in the sum of $61,810.54 as at October 22, 2020, and carrying a per diem of $79.35 thereafter, pursuant to the provisions of the Judgment Interest Act; 17.

The Director of the Maintenance Enforcement Program shall be entitled to enforce all amounts owing under this order for support and costs against the Defendant personally, as well as against any corporation in which he is now, or will be in the future, an owner, partner, shareholder or ownership interest in, directly or indirectly, as if the corporation were the Defendant, including but not limited to A.G.

Partner Holdings Ltd., Norcan Development Corporation, Clark Haven Farms, Gavin Mines Inc., Grace Mining Inc., Metal Mountain Resources Inc., AB Financial Corporation, CB Finco Corporation, CB Resources Corporation; May Ruben Thermal Solutions Inc., Mission Renewables Inc., Natural Ma Inc., Next Alternative Inc., Norwesters Group Inc., Transamerica Genetics LP, Veteran’s Way Limited Partnership, Veteran’s Way Project Ltd., 4 Partners RCA Trust, 527192 Alberta Ltd., 583145 Alberta Ltd., 1283293 Alberta Ltd., 1637535 Alberta Ltd., 1637548 Alberta Ltd.. 18.

The amounts owing under this Order be paid to the Director of Maintenance Enforcement (“MEP”) at 7 th Floor North, 10365 – 97 Street, Edmonton, Alberta, T5J 3W7, (780) 422-5555, (website: www.albertamep.gov.ab.ca ) and shall be enforced by MEP upon the creditor (recipient of support) or debtor (payor of support) registering with MEP. Such enforcement shall continue until the party who registered gives MEP a notice, in writing, withdrawing the registration pursuant to

Section 9 of the Maintenance Enforcement Act . ____________________________________ JUSTICE OF THE COURT OF QUEEN’S BENCH OF ALBERTA PROPOSED FORM OF ORDER on behalf of Mr. Clark Clerk’s stamp:

COURT FILE NUMBER 4803 171276 COURT OF QUEEN’S BENCH OF ALBERTA JUDICIAL CENTRE EDMONTON PLAINTIFF PENNY MARY-LOU UNTERSCHULTZ DEFENDANT ANDREW GREER CLARK DOCUMENT JUDGMENT ADDRESS FOR SERVICE AND CONTACT INFORMATION OF PARTY FILING THIS DOCUMENT BRYAN & COMPANY LLP Barristers & Solicitors 2900 Manulife Place 10180 – 101 Street Edmonton, Alberta T5J 3V5 Telephone: 780-423-5730 Facsimile: 780-428-6324 Attention: MICHAEL R. KINASH, Q.C.

File No. 33334-3 _______________________________________________________________________ DATE ON WHICH ORDER WAS PRONOUNCED: __________, 2020, Edmonton NAME OF JUDGE WHO MADE THIS ORDER: Mr. Justice A.

Germain ________________________________________________________________________ UPON THE APPLICATION of the Plaintiff for a Judgment to enforce certain Arbitration Awards ; AND UPON the matter having proceeded to binding arbitration and awards having issued arising from same on January 21, 2019 and February 28, 2019 and March 25, 2019; AND UPON the issue of lump sum spousal support having been remitted back to the arbitrator to reconsider the lump sum award and provide adequate reasons and directing that the Arbitrator has authority to change or set aside the lump sum award in the event that he concludes, after reconsideration of the law and facts, that there is no legal or factual basis to justify the $5,000,000 lump sum award ; AND UPON the arbitrator having issued a further award arising from same on September 21, 2020; AND UPON being advised that the Defendant declared personal bankruptcy on October 21, 2010, but the Trustee does not object to the application to set the terms of the arbitration award and takes no position on same; AND UPON the court having heard representations, received materials and submissions through counsel on behalf of Black Earth, a creditor arising from the sale of CHI; AND UPON the court hearing oral submissions on October 22, 2020 from counsel for the Plaintiff, counsel for the Defendant and counsel for Black Earth Products Inc. ; AND UPON the court having read written submissions from counsel for the Plaintiff, counsel for the Defendant and counsel for Black Earth Products Inc. ;

IT IS HEREBY ORDERED AND ADJUDGED THAT : 1. That the Arbitration Awards of the Arbitrator, Norman W. Picard, Q.C. be confirmed and enforced as a Judgment of this court in the following respects: (

a) The Defendant shall pay to the Plaintiff lump sum spousal support in the sum of $5,000,000.00’ (

b) The Defendant shall additionally, pay arrears or periodic spousal support to the Plaintiff in the sum of $400,000.00 as of December 31, 2018; (

c) The Defendant shall pay to the Plaintiff, interim support of $5,000.00 per month commencing January 1, 2019, until other amounts owing to the Plaintiff are satisfied in full. Thereafter, or sooner if a clearer picture of the Defendant’s financial circumstances emerges, periodic spousal support on a means or needs basis, may be reviewed ; (

d) The Defendant shall pay to the Plaintiff $1,472,749.50 as a property equalization payment; (

e) The Defendant shall, as soon as practicable, take all steps necessary to remove the Plaintiff’s name from the mortgage obligations secured against the matrimonial home and Vernon properties. In the event his failing to do so results in any claims or liability upon the Plaintiff, the Defendant shall indemnify and save her harmless in relation to those claims, including any associated legal expense. Each party shall otherwise be responsible for any debts in their sole names. (

f) The Plaintiff shall be deemed to own the following assets as part of the property division : i. The condominium registered in the Plaintiff’s name; ii. The Shuswap cabin interest; iii. Cash in bank accounts in the Plaintiff’s sole name; iv. The Plaintiff’s TD investments in her sole name; v. The Plaintiff’s Richardson GMP RRSP in her sole name; vi. The 2010 Lexus vii. The vehicle purchased by the Plaintiff post-separation; viii. Furniture and household effects in the Plaintiff’s possession; (

g) The Defendant shall be deemed to own the following assets as part of the matrimonial property division : i. The matrimonial home, ii. The Vernon bare land; iii. The Defendant’s interest in the Sherwood Park home; iv. The Defendant’s shareholdings in A.G. Partner Holdings Ltd.; v. The Defendant’s interest in the Joint Venture with Tim Clark; vi. The Defendant’s TD Waterhouse investments; vii. The Defendant’s Richardson GMP investments; viii. The vehicles in the Defendant’s sole name; ix. The cattle; x. Furniture and household effects in the Defendant’s possession (

h) The Defendant shall forthwith provide to the offices of the Defendant’s Trustee in Bankruptcy, all share certificates owned personally by him, or his corporations, to be held in escrow, or in trust with the Trustee, and such certificates shall not be released to and person unless otherwise agreed by the Plaintiff, the Trustee, and Black Earth Products Inc., or pursuant to a court order granted upon an application brought with notice to the Defendant, Plaintiff, the Trustee, and Black Earth Products Inc.; (

i) The Defendant shall immediately deliver to the Plaintiff the Toscana share certificates in the Plaintiff’s name; (

j) Pending all amounts being paid under this judgment, the Defendant shall provide to the Plaintiff the following disclosure: i. On a quarterly basis, all back accounts and cancelled cheques for all accounts operated by AGPHL;

ii. A monthly revenue and expense

summary for CHI for so long as the AG Partner Holdings Ltd. holds shares in CHI; iii. Detail of any borrowing of AGPHL or any of its subsidiaries from conventional financial institutions or otherwise; iv. Financial statements for AGPHL or any of its subsidiaries as they become available; (

k) The Defendant is prohibited from drawing against his personal shareholder loans or shareholder loans of AGPHL without advance notice and approval of the Plaintiff; (

l) The Defendant shall be prohibited from attending the Shuswap cabin; (

m) The Defendant shall pay costs to the Plaintiff in the sum of $458,225.45, to be enforceable by MEP. (

n) The Defendant shall pay to the Plaintiff interest on the amounts owing in Paragraphs 4 and 15 herein in the sum of $61,810.54 as at October 22, 2020, and carrying a per diem of $79.35 thereafter, pursuant to the provisions of the Judgment Interest Act; (

o) The Director of the Maintenance Enforcement Program shall be entitled to enforce all amounts owing under this order for support and costs against the Defendant personally, as well as against A.G. Partner Holdings Ltd. as if the corporation were the Defendant but only to the extent of the Defendant’s financial interest in such corporation(s) ; (

p) The amounts owing under this Order be paid to the Director of Maintenance Enforcement (“MEP”) at 7th Floor North, 10365 – 97 Street, Edmonton, Alberta, T5J 3W7, (780) 422-5555, (website: www.albertamep.gov.ab.ca ) and shall be enforced by MEP upon the creditor (recipient of support) or debtor (payor of support) registering with MEP. Such enforcement shall continue until the party who registered gives MEP a notice, in writing, withdrawing the registration pursuant to

Section 9 of the Maintenance Enforcement Act . 2. It is further directed that the funds payable by Norcan Holdings Corporation in respect to A.G. Partner Holdings Ltd. in the amount of $271,771.00 shall continue to be held in trust with VWPL’s solicitor’s as ordered by this court on October 15, 2020 in ABQB Action No. 1903 21016 and shall not be disbursed to any person unless otherwise agreed by the Plaintiff, The Trustee, and Black Earth Products Inc., or pursuant to a court order granted upon an application brought with notice to the Defendant, the Plaintiff, the Trustee, and Black Earth Products Inc. ; 3.

The Plaintiff shall have leave to apply to this court in the context of the Defendant’s bankruptcy proceedings in Action No. 24-2682047 / Estate No. 24-2682047 on notice to the Defendant, the Trustee, Black Earth Products Inc., and every other person affected by such application to determine the following question: Whether the Arbitrator’s direction that the unpaid balance of the matrimonial property equalization payment shall convert to a further award of retroactive spousal support in the event of the Defendant’s bankruptcy of insolvency is enforceable. 4.

This judgment is granted without prejudice to the rights and remedies of Black Earth Products Inc. under the General Security Agreement from AGPHL dated February 10, 2016, the securities pledged agreement from AGPHL dated February 10, 2016, and applicable law, and shall not be construed to limit Black Earth Products Inc.’s rights, remedies or priority status in connection therewith and generally, the rights of any other secured creditors of AGPHL or the Defendant. ____________________________________ JUSTICE OF THE COURT OF QUEEN’S BENCH OF ALBERT Order Actually Granted by the Court Clerk’s stamp:

COURT FILE NUMBER 4803 171276 COURT OF QUEEN’S BENCH OF ALBERTA JUDICIAL CENTRE EDMONTON PLAINTIFF PENNY MARY-LOU UNTERSCHULTZ DEFENDANT ANDREW GREER CLARK DOCUMENT JUDGMENT (Order of the Court) _______________________________________________________________________ DATE ON WHICH ORDER WAS PRONOUNCED: December 7, 2020, Edmonton NAME OF JUDGE WHO MADE THIS ORDER: Mr. Justice A.

Germain __________________________________________________________________ UPON THE APPLICATION of the Plaintiff for a Judgment to enforce certain Arbitration Awards; AND UPON the matter having proceeded to binding arbitration and awards having issued arising from same on January 21, 2019 and February 28, 2019 and March 25, 2019; AND UPON the issue of lump sum spousal support having been remitted back to the Arbitrator to reconsider the lump sum award and provide adequate reasons and directing that the Arbitrator has authority to change or set aside the lump sum award in the event that he concludes, after reconsideration of the law and facts, that there is no legal or factual basis to justify the $5,000,000 lump sum award ; AND UPON the Arbitrator having issued a further award arising from same on September 21, 2020; AND UPON being advised that the Defendant declared personal bankruptcy on October 21, 2020, but the Trustee does not object to the application to set the terms of the Arbitration Award and takes no position on same; AND UPON the Court having heard representations, received materials and submissions through counsel on behalf of Black Earth, a creditor arising from the sale of CHI (a corporation in which the parties have an interest) ; AND UPON the Court hearing oral submissions on October 22, 2020 from counsel for the Plaintiff, counsel for the Defendant and counsel for Black Earth Products Inc.; AND UPON the court having read written submissions from counsel for the Plaintiff, counsel for the Defendant and counsel for Black Earth Products Inc.; AND UPON the Court determining that certain clarification to the Awards of the Arbitrator are necessary, IT IS HEREBY ORDERED AND ADJUDGED THAT : 5.

That the Arbitration Awards of the Arbitrator, Norman W. Picard, Q.C. be confirmed and enforced as a Judgment of this court in the following respects: (

a) The Defendant shall pay to the Plaintiff lump sum spousal support in the sum of $5,000,000.00; (

b) The Defendant shall additionally, pay arrears or periodic spousal support to the Plaintiff in the sum of $400,000.00 as of December 31, 2018; (

c) Commencing January 1, 2019, and continuing on the first of each month thereafter, the Defendant shall pay to the Plaintiff the sum of $5,000 per month in periodic spousal support. The periodic spousal support shall be reviewable upon all of the amounts owing under

this judgment having been satisfied. Thereafter, (or sooner if a clearer picture of the Defendant’s financial circumstances emerges), periodic support on a means and needs basis may be reviewed; (

d) The Defendant shall pay to the Plaintiff $1,472,749.50 as a property equalization payment; (

e) The Defendant shall, as soon as practicable, take all steps necessary to remove the Plaintiff’s name from the mortgage obligations secured against the matrimonial home and Vernon properties. In the event his failing to do so results in any claims or liability upon the Plaintiff, the Defendant shall indemnify and save her harmless in relation to those claims, including any associated legal expense. Each party shall otherwise be responsible for any debts in their sole names. (

f) The Plaintiff shall be deemed to own the following assets as part of the property division: ix. The condominium registered in the Plaintiff’s name; x. The Shuswap cabin interest; xi. Cash in bank accounts in the Plaintiff’s sole name; xii. The Plaintiff’s TD investments in her sole name; xiii. The Plaintiff’s Richardson GMP RRSP in her sole name; xiv. The 2010 Lexus xv. The vehicle purchased by the Plaintiff post-separation; xvi. Furniture and household effects in the Plaintiff’s possession; (

g) The Defendant shall be deemed (subject to an unpaid vendor’s lien to secure the equalization payment of $1,472,749.50) to own the following assets as part of the matrimonial property division: xi. The matrimonial home, xii. The Vernon bare land; xiii. The Defendant’s interest in the Sherwood Park home; xiv. The Defendant’s shareholdings in A.G. Partner Holdings Ltd.; xv. The Defendant’s interest in the Joint Venture with Tim Clark; xvi. The Defendant’s TD Waterhouse investments; xvii. The Defendant’s Richardson GMP investments; xviii. The vehicles in the Defendant’s sole name; xix. The cattle; xx.

Furniture and household effects in the Defendant’s possession. However, nothing in this subparagraph shall compel the Plaintiff to assign, transfer, release, quit claim, or discharge any interest she has in the assets identified in paragraph 1(

g) except in trust for the payment of the equalization payment described in paragraph 1(d). Consistent with a vendor’s lien, the equalization payment may be paid on a partial basis in the event of partial sale or liquidation of each asset with the Plaintiff entitled to the portion that represented her share of the asset prior to division. For greater certainty the Plaintiff’s lien attaches no more than 50% of the asset value less encumbrances, recognized by the Arbitrator as at January 21, 2019 (the date of the main Award). (

h) The Defendant shall forthwith provide to the offices of the Defendant’s Trustee in Bankruptcy, all share certificates owned personally by him, or his corporations, to be held in escrow, or in trust with the Trustee, and such certificates shall not be released to any person unless otherwise agreed by the Plaintiff, the Trustee, and Black Earth Products Inc., or pursuant to a court order granted upon an application brought with notice to the Defendant, Plaintiff, the Trustee, and Black Earth Products Inc.; (

i) The Defendant shall immediately deliver to the Plaintiff the Toscana share certificates in the Plaintiff’s name; (

j) Pending all amounts being paid under this judgment, the Defendant shall provide to the Plaintiff the following disclosure: v. On a quarterly basis, all back accounts and cancelled cheques for all accounts operated by AGPHL; vi. A monthly revenue and expense

summary for CHI for so long as the AG Partner Holdings Ltd. holds shares in CHI; vii. Detail of any borrowing of AGPHL or any of its subsidiaries from conventional financial institutions or otherwise;

viii. Financial statements for AGPHL or any of its subsidiaries as they become available; (

k) The Defendant is prohibited from drawing against his personal shareholder loans or shareholder loans of AGPHL without advance notice and approval of the Plaintiff; (

l) The Defendant shall be prohibited from attending the Shuswap cabin; (

m) The Defendant shall pay costs to the Plaintiff in the sum of $458,225.45, to be enforceable by MEP. (

n) The Defendant shall pay to the Plaintiff interest on the amounts owing in Paragraphs 1(

d) and 1(

m) herein in the sum of $61,810.54 as at October 22, 2020, and carrying a per diem of $79.35 thereafter, pursuant to the provisions of the Judgment Interest Act ; (

o) The Director of the Maintenance Enforcement Program shall be entitled to enforce all amounts owing under this order for support and costs against the Defendant personally, as well as against A.G.

Partner Holdings Ltd.[AGPHL], Norcan Development Corporation, Clark Haven Farms, Gavin Mines Inc., Grace Mining Inc., Metal Mountain Resources Inc., AB Financial Corporation, CB Finco Corporation, CB Resources Corporation; May Ruben Thermal Solutions Inc., Mission Renewables Inc., Natural Ma Inc., Next Alternative Inc., Norwesters Group Inc., Transamerica Genetics LP, Veteran’s Way Limited Partnership, Veteran’s Way Project Ltd., 4 Partners RCA Trust, 527192 Alberta Ltd., 583145 Alberta Ltd., 1283293 Alberta Ltd., 1637535 Alberta Ltd., 1637548 Alberta Ltd.; as if the corporation were the Defendant’s but only to the extent of the Defendant’s financial interest in such corporation(s); (

p) The amounts owing under this Order be paid to the Director of Maintenance Enforcement (“MEP”) at 7th Floor North, 10365 – 97 Street, Edmonton, Alberta, T5J 3W7, (780) 422-5555, (website: www.albertamep.gov.ab.ca ) and shall be enforced by MEP upon the creditor (recipient of support) or debtor (payor of support) registering with MEP. Such enforcement shall continue until the party who registered gives MEP a notice, in writing, withdrawing the registration pursuant to

Section 9 of the Maintenance Enforcement Act . 6. It is further directed that the funds payable by Norcan Holdings Corporation in respect to A.G. Partner Holdings Ltd. in the amount of $271,771.00 shall continue to be held in trust with VWPL’s solicitor’s as ordered by this Court on October 15, 2020 in ABQB Action No. 1903 21016 and shall not be disbursed to any person unless otherwise agreed by the Plaintiff, the Trustee, and Black Earth Products Inc., or pursuant to a court order granted upon an application brought with notice to the Defendant, the Plaintiff, the Trustee, and Black Earth Products Inc.; 7.

The Plaintiff shall have leave to apply to this Court in the context of the Defendant’s bankruptcy proceedings in Action No. 24-2682047 / Estate No. 24-2682047 on notice to the Defendant, the Trustee, Black Earth Products Inc., and every other person affected by such application to determine the following question: Whether the Arbitrator’s direction that the unpaid balance of the matrimonial property equalization payment shall convert to a further award of retroactive spousal support in the event of the Defendant’s bankruptcy or insolvency is enforceable. 8. The amounts owed to Ms.

Unterschultz by this Order (the vendor’s lien on the assets, the remaining equalization payment and the unpaid support) shall form a charge against Mr. Clark’s shares in AGPHL, with such charge displaced only in the event that Black Earth establishes a legal recognized entitlement of priority to this attachment under the General Security Agreement from AGPHL dated February 10, 2016, the securities pledged agreement from AGPHL dated February 10, 2016, and applicable law.

Nothing in this Order prevents the Plaintiff from making a claim that her matrimonial property interests took priority over those of Black Earth. 9. This Order will be served electronically by the Court and is deemed to have been served December 7, 2020. _____________________________ J.C.Q.B.A ENTERED, this 7 th day of December, 2020 at Edmonton, Alberta