MacLeod v Fox, 2021 ABQB 498

Court of Queen’s Bench of Alberta Citation: MacLeod v Fox, 2021 ABQB 498 Date: 20210629 Docket: 4801 183995 Registry: Calgary Between: Thomas Hendrik MacLeod Plaintiff - and - Dorn Nicole Fox Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice B.B. Johnston _______________________________________________________ [ 1 ] The parties seek to divide their matrimonial property and ask for a divorce. Both parties agree a divorce should be granted but argue for an unequal division of the matrimonial property in their favour. [ 2 ] Ms.

Fox seeks retroactive spousal support. Background [ 3 ] The parties began cohabiting in November 2007. [ 4 ] When the parties met, Ms. Fox was working for Honeywell in Arizona. Ms. Fox is a US citizen. She relocated to Okotoks to be with Mr. MacLeod. [ 5 ] The parties married on April 10, 2010. The parties separated on January 1, 2016. [ 6 ] Mr. MacLeod began a relationship with another woman prior to their separation. In approximately September 2015, Mr.

MacLeod began supporting the other woman and was spending money on gifts, travel, and accommodation for her. [ 7 ] There are no children of the marriage, but Mr. MacLeod has a child from his prior marriage. Ms. Fox has a close relationship with the child and continues to provide the child with financial assistance. [ 8 ] Mr. MacLeod filed a Statement of Claim for Divorce and Division of Matrimonial Property on November 18, 2019. Mr. MacLeod seeks an unequal division of the matrimonial property and a divorce. [ 9 ] Ms.

Fox filed a Statement of Defence and Counterclaim on January 9, 2020 seeking an unequal division of the matrimonial property, spousal support and a divorce. [ 10 ] The parties are the joint owners of two properties in Okotoks, including a property on Crystal Green Drive where Mr. MacLeod currently resides and a property on Ranchers Green where Ms. Fox resides. The parties have agreed that each party will retain the house where they reside. [ 11 ] During the marriage, Mr. MacLeod held several jobs.

His income since separation has been: 2016 - $442,029; 2017 - $167,659; 2018 - $263,275; and, 2019 - $301,017. [ 12 ] Since September 2020, Mr. MacLeod has been employed as the President of Sterling Crane Canada and earns a base salary of $280,000 per year. He received a signing bonus of $30,000 in 2020. He also participates in an annual bonus plan with a target of 45% of his base salary and receives grants under a Long Term Incentive Plan of 20% of his base salary. The grants vest in 2025. [ 13 ] Mr. MacLeod was paying spousal support to his first wife, but this support ceased in 2015.

He continues to pay child support in the amount of $1,991 per month. [ 14 ] Ms. Fox works for Gordon Food Service as the Human Resources Director. Since the parties’ separation, Ms. Fox earned the following: 2016 - $196,330; 2017 - $266,470; 2018 -$230,072; and, 2019 - $220,199. As of the date of trial, she was earning $217,613. [ 15 ] Mr. MacLeod was 52 and Ms. Fox was 51 at the date of trial. [ 16 ] This court heard evidence from Ms. Fox and Mr. MacLeod. Issues [ 17 ] The following issues must be determined: 1. What is the matrimonial property subject to division and how should it be divided? 2. Is Ms.

Fox entitled to spousal support? If so, in what amount and for how long? 1. What is the Matrimonial Property Subject to Division and How Should it be Divided? [ 18 ] The parties separated in 2016. The Matrimonial Property Act , RSA 2000, c M-8 (“ MPA ”) governs the distribution of matrimonial property: Family Property Act , RSA 2000, c F-4.7 , s 39(2). [ 19 ] Sections 7 and 8 of the MPA govern the distribution of property on the breakdown of marriage. [ 20 ] Specifically, a Court must determine the property that was owned at the date of trial and its value.

Next, a court examines what property is exempt from distribution or can be traced to exempt property. A determination is then made regarding what property is subject to distribution under section 7(3). This includes the increase in value of exempt property, which is to be divided in a manner that is just and equitable. The balance of property is divided equally, unless it would be unjust and inequitable to do so, considering the factors in

section 8 : Hodgson v Hodgson , 2005 ABCA 13 at paras 19-22 . [ 21 ] The parties agreed that the separation date will govern the valuation of matrimonial property, notwithstanding that the legislative requirement is to use the date of trial. Given the parties did not introduce sufficient evidence that would allow this Court to value the property as of the date of trial, the value of the property to be divided by this judgment will be based on its value on the date of separation. a.

Houses at Crystal Green Drive and Ranchers Green and the RBC Home Equity Line of Credit [ 22 ] The parties jointly own houses at Crystal Green Drive and Ranchers Green in Okotoks, Alberta. [ 23 ] Mr. MacLeod argued at trial that the houses should be valued based on appraisals he obtained from Wallace Appraisal Services. Ms. Fox disagreed and stated she did not agree to the appraisal being done by Wallace Appraisal Services. She claims the parties agreed to use the property assessment from the City of Okotoks to value the properties.

[24] Pursuant to the Litigation Plan Consent Order dated October 29, 2020 (“Consent Order”) granted by Justice Jones, the partiesagreed that the property assessments from the City of Okotoks would be used to value the two houses unless the parties otherwise agreedin writing.

Both parties confirmed there was no agreement in writing that provides otherwise. [25] The Consent Order further stipulated that the parties would engage Justin Havre and Associates to prepare an expert reportaddressing “the income the parties would have received had they rented out the Crystal Green Property and the Ranchers Greenproperty” and the expert would be “subject to cross examination by either party.” [26] The parties abandoned any argument relating to rental income and the report of Wallace Appraisal Services does not addressthe loss of rental income.

The appraiser was not made available for cross-examination. [27] Based on the terms of the Consent Order, I find that the parties agreed to use the property assessments from the City ofOkotoks to value the properties. [28] The 2016 property assessment for Crystal Green is $598,000 and for Ranchers Green is $831,000. [29] The mortgage balances as of the date of separation for Crystal Green was $350,317 and for Ranchers Green it was $841,908.There is no dispute that these mortgages are matrimonial liabilities. [30] The parties have a joint home equity line of credit at RBC, which is secured against Crystal Green.

It is undisputed that this isa matrimonial liability. [31] The balance as of the date of separation was $138,500. [32] Both Ms. Fox and Mr. MacLeod removed funds from the joint line of credit since separation. Ms. Fox took a total of $73,000but paid back $21,000. Mr. MacLeod took $10,000. Where they disagree is whether Ms. Fox’s payment of expenses for the housesshould be counted as part of what she has paid back.

Given that the parties agreed to and requested a division of matrimonial propertybased on the value of their assets at separation, the amounts taken from and repaid to the joint line of credit have not been included in thematrimonial property valuation. [33] The parties made a down payment of $171,582 on the Crystal Green residence. Mr. MacLeod claims an exemption of$85,791, which is 50% of the down payment. Ms. Fox disagrees with the exemption claim. [34] Mr. MacLeod testified that he received an equalization payment following the dissolution of his first marriage in the amountof $209,000.

He claims he deposited these funds into the joint account. He argues that these settlement funds were used for the downpayment. He points to the decision of MacLeod v MacLeod, 2011 ABQB 247 at para 175 to support the tracing. This is the decision ofJustice Hunt McDonald relating to the division of matrimonial property from Mr. MacLeod’s first marriage.

He claims an exemption forhalf the value in acknowledgement of the finding in Jackson v Jackson (1989), 68 Alta LR (2d) 118, 1989 ABCA 197 thatexempt funds placed into a joint account or used to fund joint property lose half their exemption. [35] A party claiming an exemption under section 7(2) of the MPA has the onus of demonstrating that the property is exempt:Stockall v Stockall, 2020 ABQB 229 at para 201. Even if the original asset no longer exists, the exemption can be established if theoriginal property is traceable to other property that exists at the date of trial.

The tracing can be inferred, implied or presumed: Harrowerv Harrower (1989), (AB CA), 68 Alta LR (2d) 97, 1989 CarswellAlta 105 (CA) at para 14. Although no evidence ofthe deposit from the equalization was before me, Mr. MacLeod argues the tracing can be inferred or implied. [36] Ms. Fox disagrees. She says Mr. MacLeod did not put $171,582 into their joint account. She asserts that Mr. MacLeod used atleast $50,000 of the funds from the equalization payment to pay legal fees from his last divorce. Mr. MacLeod disagrees.

No otherevidence was before me to support either party’s position. [37] I do not consider the decision of MacLeod to be determinative of this issue. The decision does not speak to what became of thefunds after the property distribution or what agreement existed between Ms. Fox and Mr. MacLeod, if any, regarding these funds. Thereis no evidence before me as to precisely how much, if any, of the funds from Mr. MacLeod’s equalization payment were deposited intothe parties’ joint account.

There is also no evidence of what funds were already in the account and the source of such funds. [38] The parties both testified that they each put money into the joint account during the entirety of their relationship. Ms. Fox usedfunds from her US account to open the joint account. All of her payroll went into the joint account. The parties also used the RBC line ofcredit to fund their lifestyle and then they each put large payments on the line of credit when they received bonuses from work. [39] The evidence supports the assertion that the down payment for the house came from the joint account.

The direction to payshowed that the down payment came from both of the parties. There is also a $40,000 cheque made payable to Remax First drawn on theparties’ joint account. A transfer was made from the parties’ RBC line of credit to their joint RBC account to fund the $40,000 payment.Ms. Fox denied in her cross examination that the funds from Mr. MacLeod exclusively were used for the down payment. She argues thatthere is no way to delineate which funds for the down payment came from her and which came from Mr.

MacLeod. [40] Both parties had been depositing and withdrawing money into the joint account since it was opened. There was no evidenceof any agreement as to which of the funds in the joint account were to be used for which purpose. The funds were comingled. It isimpossible to separate which funds were used to pay the down payment. Mr. MacLeod has therefore not established that the $85,791 isexempt. Although tracing can be inferred, implied or presumed, there “must be an evidentiary foundation to support the exemption”:MacFarlane v MacFarlane, 2016 ABCA 183 at para 12.

I do not find such an evidentiary foundation in this case. [41] Ms. Fox also claims an exemption of sorts. She testified that she deposited $70,000 into the parties’ joint account from herpersonal US account. Ms. Fox relies on the MacLeod decision at para 111 to establish the use of the funds. Acknowledging the fact thatshe made this deposit before the parties’ marriage, she frames her argument more in unjust enrichment than as an MPA exemption. She

also argues this deposit was a $70,000 gratuitous transfer to Mr. MacLeod, which was intended as a trust rather than a gift: Kerr v Baranow , 2011 SCC 10 at para 18 . Mr. MacLeod disagrees and says any funds deposited into their account were used for joint living expenses. [ 42 ] To establish unjust enrichment Ms. Fox must show that there was an unjust enrichment of Mr. MacLeod, a corresponding deprivation to Ms. Fox, with no juristic reason for the enrichment. The creation of a trust requires that the three certainties of intention, subject matter, and object are satisfied. Regardless of how Ms.

Fox has characterized her claim for preferential treatment in relation to the $70,000 deposit, I find that the evidence does not establish her claim. [ 43 ] As with the funds from Mr. MacLeod’s matrimonial property settlement, I find Ms. Fox’s funds were comingled in the joint account. Ms. Fox only provided generic details regarding when and how the funds were expended and for what purpose or what the intention was regarding the funds. In the result, she cannot claim an exemption, constructive trust, or other remedy. [ 44 ] Neither party may claim an exemption in relation to the Crystal Green property.

Its net value is $109,183. The net value of Ranchers Green is -$10,908. b. House in South Carolina [ 45 ] Ms. Fox purchased her grandmother’s house in South Carolina during the marriage. Ms. Fox used $49,692 from the parties’ joint RBC home equity line of credit towards the purchase of the home. Ms. Fox’s mother inherited 25% of the property from Ms. Fox’s grandmother and gifted Ms. Fox with her interest in the property. The remainder of the purchase funds came from a wrongful death settlement involving the death of Ms. Fox’s father. These settlement funds were kept in Ms.

Fox’s US account and were never comingled in any joint account. [ 46 ] The house is solely in Ms. Fox’s name. Although no appraisal was put into evidence, Ms. Fox testified that the house has a value of approximately $100,000 USD. Mr. MacLeod did not dispute the value. [ 47 ] The parties disagree as to whether the house is divisible property. Ms. Fox claims the South Carolina house is exempt property. She testified that she has been paying for all of the upkeep and expenses associated with the house with no contribution from Mr. MacLeod.

Her mother lives in the house. [ 48 ] I find that since a portion of the purchase price was funded from the joint home equity line of credit, the house is matrimonial property. [ 49 ] The evidence establishes that $49,692 of joint matrimonial property went into the purchase of the property, while the rest of the value is exempt property. Therefore, I find that the amount subject to division is $49,692. c. Canada Savings Bonds [ 50 ] Ms. Fox invested funds in a savings bond that was to be used by Mr. MacLeod’s child for travel during her gap year. Mr.

MacLeod acknowledges that he improperly cashed the cheque from the proceeds of the Canada Savings Bonds. As the funds were an intended gift for the child, the funds are neither a joint liability nor matrimonial property. Rather, they are funds belonging to the child. Since Mr. MacLeod has taken the funds, he is required to repay the sum of $6,459.27 to Ms. Fox, who will then be in a position to ensure the funds are available to the child for their intended purposes. d. Priddis Golf Membership [ 51 ] During the marriage, Mr. MacLeod acquired a membership at Priddis Green Golf and Country Club. Mr.

MacLeod used $25,500 from joint funds to acquire the membership. Mr. MacLeod argues that the membership should be valued at a reduced rate as memberships on Kijiji are selling for less. This evidence is problematic for several reasons. First, as Ms. Fox correctly argued, a Kijiji ad is hearsay. Second, there was no evidence regarding the transferability of memberships at Priddis, or what fees, if any, would need to be paid to complete a transfer. [ 52 ] I find the golf membership is divisible matrimonial property. I value the membership at $25,500 as this was the most reliable evidence of value before me and Mr.

MacLeod has not indicated he intends to sell the membership. e. Ms. Fox’s RBC Chequing Account [ 53 ] Ms. Fox had a balance of $23,096 in her chequing account on the date of separation. She subsequently transferred $20,000 to her RBC RSP account. Mr. MacLeod included both amounts in his calculations. In cross-examination he acknowledged that the RSP was funded from the $23,096 in Ms. Fox’s RBC chequing account. Given the funds had not been transferred into the RSP on the date of separation, they will be counted as a bank balance and not as an RSP asset in the matrimonial property division. f. Mr.

MacLeod’s CIBC Account [ 54 ] The CIBC chequing account in Mr. MacLeod’s name had a balance of $831.39 on the date of separation. It is undisputed that

this is matrimonial property. g. LTIs [ 55 ] Ms. Fox had $15,528 in LTIs from Gordon Foods. It is undisputed that this is matrimonial property. h. Registered Assets [ 56 ] The parties agreed that the following registered assets held by Mr. MacLeod as of the date of separation are matrimonial property : - RBC RSP - $21,500; and - Manulife RSP - $90,774. [ 57 ] Additionally, Mr. MacLeod has a Standard Life LIRA of $75,084 that was brought into the marriage.

The parties agree that the $5,000 increase in value of the Standard Life LIRA during their marriage is divisible matrimonial property under section 7(3) of the MPA . [ 58 ] The parties agree that the following registered assets held by Ms. Fox as of the date of separation are matrimonial property: - Manulife RSP - $45,768; and - Investors Group RSP - $78,831. [ 59 ] Ms. Fox has a Honeywell RPP that predates the marriage, but no evidence of its value was before me. The parties agree the Honeywell RPP increased in value by $2,000 during their marriage.

This amount is divisible under section 7(3) of the MPA . [ 60 ] The parties agree that the increase in value of the Standard Life LIRA and the Honeywell RPP should be shared and I see no basis to depart from an equal distribution of these assets. i. CIBC Line of Credit (CIBC LOC) [ 61 ] The CIBC LOC in Mr. MacLeod’s name had a balance owing of $32,853.04 on the date of separation. [ 62 ] Mr. MacLeod claims the CIBC LOC is a matrimonial debt. Ms. Fox disagrees. [ 63 ] Mr. MacLeod testified that the CIBC LOC has been in place since approximately 1997.

When the parties began cohabitation, the LOC had a balance of $9,016. Mr. MacLeod agrees that $9,016 should be attributed solely to him. [ 64 ] Ms. Fox argues that no amount from the CIBC LOC should be included as a matrimonial liability. Ms. Fox testified that she was never aware of the CIBC LOC. Mr. MacLeod testified that Ms. Fox ought to have been aware of the CIBC LOC, as he received mail from CIBC at their residence. However, in cross examination, he confirmed that Ms. Fox never opened his mail. [ 65 ] The evidence establishes that prior to purchasing the Ranchers Green home, Mr.

MacLeod prepared a detailed family budget outlining all of the parties’ monthly expenses. The detailed budget includes a breakdown of their payment obligations for everything ranging from payments on the RBC line of credit, to amounts for alcohol, gifts, toiletries and grooming. There is no mention of the CIBC LOC. [ 66 ] Based on the evidence before me, I find that Ms. Fox had no knowledge of the CIBC LOC. Given the CIBC LOC was in place prior to the parties’ period of cohabitation, Ms. Fox had no knowledge of the LOC and Mr.

MacLeod provided no details or accounting regarding how or when the amounts owing were incurred, I find this liability is the sole responsibility of Mr. MacLeod and not a matrimonial liability. j. CIBC Credit Card [ 67 ] Mr. MacLeod has a CIBC credit card in his name that he had prior to the date of cohabitation. The credit card had a balance of $20,749.55 as of the date of separation. [ 68 ] Mr. MacLeod claims that the debt is a matrimonial liability. Ms. Fox disagrees. [ 69 ] Mr.

MacLeod admitted some of the balance owing was attributable to amounts he spent on his new girlfriend prior to the parties’ separation. After his cross examination, Mr. MacLeod reduced the balance he claimed was joint debt to $18,092. However, he did not provide a breakdown of which expenses he deducted from the original balance. [ 70 ] Further, Mr. MacLeod acknowledged in his cross examination that the credit card was used for business purposes. He agreed that he did not always apply his expense reimbursements from work to the credit card balance.

He did not delineate between which amounts on the credit card were personal expenses and which were business expenses.

[ 71 ] Ms. Fox was able to demonstrate that although some amounts paid with the CIBC visa were for the benefit of the parties, including appliances and a trip to California, such amounts were reimbursed from the parties’ joint RBC account. [ 72 ] Given the above, I find that the balance owing on the CIBC credit card is not a matrimonial liability. k. US Tax Liability [ 73 ] Ms. Fox is a US citizen and is required to file taxes in both Canada and the US. The additional tax liability is a result of her relocation to Canada to live with Mr. MacLeod. [ 74 ] Ms.

Fox has filed a request for reconsideration that may decrease her liability, but she currently owes approximately $24,000 USD for the tax years from 2013 through 2016. [ 75 ] Mr. MacLeod does not dispute that the US tax liability is a matrimonial obligation, but he argues that because the date of separation was January 1, 2016, he should not be responsible for any US tax liability for that year. In Canada, a person’s marital status for tax purposes depends on their status on December 31 in any given year. Thus, for Canadian tax purposes, Ms. Fox and Mr.

MacLeod would report their status as separated for the 2016 tax year. [ 76 ] Although the rules for determining one’s marital status for tax purposes in the US may be different than in Canada, I was not presented with any evidence on this point. Based on the law in Canada and the parties’ January 1, 2016 separation, I find that the US taxes for the years 2013, 2014 and 2015 are a matrimonial liability. Once Ms. Fox has final numbers from her reconsideration request, Mr. MacLeod shall compensate her for half the total joint liability. l. Property Appraisal [ 77 ] Mr. MacLeod claims $1,050 for a property appraisal.

This amount was to be paid by Mr. MacLeod in the Consent Order but could be addressed as part of any costs decision. I am therefore not including it in the calculation dealing with the division of matrimonial property. If Mr. MacLeod wishes, he may address this in any costs submissions. m. Equal or Unequal Division of Matrimonial Property [ 78 ] The presumption of equal distribution for non-exempt property is the rule and unequal distribution the exception: Jensen v Jensen , 2009 ABCA 272 at para 20 . The matters to be taken into consideration in making a distribution under

section 7 are set out at

section 8 of the MPA . [ 79 ] In MAK v TJK , 2020 ABCA 196 at paras 42-43 , the Alberta Court of Appeal reiterated its statements in Jensen that the court must look at the relevant factors under

section 8 and then ask itself if it would be unjust or inequitable to divide the property equally. The appeal court cautioned that this conclusion should not be lightly reached: ...There must be some real imbalance in the contribution having regard to what was expected of each or attributable to the other factors in s. 8. ... ...The presumption should only be rebutted in the clearest of cases when, having regard to the s 8 factors, it would be unjust and inequitable to make an equal division. [ 80 ] Ms.

Fox argues that there should be an unequal division in her favour for a number of reasons. [ 81 ] First, she argues Mr. MacLeod dissipated funds. Specifically, he spent amounts during the marriage that were to be saved for the benefit of the parties. He used matrimonial funds for travel, gifts and living expenses for his new girlfriend during their marriage. [ 82 ] Second, Ms. Fox paid 50% of Mr. MacLeod’s spousal support and child support obligations to his first wife and child. She argues these obligations should not have been paid out of their joint account. [ 83 ] Third, Ms.

Fox was promised 50% of the LTI payout from Mr. MacLeod’s employer, but when he was terminated the LTIs were not paid out. [ 84 ] Fourth, Mr. MacLeod recently failed to sign the renewal on the mortgage on the Ranchers Green property, which has resulted in an increase of $1,000 per month to Ms. Fox’s mortgage payments. She also asserts that Mr. MacLeod failed to advise her of property damage at their residence prior to moving out of their house. This resulted in higher insurance premiums. She says Mr.

MacLeod has refused to pay his portion of the insurance deductible for the insurance claim. [ 85 ] Each of these arguments will be addressed below. [ 86 ] One of the matters to be considered in determining whether to stray from the presumptive equal distribution of non-exempt property is whether one spouse has dissipated property to the detriment of the other spouse: MPA ,

section 8 (l). [ 87 ] The party asserting there should be an unequal distribution must prove the dissipation. [ 88 ] Ms. Fox argues that Mr. MacLeod has dissipated assets. Specifically, during the marriage, Mr. MacLeod put 30% of his monthly income into his CIBC account. These deposits totalled $245,000 by the date of separation, yet the balance on this account at

separation was only $831. Ms. Fox argues this amounts to dissipation of funds. [ 89 ] Ms. Fox testified that there was an understanding that these funds were to be saved for their mutual benefit. Mr. MacLeod disagrees. [ 90 ] Ms. Fox also argues that Mr. MacLeod started a relationship with a third party during their marriage. He was paying rent for her and spending money on gifts, travel and accommodation for his new girlfriend. Mr.

MacLeod acknowledges spending money on the third party on his credit card. [ 91 ] Dissipation requires an intention to destroy or waste matrimonial property or to expend funds foolishly: O’Neil v Yaskowich , 2018 ABQB 599 at paras 50-53 . Merely disposing of property is not dissipation; it requires an element of bad faith. Dissipation often involves one party spending matrimonial assets to their own benefit to the exclusion of the other spouse.

Foolish economic decisions, reckless or spiteful spending, or squandering money on addictions are examples of dissipation from the case law. [ 92 ] Although the evidence has established that Mr. MacLeod expended funds on his girlfriend during the marriage, I have excluded Mr. MacLeod’s CIBC LOC and credit card debt from the division of matrimonial property, which accounted for much of these expended funds. Since I have made these debts Mr. MacLeod’s sole responsibility, it would be double counting to also include this spending as part of the dissipation analysis. [ 93 ] With respect to the CIBC account, Ms.

Fox was aware at all times that Mr. MacLeod was depositing 30% of his income into this separate account. In hindsight, Ms. Fox may have concerns about the fairness of this decision. However, I cannot conclude from the evidence that there was any agreement regarding how the funds would be utilized. I also have no evidence regarding how Mr. MacLeod disposed of these funds and whether such disposition had the requisite element of bad faith or intention to destroy or waste matrimonial property to find dissipation. Ms. Fox has the burden of proving that Mr.

MacLeod dissipated matrimonial property to rebut the presumption of equal division: Fleming v Fleming , 2016 ABCA 88 at para 30 . She has not met this burden. [ 94 ] Ms. Fox also argues that from October 2011 through December 2015, Mr. MacLeod's spousal and child support obligations to his first wife and child were paid out of their joint account. She argues these amounts should have been paid exclusively by Mr. MacLeod from his own bank account as this was not a matrimonial obligation. Approximately $143,760 was paid for spousal support and $173,728 in child support. Ms.

Fox argues that half this sum, in the amount of $158,744, represents her contribution to these payments from their joint account. [ 95 ] I find it is appropriate to consider the effect of these payments under

section 8 (

d) of the MPA , as well as the catch-all

section 8 (m).

Section 8 (

d) requires the court to consider the “income, earning capacity, liability, obligations, property and other financial resources (

i) that each spouse had at the time of marriage, and (ii) that each spouse has at the time of the trial.” It is clear that these monthly payments were Mr. MacLeod’s obligations throughout the marriage. The spousal support payments stopped sometime in 2015, while the child support payments are ongoing. [ 96 ] In essence, what Ms. Fox seems to be arguing is that the parties’ joint income and assets helped eliminate an obligation that belonged solely to Mr. MacLeod. Furthermore, these payments were made from a joint account into which Ms. Fox contributed her entire monthly income but to which Mr.

MacLeod contributed only 70% of his income. In essence, Ms. Fox argues that the ultimate responsibility for these spousal and child support obligations should lie more heavily on Mr. MacLeod than on herself, so as to justify an unequal distribution of matrimonial property. [ 97 ] I agree. Although Ms. Fox was aware that these amounts were being paid out of the parties’ joint bank account, I find it would be unjust and inequitable to divide the remaining matrimonial property equally in light of these payments and how they were made. This is particularly so since, as was discussed above, Mr.

MacLeod maintained a separate bank account from Ms. Fox throughout the marriage into which he deposited 30% of his income. I find that the obligations arising from his prior relationship, should have been paid out of his own funds, rather than from joint matrimonial income. [ 98 ] Ms. Fox also argues that Mr. MacLeod is enjoying the financial benefit of having his girlfriend live with him in the Crystal Green home and sharing her income, while also receiving rent for the home she owns.

She argues that she does not receive any share in the new girlfriend’s financial contributions to the home or a share of the rent she receives from her home, while she is living in Ms. Fox’s home . No details of any such benefit were before me. I therefore decline to take this into account under

section 8 of the MPA . [ 99 ] Mr. MacLeod was granted approximately $380,000 in long term incentives by his former employer Shawcor. When Mr. MacLeod was terminated by his employer, he lost the grants. Ms. Fox was to be paid 50% of the value of the LTIs on payout. Given this never materialized, Ms. Fox argues this should be considered as a basis under

section 8 of the MPA for an unequal distribution of property. I disagree. It was unfortunate that Mr. MacLeod lost his job, but both parties lost the value of the LTIs. It was not only Ms. Fox. [ 100 ] Mr. MacLeod acknowledged in cross examination that he purposely failed to agree to the mortgage renewal to put pressure on Ms. Fox to resolve their property division. The evidence indicates this refusal increased Ms. Fox’s mortgage payments by $1,000 per month. With respect to Ms.

Fox’s insurance-related arguments, other than a vague claim for amounts related to an insurance claim, no evidence was before me. [ 101 ] Since the parties have agreed to value property at the date of separation, rather than at the date of trial, I find it inappropriate to consider post-separation conduct for the purposes of the property division. I will address Mr. MacLeod’s actions in refusing to sign the mortgage renewal in my discussion of Ms. Fox’s entitlement to spousal support. [ 102 ] Although the evidence was insufficient to establish dissipation of the CIBC account funds, I find the fact that Ms.

Fox contributed to Mr. MacLeod’s child and spousal support obligations through her contributions to the joint account, while Mr. MacLeod retained 30% of his income for his sole use and benefit, make an equal distribution of matrimonial property unjust and inequitable. The parties’ total matrimonial property has been diminished through the joint payment of Mr. MacLeod’s child and spousal support

obligations, yet the funds that Mr. MacLeod set aside in his own CIBC account no longer exist and do not form part of the parties’matrimonial property. [103] I find that Ms. Fox should be compensated for her contribution to Mr. MacLeod’s child and spousal support obligations throughan unequal distribution of matrimonial property. However, I find it would be inappropriate to compensate Ms. Fox fully for hercontributions since she was aware of and acquiesced to this arrangement throughout the marriage.

Furthermore, despite the parties’ highincomes, they have not amassed significant sums of matrimonial property. [104] In balancing all of the above, I find that it is appropriate to distribute the total matrimonial property unequally by granting Ms.Fox $50,000 more than Mr. MacLeod. This sum represents approximately one third of her contributions towards the child and spousalsupport payments and results in Ms. Fox receiving approximately 55% of the total matrimonial property. n.

Conclusion Re: Matrimonial Property Distribution [105] In sum, the total value of non-registered assets to be divided between the parties is $212,922. Assuming each party retains thereal property in which they are living and the debts registered against those properties, Ms. Fox holds $77,408 of these assets (GordonFoods LTI $15,528; RBC Account $23,096; Ranchers Green -$10,908; South Carolina house $49,692). Mr. MacLeod holds a total of$135,514 (Crystal Green Drive $109,183; Priddis Golf Membership $25,500; CIBC Account $831). Mr. MacLeod shall pay Ms.

Fox theamount of $54,053 to effect the unequal distribution of matrimonial property. [106] The total value of registered assets to be divided between the parties is $243,873. At present, Ms. Fox holds $126,599 of theseassets (Manulife RSP $45,768; Investors Group RSP $78,831; Honeywell RPP $2,000 (representing the increase in value during themarriage)). Mr. MacLeod holds a total of $117,274 (Manulife RSP $21,500; Manulife RSP $90,774; Standard Life LIRA $5,000(representing the increase in value during the marriage)). Ms. Fox shall transfer to Mr.

MacLeod the amount of $4,662.50 to equalizethese assets through a spousal rollover. If the parties prefer, they may calculate the after-tax value of these funds using the 30% discountrate they relied on throughout their submissions. The parties may then set-off this amount owing from Ms. Fox to Mr. MacLeod againstthe funds owing by Mr. MacLeod to Ms. Fox. [107] The parties will share equally Ms. Fox’s US tax liability from 2013 through 2015. The exact figure for Ms. Fox’s tax liability isnot yet known, but Mr. MacLeod will owe Ms. Fox for half this amount, once it is known. 2. Is Ms.

Fox Entitled to Spousal Support? If so, in WhatAmount and For How Long? [108] Entitlement to spousal support is governed by

section 15.2 of the Divorce Act, RSC 1985, c 3 (2nd Supp). [109] In making a spousal support award, a court must consider the condition, means, needs, and other circumstances of each spouse.Specific factors include the length of cohabitation, functions performed during cohabitation, and any order or agreement relating tospousal support: Divorce Act, s 15.2(4). [110] The three grounds for entitlement to spousal support include compensatory, contractual and non-compensatory: Moge v Moge, (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. [111] The parties cohabited for over 8 years. During the marriage, they enjoyed a high standard of living. [112] Ms. Fox continued to work full-time during the marriage. She has enjoyed a significant income. Notwithstanding she relocatedfrom Arizona to Okotoks to be with Mr. MacLeod, there has been no interruption in her employment. She has not demonstrated that therehas been an economic loss to her flowing from her role in the marriage. Although there are no children of the marriage, I do note that Ms.Fox co-parented Mr. MacLeod’s daughter during his parenting time.

She continues to have a close relationship with the daughter and shefinancially contributes to her care, notwithstanding she has no legal obligation to do so. This, however, is not enough to justify an awardof compensatory support. I find that Ms. Fox is not entitled to compensatory support. [113] I do find, however, that Ms. Fox is entitled to non-compensatory spousal support. [114] Non-compensatory support is intended to alleviate economic hardship arising from the breakdown of the marriage. The focus ison post-marital need: Moge at 878.

Even if a spouse has not forgone career opportunities, or has not otherwise been handicapped by themarriage, the Court is still required to consider that spouse’s actual ability to fend for themselves and the effort that has been made to doso, including efforts after the marriage breakdown: Bracklow v Bracklow, (SCC), [1999] 1 SCR 420 at para 40. [115] I find that Ms. Fox has suffered an adverse economic impact from the separation. Ms. Fox and Mr. MacLeod had a relationshipof economic interdependency. Since the separation, Ms. Fox has lost the benefit of Mr. MacLeod’s high income.

The parties are bothhigh income earners but the evidence is that Ms. Fox has suffered an adverse impact to her standard of living. Although she did notprovide a budget, she testified that she has high debt and has had difficulty paying her expenses. She had to take steps to reduce herstandard of living. Although there is no evidence that Ms. Fox is unable to meet her basic needs, I find she suffered a decline in herstandard of living from the marital standard. [116] Although Ms.

Fox chose to live in the more expensive of the parties’ two houses, I find that it was reasonable for her to staythere for a period of time after separation. The parties had recently purchased the house and a reasonable amount of time would berequired to make major decisions around where to live. Ms. Fox has chosen to remain in the property. It may be that she will not be in a

financial position to do so, but she will be able to make this determination now that the property division is complete. [ 117 ] In this case, Ms.

Fox seeks retroactive spousal support from 2016 to 2019. [ 118 ] A party’s entitlement to retroactive spousal support is not automatic. [ 119 ] The principles governing entitlement to retroactive spousal support are similar to those established in DBS v SRG , 2006 SCC 37 for child support: Kerr at para 207 . [ 120 ] Factors to be considered include the needs of the recipient, the conduct of the payor, the reason for delay in seeking or applying to vary support and any hardship the retroactive award may cause the payor or recipient: Kerr at para 207 . [ 121 ] I find that Ms.

Fox had need of spousal support arising from the breakdown of the marriage. Furthermore, Mr. MacLeod’s recent conduct in refusing to sign the mortgage renewal increased Ms. Fox’s need, by increasing her mortgage payments. Based on Mr. MacLeod’s income, a retroactive award will not cause him hardship. [ 122 ] The commencement date for retroactive spousal support should generally not be earlier than the date the moving party put the non-moving party on effective notice: Fraser-Tabak v Tabak , 2016 ABCA 79 at para 90 . [ 123 ] Mr.

MacLeod argues that if spousal support is awarded, the effective date of notice is the filing of Ms. Fox’s Statement of Defence. I disagree. Ms. Fox originally thought she would receive half of the approximately $380,000 value of the LTI payout from Mr. MacLeod’s employer. When Mr. MacLeod was terminated and became aware he would not receive the LTI payments, Ms. Fox communicated her need for financial support. Ms. Fox raised the issue of support as early as April 2016 in email communication between the parties. I therefore find the effective date of notice was April 2016.

In all the circumstances, I find that Ms. Fox has established an entitlement to retroactive spousal support. [ 124 ] The Spousal Support Advisory Guidelines (the “ Spousal Guidelines ”) are a useful starting point in deciding on the amount of support: Wild v Wild , 2019 ABCA 159 at paras 6-12 . Historically, Mr. MacLeod earned a considerably higher income than Ms. Fox and he has once again found himself in this position since 2020. But in 2017, due to the loss of his employment, he earned less than Ms. Fox. Furthermore, the inclusion of Mr.

MacLeod’s child support obligations for the child of his first marriage in the calculations, as required by

section 12.3.1 of the Spousal Guidelines , significantly reduced Mr. MacLeod’s gross income. [ 125 ] The calculations include the following amounts paid by Mr. MacLeod in child support for his child from his first marriage: 2016 - $33,570; 2017 - $14,853; 2018 - $30,247; and 2019 - $21,264. The Spousal Guidelines formula results in the following ranges for monthly spousal support: 2016 - $1,811 (low), $2,113 (mid), and $2,415 (high) 2017 - $0 because Ms. Fox’s income was higher than Mr. MacLeod’s this year 2018 - $0 because Mr. MacLeod’s child support obligations brought his gross income lower than Ms.

Fox’s gross income 2019 - $407 (low), $475 (mid), and $542 (high) [ 126 ] The Divorce Act requires me to consider each party’s condition, means, needs and other circumstances. Ms. Fox spent a large amount of her savings and income during the marriage to support the parties and to help Mr. MacLeod with his child and spousal support obligations. Upon separation, she maintained the parties’ more expensive property, the cost of which recently increased due to Mr. MacLeod’s actions in refusing to sign the mortgage renewal documents. While Ms. Fox has a high income, historically Mr.

MacLeod’s income has been much higher, sometimes double that of Ms. Fox’s. In sum, I find that Ms. Fox had compelling financial circumstances in the interim period. [ 127 ] Although Mr. MacLeod lost his job for a short period of time following the parties’ separation, he has again obtained an executive level position with a high level of compensation. I find that Mr. MacLeod, despite the short period of reduced earnings, has the current ability to pay spousal support. [ 128 ] Although normally, based on the extent of her entitlement, I would not have awarded Ms.

Fox the highest recommended range of spousal support, I find that it is appropriate in this case to award the highest amount of retroactive spousal support in the years in which Mr. MacLeod had the ability to pay. If the parties had remained together, Ms. Fox would have benefitted from Mr. MacLeod’s higher income in the good years and shared the consequences of the reduced income in the lean years. I find it is appropriate in this case for the spousal support award to follow this pattern. [ 129 ] Based on the length of their marriage, Mr.

MacLeod is directed to pay spousal support for a period of four years following their separation. This results in a payment of $2,415 per month for 2016 and a payment of $542 per month in 2019. The total gross amount owing equals $35,484. I accept the 30% discount rate relied on by the parties in their calculations for the tax consequences that would have accrued to periodic spousal support payments. Therefore, the tax-adjusted amount owing is $24,839. This is to be paid as a lump sum. Divorce [ 130 ] Both parties have requested that I grant a divorce judgment and it is granted. Conclusion

[ 131 ] The net matrimonial property will be distributed unequally, $50,000 in favour of Ms. Fox. To effect this distribution, Mr. MacLeod will pay to Ms. Fox the sum of $54,053 from his non-registered assets; Ms. Fox will transfer to Mr. MacLeod $4,662.50 from her registered assets; and Mr. MacLeod will pay 50% of Ms. Fox’s US tax liability from 2013 through 2015 once the final figure is known. [ 132 ] Each party shall sign the documents necessary to transfer ownership of the jointly held properties into the sole name of the party keeping that property.

Each party shall be solely responsible for the mortgage and line of credit registered against the property for which they remain owner. [ 133 ] Mr. MacLeod will pay Ms. Fox a tax-adjusted lump sum retroactive spousal support in the amount of $24,839. [ 134 ] Mr. MacLeod will repay the sum of $6,459.27 to Ms. Fox as reimbursement for the Canada Savings Bond he wrongfully cashed that was intended for his daughter. Heard on the 2 nd & 3 rd day of February, 2021 and the 8 th day of April, 2021 with written submissions on the 13 th and 19 th of April, 2021.

Dated at the City of Calgary, Alberta this 29 th day of June, 2021. B.B. Johnston J.C.Q.B.A. Appearances: Thomas MacLeod Self-Represented Litigant Dorn Fox Self-Represented Litigant

Schedule “A” Tom Dorn Non-Registered Assets & Liabilities Residential Properties Crystal Green Drive $598,000 $831,000 Mortgages ($350,317) ($841,908) RBC Home Equity Line of Credit ($138,500) Gordon Foods LTIs $15,528 Priddis Golf Membership $25,500 RBC Account $23,096 CIBC Account $831 South Carolina House (shareable value) $49,692 Total Non-Registered Assets (net value) $135,514 $77,408 Equalization payment to result in unequal distribution of matrimonial property $50,000 in Ms. Fox’s favour ($54,053) $54,053

Final Distribution of Non-Registered Assets $81,461 $131,461 Registered Assets RBC RSP $21,500 Manulife RSP $45,768 Manulife RSP (Shaw Cor) $90,774 Investors Group RSP $78,831 Increase in Standard Life LIRA $5,000 Increase in Honeywell RPP $2,000 Total Registered Assets (pre-tax value) $117,274 $126,599 Equalization payment required to result in equal distribution of registered assets $4,662.50 ($4,662.50) Final Distribution of Registered Assets $121,936.50 $121,936.50 USD Liabilities US Tax Liability 2013-2015 (estimated) (USD $20,000/2 representing half of US tax liability) Equalization payment to result in equal sharing of US tax liability (estimated) (USD $20,000/2, representing half of US tax liability)