Gunston v MacDonald, 2021 ABQB 1011

Court of Queen’s Bench of Alberta Citation: Gunston v MacDonald, 2021 ABQB 1011 Date: 20211217 Docket: 4801 180526 Registry: Calgary Between: David Gunston Plaintiff / Defendant by Counterclaim - and - Kathryn Anne MacDonald Defendant / Plaintiff by Counterclaim Corrected judgment: A corrigendum was issued on February 23, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice EJ Sidnell _______________________________________________________

[ 1 ] David Gunston and Kathryn Anne MacDonald met in Australia, lived together and later married and had three children. In their separation, they have struggled to resolve their differences amicably. They have developed a distrustful relationship which has caused many of their disagreements to be high conflict. [ 2 ] The issues to be determined at this trial were the following: (

a) division of matrimonial property; (

b) parenting; (

c) child support; and (

d) spousal support. Background [ 3 ] Counsel entered an Agreed Statement of Facts as an exhibit at the trial. The agreed facts are as follows, which I have edited for readability and to remove extraneous personal information: 1. David ... is currently 40 years old. 2. Kathryn ... is currently 41 years old. 3. There are three children of the marriage, namely: [A] ... currently 12 years old ...; [M] ... currently 11 years old ...; and [K] ... currently 4 years old ... [now 5] (collectively, the "Children"). 4. The parties met in Australia in December 2000.

They commenced cohabitating in or around October 2001 in Bardon, Australia. When they started cohabitating, David worked as a refrigeration/air-conditioning mechanic and Kathryn went to school part-time and worked part-time. 5. When the parties commenced cohabitating, they lived in a room in David's house, which he co-owned with his brother and sister (the "Brisbane House") in equal shares. 6. David and Kathryn were married on March 2, 2002. 7. In 2003, David and Kathryn moved to London, Ontario. While in London, Kathryn completed her bachelor's degree in kinesiology at Western University.

While in London, David worked as a refrigeration technician. 8. David and Kathryn purchased a house in London (the "London House"). The source of the down payment for the London House was David's share of the proceeds from the sale of the Brisbane House. Ownership of the London House was in both Kathryn and David's names. 9. In 2005, after Kathryn had completed her bachelor's degree in kinesiology, David and Kathryn sold the house in London and returned to Brisbane. 10. In 2007, David and Kathryn purchased a condo in Brisbane, using the proceeds from the sale of the London House (the "Brisbane Condo"). 11.

In or around 2007, Kathryn found employment with Queensland Health as a Senior Project Officer. In addition, Kathryn also obtained a graduate diploma of education in middle years. David worked in refrigeration. 12. In 2008, while Kathryn was pregnant with [A], David and Kathryn returned briefly to Ontario and lived with Kathryn's parents ... David worked as a labourer. David and Kathryn rented out the Brisbane Condo to tenants. 13. [A] was born [in] .... 2008. 14. Approximately one year later in 2009, they moved back to Australia. They resided briefly in the Brisbane Condo, and then moved to a rental home.

David worked for Honeywell and then in refrigeration. 15. In 2010, after approximately 10 months in Australia, the parties returned to Canada, residing in [Ontario]. The parties sold the Brisbane Condo. 16. David obtained contract employment in Calgary with 1240625 Alberta Ltd, operating as Building Automation Systems ("BAS"). While in Calgary, David purchased a home ... (the "Matrimonial Home"). The funds used to purchase the Matrimonial Home came from the sale of the Brisbane Condo. Ownership of the Matrimonial Home was in David's name alone. 17.

David returned to [Ontario] shortly before the birth of [M in 2010]. ... Shortly after the birth of [M], the family moved to Calgary and

commenced residing in the Matrimonial Home. David commenced full-time employment with BAS as a Honeywell Technician. 18. At the time David commenced his full-time employment, Brian Stamler and Michael McGee were the co-owners of BAS. 19. On or about November 29, 2011, Kathryn received an inheritance of $25,000 from her uncle. 20. In 2015 David incorporated 1888496 Alberta Ltd., which eventually operated under the trade name Nexus Automation ("Nexus"). 21. [K] was born [in] ... 2016. 22. David filed a Statement of Claim for Divorce and Division of Matrimonial Property on January 16, 2019.

The parties continued to reside in the Matrimonial Home with the Children. 23. On November 27, 2019, the Honourable Justice [K] Nixon ordered David to pay the full monthly amount of the mortgage, property tax, property insurance, utilities, car payments, car insurance , and uncharacterized support in the amount of $1,437. David was also ordered to pay Kathryn an advance in the amount of $11,000 of the matrimonial property. 24. On or about December 17, 2019 David moved out of the Matrimonial Home. 25. On January 17, 2020, the Honourable Justice Dilts ordered David to pay $841 in spousal support and $2,085 in

section 3 child support, as well as 50% of the property taxes, mortgage and insurance on the Matrimonial Home . 26. On or about March 13, 2020 David received a Record of Employment indicating he was laid off from his employment with BAS. 27. On or about April 21, 2020 the Honourable Justice Kenny directed for David to have parenting time with the Children on a two-week rotating basis as follows: a. Week one: David picks up the Children from Kathryn's on Wednesday at 5:00 PM and drops them off on Thursday at 5:00 PM.

David then picks up the Children Friday after school and drops them off Sunday evening at 8:00 PM. b. Week two: David picks up the Children on Wednesday at 5:00 PM and drops them off on Friday morning 28. The above parenting

schedule remains in place today. 29. On May 27, 2020 David filed a Notice to Attend Family Docket Court, applying for among other things, a variation of the child and spousal support orders. 30. On or about July 15, 2020 David received a subsequent Record of Employment indicating he was laid off from his employment with BAS. 31. On September 10, 2020 the Honourable Justice M.D. Gates ordered the Matrimonial Home to be listed for sale. 32.

On or about November 24, 2020 the Matrimonial Home was sold. 33. [David] has received an advance of $25,000 from his share of the matrimonial property. [Kathryn] has received an advance of $106,000 from her share of the matrimonial property. 34. There remains $130,922 in trust from the sale of the Matrimonial Home. 35. David's annual income, as indicated on line 150/15000 of his T1 Tax Return or Notice of Assessment, is as follows: 2015 $91,959 2016 $98,769 2017 $127,106 2018 $134,748 2019 $111,408 36. David did not file his income taxes in 2020.

The T4 he received from BAS indicated employment income of $23,187 for 2020. The T4E he received from the CRA indicated total benefits paid of $21,544. 37. Kathryn's annual income, as indicated on line 150/15000 of her T1 Tax Return or Notice of Assessment, is as follows: 2015 $39,928 2016 $37,150 2017 $20,943 2018 $0 2019 $0 2020 $0 38. David currently resides with his girlfriend, Kathleen Lattin. 39. Kathryn currently resides with her boyfriend, Andrew Bennett. Credibly and reliability

[ 4 ] Both credibility and reliability were raised in this case. As noted by the majority of the Supreme Court of Canada, in R v GF , 2021 SCC 20 , at para 82 , there is a distinction between credibility and reliability: Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility.

The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty ... [ 5 ] In closing, Mr. Gunston’s counsel referred to errors made by both of the parties in their testimony regarding specific dates, and asserted that those errors should not reflect on their credibility. These relatively minor errors give rise to a consideration of reliability not credibility. The parties gave evidence about events that began in 2001 up to 2021.

For the most part, they were fairly accurate. When confronted with the dates set out in the Agreed Statement of Facts, both parties accepted those dates. Based on the type of evidence given at the trial, I find that both Mr. Gunston and Ms. MacDonald were fairly reliable, accepting of agreed facts and that any timing errors they made did not negatively affect the reliability of their evidence. [ 6 ] In determining credibility, I find that the principles outlined by Renke J in MM v BM , 2017 ABQB 532 , at para 6 , to be of assistance, which I have paraphrased, without citations: (

a) the evidence of each of the parties should be subjected to the same degree of scrutiny; (

b) the weight of evidence is not decided only on the number of witnesses testifying to support a proposition; (

c) personal relationship, by itself, does not degrade the probative value of a witness’s evidence; (

d) all, some, or none of the evidence of a particular witness may be accepted; (

e) generally, little reliance should be placed in a credibility assessment on the “demeanour” of a witness, understood as his or her manner of testifying or appearance when testifying, unless, e.g., the witness was (even allowing for the stress of testifying) significantly argumentative, evasive, or slow to answer; and (

f) credibility assessment relies heavily on the assessment of the “natural probabilities” of evidence, consistencies and inconsistencies between elements of a witness’s testimony and elements of other witness’s testimony, inconsistencies between prior statements of a witness and his or her testimony, and factors tending to support a witness’s objectivity (e.g. lack of exaggeration and conceding limitations, admitting facts that could counter the witness’s testimony or credibility). [ 7 ] I find that I cannot accept much of Mr. Gunston’s evidence.

I have reached this conclusion based on the whole of his testimony, from which I have formed the following conclusions, which are discussed in detail later in these reasons: (

a) Mr. Gunston was involved in a scheme to avoid paying taxes by having BAS put Ms. MacDonald on its records as an employee when she never worked for BAS and had the records show that she earned a portion of his salary, which was false. (

b) Mr. Gunston was involved in a scheme to receive Employment Insurance benefits from Ms. MacDonald’s “maternity leave” from BAS even though she had never been an employee of BAS. (

c) Mr. Gunston could remember details of his case that fit his narrative, but had difficulty remembering details when asked questions, such as: (

i) whether he received any “additional payment” after his permanent layoff from BAS for his years of service; and (ii) the payment of $4,305.00 made by BAS to Nexus and dated February 24, 2017, before Mr. Gunston moved full time to BAS. (

d) On a number of occasions, Mr. Gunston was evasive, or less than forthright, when being cross-examined, even on points that were not contentious, and, on occasion, he refused to concede clear facts. (

e) Mr. Gunston provided implausible and self-serving evidence in relation to the cost of his trip to the Dominican Republic, past employment and future employment prospects. [ 8 ] In general, where there is competing evidence from Ms. MacDonald, I find that evidence to be more credible than Mr. Gunston’s evidence.

Division of matrimonial property [ 9 ] As a result of the parties living separate and apart before January 1, 2020, and the transitional provision in subsection 39(2) of the Family Property Act , RSA 2000, c F-4.7 , the now repealed Matrimonial Property Act , RSA 2000, c M-8 ( MPA ), applies to the matrimonial property issues raised in this trial. [ 10 ] The date of valuation for matrimonial property is the date of trial: Hodgson v Hodgson , 2005 ABCA 13 , at paras 9 and 10 . [ 11 ] After valuing the matrimonial property at the date of trial, I must consider the factors set out in

section 8 of the MPA in deciding how to distribute the property between the parties. In Dobrovolsky v Dobrovolsky , 2021 ABQB 62 , at para 20 , Kiss J explained the matrimonial property analysis: In Hodgson v Hodgson ... , at paras 19-21 , the Alberta Court of Appeal interpreted ss 7 and 8 of the MPA and established the four-step

process to be followed to achieve a just and equitable division of the matrimonial property owned by the parties at the date of trial: (

a) Determine all property owned at the date of trial. (

b) Determine the property that is exempt from distribution under s 7(2), or that can be traced to s 7(2) property. The value of this property, as at the date of acquisition, or date of marriage, is excluded from distribution. (

c) Determine what property falls under s 7(3). This includes the increase in value of exempt property, from the date of acquisition or marriage, to the date of trial. This property is distributed between the parties in a manner that is just and equitable taking into consideration the s 8 factors. (

d) Divide the balance of the remaining property equally, unless it would be unjust and inequitable to do so considering the factors in s 8. Step 1: Determine all property owned at the date of trial [ 12 ] The property that was put in issue by the parties can be characterized as follows: (

a) Australian pensions; (

b) bank accounts; (

c) Matrimonial Home; (

d) vehicles; (

e) shares of BAS; and (

f) shares of Nexus. Each of these will be addressed in turn. Australian pensions [ 13 ] It became apparent in closing argument that Mr. Gunston and Ms. MacDonald agree that their Australian pensions should be, if possible, divided equally at source. Counsel advised me that they were unaware as to: (

a) whether it is possible to divide the pension entitlements at source; (

b) if it is possible to divide the pensions at source, whether an Australian court order will be required; and (

c) if an Australian court order is required, whether it will be cost prohibitive to obtain such an order. [ 14 ] As a result of the agreement between the parties, I order that the Australian pensions, to the extent possible, be divided equally at source. If the parties cannot make the necessary arrangements to divide them at source, then they may contact me after February 4, 2022 for further direction on alternate remedies to divide the benefits of the Australian pensions equally. Bank accounts [ 15 ] The parties gave evidence about transactions in the following bank accounts: (

a) a joint bank account located at a bank branch in Ontario in their joint names into which $20,000 of Ms. MacDonald’s inheritance was deposited (the Joint Account); and (

b) a tax-free saving account in Mr. Gunston’s name into which the $20,000 inheritance was transferred (the TFSA). [ 16 ] There was no evidence that the TFSA or the Joint Account had any funds in them at the time of trial. Without any value at the date of trial, or any evidence that value can be traced to another asset, the TFSA and Joint Account are not matrimonial property available for distribution. Matrimonial Home [ 17 ] Mr. Gunston purchased the Matrimonial Home in his sole name when he came to Calgary to start employment with BAS, before Ms. MacDonald, A and M moved to Calgary.

The Matrimonial Home was sold in November 2020 pursuant to a Court Order. Each party was advanced funds from the sale proceeds which must be accounted for in the final matrimonial property distribution. Sale proceeds of $130,922 remain in trust pending the outcome of this trial. [ 18 ] Mr. Gunston claims an exemption for a portion of the funds used to purchase the Matrimonial Home and this exemption claim is dealt with below. Vehicles Chevy Truck

[ 19 ] In December 2019, Mr. Gunston moved out of the Matrimonial Home and, in January 2020, acquired a 2007 BMW X3 (the BMW) from BAS. Mr. Gunston explained that he could no longer afford his Chevy Colorado truck (the Chevy Truck) lease. [ 20 ] Mr. Gunston said that there was “equity” of approximately $4,000 in the Chevy Truck, though he did not explain how there could be any equity in a leased vehicle. He made a deal with Mr. Stamler for BAS to take-over the Chevy Truck lease and to transfer the BMW to Mr. Gunston. Mr.

Stamler said that he had purchased the BMW for $4,700 either a year, or a year and a half, before he sold it to Mr. Gunston for $3,000. [ 21 ] Ms. MacDonald took issue with the valuation of the Chevy Truck; however, it was leased and not owned by Mr. Gunston. The value of the Chevy Truck when Mr. Gunston transferred his interest in the lease to BAS is not relevant because the Chevy Truck was not an asset owned by Mr. Gunston. Further, the lease for the Chevy Truck was not matrimonial property at the date of trial. As there is no asset, there is no matrimonial property. BMW [ 22 ] Ms.

MacDonald also took issue with the $3,000 valuation of the BMW, but she did not provide any evidence to the contrary. Without any evidence other than that of Mr. Gunston and Mr. Stamler as to the value of the BMW, I accept that its value at trial was $3,000. Acadia [ 23 ] It was common ground that starting in the spring of 2020 the car loan payments were not made on the car driven by Ms. MacDonald, a GMC Acadia (the Acadia), and it was repossessed. The parties disagreed as to whether the repossession of the Acadia could have been avoided.

I find that whether the repossession could have been avoided is not relevant to the distribution of matrimonial property. [ 24 ] The Acadia was repossessed and proceeds of $11,626.63 were paid into Mr. Gunston’s bank account on August 3, 2020. The car loan, in the amount of $7,742.70, was then paid out of those proceeds, leaving a balance of $3,883.93. On the same day he paid out the car loan, Mr. Gunston transferred $3,885.25 to his credit card. In closing it was argued that there was no evidence to show dissipation of this amount, but the evidence is clear that the balance of the proceeds were used to pay Mr.

Gunston’s credit card debts at a time when he was paying no support. [ 25 ] At the date of trial, there were no remaining proceeds from the Acadia sale and no matrimonial property. Shares of BAS [ 26 ] At the beginning of trial, Ms. MacDonald asserted that Mr. Gunston had a 10% shareholding in BAS and that his shares were matrimonial property. Mr. Gunston said that within his first six months at BAS, he expressed an interest in becoming a shareholder. He discussed the possibility with Mr. Stamler, who was in favour, but the other shareholder, Mr. McGee, was opposed. [ 27 ] Despite Mr. McGee’s opposition, Mr.

Stamler filed an Annual Return at the Corporate Registry showing Mr. Gunston as a 10% shareholder. It is not clear when Mr. Stamler made the change, but a certified copy of a “Change Director / Shareholder – Registration Statement”, dated January 9, 2014, shows Mr. Gunston as a 10% shareholder of BAS. Mr. Stamler said that he later realized this transfer was premature and that additional steps, which he was not aware of, were required to formalize a share transfer. [ 28 ] Mr.

Gunston denied ever seeing the corporate documentation showing him to be a 10% shareholder in BAS before this litigation commenced. [ 29 ] On March 7, 2019, BAS’s lawyer sent an email to counsel for the parties noting that Mr. Gunston was employed by BAS as a “Honeywell Controls Senior Technician”. That email also explained that, in 2015, Mr. Gunston and BAS engaged in discussions about Mr. Gunston participating in an equity position in BAS and that Mr. Gunston’s name was added to the corporate register. However, the BAS lawyer stated that Mr.

Gunston did not at any time receive, or hold, an equity position in BAS. Despite the BAS lawyer’s comment that the discussions occurred in 2015, the documentary evidence is clear that the BAS registration was changed no later than January 2014. [ 30 ] BAS was not named as a party in this action. Mr. Gunston argued that Ms. MacDonald had not complied with subsection 10(4) of the MPA because she had failed to serve a notice of the application on BAS.

However, subsection 10(4) does not apply because BAS was not an alleged “transferee or donee”, but rather an alleged transferor or donor, and, as such, the provision is not applicable. [ 31 ] Considering all of the evidence, there was insufficient evidence to find that Mr. Gunston ever owned any shares in BAS. [ 32 ] In closing, Ms. MacDonald resiled her position that Mr. Gunston was the owner of 10% of BAS’s shares and asserted that, if Mr.

Gunston is found to be a shareholder of BAS in the future, then such shareholding should be a divisible matrimonial property asset at that time. [ 33 ] The division of matrimonial property is to take place at the date of trial. In making a distribution under

section 7 of the MPA , I must take into consideration, among other things, Mr. Gunston’s property at the time of trial (see: MPA subsection 8 (d)(ii)). Trial is when the determination is to be made and Ms. MacDonald provided no authority for the proposition that a distribution of matrimonial property can be contingent on a future determination. I decline to make a contingent determination. Shares of Nexus

[34] Mr. Gunston incorporated Nexus on April 6, 2015 and testified that he told Mr. Stamler about the incorporation. In fact, Mr.Stamler attended at the registry office to request the incorporation to help Mr. Gunston out. The trade name registration shows that theaddress for Nexus was the same as the BAS address and Mr. Gunston acknowledged that he ran Nexus out of the BAS premises. [35] Mr. Gunston said that Nexus was in the same line of work as BAS, but the focus of Nexus was on smaller customers notserved by BAS.

He also said that Nexus and BAS did not compete for customers, but that Nexus customers came from referrals fromBAS. [36] In June 2017, Mr. Gunston resigned from BAS to work for Nexus, where he was the only employee. [37] In 2017, BAS had a significant contract for building controls at the Chinook Centre shopping mall in Calgary. Mr. Gunstonhad been involved in BAS’s bid for the work and had been the face of BAS with the customer. To provide a seamless experience for theclient, BAS hired Nexus to continue Mr. Gunston’s services for approximately four or five months after he resigned. Mr.

Gunstonreferred to Nexus’s November 30, 2017 General Ledger to show payment from BAS for this work. However, Mr. Gunston could notexplain the BAS payment of $4,305.00 made to Nexus, dated February 24, 2017, which occurred several months before he resigned fromBAS. In closing, Mr. Gunston’s counsel asserted that one errant payment did not reveal a plot to devalue BAS, as alleged by Ms.MacDonald. That is a fair statement, but that one payment is inconsistent with Mr. Gunston’s narrative about the operation of Nexus. [38] Ms. MacDonald said that she had no desire for Mr.

Gunston to be the owner of his own business and that it just gave himanother reason to not be with the family. However, Mr. Gunston moved to Nexus on a full-time basis in June 2017 and it was Ms.MacDonald’s evidence that they separated in August 2016. On this point, Ms. MacDonald’s explanation cannot be accepted. In contrast,it was Mr. Gunston’s evidence that they separated in December 2018, after patching things up in August 2016. [39] Mr.

Gunston referred to a profit and loss statement for Nexus, prepared by Linda Neu, who was also the bookkeeper for BAS.From December 2016 to November 2017, Nexus earned $132,245.50 and paid out $84,824.02 in payroll expenses and $6,164.76 in carlease payments for a GMC Canyon 2015, which Mr. Gunston said was his vehicle. After expenses, Nexus had net income of $26,562.58.There was no evidence as to what happened to these funds. [40] After one year, in June 2018, Mr. Gunston returned to work BAS. Mr. Gunston said that when he shut down Nexus it had noassets other than a “couple hundred dollars in the account”.

There was no evidence that the shares of Nexus, if they existed at the time oftrial, had any value and therefore there is no matrimonial property available for distribution. Step 2: Determine the property that is exempt from distribution under subsection7(2), or that can be traced to subsection 7(2) property Mr. Gunston’s exemption for the Brisbane House proceeds [41] Subsection 7(2) of the MPA provides that when property is acquired before the marriage, the exemption amount is the marketvalue of the property at the date of the marriage or when it was acquired, which ever is later.

In the case of the Brisbane House, theapplicable market valuation date is the date of marriage. [42] When the parties met, Mr. Gunston was living in the Brisbane House that he owned in equal one-third shares with his twosiblings. Mr. Gunston said that they bought the Brisbane House in 1999 or 2000 for $206,000, with a down payment of $10,000 betweenthe three of them. In cross-examination, Mr. Gunston acknowledged that the Brisbane House had increased in value by about $140,000or $150,000 over three years. I understood these figures to be in Australian funds. [43] At the end of August 2003, Mr.

Gunston received proceeds of $43,848.96 (AUD) from the sale of the Brisbane House, whichhe said was equivalent to $40,000 (CAD). These funds were used as a down payment for the London House, which was purchased inSeptember 2003 and put in the joint names of Mr. Gunston and Ms. MacDonald. [44] Mr. Gunston claims that his exemption should be $20,000, because half of the Brisbane House proceeds were used topurchase the London Home in joint names. In other words, half of the $40,000 was shared as matrimonial property with Ms.

MacDonald:Jackson v Jackson (1989), 1989 ABCA 197 , 97 AR 153 (CA) and Harrower v Harrower (1989), (AB CA),97 AR 141 (CA). [45] Ms. MacDonald claims that Mr. Gunston is only entitled to an exemption of $10,000 because she lived in the Brisbane Housebefore she married Mr. Gunston, she paid weekly rent, and a share of the expenses before they married on March 2, 2002. [46] There was some disagreement as to the date that Ms. MacDonald moved into the Brisbane House, but the parties submitted inthe Agreed Statement of Facts that she lived there from “in or around October 2001”. [47] Mr.

Gunston said that between October 2001 and March 2, 2002, Ms. MacDonald only paid a small amount of rent of $50 permonth. [48] Before they sold the Brisbane House, Mr. Gunston’s cousin walled-in a living area to make a fourth bedroom. Ms.MacDonald and Mr. Gunston agree that the renovation to create an additional bedroom was undertaken not long before the BrisbaneHouse was sold. [49] Ms. MacDonald suggests that if the increase in the value of Mr.

Gunston’s share of the Brisbane House was $40,000, over 3years, his exemption should be determined as half of that amount, even before the presumption of advancement, because they weremarried for half of that period.

[50] Mr. Gunston provided no evidence about the market value of the Brisbane House at the date of marriage, notwithstanding thatis the date on which the market value must be determined to establish his exemption. [51] The date of marriage was almost 18 months before the Brisbane House was sold in August 2003, or half way through Mr.Gunston’s period of ownership. While I do not know whether the increase in value occurred equally before and after the marriage, I mustmake a decision with the information that I have.

The evidence is that over a period of three years, from purchase of the Brisbane Houseto its sale at the end of August 2003, Mr. Gunston’s equity in the Brisbane House increased from $3,333 (one third of the $10,000 downpayment) to $43,848.96 (AUD). No currency conversion was provided, but given Mr. Gunston’s evidence that Australian currency wasworth slightly less than Canadian currency in 2003, I accept that he received approximately $40,000 (CAD) in sale proceeds. I calculatehis exemption as follows: (

a) sale proceeds of $40,000 (CAD), less $3,333 (using this figure as if it is CAD for simplicity, notwithstanding it was AUD)for an increase of $36,677 (CAD) for the Brisbane House over three years; (

b) the increase in value is divided in half because marriage occurred halfway through the period: $18,333.50 (CAD); (

c) Mr. Gunston’s exemption at the date of marriage is $3,333 (the original investment in the Brisbane House, using this figureas CAD for simplicity) plus the $18,333.50 (CAD) increase in value prior to marriage for a total of $21,666.50 (CAD); and (

d) applying the presumption of advancement under subsection 36(2) of the MPA, which Mr. Gunston acknowledges appliesdue to the proceeds being used to purchase the London House in joint names, Mr. Gunston’s exemption for the Brisbane House is$10,833.25 (50% of $21,666.50). [52] The remainder of the Brisbane House proceeds, also in the amount of $10,833.25, is presumptively allocated equally betweenMr. Gunston and Ms. MacDonald.

As the Court of Appeal explained in Jensen v Jensen, 2009 ABCA 272, at para 60, in the context of agift from a third party, the half that has been shared as matrimonial property is subject to the presumption of equal division undersubsection 7(4) of the MPA: ... the forgiveness of the debt of $455,000 was a gift to the husband from his parents which he shared with his wife. As a gift from a thirdparty, the amount of the debt is exempt property under s. 7(2)(

a) of the MPA. However, where one spouse has shared exempt propertywith the other spouse, the half that has been shared is treated as matrimonial property subject to the presumption of equal division unders. 7(4) of the MPA: Harrower v. Harrower ... and Jackson v. Jackson ... Here the parties used the proceeds jointly to purchase land ...for their joint advantage. [53] Mr. Gunston and Ms. MacDonald used the Brisbane House proceeds to buy properties that were matrimonial residences,except for the Brisbane Condo, which was both a matrimonial residence and later a rental property.

By sharing the otherwise exemptproperty, half is treated as matrimonial property. This matrimonial property, traced through these respective properties, is subject to thepresumption of equal division under subsection 7(4) of the MPA. Ms. MacDonald’s inheritance [54] Subsection 7(2) of the MPA provides that when property is acquired by inheritance, the exempt amount is the market value ofthe property at the date of the marriage or when it was acquired, whichever is later. In the case of Ms. MacDonald’s inheritance, theapplicable market valuation date is when it was acquired. [55] Ms.

MacDonald’s evidence was that she received an inheritance of $25,000 from a relative. While she was initially unsure ofthe date, when she reviewed the documents produced, she confirmed that she received the funds in November 2001. Ms. MacDonaldsaid she spent $5,000 of the inheritance on items and activities for the Children, leaving $20,000 that she put into the Joint Account. Byputting the $20,000 in an account in their joint names, Ms. MacDonald took otherwise exempt property and shared it with Mr. Gunston.As a result, $10,000 has been shared with Mr.

Gunston, and this $10,000 is treated as matrimonial property, which is subject to thepresumption of equal division. This is the same analysis that applies to Mr. Gunston sharing the Brisbane House proceeds with Ms.MacDonald when they purchased the London House in their joint names. [56] Later, Mr. Gunston moved $20,000 from the Joint Account and invested it in the TFSA, which was in his sole name. Ms.MacDonald said she was unaware of Mr. Gunston placing the inheritance in the TFSA until well after it was moved. When asked if theTFSA was only in his name, Mr.

Gunston was evasive and reasoned that moving the funds from the Joint Account to the TFSA allowedhim to invest the inheritance, without which there would have been no investment gain on the initial amount. [57] On April 29, 2019, the TFSA balance of $22,937 was withdrawn in full. Mr. Gunston said that Ms. MacDonald received twoamounts from these funds: (1) $11,000 pursuant to the November 27, 2019 Interim Order granting her an advance on matrimonialproperty; and (2) $5,000. Mr.

Gunston also acknowledged that the remainder, being $6,937, was used by him to pay his bills. [58] The parties submitted that $20,000 from the inheritance was an exemption in Ms. MacDonald’s favour under subsection 7(2)of the MPA. Mr. Gunston took the position that the $2,937 gain was matrimonial property. However, the maximum amount of anexemption for the inheritance would be $10,000 because of the deemed sharing flowing from the funds being put into the Joint Account.Further, the TFSA was fully depleted by the date of trial and I have already found that it is not matrimonial property.

An exemption canonly apply to matrimonial property that continues to exist in some form at the time of trial. This was confirmed by the Alberta Court ofAppeal in Miller v Miller, 2004 ABCA 257, at para 12: Property that a party owns at the time of marriage will be considered exempt from matrimonial property under s. 7(2)(

c) of the Act onlyif the exempt property is “still owned or traceable into other still owned property” at the time of the order for division of matrimonialproperty: Jackson v. Jackson (1989), 1989 ABCA 197 , 97 A.R. 153 at para. 11 ... (C.A.). “If the property is dissipated withoutbeing converted into some other asset owned by the parties, it is no longer traceable, or exempt”: Brokopp v. Brokopp (1996), 1996

ABCA 4 , 181 A.R. 91 ... (C.A.) at para. 6. [59] As the TFSA is not matrimonial property, because it has no value, and there was no evidence that any part of it is traceable tostill owned property, there is no exemption available to Ms. MacDonald for her inheritance. Step 3: Determine what property falls under subsection 7(3) of the MPA [60] In Jensen, at para 17, the Alberta Court of Appeal explained how

section 7 of the MPA works:

Section 7 of the MPA sets out a scheme for the distribution of property between spouses. Certain property, including property acquiredby a spouse before marriage, is classified as exempt from distribution under that section: s. 7(2). Any increase in the value of exemptproperty during the course of the marriage may be distributed in a manner that the court considers just and equitable: s. 7(3).

Section 8sets out the factors to be taken into consideration in making such a distribution. [61] The only exempt property in this case is Mr. Gunston’s contribution from the Brisbane House to the parties’ sharedmatrimonial residences and the Brisbane Condo. I find that any increase in the value of Mr. Gunston’s exempt property should be sharedequally because the matrimonial residences and Brisbane Condo were shared endeavors between the parties. Step 4: Divide the balance of the remaining property equally, unless it would beunjust and inequitable to do so considering the factors in

section 8 [62] In Stuve v Stuve, 2019 ABCA 142, at para 11, the Alberta Court of Appeal noted that the presumption of equal distribution isthe starting point, but the factors in

section 8 of the MPA must be considered: Because neither party claimed an exemption ... all of the property and debts were considered matrimonial property to be divided equally,unless it would not be just and equitable to do so: Jensen ... at paras 18, 36; s 7(4) MPA. However, a presumption of equal division doesnot end the analysis. Regard must be had to the factors outlined in s 8 of the MPA. The factors include the contribution made by eachspouse financially or to the welfare of the family.

Other factors are more discrete and include whether property was acquired afterseparation, any agreements reached by the parties, previous distributions of property, and any dissipation of property to the detriment ofthe other spouse ... [63] At paras 13 and 14 of Stuve, the Court explained that to displace the presumption of equal distribution there must be some realimbalance, based on an analysis of the

section 8 factors: In considering and weighing the s 8 factors, the court exercises a discretionary function. Displacing the presumption of equal distributionis not reached lightly. There must be some “real imbalance” in each party’s contribution or as found in the other factors listed: ...Mazurenko v Mazurenko ... at para 20 ...

However, relying on the statutory presumption of equal division does not relieve a trial judgeof undertaking the necessary analysis of s 8 factors to ensure the division is just and equitable within the factual matrix presented.Specifically, s 8 factors empower a court to divide specific property or debt proportionately, to achieve a just and equitable result. ... As articulated in [Mazurenko], a principled analysis of s 8 factors does not involve “the spectre of the courts having to make fine,often arbitrary assessments, in arriving at some percentage discount or bonus”: at para 20.

However, it does involve, at the very least, aconsideration of s 8 factors clearly raised by the parties. [64] In MAK v TJK, 2020 ABCA 196, at paras 41 to 45, the Alberta Court of Appeal discussed the presumption of equal divisionof matrimonial property and reiterated that unequal division can only occur where it would be unjust or inequitable to divide the propertyequally: ... A trial judge does not have an unfettered discretion to divide matrimonial property in a manner she considers to be just and equitable,as found in s. 7(3) of ... the MPA ...

Rather, when applying the factors to be taken into account as listed in s. 8 of that legislation, shemust apply the presumption of equal division. In Jensen v. Jensen, ... this Court reiterated that Mazurenko v Mazurenko, 1981 ABCA 104 ... remained the law in Alberta. It stated, atpara. 19: 19. The court must, in my view, look at the relevant facts under s. 8 and then ask itself if it would be unjust or inequitable to divide theproperty equally. That conclusion would not be lightly reached.

There must be some real imbalance in the contribution having regard towhat was expected of each or attributable to the other factors in s. 8. In establishing the presumption I take the Legislature to havedecided that in ordinary cases equality is the rule. . . . The legislation introduces a discretionary system with the presumption of equalsharing, which is similar to a deferred sharing scheme with a power of adjustment.

The important point is that both of these schemesrecognize ". . . the principle that a husband and wife carry on their married life, including their economic functions, for their mutualbenefit and account and according to arrangements accepted by both for that purpose. That principle, if accepted, requires that the lawprovide in some way for the sharing of their economic gains between the husband and wife". (p. 26) That is done by the legislation anddone with the presumption of equality: (emphasis added).

The Court went on to state, at para 20, “[t]he presumption of equal distribution is the rule and unequal distribution the exception”.It cited LeBlanc v LeBlanc, (SCC), [1988] 1 SCR 217 for the proposition that the presumption of equality is not to bedisturbed lightly and reiterated that, “[t]he MPA is premised on a presumption of equal distribution of non-exempt property acquiredduring the marriage. The presumption should only be rebutted in the clearest of cases when, having regard to the s. 8 factors, it would beunjust and inequitable to make an equal division”: Jensen at para 23.

This presumption supported a decision for equal division in the face of one party having dissipated two marital assets in Fleming v

Fleming, 2016 ABCA 88. The Supreme Court reiterated the point in Elsom v Elsom, (SCC), [1989] 1 SCR 1367 ... at 1376-77. In Jensen, thisCourt captured the presumption by stating, at para 23: 23. The MPA is premised on a presumption of equal distribution of non-exempt property acquired during the marriage. The presumptionshould only be rebutted in the clearest of cases when, having regard to the s 8 factors, it would be unjust and inequitable to make anequal division.

When considering the s 8 factors, courts should not embark upon the weighing of each party’s respective contribution andmake divisions of property that are proportionate to the relative contributions of each spouse. Rarely if ever will the contribution of eachspouse be the same. The purpose of the legislation is to avoid microscopic analysis of the respective roles each party played to determinewho did more.

It is only in cases where, having regard to the factors in s. 8, it would be unjust and inequitable to have an equal divisionthat the court should depart from the principle of equality. [65] Each party alleges dissipation by the other. Mr. Gunston relies on Fleming v Fleming, 2016 ABCA 88, for the propositionsthat dissipation is the intentional waste and negligent or careless use of matrimonial property and that the burden of proof to establish anunequal distribution as a result of dissipation by Mr. Gunston rests with Ms. MacDonald.

In Fleming, the Court of Appeal said, at paras30 and 31: Section 7(4) of the Matrimonial Property Act ... presumes an equal division of non-exempt matrimonial property unless that presumptioncan be rebutted by demonstrating the existence of one or more of the factors in

section 8: Hodgson v Hodgson ... at para 21; Kretschmer vTerrigno, 2012 ABCA 345 (Alta C.A.) at para 45 ... Thus, the party arguing for an unequal distribution must prove that the other spousedissipated matrimonial assets. In our view, there is not sufficient evidence on the record to determine whether the respondent acted as an imprudent manager or carelessinvestor. As such, the trial judge made no error in concluding that dissipation was not made out on the facts before him. The marketconditions affected both parties’ investments, resulting in a decline in value. ...

Absent evidence of intentional waste and negligent orcareless use of matrimonial property, dissipation is not made out. [66] Ms. MacDonald relies on Cox v Cox, 1998 ABQB 987, for the proposition that dissipation does not necessarily result wherean asset is worth less at trial, dissipation requires a degree of intent, but it is sufficient if the dissipation arises to the detriment of theother spouse. In Cox, Paperny J, as she then was, set out the principles to apply in cases were dissipation is alleged to have occurred, atpara 46: From the case law one can distill the following principles: 1.

Section 7(4) creates a presumption of an equal distribution of non-exempt matrimonial property, unless it would not be justor equitable to do so.

Section 8(

l) provides one of the factors that can lead to an unequal distribution where one spouse dissipates assets to thedetriment of the other. 3. Dissipation does not necessarily result where an asset is worth less at trial than it was at separation. Dissipation requires adegree of intent although that intent does not necessarily have to extend to intentionally depriving the other spouse of a fair distributionof matrimonial property. It is sufficient if one spouse intends to dissipate the assets (usually for their own enjoyment), and thatdissipation arises in detriment to the other spouse. 4.

There must be actual detriment to the other spouse. 5. The law generally does not find dissipation if the reduction in assets was due to reasonable expenditures made on behalf ofthe family or to maintain existing matrimonial assets. However, the court will look to see if the spouse could have paid those expensesout of income rather than by depleting assets. Purely personal expenses which do not benefit the other party that are paid out ofmatrimonial property may also be considered dissipation (even though prior to separation they might have been matrimonial expenses). 6.

If an asset is sold or otherwise reduced, the courts will not consider this dissipation if the proceeds can be traced to anotherasset. The replacement assets form part of the assets available for distribution. 7. If assets are sold for less than fair market value, the courts may determine whether the sale was done improvidently, hastilyor fraudulently in deciding whether it was dissipation. If the sale is effected in accordance with pre-separation negotiations it may not beconsidered dissipation. 8.

The total amount actually dissipated "to the detriment" of the spouse is one-half of the amount by which the asset wasreduced. 9. Ultimately it is in the discretion of the trial judge, based on the consideration of all the facts, to determine whether or notdissipation exists. [67] Ms. MacDonald also refers to De Winter v De Winter, 2013 ABCA 311, for the proposition that where a spouse hasdissipated assets then a different date should be used for a fair and equitable division of matrimonial property.

In that case, the AlbertaCourt of Appeal said, at para 31: While assets are valued at a trial, the dissipation here allowed the trial judge to make a [sic] unequal allocation of assets by valuing theinvestment accounts prior to dissipation. He did not err by, in effect, adding the dissipated assets back into the husband’s statement ofproperty. In fact, by selecting the date chosen for valuation of the particular assets, the husband gained some advantages by not having toshare all of the increases from the date selected until date of trial. This is not a question of a trial judge erring in law by selecting the

wrong date for valuation. Rather, it is a case of a trial judge selecting a date before dissipation to ensure a fair and equitable distribution of assets between the parties. He did not make a reviewable error and his decision was reasonable. [ 68 ] Each party raised claims which arise from the other party allegedly not using matrimonial property appropriately and which engage a consideration of both subsection 8 (

i) and 8 (

l) of the MPA . In his written submission, Mr. Gunston referred to subsection 8 (h), but there were no allegations that any property was gifted or transferred to a third party, so this subsection is not relevant. As a result, the following

section 8 factors will be considered: 8 The matters to be taken into consideration in making a distribution under

section 7 are the following: . . . (

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

l) that a spouse has dissipated property to the detriment of the other spouse; . . . Mr. Gunston’s claim that Ms. MacDonald removed $4,020 from the Joint Account [ 69 ] There was inadequate evidence to show that Ms. MacDonald dissipated these funds and I find that Ms. MacDonald did not dissipate these funds. Mr. Gunston’s claim that Ms. MacDonald withdrew $6,000 from the Joint Account [ 70 ] Ms. MacDonald admitted that she withdrew $6,000 from the Joint Account before separation because she said she feared that Mr. Gunston would financially cut her off. Ms.

MacDonald’s evidence was that she did not have access to any other funds, it was right before Christmas, and she requested funds from Mr. Gunston for Christmas presents for the Children and he refused. Ms. MacDonald admitted that, when she made the withdrawal, she was receiving $800/month in support, though this was not paid consistently by Mr. Gunston, and she was living in the Matrimonial Home. The evidence was not clear as to whether Ms. MacDonald was receiving the Canada Child Benefit at this time. Ms. MacDonald also said she used part of the funds for a deposit for legal fees and part for living expenses.

As it turned-out, Mr. Gunston stopped paying support in March 2020. [ 71 ] Counsel for Mr. Gunston made the point in cross-examination that even though Ms. MacDonald had said that she did not have funds, she in fact had the $6,000 she had removed from the Joint Account and the advances of $5,000 and $11,000 discussed below. However, this point did not address the principle, set out in Cox , at point 5 in para 46 , that, generally, there is no dissipation if the reduction in assets was due to reasonable expenditures made on behalf of the family or to maintain existing matrimonial assets.

Further, the burden of proof to establish an unequal distribution as a result of dissipation rests with the party making that application. [ 72 ] Ms. MacDonald admitted that the $6,000 was matrimonial property, but also said that she used it to support herself and the Children and for a deposit for legal fees. There was no evidence regarding the allocation of such amounts. [ 73 ] As noted in Cox , it should be considered whether the party using the funds could have paid those expenses out of income rather than by depleting assets. Ms. MacDonald had no income.

Another point noted in Cox is that purely personal expenses which do not benefit the other party that are paid out of matrimonial property may also be considered dissipation (even though prior to separation they might have been matrimonial expenses). [ 74 ] Here there is some evidence that a portion of the $6,000 was spent on legal fees, but it is not possible to allocate what amount Ms. MacDonald used for her own legal fees . Without evidence, I am unable to determine that a particular amount was dissipated by Ms. MacDonald by spending it on her own legal fees. Ms. MacDonald’s claim that Mr.

Gunston used $14,500 of matrimonial property to pay his legal fees and should account for that withdrawal [ 75 ] There was inadequate evidence to show that Mr. Gunston dissipated these funds and I find that Mr. Gunston did not dissipate these funds. Ms. MacDonald’s claim that matrimonial property advances of $11,000 and $5,000 were paid to her from the TFSA containing her inheritance [ 76 ] Both Mr. Gunston and Ms. MacDonald said that these payments to Ms. MacDonald were made from the TFSA which held $20,000 from Ms. MacDonald’s inheritance. I have found that the maximum possible exemption that Ms.

MacDonald might have been able to claim in relation to the inheritance was $10,000, because she shared it with Mr. Gunston when it was deposited into the Joint Account. I have also found that there was no value to, or traceable asset from, the TFSA, and therefore it is not matrimonial property and Ms. MacDonald cannot claim an exemption for it at trial. However, that does change the fact that $10,000 of the inheritance was Ms. MacDonald’s property when payments of $11,000 and $5,000 were made to her from the TFSA. [ 77 ] Under the

section 8 factors, I can consider that Ms. MacDonald was to have received $11,000 as an advance from matrimonial property pursuant to the November 27, 2019 Interim Order. I find that $10,000 of the $11,000 that she received was a payment of her own portion of the TFSA and should not be considered an advance of matrimonial property. I find that only the remaining $6,000 paid to

Ms. MacDonald was an advance of matrimonial property. [ 78 ] As a result, Ms. MacDonald’s advance of matrimonial property must be reduced by $10,000. Ms. MacDonald’s claim that Mr. Gunston used the Acadia sale proceeds [ 79 ] The Acadia sale proceeds were $11,626.63 and were paid to Mr. Gunston on August 2020. The parties agreed that Mr. Gunston used $7,742.70 of those sale proceeds to retire the loan on the Acadia and that amount is not in issue. [ 80 ] Ms. MacDonald takes issue with Mr. Gunston’s use of the remaining Acadia proceeds of $3,883.93.

The evidence shows that an almost identical amount was transferred to Mr. Gunston’s credit card on the same day that the Acadia loan was paid out. [ 81 ] Ms. MacDonald submits that Mr. Gunston should account for the proceeds of the sale of the Acadia vehicle that did not go to pay-out the loan on the vehicle. I agree. The Acadia proceeds were matrimonial property that Mr. Gunston used to pay his personal credit card bill, long after separation, when he was not paying support. These funds were not used for the benefit of the family. Mr. Gunston must account for receipt of these funds.

Determination of matrimonial property [ 82 ] Based on the foregoing, I find that the final distribution of the matrimonial property should be as follows: Market Value at Trial Matrimonial Property at Trial Ms. MacDonald Mr. Gunston Australian pensions Not applicable as pensions sought to be split at source by consent Matrimonial Home sale proceeds $130,922.00 BMW $3,000.00 Advances on matrimonial property, Agreed Statement of Facts, paragraph 33 $106,000.00 $25,000.00 Reversal of matrimonial property distribution from Ms. MacDonald's inheritance $(10,000.00) Mr.

Gunston's dissipation of matrimonial property for personal use $3,883.93 Total $96,000.00 $162,805.93 Exemptions Brisbane House proceeds $(10,833.25) Available matrimonial property distribution Subtotal of matrimonial property and exemptions $96,000.00 $151,972.68 Payment from Matrimonial Home proceeds to effect equal distribution $27,986.34 $(27,986.34) Amount to be paid from matrimonial property proceeds $123,986.34 $123,986.34 [ 83 ] This distribution of matrimonial property will require a payment to Ms. MacDonald of $27,986.34 from the Matrimonial Home sale proceeds.

Once paid, there remains $102,935.66, in trust, and a partial distribution of this amount is discussed below in relation to support. Parenting [ 84 ] Mr. Gunston seeks equal parenting of the Children on a week-on, week-off basis. Mr. Gunston currently has parenting time on the

schedule set out in paragraph 27 of the Agreed Statement of Facts. [ 85 ] Mr. Gunston gave evidence about how he has modified his behaviour to be the best parent that he can be, and that he has a genuine interest in being an engaged parent. [ 86 ] The evidence was clear that Mr. Gunston’s plan for parenting the Children includes a strong role for Ms. Lattin, who would assist in the logistics of seeing that the Children attend school and their respective activities. Ms. Lattin testified about her willingness and enthusiasm for a blended family with her three children. Indeed, Ms.

Lattin is already dropping-off the Children at school and integrating the Children into their home. In addition, Ms. Lattin said that she was involved in setting the rules and disciplining the Children and treated them no differently than her own. Ms. Lattin also gave evidence that she will have a full-time retail job starting in October 2021. [ 87 ] Ms. MacDonald registered K for pre-school without Mr. Gunston’s input. She reasoned that when she tried to negotiate with Mr.

Gunston she found that decisions became very difficult to achieve and she did not want the parents’ conflict to affect K’s opportunity to attend pre-school. Mr. Gunston said he was happy for K to attend pre-school, but frustrated that he was not consulted. [ 88 ] Ms. MacDonald also has taken M to physiotherapy and she said that she let Mr. Gunston know about it before she made the appointments, but admitted that she did not talk to him about the cost of physiotherapy before incurring it. [ 89 ] Ms. MacDonald takes the position that the current parenting plan is adequate, if not overly generous.

She says that it causes disruption in the Children’s lives and moving them to a week-on-week-off scenario would not help.

[ 90 ] Ms. MacDonald has been a stay-at-home parent and the Children’s primary caregiver since they were born. In contrast to Mr. Gunston’s evidence, Ms. MacDonald said that she was almost entirely responsible for the Children when she and Mr. Gunston were together. [ 91 ] Ms. MacDonald acknowledged that Mr. Gunston helped with the grocery shopping, cooking and vacuuming. However, her evidence was that beyond the financial matters, she did the rest of the household chores and the caring for the Children. Ms.

MacDonald said that she arranged, and took the Children to, activities such as swimming, Brownies, Girl Guides, dance, and soccer. She also coached K’s soccer team. She said that Mr. Gunston was going to get involved in Brownies and Girl Guides, but it never happened and after awhile the Children lost interest in these programs. [ 92 ] Mr. Bennett lived with Ms. MacDonald in the Matrimonial Home, and contributed to some of the costs, but not rent, from June 2020 to when it was sold in November 2020. Mr. Bennett and Ms.

MacDonald now reside together in a rented home which costs $2,400 a month and which they share equally. Since they have been together, Mr. Bennett said he has supported Ms. MacDonald and the Children by making them meals before he started living with them, loaning Ms. MacDonald a car after the Acadia was repossessed, and paying for Ms. MacDonald’s legal fees. Mr. Bennett said that he shares the cost of groceries and utilities equally with Ms. MacDonald, but that he pays for cable and internet and insurance, but not for gas for the car he has loaned to Ms. MacDonald. [ 93 ] Mr.

Bennett testified about his willingness and enthusiasm for having the Children in their home. He said he is fully engaged in life with the Children, but that he leaves discipline to Ms. MacDonald, unless it is a safety issue. He has two adult children and grandchildren. He said he was familiar with the parental role as he was essentially a sole parent for his own children. He also said that he works full-time and is not involved in the picking-up and dropping-off of the Children, except when Ms. MacDonald is unable to do so, such as the days that she attended this trial. [ 94 ] Mr.

Gunston referred to the decision in CAS v NPC , 2020 ABQB 421 , for the factors to be considered on a parenting application. Before his list of factors, at paras 5 to 8, Lema J set the stage for the discussion by setting out the general principle that the most important consideration when determining parenting is the best interests of the children: The paramount factor is the best interests of the child or children.

Per ss. 16(8) of the Divorce Act : In making an order under this [parenting] section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs, and other circumstances of the child. In making a parenting order, “the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of the child” (ss 16(9)). The Act also calls for “as much contact with each spouse as is consistent with the best interests of the child ….” (ss 16(10)).

In identifying “best interests”, no presumptive starting points exist. As Renke J. summarized in AA v JA : No presumptions guide the assessment of SA’s best interests. The Court of Appeal has confirmed that “[t]he sole determinant is the best interests of the child:” Cavanaugh v Balkaron , 2008 ABCA 423 …. There is no presumption in favour of the “status quo”: Botticelli v Botticelli , 2009 ABQB 556 ….There is no presumption in favour of the “custodial” parent: DM v JS , 2016 ABQB 268 …. affd … 2016 ABCA 346 ; Gordon v Goertz ….

There is no presumption in favour of maximum contact between SA and both parents: [ DM v JS ]; Rensonnet v Uttl , 2016 ABQB 95 , Poelman J .. affd 2016 ABCA 196 … [emphasis in the original, footnotes omitted] [ 95 ] Of the numerous factors that either support, or signal against, shared parenting, which Lema J set out in CAS v NPC , at paras 9 and 10 , I find three are important to address in this case.

Good communication between the parents contrasted with the parties being, and having been, in substantial conflict and lacking a genuine willingness to work together to ensure the success of a shared-parenting arrangement [ 96 ] Mr. Gunston and Ms. MacDonald do not enjoy good communication. Their difficult and distrustful relationship extends to the Children. One example of this was Mr. Gunston’s reply to the email about ADHD medication and counselling for A where he simply replied that he did not agree. Mr. Gunston did not engage or set out his concerns, he simply blocked Ms.

MacDonald with moving forward to deal with A’s situation even though Mr. Gunston knew A was struggling at school. Mr. Gunston provided no alternatives to address the situation. Adequate proposed work and child-care arrangements from the non-primary parent, even if less developed than the primary parent’s arrangements [ 97 ] When Mr. Gunston was asked in cross-examination about the hours for his new job starting in September 2021, he simply did not know, but then clarified that he would not start until 9:00 so that he could drop-off the Children at school and that Ms.

Lattin could pick them up. [ 98 ] Similarly, Ms. MacDonald’s evidence was that she had not finalized arrangements for child care because she had not yet received an offer of employment. [ 99 ] It is understandable that neither party had finalized child care arrangements given that they both are undertaking employment

searches. This is not a significant factor in this case. Increased time with half-siblings residing with the non-primary parent [ 100 ] Mr. Gunston and Ms. Lattin moved in together in May 2020, so, by the time of trial, they have been living together for approximately 16 months. Mr. Gunston and Ms. Lattin both spoke of the positive relationship that the Children have developed with Ms. Lattin’s three children, who live with them full-time. This is an admirable situation, but I do not find that shared parenting is required for the Children to develop these relationships.

In fact, the evidence is that positive relationships between the Children and the Lattin children have developed with Mr. Gunston’s current parenting time. Divorce Act subsection 16(3) [ 101 ] In determining the best interests of the Children, subsection 16(3) of the Divorce Act mandates that I consider all of the factors related to the circumstances of the Children, and sets out a list of factors, several of which are relevant and are discussed below.

The Children’s needs, given the Children’s age and stage of development, such as the child’s need for stability [ 102 ] At the beginning of the trial, the Children ranged from age 4 to 12 and were in grades 8, 6 and pre-school. M and A are at formative ages in their scholastic development. [ 103 ] Mr. Gunston gave evidence about how he helped with A’s school science project. Ms. MacDonald acknowledged this, but also said that on one occasion it looked like Mr. Gunston had done the science homework. Ms. MacDonald said that other than this specific science homework, Mr.

Gunston did not undertake school work with the Children. I find that the evidence regarding homework would not have applied to K as she was enrolled in pre-school in September 2021. [ 104 ] All of the evidence at the trial was that A is a very intelligent child, but that she is struggling at school and Mr. Gunston acknowledged this. A’s doctor recommended that Ms. MacDonald and Mr. Gunston consider ADHD medication for A. Ms. MacDonald wanted to proceed with a trial course of medication, but Mr. Gunston said he had not been involved and took the position that medication was not required.

He did not provide his consent. [ 105 ] When Ms. MacDonald sent an email to Mr. Gunston requesting his agreement to counselling and ADHD medication for A, Mr. Gunston replied that he did not agree. When asked on cross-examination about his response to the email, Mr. Gunston agreed that counselling for the Children would be beneficial, but said that he too wants counselling and cannot afford it. [ 106 ] Mr. Gunston said that he met with A’s doctor who confirmed to him that it is difficult to make an ADHD diagnosis in the context of a parental divorce, but the doctor was not called and this evidence was hearsay.

Based on not being part of the discussion that resulted in the recommendation that the parents consider medication for A, Mr. Gunston rejected the medication trial. Other than the ADHD diagnosis being difficult, he provided no reasonable explanation for denying consent to a trial of ADHD medication. In the result, if ADHD medication was what A required, she did not receive it. In addition, while Ms. MacDonald proposed counselling for A, Mr. Gunston was non-responsive to the suggestion and at trial could only point to his own needs. This incident showed that Mr.

Gunston is prepared to put his own feelings ahead of the best interests of the Children. [ 107 ] It was unknown at trial whether A suffers from ADHD and whether ADHD medication could assist her. However, A is at a critical stage in her education and the possible diagnosis needs to be resolved so that, if it is ADHD, appropriate treatment can be put in place, and, if it is not ADHD, then other options can be explored.

Either way, it is in A’s best interests to move forward with investigation and appropriate treatment. [ 108 ] The evidence was that M has a condition that affects how she walks for which she is seeking physiotherapy treatment. Ms. MacDonald noticed the issue and arranged for treatment. [ 109 ] The Children all require stability. It appears that since the April 21, 2020 Parenting Order was granted that there has been stability in relation to the parenting time.

The nature and strength of the Children’s relationship with each spouse, each of the Children’s siblings and grandparents and any other person who plays an important role in the child’s life [ 110 ] The Children, Mr. Gunston and Ms. Lattin and her children, and Ms. MacDonald and Mr. Bennett make up the core group for this family, at this time. The evidence shows that the Children have a strong and loving relationship with each of their parents. They also have a positive and healthy relationship with the current partners of their parents and Ms. Lattin’s three children.

Each spouse’s willingness to support the development and maintenance of the Children’s relationship with the other spouse [ 111 ] There was not much evidence regarding the support that Mr. Gunston and Ms. MacDonald provide to the development and maintenance of the Children’s relationship with the other parent. However, Ms. MacDonald gave evidence about how the Children adjust after returning from Mr. Gunston’s home. She said that she has observed that M is often drained, K behaves badly and A repeats negative comments that she has heard about Ms. MacDonald at Mr.

Gunston’s home. [ 112 ] On one occasion, in April 2020, Mr. Gunston picked-up the Children from the Matrimonial Home when Ms. MacDonald had

gone out to run an errand and left them alone. At the time, and as discussed further in paragraph [165], Mr. Gunston had no parenting time as a result of Ms. MacDonald taking the position that since he was too ill to work, it would be inappropriate for him to have parenting time. Mr. Gunston refused to return the Children, even after the police were involved, until he obtained an order granting him parenting time. Mr. Gunston said he had assured Ms. MacDonald that he had no medical issues that would affect his ability to look after the Children and that she should have taken him at his word.

I find that this behavior shows that Mr. Gunston is prepared to take the steps that he thinks are appropriate to control the situation, without regard to Ms. MacDonald’s role as the primary caregiver. [ 113 ] The April 21, 2020 Parenting Order was granted as a result of:

(1) Ms. MacDonald not allowing Mr. Gunston to see the Children following his return from the Dominican Republic when he took time off work due to an undisclosed medical reason; and

(2) Mr. Gunston taking the Children from Ms. MacDonald’s care at the Matrimonial Home and refusing to return them, even after police intervention, until a parenting order was granted. Since the granting of that Parenting Order, parenting has been consistent and no major issues have arisen with the exchanges. [ 114 ] Mr. Gunston noted a time when Ms. MacDonald had A and M stay with him and Ms. Lattin for a week. Ms. MacDonald said that stay was only four days. Mr. Gunston had been in contact with A by cell phone and she expressed a desire to spend time with him. Mr.

Gunston said that there was an issue with school work and that Ms. MacDonald was upset and she sent A and M to stay with him. Ms. MacDonald explained that online school was challenging and that A demanded more time with Mr. Gunston because she was unhappy with the requirements that Ms. MacDonald imposed on her regarding school. Ms. MacDonald decided to call A’s bluff and arranged for A and M to spend four days with Mr. Gunston.

I find that there is no negative inference to be taken from this episode. [ 115 ] Based on all of the testimony, I find that the clearly distrustful and high conflict relationship between Mr. Gunston and Ms. MacDonald must have some effect on the Children, but there was no evidence as to the nature of this effect. The history of care of the Children [ 116 ] Mr. Gunston’s evidence was that, before separation, parenting was shared and that he was involved in the Children’s activities, meals and lives. Mr.

Gunston said that, after the separation, but while he was still living in the Matrimonial Home, he would get the Children up in the morning, get them breakfast, make them lunch, and take them to school. Mr. Gunston said Ms. MacDonald would pick-up the Children from school and that when he got home from work he would make dinner and Ms. MacDonald would go out. He said he would be at work from 8:00 and home at 4:30. When he was looking after the Children, he would leave the house at 7:45 to drop them off at school. Mr. Gunston said the weekends with the Children would be split between him and Ms.

MacDonald. [ 117 ] In the read-in evidence, Ms. MacDonald admitted that in 2019, while they were separated, but living together in the Matrimonial Home, Mr. Gunston would feed the Children and parent on the evenings when she went to the gym or played volleyball. [ 118 ] Ms. MacDonald admitted that in December 2019 she left the Children with Mr. Gunston for five days while she visited Mr. Bennett’s family in Ontario and that she had no issue with Mr. Gunston looking after the Children for that period. [ 119 ] I find that it is clear from the evidence that Ms.

MacDonald has been the primary parent of the Children since they were born. Ms. MacDonald said that she has always made medical and dental appointments for the Children, some of which Mr. Gunston has refused to accommodate. Ms. MacDonald admitted that Mr. Gunston attended at a minor surgery that M had, but that she attended all of the other appointments for the Children. [ 120 ] Ms. MacDonald said that since separation she has continued to be the Children’s primary caregiver and that, until K was born, she did all of the drop-offs and pick-ups to and from school and activities.

She agreed that after they separated, but while they were still living together, Mr. Gunston dropped-off the Children at school and that she picked-them up. After Mr. Gunston left the Matrimonial Home, Ms. MacDonald returned to doing the drop-offs and pick-ups, except when the Children were with Mr. Gunston. Ms. MacDonald said that, except for one occasion, she attended all of the functions, school meetings and Children’s performances. Ms. MacDonald said she continued to take the Children to extra-curricular activities, to the extent that she was able to after Mr. Gunston stopped paying support.

The Children’s views and preferences, giving due weight to the Children’s age and maturity, unless they cannot be ascertained [ 121 ] There was no evidence presented at the trial as to the Children’s preferences. The parents gave some evidence about their observations of the Children, but it was not extensive and is, coming from the parents in a high conflict relationship, very subjective and not particularly helpful. The parents’ partners also provided some observations of the Children, but again this was not very extensive and was very subjective. Any plans for the Children’s care [ 122 ] Ms.

MacDonald acknowledged that she registered K in pre-school without Mr. Gunston’s consent. To make herself available to transport the Children to and from school and pre-school during her parenting time, Ms. MacDonald said she tailored her job searches accordingly. Mr. Bennett is Ms. MacDonald’s current backup plan for transportation to and from school. [ 123 ] Mr. Gunston said that Ms. Lattin is already transporting the Children to school. He was vague about the hours of his new job, but on cross-examination said that he would be able to transport the Children to school once his new job starts and that Ms.

Lattin would pick them up from school. Ms. Lattin would be both part of the primary plan and the backup plan for transportation to and from school. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the Children

[ 124 ] The evidence shows that both Mr. Gunston and Ms. MacDonald have been loving parents and both have a strong and deep bond with the Children. Mr. Gunston asserts that there is no evidence that the Children are not cared for in his care and that Ms. MacDonald has left the Children in his care for extended periods. I agree, but the determination of the best interests of the Children goes deeper than that. [ 125 ] The evidence was clear that it is Ms.

MacDonald who looks after the more mundane and challenging aspects of the Children’s lives: being the main support for their school work and the main contact for school, medical care and extracurricular activities. Ms. MacDonald has not only taken the Children to appointments, but has been proactive in their care, such as investigating A’s academic issues, M’s physiotherapy needs and organizing braces, as required. Ms. MacDonald has arranged for her parents to pay for the Children’s braces.

The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the Children [ 126 ] Neither Ms. MacDonald nor Mr. Gunston could be considered to be outstanding when it comes to communication and cooperation. For example, Mr. Gunston provided a non-responsive answer to Ms. MacDonald’s suggestion that A attend counselling and take a trial of medication. Similarly, Ms. MacDonald registered K in pre-school without Mr.

Gunston’s consent. [ 127 ] These parents could make their Children’s lives, and their own lives, better and more enjoyable with less conflict and more cooperation. Both have room for improvement. Improvement in this area would significantly benefit the Children, who hold their parents in high regard, but who will also have their own struggles and challenges as they grow and mature. Having parents who can communicate and cooperate, because it is best for the Children, could make a significant difference in the paths that the Children follow and how they deal with the challenges ahead of them.

The parents should take the opportunity, while the Children are still relatively young, to work on a method of communicating and cooperating, if not for their own sake, for the sake of the Children. This is a high conflict relationship, but it does not have to be so. The parents, if they are prepared to both make an effort, have the control and ability to communicate and cooperate in a manner that is positive for the Children. Parenting time [ 128 ] Being a parent is a joy. It is also a lot of hard work, often without appreciation. I find that Mr.

Gunston is capable of providing a caring home for the Children, but that it is Ms. MacDonald who provides the primary support and direction for the Children’s lives. Ms. MacDonald needs the time with the Children to support their school work, their medical and dental needs and manage the mundane that goes with child rearing. There was no evidence that Mr. Gunston is involved in these parts of the Children’s lives and I find that shared parenting is not appropriate. [ 129 ] The parents have been able to manage parenting on the current arrangement. Ms. MacDonald suggests that Mr.

Gunston should have less parenting time, but I see no need for that. The goal should be to have the Children spend as much time with each parent as is beneficial for them. I find that it is most appropriate to leave the current parenting

schedule in place. Decision-making responsibility: medical care [ 130 ] With regard to making decisions, it is always best for parents to jointly discuss and agree on the care that is best for the children. In this case, it has been shown that Mr. Gunston has not always been prepared to look after the best interests of the Children as it relates to medical decisions. [ 131 ] I find that it is in the best interests of the Children for Ms. MacDonald, except in emergency situations, to arrange their medical care and liaise with their medical professionals. Ms.

MacDonald shall provide all medical, dental and paramedical assessments, determinations, cost estimates and recommendations to Mr. Gunston in advance of treatment, and both Ms. MacDonald and Mr. Gunston shall make best efforts to discuss and agree to the best treatments for the Children. In the event that they are not able to agree after a reasonable period, which shall be no less than seven days after Mr. Gunston has received any relevant documentation, then Ms. MacDonald shall have the right to make and direct any medical, dental or paramedical decisions that are in the Children’s best interests. Mr.

Gunston shall have the right to contact care providers to obtain information. [ 132 ] If the Children require any urgent care, then the parent who has the child in their care can make and direct any required urgent care, but shall immediately contact and provide all information to the other parent, including information necessary for the other parent to access the child while under urgent care. [ 133 ] The parents shall ensure that the Children are covered by any applicable medical or dental insurance coverage plan available to them, either through the parents directly or through the parents’ partners.

Decision-making responsibility: all but medical matters [ 134 ] The parents shall jointly make decisions regarding the education of, and all other matters relating to, the Children that is in their best interests. Neither parent shall make unilateral decisions regarding enrolling any of the Children in core educational programs. [ 135 ] For extra-curricular activities, the parents shall work together and jointly decide on extra-curricular activities. However, one parent may arrange, and fully pay for (without submitting the cost as a

section 7 expense), an extra-curricular activity that does not occur during the other parent’s time. [ 136 ] For all other matters relating to the Children, the parents shall work together and make joint decisions which are in the best interests of the Children.

Support [ 137 ] Ms. MacDonald gave evidence about Mr. Gunston being control

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