Postans v Davidson, 2021 ABQB 30

Court of Queen’s Bench of Alberta Citation: Postans v Davidson, 2021 ABQB 30 Date: 20210113 Docket: FL01 33007 Registry: Calgary Between: Sharon Louise Postans Plaintiff - and - James Harvey Davidson Defendant _______________________________________________________ Judgment of the Honourable Justice April Grosse _______________________________________________________ Introduction [ 1 ] Ms. Postans and Mr. Davidson were in an adult interdependent partner relationship from August 1997 through to May 2019.

They lived together in the Calgary area until the fall of 2017, when they embarked on world travels following Mr. Davidson’s retirement. They separated in Thailand in or about May of 2019. Mr. Davidson and Ms. Postans both remain in Thailand at this time.

[ 2 ] Ms. Postans seeks 3 primary heads of relief from the Court in this action: 1) A transfer of a portion of Mr. Davidson’s pension. Her claim in this regard sounds in unjust enrichment. 2) Judgment or a declaration of resulting trust or constructive trust in respect of proceeds of the couples’ acreage that was sold in 2017. She also seeks judgment in respect of two smaller items of personal property. 3) An order for partner support under the Family Law Act , SA 2003, c F-4.5 , both on a going forward basis, and retroactive back to the date of separation. [ 3 ] Ms.

Postans also wants an order that the second two claims, if successful, be paid out of the pension at source. [ 4 ] The Action came before me by way of

summary trial. Ms. Postans was represented by Ms. Coffell. Mr. Davidson did not participate. I satisfied myself that it was appropriate to proceed in his absence based on the following: • Mr. Davidson was served with the Statement of Claim and some interim application documents by email in accordance with an order for ex juris substitutional service granted by Master Prowse in January 2020. • The record is clear that Mr. Davidson received the Statement of Claim and other documents, as he replied to Ms. Postans’ counsel.

In fact, he sent an email to counsel and asked that it be read into the record on the initial application date of February 7, 2020. • On February 7, 2020, Justice Mahoney granted an interim order for partner support to Ms. Postans. • By February 19, 2020, when counsel served Mr. Davidson with a copy of Justice Mahoney’s order by email, only a bounce-back was received. In other words, Mr. Davidson had abandoned the email account or had otherwise arranged for it to send a non-response. He did not provide any updated contact information to counsel or Ms. Postans.

He was aware from the documents already served on him that the Court had ordered service to that email address. • On March 9, 2020, Mr. Davidson was noted in default. • In August, 2020, Justice Poelman granted permission to Ms. Postans to proceed by application for

summary trial. • Even though Mr. Davidson had been noted in default, Ms. Postans obtained another service order from Master Mason on September 21, 2020, permitting her to serve Mr. Davidson by registered mail at his last known address in Thailand and she served him with notice of the November 10

summary trial application and supporting materials at that address. Mr. Davidson has made no further contact with counsel and he did not appear for the application. Jurisdiction [ 5 ] Both Ms. Postans and Mr. Davidson are currently in Thailand. They arrived there in or about December 2018 as part of an extended period of world travel. [ 6 ] Ms. Postans asks the Court to confirm jurisdiction. Arguably in these circumstances, where there is no challenge to jurisdiction, Master Prowse’s initial decision that this Court has a real and substantial connection to the subject matter of the lawsuit stands.

However, that decision was made in the contact of the application for service ex juris , and jurisdiction simplicter and satisfaction of the procedural rules for service ex juris are conceptually distinct. To ensure no steps are missed, I have turned my mind to the question again. [ 7 ] Unlike the Divorce Act , RSC 1985, c 3 , the Family Law Act does not specify when the Court has territorial jurisdiction. Accordingly, the applicable test is the common law test of real and substantial connection between Alberta and the subject matter of the litigation and the defendant.

Authorities such as Club Resorts Ltd v Van Breda , 2012 SCC 17 elaborate on this test. There is limited authority applying the principles of real and substantial connection to claims like those of Ms. Postans, particularly in unjust enrichment. This is not the case to try to rationalize the law, with only one litigant and no challenge to jurisdiction. [ 8 ] Suffice it to say I am satisfied that there is a real and substantial connection between Alberta, the subject matter of the litigation and Mr. Davidson. One of Ms.

Postans’ claims is for a proprietary remedy in respect of the proceeds of sale from the parties’ Alberta acreage: Knowles v Lindstrom , 2014 ONCA 116 at paras 21 , 31. Ms. Davidson need only establish a real and substantial connection on claim for the Court to have jurisdiction, but there are others. The circumstances giving rise to Ms. Postans’ claim for partner support took place in Alberta, being the parties’ residence for all of their relationship prior to leaving for their world travels. While some of the alleged enrichment to Mr.

Davidson may occur in Thailand if he is able to enjoy his pension there without any division, as claimed by Ms. Davidson, the claim of unjust enrichment is based on alleged enrichments and corresponding deprivations that occurred during the cohabitation, which primarily took place in Alberta. Unjust enrichment [ 9 ] Ms. Postans and Mr. Davidson separated before January 1, 2020. Accordingly, any claim Ms. Postans has to division of property comes under unjust enrichment or some other common law or equitable doctrine, not under legislation: Family Property Act , RSA 2000, c F-4.7 , s 39(5).

Unjust enrichment has become the primary non-statutory cause of action in respect of property for non- married couples.

[10] In order to demonstrate unjust enrichment, Ms. Postans must satisfy the Court that Mr. Davidson was enriched, that shesuffered a corresponding deprivation and that there was no juristic reason for the enrichment and deprivation. The leading case on unjustenrichment in this context is Kerr v Beranow, 2011 SCC 10. Some of the key principles from Kerr are summarized in Buchner v Long2016 ABQB 253, aff’d 2017 ABCA 382l. [11] In this case, the evidence supports a finding of unjust enrichment. I make the following findings of fact based on Ms. Postans’uncontradicted evidence. [12] Ms. Postans and Mr.

Davidson were in a committed relationship and cohabited for almost 22 years. From 2001 to 2017, theylived on an acreage together. Mr. Davidson was the primary income earner through long-term employment as a locomotive engineer. Ms.Postans worked at a variety of jobs outside the home, on and off over the years. She was always able to make a financial contribution tothe household through employment or unemployment insurance. Ms. Postans and Mr. Davidson had a joint bank account and had fullaccess to each other’s personal bank accounts.

They split home expenses and each had spheres of responsibility in terms of paying bills,with Mr. Davidson tending to the mortgage, food and cell phones and Ms. Postans managing insurance, utilities and the home phone.There were periods where Mr. Davidson was off work on disability leave and during those times, Ms. Postans took the lead on coveringall expenses. Ms. Postans also provided care for Mr. Davidson in respect of the injuries and surgeries that left him on disability. [13] Although the couple did not have children together, Ms.

Postans took on domestic roles such as dealing with banks, makingappointments for haircuts, car repairs and doctors, caring for their home and for the animals on their acreage. When Mr. Davidsondecided to sell the horses, she tended to their sale or re-homing. When the couple decided to sell the acreage, Ms. Postans did the workrequired to prepare the acreage for sale and dealt with the real estate transaction. [14] According to the evidence, the main accumulation of wealth during the relationship was in the form of equity in the acreageand Mr. Davidson’s pension from Canadian Pacific.

The acreage was purchased in 2001 for $210,000. Mr. Davidson did not contributeto the down payment. Ms. Postans contributed between $20,000 and $40,000. To the extent the full $40,000 (comprised of equity fromthe sale of Ms. Postans’ pre-relationship home and a gift from her mother) did not go towards the down-payment on the acreage, it wentto pay off debts previously held by Mr. Davidson, which in turn allowed him to be approved for a mortgage for the acreage. The acreagewent into Mr. Davidson’s name alone because this is the only way they could obtain financing.

The acreage sold in or about 2017 forapproximately $405,000, and the net proceeds of approximately $260,550.22 all went into Mr. Davidson’s personal account. Ms. Postansacknowledges receiving the benefit of some of those funds, as they paid off some debt, were used for the couples’ subsequent travel, andMs. Postans eventually took net $20,000 when she realized the extent to which Mr. Davidson was dissipating the funds. However, by hercalculation, Mr. Davidson dissipated at least $68,000 for his own personal use.

The only reasonable inference available at this time isthat all of the proceeds from the acreage are now gone and were gone at the time of separation. [15] The pension was an incident of Mr. Davidson’s employment. It has been going to Mr. Davidson alone and that will continue,subject to court order. The accumulation of value in the pension began prior to the relationship between Mr. Davidson and Ms. Postans.It continued until August 1 2015, when the pension went into pay upon Mr. Davidson’s retirement. Mr. Davidson and Ms.

Postansplanned and agreed to embark upon world travels in 2017 with the idea that they would live off of the pension and the proceeds from theacreage. [16] Without a court order, Mr. Davidson will retain all of the value in the pension. Ms. Postans is the designated beneficiary ofsurvivor’s rights under the pension, which have value, but are contingent on Mr. Davidson’s death. [17] Overall, the evidence demonstrates that Mr. Davidson was enriched by Ms. Postans by way of her roles in managing thehousehold and their personal lives. He also received care from her in respect of his injury and surgery.

The latter is relevant on its ownand also as it relates to his ability to continue working or return to work in the latter parts of the relationship, which in turn allowed himto continue earning income and other benefits from employment, such as his pension. Mr. Davidson benefited from Ms. Postans’ workwith the horses and on the acreage, particularly in terms of its sale. Mr. Davidson also received direct financial benefits from Ms. Postansby way of her contributions to the purchase of the acreage and her payment of bills. For her part, Ms.

Postans suffered a correspondingdeprivation in that she made all of those contributions without direct monetary payment and using time that she otherwise could haveused to work. The deprivation she suffered based on her direct financial contributions is obvious. [18] Ms. Postans also benefited from Mr. Davidson’s contributions to the relationship, both financially and otherwise and hesuffered certain deprivations. That is the nature of committed relationships. The law is clear that mutual benefit and deprivation does notnegate the potential for an unjust enrichment.

Mutual benefit is to be dealt with as a matter of juristic reason or remedy: Kerr at para 109. [19] There is no juristic reason, in light of the above analysis, that Mr. Davidson would leave the relationship with the entirety ofthe pension now in pay and Ms. Postans would leave with nothing other than the survivor’s benefit. The evidence does not establish, forexample, that the mutuality of benefits and deprivations is such that there should be no finding of unjust enrichment. There is no contract,donative intent or other legal or equitable reason for the enrichment/deprivation.

In fact, the legitimate expectations of the parties, to theextent relevant, were that they would both live off of the proceeds of the acreage sale and the pension indefinitely. [20] The issue them becomes one of remedy. Remedy for Unjust Enrichment [21] According to Kerr, I am first to consider whether monetary relief is appropriate: Kerr at para 47. Here, there may be nothinginherently inappropriate about a monetary remedy.

However, one of the reasons for which monetary relief may be inappropriate is theinability to recover: Kerr at para 52; Peter v Beblow, (SCC), [1993] 1 SCR 980; [1993] SCJ No 36 at para 31 (QL).Mr. Davidson has been in Thailand since the beginning of 2019 and apparently has a new partner there. He has declined to participate in

these proceedings and seems to have taken steps to make himself difficult to contact. The evidence does not demonstrate him as havingany income or assets other than his pension. There has been an interim partner support order in place since February 2020 and he haspaid nothing. Up to the point where Ms. Postans had information on Mr. Davidson’s banking, his pension was being deposited into aCanadian account. So, in theory, Ms. Postans could obtain a monetary award and try to enforce it in installments against the Canadianbank account or undertake judgment enforcement measures in Thailand if available.

However, the prospects of recovery are speculativeat best. [22] In my view, the difficulty that Ms. Postans would have in recovering any monetary award in this case makes consideration ofa proprietary remedy in constructive trust appropriate. Of course, the fact that a monetary remedy may not be appropriate does not meanthat a constructive trust is available.

The requirements for a constructive trust must still be met. [23] In order to impose a constructive trust, the court must be satisfied that there is a direct and substantial link between theclaimant’s contribution and the property in which the trust is claimed: Peter at paras 26-27. If a sufficient link exists, then the extent ofthe trust is determined proportionate to the claimant’s contributions to the “value survived” of the property.

In Peter, the Supreme Courtdescribed the valuation as the court’s “best estimate of what is fair having regard to the contribution which the claimant’s services havemade to the value surviving, bearing in mind the practical difficulty of calculating with mathematical precision the value of particularcontributions to the family property”: Peter at para 31. [24] In this case, the only asset held by the parties at the end of the relationship is Mr. Davidson’s pension. While there was asignificant accumulation of wealth in the acreage, those proceeds have been spent, partly to joint benefit, and partly by Mr.

Davidson inthe form of lavish gifts to strangers and in conjunction with his abuse of alcohol. [25] I find that Ms. Postans has established the required link between her contributions that led to the unjust enrichment and Mr.Davidson’s pension. While the pension was an incident of Mr. Davidson’s employment, Ms. Postans’ contributions to the managementof the acreage and household, and to his care and well-being, including when he was injured or ill, allowed him to continue thatemployment during the course of the relationship.

There is ample authority for finding such a link for pensions: for example, see Ross vDeGuara, 2019 ABQB 602. Accordingly, Ms. Postans is entitled to a proprietary interest by way of constructive trust in Mr. Davidson’spension. [26] The usual approach to valuing the trust in a case like this is to assess the net increase in value of Mr. Davidson’s pension fromthe start of the relationship to the end, assess the parties’ relative contributions to that increase in value, and set the value of the trust forMs. Postans accordingly. The value of Mr.

Davidson’s pension as it stood heading into the relationship is excluded from the trustbecause Ms. Postans made no contribution to that portion of the value. Because Mr. Davidson has not participated in these proceedings,the evidence available about his pension is more limited than it might otherwise be. Without his consent, the pension administrator is notin a position to give full valuation information. However, they have been as helpful as possible in the circumstances. Based oninformation already known to Ms. Postans, the pension administrator has been able to calculate the portion of Mr.

Davidson’s pensionthat accrued from August 23, 1997, the start of cohabitation, through to August 1, 2015, when it went into pay, as 55.84% of the wholepension. Ms. Postans entitlement would then be based on her relative contributions to that 55.84% of the pension value. [27] In my view, in assessing the relative contributions of the parties, it is appropriate to look to their contributions to the familyenterprise as a whole, not only to the pension. First, as set out above, it is Ms. Postans’ contributions to the operation as a whole thatpermitted Mr. Davidson to continue working and accumulating pension value.

In other words, there is a direct link. Further, it would beinconsistent with the principles established in Pettkus v Becker, (SCC), [1980] 2 SCR 834, Kerr and Peter to proceed onan asset by asset basis in the context of a joint family venture: see in particular Peter at paras 34-48. Doing so in a case like this, whereonly one asset remains, would mean that if one party happened to contribute more to an asset that was sold or dissipated prior toseparation, the other could end up unjustly enriched overall by retaining an unjust share of the remaining asset(s). [28] I have no trouble finding that Ms.

Postans and Mr. Davidson formed a joint family venture. Kerr is commonly cited as theleading authority on joint family ventures. There, the discussion occurred in the context of establishing the methodology for valuingmonetary relief for unjust enrichment. In subsequent jurisprudence, joint family venture has sometimes been treated as something distinctor even mutually exclusive from constructive trust.

In my view, disassociating joint family venture from the remedy of constructive trustignores the discussion of joint family venture in Peter, which preceded Kerr, and dealt with the constructive trust remedy. [29] To assess whether there is a joint family venture, the court looks at the totality of the circumstances, including factors relatingto mutual effort, economic integration, actual intent and priority of the family. The facts set out above in my findings of unjustenrichment demonstrate the mutual effort and economic integration factors of a joint family venture.

With respect to the actual intentfactor, the only reasonable inference from the evidence is that the parties intended to be in a joint family venture and held themselves outas an integrated couple. For example, in 2016, shortly after Mr. Davidson decided that it was time for him to retire, they also decidedthat Ms. Postans would not look for a new job, having recently lost hers, and they would move towards traveling the world as they hadalways hoped to do. They would do this using the proceeds from the acreage and Mr. Davidson’s pension. Mr.

Davidson designated Ms.Postans as holding survivor’s rights under his pension, which is indicative of the nature of the relationship. When they were travellingand Mr. Davidson’s abuse of alcohol resulted in him becoming lost, people who found him would contact Ms. Postans and indicate thather husband needed assistance. In other words, Mr. Davidson was holding himself out to the world as being in a relationship akin tomarried. Ms. Postans was candid in her evidence that at times, when he was drinking, Mr. Davidson indicated that various cash assetswere his alone.

However, I do not find such statements, in those circumstances, to deter from the actual situation apparent on theevidence. [30] With respect to the priority of the family, Ms. Postans put significant money into an acreage for which she never had title.Then, upon sale, she did not worry about all of the proceeds going to Mr. Davidson because she believed they would share them as theytravelled. She also forewent the opportunity – in her early fifties - to seek further employment and embarked on retirement world travels,in the context of Mr.

Davidson having health problems and being ready to retire. [31] As set out above, Mr. Davidson and Ms. Postans each contributed to the venture in his or her own way. I assess their

respective contributions to the day to day joint family enterprise as 50/50. Mr. Davidson provided a greater proportion of the income. Ms. Postans took on more of the household duties and caregiver duties. Both contributed to expenses. However, this split on its own would leave Ms. Postans’ significant financial contribution to the acreage largely unaccounted for. I am cautious here because the underlying concept of the joint family venture is that it would be unrealistic to go back and try to account for the parties’ various contributions in any precise way.

The idea is that they were in a joint venture as opposed to keeping score. So, it could be unfair to single out any particular contribution. I am also conscious that I should not slip into collapsing a “value for service” model with a “value surviving” model. However, in these particular circumstances, Mr. Davidson would remain unjustly enriched if Ms. Postans’ significant financial contribution to the purchase of the acreage was simply subsumed into her 50% contribution to the day to day venture. The funds were funds obtained outside of the venture (though Mr.

Davidson did apparently contribute labour to renovation of the property that was sold to obtain part of the down payment funds), Mr. Davidson made no similar contribution to the purchase of the acreage, and the amounts were significant in the context of Ms. Postans’ overall means, and the finances of the couple. This is all in the context of Mr. Davidson’s primary pre-relationship asset – the value of his pension up to that time – not being treated as part of the joint venture. [ 32 ] I find that overall, the assessment of contributions to the joint family venture should be 60% for Ms. Postans and 40% for Mr.

Davidson. This is the best estimate of what is fair in all of the circumstances, as required by Peter , taking into account the unequal initial capital contributions to the venture (Ms. Postans’ financial contribution to the purchase of the acreage) and all of the other ongoing contributions of the parties to the venture. This also takes into account the fact that as set out below, Ms. Davidson will receive her share of the pension over time, but that she will also retain valuable survivor benefits.

This particular division is consistent with the underlying premise of the doctrine of unjust enrichment: restoration of a benefit which justice does not permit one to retain Kerr at para 31 .

It is also consistent with the flexibility, albeit principled, associated with the constructive trust remedy to “prevent unjust enrichment in whatever circumstances it occurs.”: Kerr at para 50 ; see also Kerr at para 71 . [ 33 ] I am aware that under the Employment Pension Plans Act , SA 2012, c E-8.1 (the “ EPPA ”), pension division may not result in a reduction to the member’s pension of more than 50% of the actuarial present value of the benefit earned during the “joint accrual period”: subsections 82(2) and 82(3) . However, in this case, those provisions do not apply. Mr.

Davidson’s pension is federally regulated pursuant to the Pension Benefits Standards Act , RSC 1985, c 32 (the “ PBSA ”), which includes no such limit. Subsection 25(4) of the PBSA permits assignment of “all or part” of a pension benefit. Subsections 25(2) and 25(3) of the PBSA call for application of “provincial property law” to the valuation and distribution of pension benefits upon relationship breakdown, with certain exceptions.

It is not clear that Alberta’s 50% maximum under the EPPA would be an applicable part of “provincial property law”, but even assuming it were, neither the Family Property Act nor the EPPA applies to this particular case. As set out above, the Family Property Act does not apply because Mr. Davidson and Ms. Postans separated prior to January 1, 2020. Division 4 of the EPPA , which includes subsections 82(2) and (3) , applies to family property orders “within the meaning of the Family Property Act ” or “a similar order enforceable in Alberta of a court outside Alberta”. My order in these proceedings is neither.

The bottom line is that I do not consider myself bound by subsections 82(2) and 82(3) of the EPPA in this case. [ 34 ] The information available from the pension administrator is that pension division may occur on a lump sum basis or on a monthly basis (referred to as the “alimony basis” by the administrator). Ms. Postans requests division on the “alimony basis”. I presume that this is because, according to the information from the administrator, an award on the “alimony basis” preserves Ms. Postans’ existing right to the survivor benefits.

In all of the circumstances of this case, including, among others, there being no opposition from Mr. Davidson, no other assets, a significant portion of the pension value that accrued prior to the relationship, a question as to whether partner support can be secured as set out below, the age of the parties, the length of their relationship, and the overall financial circumstances of the parties, I see no reason to stand in the way of Ms. Postans’ choice. I find that Ms. Postans is entitled to a transfer of 33.5% (60% of 55.84%) of Mr. Davidson’s monthly pension on an alimony basis at source.

Claim for Acreage Proceeds [ 35 ] Ms. Postans claims – either on the basis of unjust enrichment or resulting trust – that she is entitled to judgment for $54,188 from Mr. Davidson relating primarily to him taking more than his share of the proceeds from the sale of their acreage in 2017. I have factored Ms. Postans’ contributions to the acreage into the unjust enrichment analysis above.

In my view, that is the appropriate way to deal with the acreage and I decline to award any further money judgment or trust for the acreage. [ 36 ] There is little doubt that what happened with the acreage proceeds is unfortunate, and that Mr. Davidson dissipated funds in a way that was objectively imprudent. However, the evidence is that all of the proceeds were disbursed before the date of separation. There is no evidence that the proceeds were disbursed to non-arm’s length parties or were part of any attempt to shield assets from a claim by Ms. Postans. Accordingly, it is difficult to conceive of Ms.

Postans being entitled to a remedy related to the acreage proceeds themselves. Even if the elements of unjust enrichment were made out in respect of that specific property (distinct from the joint family venture), it could not be said that Mr. Davidson was leaving the relationship with a disproportionate share of that asset because it had been dissipated prior to the end of the relationship. Further, the juristic reason for Mr. Davidson’s enrichment and Ms.

Postans’s deprivation in specific respect of the acreage at the time the funds were spent was that the parties were in a committed relationship in the nature of a joint family venture, without penny for penny accounting. The unjust enrichment arising out of the joint family venture as a whole is addressed above. [ 37 ] Ms. Postans also urges me to consider her claim in the context of a resulting trust. However, this has its own set of problems. The alleged trust property in question had ceased to exist at relationship dissolution and there is no practical tracing remedy available. Further, Ms.

Postans’ position presumes that she is entitled to return of her original investment plus half of the remaining proceeds. It must be recalled that without matrimonial property legislation, there is no starting premise of 50/50 sharing. And in respect of the $40,000 investment alone, Ms. Postans likely received that amount of benefit out of the sale of the acreage. Again, I find that the preferable way of dealing with the acreage is as part of the joint family venture as outlined above. Sunglasses and Damage Deposit for Thai Apartment

[ 38 ] Ms. Postans also claims she is entitled to a monetary award for the damage deposit of $2500 she put down on the couple’s accommodation in Thailand, and for some expensive sunglasses of hers that Mr. Davidson took from their apartment in Thailand to give to his new partner. [ 39 ] Ms. Postans claims that she is entitled to the entirety of the damage deposit because she paid it. She may well have provided the money to the landlord. However, the deposit was paid prior to the parties’ separation and the only inference available is that Ms. Postans used money from the joint travel fund.

She does not attest to having any other source of funds. Accordingly, the most appropriate way to treat the damage deposit is as an asset of the joint family venture in the nature of a receivable. The assessment of contributions above would not change based on Mr. Davidson retaining the entire $2500 damage deposit. [ 40 ] According to Ms. Postans’ uncontradicted evidence, after they separated, Mr. Davidson took sunglasses belonging to her with a value of $3500. I find that Ms. Postans is not entitled to any specific remedy in this regard.

First, there is no specific plea in relation to the sunglasses in the Statement of Claim in respect of which Mr. Davidson chose to be noted in default. Arguably, the sunglasses could be treated as an accumulation of wealth as part of the joint family venture. However, that is not Ms. Postans’ argument at all. Rather, she claims they were hers alone. I am hesitant to start dividing up random items of personal property. Both parties likely ended up with some personal items and singling out the sunglasses without evidence of other such property is dangerous. Partner Support [ 41 ] Ms.

Postans claims partner support from Mr. Davidson under the Family Law Act .

Section 58 of the Family Law Act sets out factors that the Court must consider and

section 60 sets out the objectives of partner support. Ms. Postans claims support on both a compensatory and non-compensatory basis. [ 42 ] Ms. Postans was 55 years old at the time of separation in 2019. She has not been employed since 2016 or 2017, when she and Mr. Davidson decided to implement their plan to travel the world upon his retirement. There is no evidence of Ms. Postans having any post-secondary education and she has held down a variety of jobs with a variety of employers over the years. While she may eventually be able to work, she is presently in Thailand on a travel visa.

Other than the portion of Mr. Davidson’s pension already awarded to her in this judgment, she has no income. The 33.5% of Mr. Davidson’s pension amounts to approximately $1700 per month. I do not have evidence as to what Ms. Postans earned when she was working. As the claimant, even in proceedings after default, it is her onus to prove her means, needs and circumstances. I presume that she is capable of earning at least minimum wage if she returns to Canada or another jurisdiction where she can work legally. There is no evidence of Ms.

Postans having any health issues that would prevent her from working. [ 43 ] On the record, Ms. Postans has no material savings or assets. It is not clear how she has been living in Thailand since separation. Presumably, she still had some funds that pre-existed in her personal account or from what she took from Mr. Davidson’s account after she recognized how he was spending. [ 44 ] Ms. Postans has submitted a budget of $2058 per month Canadian based on living in Thailand. It is not an extravagant budget.

Presumably, some of the costs would be higher in Canada such as rent and food; other costs might be less. [ 45 ] For his part, Mr. Davidson was 60 years at the date of separation. He is a retired locomotive engineer. The available evidence shows his gross pension each month is $5,086.24, net $4,053.76. After deduction of Ms. Postans’ portion of the pension by way of property division, he is left with gross monthly income of approximately $3385. This is his only source of income on the record. Given the evidence as to Mr.

Davidson’s past health concerns in terms of sciatica and needing surgery, his decision to retire in 2015 and the evidence as to active alcoholism, I find it unlikely that Mr. Davidson is in a position to return to work. According to the record, Mr. Davidson does not have any material savings or assets. [ 46 ] I have already outlined the roles and contributions that the parties made to their joint family venture during the relationship. [ 47 ] I find that whatever Ms.

Postans may have otherwise been entitled to in terms of compensatory support has been addressed by her status as the beneficiary of survivor rights under Mr. Davidson’s pension and the immediate right to a portion of his pension as set out above. [ 48 ] She remains entitled to support on a non-compensatory basis. Ms. Postans is not self-sufficient at this time. She has gone from a situation where she was, in effect retired, reliant on Mr. Davidson’s pension, to having access to less than half of that pension in the near term.

The survivor rights on the pension are valuable but they do not buy groceries or pay rent today. Ms. Postans is in a foreign country where she cannot work right now. She forewent the opportunity to find a new job in or about 2016-2017, which would have left her more self-sufficient today, in order to join Mr. Davidson in retirement and travels. She made decisions in the context of having acreage proceeds and Mr. Davidsons’ pension to rely on. Her share of Mr. Davidson’s pension as divided in this judgment will not meet her budget and would not meet the poverty line in Alberta. [ 49 ] Mr.

Davidson’s financial position is not great, but because of his pension, he comes out of the relationship in a better immediate position financially than Ms. Postans. The longer and closer the economic union between the parties, the greater the presumptive claim to somewhat equal standards of living upon dissolution.

Needs include absolute needs in terms of meeting a reasonable budget, but in a longer relationship, they also include needs from a relative perspective by reference to the standard of living during the relationship and the collective available resources after the relationship. [ 50 ] Turning to quantum and duration of support, there is no magic formula. Assuming income of $40,596 for Mr. Davidson and $20,436 for Ms.

Postans based on the pension division set out above, the Spousal Support Advisory Guidelines show a range of support from $504-$672 per month (assuming Canadian tax treatment and otherwise assuming residence in Alberta). I am satisfied that there is

no prohibited double-counting of the pension as both asset and income if done in this way. Of course, the SSAGs are guidelines and are not mandatory, particularly where the parties are out of the country. According to Ms. Postans’ evidence, they do remain Canadian residents for tax purposes. [ 51 ] Assuming that Ms. Postans’ after-tax net income from her 33.5% of Mr. Davidson’s monthly pension is approximately $1500, then she needs $550 net of tax per month to make her current budget. [ 52 ] I must also consider Mr. Davidson’s needs and his ability to pay. Without evidence from him, Ms.

Postans’ Thai budget is the best evidence I have as to the reasonable costs of living in Thailand. It is reasonable to expect that he has a higher budget because of his alcohol consumption. That is difficult to deal with. Alcoholism is a disease and it is not realistic to say he can just stop drinking and save that money. On the other hand, Ms. Postans has already suffered the effects of Mr.

Davidson’s alcohol abuse and it is difficult to say that somehow, she should now go without the support she would otherwise be entitled to in order to permit him to continue to fund his drinking or the lavish expenditures he makes when drinking. I am also concerned about leaving Mr. Davidson in a situation where he has no choice but to stay in Thailand because he cannot afford to come back to Canada, where there might be more support for him. [ 53 ] I am also mindful that Mr.

Davidson has accumulated significant arrears under Justice Mahoney’s interim order for support. [ 54 ] In this case, when looking at quantum and duration, it is relevant not only to consider the long duration of the cohabitation, but the fact that the parties have been, in effect, retired for several years. They were planning to remain retired and, in effect, share Mr. Davidson’s pension to fund one household. Their collective costs are now greater. [ 55 ] I have found that Ms. Postans is able to return to work if she lives in a jurisdiction where she is permitted to work.

She should be able to earn at least as much as the amount she is claiming in spousal support. I am mindful, though, that in any plan for self- sufficiency, Ms. Postans could get caught in a trap. She cannot work in Thailand, but it is cheaper to live there. If she were to return to Canada, for example, she could earn more money, but may have higher expenses. Ms Postans’ evidence does not reveal any particular plan at this time. [ 56 ] After considering the totality of the circumstances, including the means, needs and circumstances of each party, I find that Ms.

Postans is entitled to support of $650 per month from January 1, 2021 until she commences receiving survivor benefits under Mr. Davidson’s pension, or further order of the Court. Either party may apply for a review of partner support on or after January 1, 2026. In many circumstances, I would look at stepping down the amount in specific intervals on the basis that Ms. Postans would find work to supplement the pension income and achieve self-sufficiency.

However, with the parties being in Thailand, it is unknown whether she will ever find work or whether even the prospect of work combined with a move would make her more in need of support due to higher costs. It is also unknown whether either party will have the benefit of CPP or other types of benefits that we assume would otherwise be in place at age 65. Also, the parties were already retired, in effect. So, in all of these circumstances, I find that the indefinite award is appropriate, subject to the right of review. [ 57 ] Looking back, Ms.

Postans seeks to, in effect, have the interim order of Justice Mahoney confirmed for the period of February 1, 2020 through to December 1, 2020, and also to have retroactive support back to the date of separation in May 2019. She seeks the same amount as ordered by Justice Mahoney $2037 per month. This is at the high range based on the SSAGs using Mr. Davidson’s full pension income of $61,034 per annum and 0 income for Ms. Postans, which is what she had during that period. It is less than half of Mr. Davidson’s gross pension and would have allowed Ms. Postans to meet her budget.

I am satisfied that the entitlement to support commenced upon separation for all of the same reasons I have given as of today. The retroactive period is very short – May 2019 through to January 2020. Here, factors weighing in favour of granting retroactive relief include: evidence of Ms. Postans asking Mr. Davidson if he was going to support her almost immediately upon separation and him saying he would but never did, aside from one payment of $800; there are good reasons for her not filing a formal claim until January 2020, in that she was in Thailand and had to make investigations in Canada about Mr.

Davidson’s pension, with no assistance from him; and her need was high and he did have the ability to pay by way of his pension. They were in a foreign country and he knew that she was reliant on him for income, so there is no injustice or unfairness to him. [ 58 ] Arrears of partner support for the period June 1, 2019 through to December 1, 2020 are set at $37,903. That is calculated as 19 months at $2037 per month less $800, which Ms. Postans acknowledges receiving from Mr. Davidson. [ 59 ] The award of support, including arrears, presumes that any support paid would be taxable in the hands of Ms.

Postans and tax deductible for Mr. Davidson. Security [ 60 ] Mr. Davidson has made himself difficult to find. He has not participated in these proceedings. He has not complied with the order of Justice Mahoney. MEP has advised counsel that they cannot enforce any order against Mr. Davidson as long as he is in Thailand, even if he has a pension in Canada, and even if it goes into a Canadian account. [ 61 ] The prospects of Ms. Postans receiving either her ongoing support or her support arrears are slim unless payment is secured in some fashion. [ 62 ]

Section 66 of the Family Law Act permits the Court to order as part of a support order that property or an interest in property be transferred or vested in the support recipient and that a payment be secured by a charge on property. It would be appropriate to invoke this provision in this case, and pensions have been used under similar provisions in the Divorce Act : for example, see Pettigrew v Pettigrew , 2006 NSCA 98 . However, there is some uncertainty as to whether I can apply

section 66 in this case as a result of subsections 18(1) and 36(2) of the PBSA : Malerba v Malerba , (2007), 38 RFL (6 th) ) 426 (OSCJ); [2007] OJ No 1979 (QL) . Pettigrew could be distinguished on the basis that it dealt with a military pension governed by different federal legislation.

[ 63 ] In all of the circumstances of this case, including the fact that due to Mr. Davidson’s lack of participation, Ms. Postans has faced some hurdles in obtaining information about his pension plan, I find it most appropriate to adjourn the issue of whether the support award in this order can or should be secured or paid out of Mr. Davidson’s remaining portion of his pension. After reviewing these reasons, if Ms. Postans wishes to pursue that aspect of her claim, she may contact my office for further directions in that regard.

I retain jurisdiction to determine that issue and any ancillary relief arising therefrom. Conclusion and Costs [ 64 ] I believe that Ms. Postans has already consulted with the pension administrator on the terms of an order. I will leave it to counsel to conduct any further consultations required in light of the decision and to provide a proposed form of order or seek any further direction required to implement this decision. [ 65 ] Ms. Postans is entitled to taxable party and party costs and disbursements of the Action on Column 3.

The amounts in issue are not as obvious when the award is primarily for payments over time. However, Column 3 is a reasonable column for the amounts in issue when considered on a reasonable net present value basis. The action had some complexities given Mr. Davidson’s lack of participation and the pension issues involved. Heard on the 10 th day of November, 2020. Dated at the City of Calgary, Alberta this 13 th day of January, 2021. April D. Grosse J.C.Q.B.A. Appearances: Laura Coffell for the plaintiff No appearance by or for the defendant