Hagan v Hagan, 2021 ABQB 330

Court of Queen’s Bench of Alberta Citation: Hagan v Hagan, 2021 ABQB 330 Date: 20210427 Docket: 4801 172697 Registry: Calgary Between: Penny Irene Hagan Plaintiff - and - William John Hagan Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice B.B. Johnston _______________________________________________________ [ 1 ] Ms. Hagan seeks a division of matrimonial property including Mr. Hagan’s Eaton Industries Pension Plan and Canada Pension Plan credits. She also seeks retroactive and ongoing spousal support and arrears.

She asks for a divorce without the consent of Mr. Hagan. [ 2 ] Mr. Hagan asks for division of Ms. Hagan’s Canada Pension Plan credits on the same basis. [ 3 ] This matter was set down for a

summary trial and proceeded on affidavit evidence. [ 4 ] Mr. Hagan did not file any evidence. Both parties made oral submissions at the trial and filed written arguments. Background [ 5 ] The parties began cohabiting in June 1977 when Ms. Hagan was 16 years old. They married in December 1984. The parties

separated on three occasions including for three years in 1994, for two years in 1999, and permanently in May 2013. Taking these periods of separation into consideration, they cohabited for a total of 31 years. [ 6 ] The parties have four adult children, the youngest of whom was born in 1985. None of the children are children of the marriage as defined in the Divorce Act , RSC 1985, c 3 (2nd Supp ). [ 7 ] Ms. Hagan filed a Statement of Claim for Divorce and Division of Matrimonial Property on March 1, 2017 and an Amended Statement of Claim on September 8, 2018. Mr.

Hagan was noted in default on February 19, 2021. [ 8 ] During the marriage and following their separation, Mr. Hagan worked at Eaton Industries Canada. His income information is incomplete but based on the evidence he had employment income of $104,364 in 2013. His recent employment income has been: 2017 - $108,488; 2018 - $104,151; and 2019 - $78,881. [ 9 ] Mr. Hagan has been contributing to the Eaton Industries Pension Plan (“EIPP”) since shortly after he began his employment. The EIPP is the parties’ main matrimonial asset. [ 10 ] Within three months of cohabitation, Ms.

Hagan quit her job as a waitress to assume responsibility for the domestic duties in the household. She stayed home for the next 10 years and then worked in various low-income jobs. Starting in 2001, she worked for the Canadian Corps of Commissionaires on a full-time basis for about 13 years. [ 11 ] Ms. Hagan left the workforce after a car accident in 2015. She is now unable to work full-time given her health issues. [ 12 ] After Ms. Hagan ceased work she began receiving social assistance. This was briefly interrupted from October 2018 to February 2019 when Mr. Hagan paid interim spousal support.

Social assistance resumed when Mr. Hagan ceased paying spousal support. [ 13 ] Ms. Hagan’s recent income from social assistance has been: 2017 - $0; 2018 - $9,897; 2019 - $0; and 2020 - $6,198. [ 14 ] Pursuant to an Interim Order granted by Justice Hollins on October 22, 2018, Mr. Hagan was directed to pay spousal support on a without prejudice basis in the amount of $1,500 per month for the months of November and December 2018 and January 2019. [ 15 ] On February 13, 2019, Justice Romaine granted an Interim Without Prejudice Consent Order for spousal support. Mr. Hagan was directed to pay Ms.

Hagan $1,500 a month until further order of the Court. [ 16 ] Mr. Hagan ceased paying spousal support effective December 2019. [ 17 ] On June 25, 2020, Justice Price ordered Mr. Hagan to pay interim spousal support on a without prejudice basis in the amount of $1,500 per month beginning in July 2020. Arrears in the amount of $10,500 for the period of December 2019 to June 2020 inclusive, were awarded to Ms. Hagan. The arrears were to be paid by September 25, 2020. [ 18 ] Mr. Hagan was 61 years old and Ms. Hagan was 59 years old at the date of trial. Issues 1. Is this matter appropriate for a

summary trial? 2. Should Mr. Hagan’s Eaton Industries Pension Plan be divided and if so how? 3.Should Mr. Hagan’s and Ms. Hagan’s Canada Pension Plan Credits be divided and if so how? 4. Is Ms. Hagan entitled to retroactive and ongoing spousal support? If so, in what amount and for how long? 5. Should Ms. Hagan be granted a divorce? Analysis

Summary Trial [ 19 ] This matter was set down for a

summary trial by order of Justice Tilleman dated February 14, 2020. Due to COVID-related

adjournments, the matter was rescheduled by order of Associate Chief Justice Rooke on November 9, 2020. [ 20 ] As a preliminary matter I must determine if this matter is appropriate for a

summary trial. I find it is. [ 21 ] There is no disagreement on the facts. The matters before me are not complex. Concerns with delay, cost and prejudice to the parties are further considerations that support proceeding with a

summary trial. Property Division [ 22 ] The Family Property Act , RSA 2000, c F-4.7 , came into force on January 1, 2020. Given that the parties separated in 2013, the Matrimonial Property Act , RSA 2000, c M-8 (“ MPA ”) applies: Family Property Act , s 39(2). [ 23 ] Sections 7 and 8 of the MPA govern the distribution of property upon marriage breakdown. [ 24 ] Under

section 7, the Court is required to determine what property was owned by the spouses at the date of trial and whether any property is exempt from distribution. Then, considering the factors in

section 8, the Court must determine a just and equitable distribution of the matrimonial property. Any increase in the value of exempt property is to be divided in a manner that is just and equitable in the circumstances. The balance of property is divided equally as of the date of the trial, unless it would be unjust and inequitable to do so: Hodgson v Hodgson , 2005 ABCA 13 , at paras 19-21 . Eaton Industries Canada Pension Plan [ 25 ] Mr. Hagan began working at Eaton Industries Canada on February 18, 2002. He became an active member of the EIPP on June 1, 2002.

After the party’s separation and while the parties were living separate and apart, Mr. Hagan continued to contribute to the pension plan up to the date of trial. [ 26 ] I find that the entire EIPP is matrimonial property subject to equal distribution. There are no applicable exemptions under

section 7 of the MPA and it is neither unjust nor inequitable to divide the pension equally. [ 27 ] Specifically, this was a long-term traditional marriage where Ms. Hagan was the primary caregiver to the children. The parties began cohabiting when Ms. Hagan was 16 years old. She was working as a waitress and she resigned from her employment three months after their cohabitation began. Later in the marriage she resumed low-wage employment. Her contribution to the family allowed Mr. Hagan to focus on his career. I find Mr. Hagan’s ability to accrue a pension is directly related to the contributions Ms.

Hagan made to the household and family. Although a significant portion of the total accrual period occurred after separation, the parties remained married throughout this time, and I find there is no basis to rebut the presumption of an equal division of the pension: Lux v Lux , 2019 ABCA 454 at para 26 . [ 28 ] The joint period of accrual will be from the date Mr.

Hagan became a plan member in the EIPP to the date of trial: Hodgson at paras 22, 32-3, 40 ; MPA s 7(4); Lux at para 27 . [ 29 ] The pension shall be divided equally between the parties with the current value of the pension to be determined by the Eaton Pension Plan Administrator. Ms. Hagan’s share of the pension shall be rolled over into a locked in retirement account (LIRA) in her name. Canada Pension Plan Credits [ 30 ] For the reasons noted above, Mr. Hagan’s Canada Pension Plan (“CPP”) credits are to be divided equally upon the party’s divorce being granted. [ 31 ] Ms.

Hagan argues that her CPP credits should not be divided equally. She argues she left the marriage with no substantial assets and little savings. Mr. Hagan disagrees. [ 32 ] There was no evidence before me that either party had any substantial assets or savings other than the pension plans. [ 33 ] Given that Mr. Hagan’s EIPP and his CPP will be divided equally, there is no basis to decline to divide Ms. Hagan’s CPP. Her CPP was acquired from her employment during the marriage and constitutes matrimonial property. Her CPP credits are to be divided equally upon the party’s divorce being granted.

Other Matrimonial Property [ 34 ] The parties both agreed that there was no other matrimonial property that was to be divided. However, given Mr. Hagan’s lack of disclosure, Ms. Hagan requested that if any material financial assets were discovered following the trial that had not been disclosed at the date of the trial, that such assets be subject to division. I decline to do so as the relief requested is too speculative. Spousal Support

[35] Entitlement to spousal support is governed by the Divorce Act: s 15.2. [36] A court must consider the condition, means, needs, and other circumstances of each spouse. Specific factors include thelength of cohabitation, functions performed during cohabitation, and any order or agreement relating to spousal support: Divorce Act, s15.2(4). [37] The three grounds for entitlement to spousal support include compensatory, contractual and non-compensatory: Moge vMoge, (SCC), [1992] 3 SCR 813. A court must consider the objectives set out in s 15.2(6) of the Divorce Act.

No singleobjective is paramount: Moge at 852. [38] Ms. Hagan left the workforce three months after the parties began cohabiting. She then stayed home with the children for thefirst 10 years of the marriage. She did not pursue any post-secondary education. [39] Ms. Hagan was the children’s primary caregiver. When the parties separated in 1994, and again in 1999, she remained theprimary caregiver for the children. [40] After 10 years together, Ms. Hagan began working in a series of low-income jobs. Starting in 1987, she worked as a babysitter, earning $250 per week.

When the youngest child began school, she worked at Woolco three nights a week. She was laid off in1997 and stayed home with the children for an additional three years. She then worked cleaning buses and then full-time as a securityofficer with Nortel Networks. She subsequently obtained a full-time job with the Canadian Corps of Commissionaires as an airportcashier. This position changed to outside patrol but this became too physically demanding for Ms. Hagan. [41] As a result of domestic violence, infidelity by Mr. Hagan, and the breakdown of the marriage, Ms. Hagan went on stressleave.

She retrained with the Commissionaires but was placed on Employment Insurance due to a lack of work. She then had a caraccident in 2015. She was cleared for modified duties, but no positions were available. Due to her current health situation, she is limitedto part-time light duty work. [42] Ms. Hagan has been out of the workforce for the past five years and living mostly on social assistance. Although she workedfull-time for 13 years with the Commissionaires, her current health condition limits her to part-time light duty work. Overall, Ms.Hagan’s prospects for economic self-sufficiency are bleak.

At the same time, Mr. Hagan has been economically advantaged as hecontinues to earn approximately $80,000 a year. [43] Ms. Hagan was economically disadvantaged by the marriage. Mr. Hagan was able to focus on his career while Ms. Hagantook care of the domestic and child rearing responsibilities for the family. The parties have very limited financial resources. The onlymatrimonial property is the EIPP and the parties’ CPP. Neither party owns a house and there are no savings. [44] Based on the above, I find that Ms.

Hagan is entitled to both compensatory and non-compensatory support: Bracklow vBracklow, (SCC), [1999] 1 SCR 420. [45] An application of the mid-range amount of the without child Spousal Support Advisory Guidelines (“SSAG”) is fit and just.Ms. Hagan has a strong compensatory and non-compensatory claim, which often would suggest an award at the higher end of the range.A countervailing consideration, however, is Ms. Hagan’s responsibility to contribute to her own means, by seeking part-time light dutywork. It is also important to consider Mr.

Hagan’s ability to pay and to ensure he has an incentive to continue working. Finally, I haveconsidered that neither party has assets other than the pensions that are subject to equal division. In the totality of the circumstances, Ifind that the mid-range of the SSAG recommended ranges best balances all of these considerations. [46] Mr. Hagan shall pay spousal support on a go forward basis commencing April 2021 in the amount of $2,614 per month. Thesepayments shall continue for an indefinite period, but may be reviewed upon Mr. Hagan’s retirement. Retroactive Spousal Support [47] Ms.

Hagan claims retroactive spousal support from the date of separation in 2013. [48] A party’s entitlement to retroactive support is not automatic. [49] The principles governing entitlement to retroactive spousal support are similar to those established in DBS v SRG, 2006 SCC37 for child support: Kerr v Baranow, 2011 SCC 10 at para 207. [50] Factors considered here include the needs of the recipient, the conduct of the payor, the reason for delay in seeking orapplying to vary support and any hardship the retroactive award may cause the payor or recipient: Kerr at para 207. [51] In this case, Ms.

Hagan claims that Mr. Hagan owes: $200,000 in retroactive spousal support for the period from June 2013 to October 2018; and $25,000 in spousal support for the period of November 2018 to November 2019 when Mr. Hagan was paying spousal support of $1,500a month. [52] When entitlement to retroactive spousal support is established, the commencement date should generally not be earlier thanthe date that the moving party put the non-moving party on effective notice: Fraser-Tabak v Tabak, 2016 ABCA 79 at para 90.

Thiswill often be the date of the commencement of proceedings: Kerr at paras 218 – 219. [53] In this case, the Statement of Claim was filed in March 2017. This was over four years after the parties separated. I find this to

be the effective notice date. [ 54 ] Ms. Hagan argues that she needed support since their separation and Mr. Hagan had the means to provide her with spousal support. Her standard of living was markedly lower after separation as she was living mostly on social assistance. She did not have the means or ability to pursue spousal support any earlier than 2018 due to her mental and physical disability and her limited means: Kerr at para 216 . [ 55 ] I agree that Ms. Hagan is entitled to retroactive spousal support, but I limit it to the date of the filing of the Statement of Claim in March 2017.

Although some delay would be reasonable based on Ms. Hagan’s circumstances, I find delay of four years in filing her claim to be inordinate. [ 56 ] Unlike child support, there is no presumptive entitlement to spousal support: Kerr at para 208 . Given the limited financial resources of the parties it is also unlikely Mr. Hagan would be able to pay retroactive support beyond the date of the Statement of Claim. [ 57 ] I find it appropriate to award retroactive spousal support from March 2017 through to the date of trial. I accept Ms. Hagan’s submissions regarding the ranges recommended by the SSAG for Mr.

Hagan’s guideline income. Ms. Hagan was assigned no income in these calculations, as social assistance does not count as income for the purposes of the SSAG. [ 58 ] The spousal support amounts owing are set out in the table below. These sums replace the spousal support awarded under previous interim orders, as well as the arrears award issued by Justice Price, as Mr. Hagan’s entire spousal support obligation now has been determined through this

summary trial. As shown in the table, I have given Mr. Hagan credit for amounts paid to date through MEP or otherwise, in the year in which they were paid. I based these figures on the evidence presented and on the submissions by counsel for Ms. Hagan, which indicated that a further $5,200 was garnished from Mr. Hagan’s wages in December 2020, and January, February and March 2021. While this latter information is not formally in evidence, I have relied on it for the sake of completeness. The parties may further adjust the calculations as guided by these reasons to correctly reflect the amounts Mr.

Hagan has paid or that has been garnished from his wages. [ 59 ] The gross amount that remains owing in the table below for each year is discounted to account for the tax consequences that normally would accrue to periodic spousal support payments. I have applied a 30% discount, to reflect the average tax rate for Mr. Hagan’s income level. All sums are rounded to the nearest dollar.

Year and Guideline Income Gross monthly spousal support at the mid-range of the SSAG Gross annual spousal support at the mid-range of SSAG Interim spousal support paid & garnisheed Gross amount that remains owing in retroactive support Final Amount Net of 30% Tax Deduction 2017 $108,488 $3,658 $36,580 (March to December) $0 $36,580 $25,606 2018 $104,419 $3,439 $41,268 $3,000 $38,268 $26,789 2019 $78,881 $2,801 $33,612 $16,500 $17,112 $11,978 2020 $78,881 $2,614 $31,368 $6,000 + $3,924 = $9,924 $21,444 $15,011 2021 $78,881 $2,614 $7,842 (January to March) $3,935 + $3,900 = $7,835 $7 $5 Total Retroactive Support Owing $79,389 [ 60 ] Thus, the total amount owing for retroactive spousal support is the lump sum of $79,389.

Mr. Hagan may arrange a payment plan with MEP for this retroactive lump sum. Absent any such arrangement, Mr. Hagan shall pay $750 per month towards this tax- adjusted retroactive amount, in addition to his ongoing monthly spousal support obligations of $2,614. [ 61 ] The ordered retroactive and ongoing spousal support is registerable with MEP. Divorce [ 62 ] Mr. Hagan agreed to the divorce in his oral submissions. In the event he does not provide his written consent within 15 days of this Judgment, Ms. Hagan has leave to proceed with a desk divorce without the consent of Mr. Hagan.

The documents may be submitted to me.

Conclusion [ 63 ] Mr. Hagan’s EIPP shall be divided equally as of the date of trial. Ms. Hagan’s portion shall be rolled over into a LIRA. [ 64 ] Mr. Hagan and Ms. Hagan’s CPP credits shall be divided equally as of the date of the divorce. [ 65 ] Mr. Hagan shall pay Ms. Hagan retroactive spousal support for the period from March 2017 through April 2021 as a tax- adjusted lump sum of $79,389 by way of monthly instalment payments of $750 per month. [ 66 ] Mr. Hagan shall pay Ms. Hagan go forward spousal support in the amount of $2,614 per month for an indefinite period. The order may be reviewed upon Mr.

Hagan’s retirement. [ 67 ] Ms. Hagan has leave to proceed with a desk divorce without the consent of Mr. Hagan. [ 68 ] If the parties are unable to agree on costs, they can provide written submissions to me within 30 days. Heard on the 4 th day of March, 2021 with written submissions on the 18 th day of March and the 12 th day of April, 2021. Dated at the City of Calgary, Alberta this 27 th day of April, 2021. B.B. Johnston J.C.Q.B.A. Appearances: Susannah S. Alleyne for the Plaintiff Penny Hagan William John Hagan Self-Represented Litigant