Fremstad v Anderson, 2021 ABQB 553

Court of Queen’s Bench of Alberta Citation: Fremstad v Anderson, 2021 ABQB 553 Date: 20210720 Docket: FL01 29729 Registry: Calgary Between: Nicole Fremstad Applicant/Plaintiff - and - Derek Anderson Respondent/Defendant _______________________________________________________ Endorsement of the Honourable Mr. Justice W.P.

Sullivan _______________________________________________________ Introduction [ 1 ] The parties lived in a relationship for approximately 10 years from January, 2007 to February 4, 2017. [ 2 ] The Applicant seeks remedies under the Family Law Act including; a determination that she was in an adult interdependent partner relationship, that relationship has terminated and she requests a declaration of irreconcilability. She also requests that she be entitled to partner support and share in the distribution of the joint assets.

Procedural History [ 3 ] The Originating Application in this matter was filed on August 14, 2018. In that Originating Application Ms. Fremstad

requested that the parties residential home be sold. In support of her application she stated that during the period of cohabitation theApplicant, Ms. Fremstad made significant financial and non-financial contributions to the joint property. She also stated that since theparties separated the Respondent has had exclusive use and occupation of the joint property and the Applicant has found alternateaccommodation. She also stated, accurately, that the Respondent has to the best of the Applicant’s knowledge paid for all the costsassociated with the joint property.

Notwithstanding giving the Respondent opportunity to purchase her share in the joint property, he hasfailed to do so. [4] In paragraph 7 of her basis for the claim, she states: “the Applicant wishes to move forward in her financial life, she isunable to do so while she is jointly responsible for the mortgage of the joint property and is unable to access her equity in the jointproperty.” She requested then an order that the property be sold and in paragraph 8 (

f) made the following request requiring that the netproceeds of the sale of the joint property be divided equally between the Applicant and the Respondent...or alternatively directing thedistribution of the proceeds of the sale of the joint property occur after an accounting of the parties contributions to the joint property.... [5] On January 16, 2019, an Amended Originating Application was filed with the court for an order pursuant to

section 83 of theFamily Law Act for an order of declaration of irreconcilability between the Applicant and Respondent. She also requested an ordercompelling and directing the Respondent to provide the Applicant with an adult independent partner support. This Application was basedon the fact that the parties cohabited in a common law relationship from January, 2007 to February 4, 2017.

It is alleged during theparties adult interdependent relationship that the Applicant and the Respondent shared in each others life and the parties were alsoemotionally, physically, economically, financially and socially committed to each other.

She stated in paragraph 7 of her AmendedApplication “furthermore during the parties adult interdependent relationship the parties both arranged and equally shared household andliving arrangements including making and mutually agreeing to what both parties should financially and monetarily contribute to runningand managing the household expenses and related matters.” She renewed her claim that the purchase of the subject real estate ofNovember 21, 2008 was further evidence of their economic unit.

And she goes on in her claim to say that since separation theRespondent has neither financially or materially supported the Applicant and that he is able to do so. [6] On August 6, 2019 Mr. Justice P.R. Jeffrey of this court granted an Order directing that the property be sold. It was. The netproceeds have been paid into court. [7] The matter has come to me by way of a Domestic Special which was heard on July 7, 2021.

Facts and Discussion [8] During the hearing on July 7, 2021 the Applicant asked for a declaration of irreconcilability, I granted that declaration afterfinding that the parties had lived as interdependent adult partners from January, 2007 to February, 2017 the date of termination of theinterdependent partner relationship. Ms. Fremstad also requested that she be paid 100% of the funds held in court pursuant to the orderof Mr.

Justice Jeffrey and being the net proceeds of the sale of the parties residence. [9] She also seeks $51,999.84 as retroactive adult interdependent partner support dating from February 4, 2017 plus on-goingadult interdependent partner support. [10] At the hearing I directed that the funds held in court by the clerk be distributed to the parties equally. That leaves one majoroutstanding issue and that is the question of adult interdependent partner support. [11] The parties have been separated for nearly 4.5 years. Mr. Anderson is in another relationship and that relationship has resultedin Mr.

Anderson now being a father. [12] In her materials, the Applicant alleges and citing Bracklow v Bracklow, (SCC), there was a union betweenthe parties that created an interdependency, “that cannot be easily unraveled. These interdependencies in turn create expectations andobligations that the law recognizes and enforces...when this happens, it is not unfair to ask the partners to continue to support eachother...the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to therelationship, rather than on the state.” She also quotes

section 60 of the Family Law Act which directs that “adult interdependent partnersupport order should recognize any economic advantages to the ...adult interdependent partners arising from the relationship or itsbreakdown; and relieve any economic hardship of the ...adult interdependent partners arising from the relationship breakdown”. [13] On the evidence tendered and on written and oral submissions of counsel, I am satisfied that if any economic responsibilityfell to Mr.

Anderson that the term of support that would be required pursuant to a 10 year relationship of this nature, with no children,would be, and keeping in mind the age of the parties, a maximum of three years. Therefore there would be no on-going support and theonly matter for me to consider is retroactive spousal support. [14] When the parties separated their respective line 150 incomes were and in the years following: Year Ms. Fremstad (Currently 33 years old) Mr. Anderson (Currently 32 years old) 2016 $40,233.00 $45,067.002017 $35,941.00 $68,418.00 2018 $42,919.50 $73,661.00

2019 $35,169.39 $79,415.00 2020 $11,948.56 + $2000/month for CERB and now EI $93,100.00 [ 15 ] It is important to note that in 2020 Ms. Fremstad’s income was radically reduced because of being laid off as a result of the Covid 19 pandemic. This was not a hardship or event caused by the breakup of the relationship or because of her contribution to the relationship. [ 16 ] Additional facts and issues raised by Mr. Anderson in his brief include the following:

a) He paid off Ms. Fremstad’s pre-relationship debt of $2500 when they purchased the family home.

b) He also re-paid his mother $5,000.00 for a school loan that Mr. Anderson’s mother made to Ms. Fremstad during the parties relationship. This loan to attend school resulted in the Applicant learning her trade or profession.

c) Ms. Fremstad made no financial contribution to the purchase of the matrimonial home.

d) During the relationship, Mr. Anderson paid $2,100.00 per month toward the mortgage and household expenses. Approximately 78% of the parties expenses.

e) Ms. Fremstad contributed $600 per month or 22% to household expenses, utilities and grocery.

f) Mr. Anderson alleged that he contributed $20,359 towards improvements in the matrimonial home as well during the 10 years that they were together and that she will share nearly $23,000 from the net proceeds of the division of the funds held by the court if divided equally. [ 17 ] In balancing occupational rent against expenses I looked at the payment of the mortgage, residential taxes in the amount of $2,100.00/year, insurance on the home of $204/month, the cost of a Real Property Report totalling $829 on the sale of the home and payment of a penalty on the existing mortgage at the time of sale of the home.

Additionally Mr. Anderson paid down principal on the mortgage in the amount of $35,871.33. [ 18 ] I also note as highlighted in the brief of Mr. Anderson, the case of Kontogiannis v Langridge , 2009 BCSC 1545 . [ 19 ] Kontogiannis was an initial application in which the wife's claims for compensatory and contractual support were dismissed (para 24). The wife had failed to become self sufficient notwithstanding her ability to do so but was awarded limited non-compensatory support due to a medical issue.

Significantly, in determining the quantum of the limited term support, the court notes (para 38) that: T he present case is one where the Guideline amounts would be inappropriate. The defendant as the payor has now entered into a new relationship with new financial obligations and has had a child in that relationship. An obligation to a subsequent child is a consideration in varying a spousal support order and therefore it should also be a consideration on an initial application. Furthermore, the defendant has had increased financial expenditures in the interim, which is a noted exception under

Chapter 12 of the Guidelines...A support order as high as mandated by the Guidelines would be inappropriate, in light of his increased financial obligations and thus decreased means and in light of this Court's findings that the plaintiff is capable of satisfying her needs on her own. [ 20 ] The court in Kontogiannis also found that the wife had no contractual or compensatory entitlement to support.

Madam Justice Tucker states at para 24: The plaintiff’s claim f or support under the compensatory model must also fail as the plaintiff did not suffer any economic disadvantages a result of the relationship, such as foregoing employment opportunities. The evidence demonstrates that both parties pursued their own professional interests during the relationship.

Throughout the relationship, the plaintiff worked in her field of expertise in which she developed qualifications...She made no sacrifices that benefitted the defendant's economic situation and therefore this is not a case for compensatory support. [ 21 ] In Kohan v. Kohan , 2016 ABCA 125 , the Court quoted at length from Thomson v.

Thomson , 2013 ONSC 5500 at paragraph 103 : The authors of the SSAG and the cases decided since the guidelines were introduced have established that the treatment of post- separation increases in a payor’s earnings in spousal support cases is ultimately a matter of discretion for the court, to be undertaken having regard for the unique circumstances of each case and the general factors and objectives underlying spousal support.

Upon considering these factors and objectives and the relevant case-law, I conclude that the following general principles should guide and inform the court’s exercise of discretion on this issue:

a) A spouse is not automatically entitled to increased spousal support when a spouse’s post–separation income increases. [106]

b) The right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims, since the primary focus of such claims is the standard of living enjoyed during the relationship. [107]

c) Compensatory support claims may provide a foundation for entitlement to share in post-separation income increases in certain circumstances. The strength of the compensatory claim and the nature of the recipient’s contributions appear to be the major factors which may tip the balance either for or against an entitlement to share in the increased income. [108]

d) The recipient spouse may be permitted to share in post-separation increases in earnings if they can demonstrate that they made contributions that can be directly linked to the payor’s post-separation success. The nature of the contributions does not have to be explicit, such as contribution to the payor’s education or training. The question of whether the contributions made by the recipient

specifically influenced the payor’s post-separation success will depend on the unique facts of every case. [109]

e) A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, the parties’ personal and financial affairs became completely integrated during the course of the marriage and the recipient’s sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant. [110] When this type of long history of contribution and sacrifice by a recipient spouse exists, the court will be more likely to find a connection between the recipient spouse’s role in the relationship and the payor’s ability to achieve higher earnings following the separation.

f) In determining whether the contributions of the recipient were sufficient, the court should consider such factors as whether the parties divided their family responsibilities in a manner that indicated they were making a joint investment in one career, and whether there was a temporal link between the marriage and the income increase with no intervening change in the payor’s career. [111]

g) If the skills and credentials that led to the post-separation income increase were obtained and developed during the relationship while the recipient spouse was subordinating their career for the sake of the family, there is a greater likelihood of the recipient deriving the benefit of post-separation income increases. [112]

h) By contrast, the likelihood of sharing in such increases lessens if the evidence indicates that the payor spouse acquired and developed the skills and credentials that led to the increase in income during the post-separation period, or if the income increase is related to an event that occurred during the post separation period. [113]

i) Assuming primary responsibility for child care and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be sufficient to ground an entitlement to benefit from post-separation income increases. [114]

j) Evidence that the post-separation income increase has evolved as a result of a different type of job acquired post-separation, a reorganization of the payor’s employment arrangement with new responsibilities, or that the increase is a result of significant lifestyle changes which the payor has made since the separation may militate against a finding that the recipient should share in the increase. [115]

k) Where the payor’s post-separation advancement is related primarily to luck or connections which they made on his own, rather than on contributions from the recipient, the claim for a share in post-separation income increases will be more difficult. [116]

l) The court may also consider the amount of time that has elapsed since separation as an indicator of whether the recipient’s contributions during the marriage are causally related to the post–separation income increases. [117]

m) Evidence that the payor also made contributions to the recipient’s career advancement, or that the recipient has not made reasonable steps towards achieving self-sufficiency are also factors that may preclude an award that takes into account post separation income increases. [118] [ 22 ] Noting the above I am particularly aware that notwithstanding the increased earning of the Respondent they are not demonstrable or dramatically greater than Ms. Fremstad’s earning capacity and the evidence discloses that Mr.

Anderson, the Respondent’s earnings have increased because of significant and large amounts of overtime. I also note that the Applicant’s spouse is not automatically entitled to increased spousal support and may only be permitted to share in post separation increased in earning if they can demonstrate that they made contributions that can be directly linked to the payor’s post separation success. Conclusion [ 23 ] Therefore on consideration of all the factors pointed out and argued in this case by the respective parties, I am not satisfied that adult interdependent partner support is payable by Mr.

Anderson to Ms. Fremstad. [ 24 ] I am grateful for the fulsome presentation of both counsel. [ 25 ] If the parties are unable to agree on costs, submissions on costs may be made within 30 days, in writing, such submission not to exceed 5 pages in length. Heard on the 7 th day of July, 2021. Dated at the City of Calgary, Alberta this 20 th day of July, 2021. W.P. Sullivan J.C.Q.B.A. Appearances:

Ayodeji Otiti for the Applicant/Plaintiff Elise J. Lavigne for the Respondent/Defendant