Thalheimer v Chalut, 2021 ABQB 19

Court of Queen’s Bench of Alberta Citation: Thalheimer v Chalut, 2021 ABQB 19 Date: 20210107 Docket: FL14 02151 Registry: St. Paul Between: Della Phyllis Thalheimer Plaintiff - and - Robert Claude Chalut Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ I. Introduction [ 1 ] Della Phyllis Thalheimer claims partner support from Robert Claude Chalut under the provisions of the Family Law Act , SA 2003, c F-4.5 .

By the same Originating Notice filed March 27, 2020, she seeks a constructive trust on various parcels of land owned by Mr. Chalut. Her application is supported by her affidavit sworn that day. [ 2 ] Mr. Chalut argues that Ms. Thalheimer’s claim for partner support should be dismissed as being barred by the Limitations

Act , RSA 2000, c L-12 . He did not make representations on the merits of the support claim. [ 3 ] The application before me dealt primarily with the limitation of action issues, and the constructive trust claim was left to be determined at a later day. II. Background [ 4 ] The parties cohabited for 25 years, from 1991 to 2016. They are now 62 and 59 respectively. They raised four children together. Ms. Thalheimer has a diploma in early childhood education. Mr. Chalut is a journeyman electrician and farms. His electrical business is operated through a solely-owned corporation. [ 5 ] Ms.

Thalheimer says that during their relationship, she stayed home and looked after the household as well as the children. She says that she also assisted with the some of the farming operations, but to a lesser extent than she did the household work and childcare. [ 6 ] Ms. Thalheimer says that when the parties separated, Mr. Chalut told her he would take care of her retirement. She says that she did not push the matter at that time because Mr. Chalut had given her a vehicle, and was making the payments on the vehicle. The vehicle was transferred to her in October 2017. Mr.

Chalut made payments until the vehicle was paid off in April of 2018. [ 7 ] She also said in her affidavit of March 27, 2020, that in July 2019, Mr. Chalut helped her move into an apartment in Cold Lake and gave her $2,400 to pay the deposit and rent. [ 8 ] Ms. Thalheimer says that in April 2017, Mr. Chalut offered to pay her $20,000 per year or a lump sum of $300,000. She says “he took (his) word on this offer.” He later tried to persuade her to accept a condominium in Edmonton he had purchased for the children while they attended post-secondary education, but she was not interested in it. In December 2018, Ms.

Thalheimer says Mr. Chalut told her “he owes me nothing”. [ 9 ] Ms. Thalheimer says that when they separated, Mr. Chalut told her he would “not leave her stranded”. [ 10 ] Disclosure shows that Ms. Thalheimer’s line 150 incomes have been greater than Mr. Chalut’s since separation. However, Mr. Chalut derives his income from farming and from his corporation. In 2016, he received $70,000 in dividends from his corporation, but lost $34,150 from his farming operations (which had generated $341,557 in revenues). In 2017, Mr.

Chalut had no income from his corporation, and earned $8390 from farming (on revenues of $452,990). 2018 was similar to 2017; no corporate income but $12,550 from farming on farm revenues of $435,177. 2019 saw earnings of $10,054 from revenues of $593,261. His corporate earnings were $15,297, $9,696, $18,905, and ($5,962) respectively. The corporation’s assets appear to have been cleaned out before the corporation’s March 31 year end in 2016. Revenues have been declining since 2017. [ 11 ] Mr.

Chalut says his personal expenses as at October 2020, were $1,966 per month, including $1,300 on a condominium in Edmonton which is being used by one of the parties’ sons. All of his other expenses would appear to be subsumed in farm or business expenses. [ 12 ] Mr. Chalut agrees that during the relationship, Ms. Thalheimer did most of the household chores, but disputes that she did much with the farming operations. He says they lived on an acreage and the farming operations are separate. [ 13 ] Mr. Chalut is a half owner of four quarter sections of land. He has an interest in six other quarter sections of land.

He owns some of these lands with his brother, and claims that he and his brother own one of the quarter sections jointly with their mother, for “tax planning purposes”. Presumably, that means he and his brother will jointly own that quarter

section when their mother passes away. Mr. Chalut has presented an asset statement showing a net worth of approximately $1,300,000, with “exemption” claims of approximately $800,000. [ 14 ] Mr. Chalut denies making any agreements with Ms. Thalheimer, but acknowledges that they did talk settlement at some points in 2017 and 2018. [ 15 ] He also denies that he ever promised he would provide for Ms. Thalheimer’s retirement. [ 16 ] He does acknowledge that he paid off Ms. Thalheimer’s vehicle; he denies paying $2400 to Ms. Thalheimer in July 21 to help with her rent. He says he paid $2400 to his son. Ms.

Thalheimer’s responding affidavit of November 23, 2020 attaches an email she says is from Mr. Chalut in which he agreed to pay her $2,400 for the deposit and rent. She says he gave the money to their son, who passed it on to her. III. Analysis Limitations [ 17 ] Mr. Chalut says that there has been no agreement on his part to pay partner support, and that it is now too late for Ms. Thalheimer to advance a claim for support. He cites the Limitations Act , and says that there is no reason why the Act should not apply to partner support claims under the Family Law Act . [ 18 ]

Section 1 of the Limitations Act provides various

definitions, in particular those for “claim”, “duty”, and “injury”: 1 In this Act,

(a) “claim” means a matter giving rise to a civil proceeding in which a claimant seeks a remedial order; (b) “claimant” means the person who seeks a remedial order; (c) “defendant” means a person against whom a remedial order is sought; (d) “duty” means any duty under the law; (e) “injury” means (

i) personal injury, (ii) property damage, (iii) economic loss, (iv) non-performance of an obligation, or (

v) in the absence of any of the above, the breach of a duty; [ 19 ]

Section 3 of the Limitations Act says: 3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 and 11 , if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. [ 20 ] Sections 1.1, 1.2, 3.1 and 11 have no application to partner support claims under the Family Law Act . [ 21 ]

Section 2 applies the Limitations Act to all claims for remedial orders. Section 2(3) of the Limitations Act states:

(3) Except as provided in subsection (4), this Act is applicable to any claim, including a claim to which this Act can apply arising under any law that is subject to the legislative jurisdiction of the Parliament of Canada, if (

a) the remedial order is sought in a proceeding before a court created by the Province, or (

b) the claim arose within the Province and the remedial order is sought in a proceeding before a court created by the Parliament of Canada. [ 22 ] Subsection 4 has no application to a claim such as this one. [ 23 ] Support obligations are dealt with in

Part 3 of the Family Law Act . Sections 56 and 57 provide: Obligation to support spouse or adult interdependent partner 56 Subject to this Division, every spouse or adult interdependent partner has an obligation to provide support for the other spouse or adult interdependent partner. Spousal or adult interdependent partner support order 57(1) Subject to this section, the court may, on application by a spouse or adult interdependent partner, make an order requiring a spouse or adult interdependent partner to provide support for the other spouse or adult interdependent partner.

(2) The court may make an order under this

section only if (

a) in the case of spouses, (

i) one or both of the spouses have obtained a declaration of irreconcilability under

section 83 ,

(ii) the spouses are living separate and apart, or (iii) although the spouses are not living separate and apart, (

A) the spouses are, in the opinion of the court, experiencing such discord that they cannot reasonably be expected to live together as spouses, or (

B) one spouse has without sufficient cause refused or neglected to provide the other spouse with the necessaries of life, including food, clothing and shelter, when capable of providing them; (

b) in the case of adult interdependent partners, (

i) one or both of the adult interdependent partners have obtained a declaration of irreconcilability under

section 83 , (ii) the adult interdependent partners are living separate and apart, or (iii) although the adult interdependent partners are not living separate and apart, (

A) the adult interdependent partners are, in the opinion of the court, experiencing such discord that they cannot reasonably be expected to live together as adult interdependent partners, or (

B) one adult interdependent partner has without sufficient cause refused or neglected to provide the other adult interdependent partner with the necessaries of life, including food, clothing and shelter, when capable of providing them. Factors 58 In making a spousal or adult interdependent partner support order, the court shall consider (

a) the conditions, means, needs and other circumstances of each spouse or adult interdependent partner, including (

i) the length of time the spouses or adult interdependent partners lived together, (ii) the functions performed by each spouse or adult interdependent partner during the period they lived together, and (iii) any order or arrangement relating to the support of the spouses or adult interdependent partners, (

b) any legal obligation of the spouse or adult interdependent partner having the support obligation under the order to provide support for any other person, (

c) the extent to which any other person who is living with the spouse or adult interdependent partner having the support obligation under the order contributes towards household expenses and thereby increases the ability of that spouse or adult interdependent partner to provide support, and (

d) the extent to which any other person who is living with the spouse or adult interdependent partner who is to receive support under the order contributes towards household expenses and thereby reduces the financial needs of that spouse or adult interdependent partner. [ 24 ] Section 46(1)(

a) defines adult interdependent partner as including a former adult interdependent partner. [ 25 ] No time deadlines for making partner support claims are provided in the Family Law Act , but there is nothing in that Act excluding the application of the Limitations Act . [ 26 ] Under the Divorce Act , RSC 1985, c 3 (2 nd Supp ), spouse is defined to include a former spouse. Spousal support orders are dealt with in

section 15.2. There is no limitation period specified for an application for spousal support. There are many similarities between the spousal support provisions in the Divorce Act and the adult interdependent partner provisions in the Family Law Act . [ 27 ] However, in some ways, the spousal/interdependent partner support provisions in the Family Law Act are stronger than those under the Divorce Act . The Family Law Act obliges the spouses/adult interdependent partners to provide support for the other.

That express obligation is absent from the Divorce Act . [ 28 ] A limitations defence was raised in Blaney v Murphy , 2020 ABQB 199 . There, the parties had been in a common-law relationship for many years. The parties separated sometime in 2016 and a Statement of Claim seeking unjust enrichment and partner support was filed in October 2019, well more than 2 years after the separation. Mr. Murphy also raised laches as a defence to the claims. [ 29 ] Justice Feth considered these defences, and noted that these issues have not yet been “definitively determined” (at para 42).

He referred to Blackburn v Boucher , 2018 ABCA 400 , where the Court of Appeal suggested in dicta that retroactive claims might be limited to two years before a claim was made, although that decision stated “for the third time we clarify that we are not deciding this” (at para 12). [ 30 ] Limitations issues are again considered but not decided in Hilson v Ashford , 2020 ABCA 101 . [ 31 ] Other jurisdictions have considered limitation periods under the Divorce Act (cited by Feth J at para 44). Ultimately, Feth J concluded that there were arguable issues on the limitations issues and he declined to decide them.

He concluded that a trial was necessary to decide the issues, as there was disagreement about when the parties had actually separated.

[ 32 ] In this case, it is clear that the parties separated in 2016. No formal demand for adult interdependent partner support was made until March 2020. The ordinary two-year limitation period for applying for a remedial order had long passed by that time if the commencement date was the date of separation. [ 33 ] However, that assumes that there is only one claim available for separated parties. As recognized in Blaney v Murphy , the Family Law Act obliges adult interdependent partners to support each other (subject to the provisions of the Act ).

That obligation is not limited to the duration of the relationship, as former partners are included in the definition of adult interdependent partner. There is no limitation period expressed to be applicable. [ 34 ] It would be illogical to require that a separated partner make a claim immediately following separation, or that separation starts a time clock. Some support may initially not be provided, in cases of an unhappy or angry separation or where there is hoped-for independence, for example. The Family Law Act encourages independence following separation.

Is there a time limit on how long a separated party can try to be independent before realizing that is not feasible? A “trial separation” may become permanent, but when might it start a limitation clock running? What about changes in circumstances? [ 35 ] There is no principled reason (apart for those who continue to hold for various reasons that have not been recognized by the Courts in Canada) why common law spouses should be treated differently from married spouses.

If a divorced spouse has no limitation period for seeking spousal support, why should a separated adult interdependent partner? [ 36 ] My conclusion is that the Limitations Act does not apply to claims for support by separated adult interdependent partners in Alberta. I recognize that the issue of laches is one that might be raised (as held by Justice Feth in Blaney v Murphy ). That has not been raised here and I need not deal with it. There is no evidence of any prejudice to Mr.

Chalut in any event. [ 37 ] I also recognize that the Court of Appeal appears to give credence to a two-year limitation on past claims in Hilsen v Ashford , noting that in the case of retroactive claims, DBS v SRG , 2006 SCC 37 does not explain why limitation periods would not apply (at para 27). It does not appear that limitation periods were specifically argued in DBS , and it is certainly arguable that the Limitations Act may apply to retroactivity issues in Family Law Act claims.

Retroactivity issues are ultimately discretionary (subject to the considerations mandated by DBS ) and are highly fact specific. [ 38 ] The alternative argument raised on Ms. Thalheimer’s behalf was that any limitation period did not start until Mr. Chalut ceased supporting Ms. Thalheimer. That did not occur until he completed making the payments on the vehicle intended for Ms. Thalheimer ion 2018, and may have been further extended by the $2,400 payment in 2019.

Those are issues that clearly apply to retroactivity [ 39 ] The argument about extending the limitation period (analogous to the debt acknowledgment by part payment provisions in s 8) was raised in the context of Mr. Chalut’s argument that Ms. Thalheimer needed to make a claim for partner support within two years from the date of separation.

I have found that is not so, and that the obligation to support a former partner is an ongoing one, subject of course to the considerations for partner support in the Family Act and the case law. [ 40 ] If I understand what was suggested in Hilsen v Ashford , the Limitations Act may limit claims to two years before the date of the application. If that is ultimately found to be the law, then the limitation period for support may have started not on separation, but on the date Mr. Chalut stopped supporting Ms. Thalheimer.

How the car payments and rent payments should be treated is in issue, and I need not decide that issue here. Those payments might allow a retroactive award to go back to the date those payments ended, or perhaps earlier. In any event, I need not decide the impact (if any) of the car payments or rent payment for the purposes of setting interim ongoing partner support. Support [ 41 ] The application before me was brought in regular morning chambers.

While retroactivity is claimed, a retroactive claim is almost always more complicated than an ongoing claim and court practice requires that such claims be heard in a special application. [ 42 ] Retroactivity issues before the date of the originating notice must be dealt with in the appropriate forum, and I leave the issue of limitation periods and retroactive awards to the judge dealing with that matter. [ 43 ] That is appropriate here, especially as there are issues concerning Mr. Chalut’s income.

He earns his income from farming and through a corporation, and there has been no compliance with the requirements of Cunningham v Sevigny , 2017 ABCA 4 and Sweezey v Sweezey , 2016 ABQB 131 regarding personal benefits from his corporation and from the farming operations. [ 44 ] There is conflicting evidence on whether Mr. Chalut promised to look after Ms. Thalheimer’s retirement and what that might mean, as well as on Ms. Thalheimer’s contributions to the relationship. On the evidence before me, it is not possible to determine fundamental issues for support such as the nature and extent of Ms.

Thalheimer’s entitlement to support and what duration is appropriate. [ 45 ] As a result, I am in a position to grant an interim order only. [ 46 ] Ms. Thalheimer sought $2,000 per month as interim support. A number of factors indicate to me that on an interim basis, without Mr. Chalut having provided proper disclosure, that amount is reasonable. It may be high on the basis of Mr. Chalut’s line 150 incomes, but the circumstances demonstrate that he has significant resources. Ms. Thalheimer believes he has assets worth $5,000,000; Mr.

Chalut recognizes a net worth of $1,300,000 in his net worth statement prepared for this application. The likelihood is that the actual amount of his net worth is somewhere in between those bookends. [ 47 ] In any event, Mr. Chalut has the use of all of the assets acquired while the parties were together, including the home they lived in and raised their children in. Ms. Thalheimer has a vehicle. Ms. Thalheimer is nearly 60 and living in a rented apartment. It would appear that all Mr. Chalut’s living expenses are paid for by his corporation or the farming operation. I would have benefited from a budget from Ms.

Thalheimer, but I am satisfied that it is fair that she be able to live on more than a hand-to-mouth basis while issues of

quantum and duration are explored and resolved. The property issues must be resolved and any potential income from Ms. Thalheimer’s share of the property acquired over the course of the relationship will have to be quantified (if she can overcome limitation arguments and establish entitlement). Conclusions [ 48 ] On an ongoing basis, I am satisfied that there is no limitation defence available to Mr. Chalut. This application was commenced in March 2020.

It is appropriate that support be granted from that date forward, with retroactive claims to be dealt with by way of a special application. [ 49 ] Effective April 1, 2020, Mr. Chalut shall pay Ms. Thalheimer $2,000 per month in interim spousal support. Having regard to the length of the relationship, it is clear that Ms. Thalheimer is entitled to some measure of support. The Spousal Support Advisory Guidelines (which are used only for reference purposes in Alberta) suggest indefinite duration because of the length of the relationship. Ms. Thalheimer’s materials show some need on her part, and with the assets Mr.

Chalut has, he clearly has the ability to pay. [ 50 ] Constructive trust issues, support entitlement issues, quantum issues and duration issues need to be addressed with more fulsome evidence and a more suitable venue than morning chambers. I encourage the parties to pursue an alternative dispute resolution process, as there will undoubtedly be court delays in the months to come, and a mandatory dispute resolution process has been reinstated as a pre-condition to trial. [ 51 ] Ms. Thalheimer is also entitled to costs of this application, which I set at $1,000. Heard on the 30 th day of November, 2020 .

Dated at the Town of St. Paul, Alberta this 7 th day of January, 2021. Robert A. Graesser J.C.Q.B.A. Appearances: Lawren E. I. Wowk, Grey Wowk Spencer LLP for the Plaintiff Donnon F. Revering, Revering Law Office for the Defendant