Steven Van Berkel Applicant - v. -, 2021 ABQB 57

Court of Queen’s Bench of Alberta Citation: Van Berkel v Van Berkel, 202 1 ABQB 57 Date: 20210122 Docket: 4803 182391 Registry: Edmonton Between: Steven Van Berkel Applicant - and - Leizel Silao Van Berkel Respondent Corrected judgment: A corrigendum was issued on January 28, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice G.R.

Fraser ________________________________________________________ [ 1 ] The parties in this matter appeared before the Court by way of a Special Chambers application. The issues raised concerned parenting, determination of the parties’ income, child and spousal support. [ 2 ] The parties were married in December 2007. They separated after nine years in January 2017. At the time of separation, Ms. Van Berkel was 38 years old; Mr. Van Berkel almost 40. The divorce judgment was issued in June 2018. They had two children together, a daughter born in January 2009 and a second daughter born in April 2012.

The father entered the marriage with two sons, the first born in July 2000; the second in December 2001. Both sons were adopted by Ms. Van Berkel. The parties agreed that the sons stopped being children of the marriage when they turned 18. [ 3 ] The parties entered into a settlement agreement on November 8, 2017. It was followed by a divorce judgment on June 21,

2018. Both the settlement agreement and the divorce judgment addressed all of the issues being raised in this application. However, as is often the case, neither party is now happy with the agreed-upon terms. Each wants various changes made to the existing order. A psychologist, Mr. Bateman, completed a Practice Note 7 Voice of the Child Report to try and assist the parties resolve their parenting issues. [ 4 ] Due to the compressed timeline regarding this application, the Practice Note 7 Report was not available until the day before the hearing.

Consequently, the parties had little time to review the report and its recommendations. I provided the parties with some time to examine the report more deeply. My hope was that they would realize the effect their conflict is having on the children and be able to come to a mutual agreement regarding parenting. Although they were able to agree on some issues, they were not able to come to a consensus regarding parenting. [ 5 ] The current parenting regime has the daughters with their father from 6 P.M. Thursday to 6 P.M. Sunday one week, and then from 6 P.M.

Tuesday until Friday morning when they are dropped off at school. This results in a 60/40 split between the parents, and was agreed-upon in their settlement agreement. The terms of the settlement agreement require an increase in parenting time to a 50/50 split no later than April 2021. [ 6 ] Mr. Van Berkel now seeks to have that transition take place in January 2021. He proposes a 2/2/5 schedule. Ms. Van Berkel is opposed to the increased parenting time, and instead she seeks to have primary residential care of the children. She proposes that Mr. Van Berkel’s parenting time be reduced.

Her proposal would have the children with their father from 6 P.M. Friday until 6 P.M. Sunday on alternate weekends. He would also have them from 6 P.M. Wednesday until Friday school drop-off with the daughters on alternate weeks. [ 7 ] The Practice Note 7 Report reveals that both children are generally happy with each parent. They have some concerns about their time with their father, mostly concerning interactions with their stepbrothers and their father’s new partner. I do not find any of these concerns to be troubling.

What is most notable about the report is that both children are very aware of the conflict between the parents. They both wish their parents would get along. [ 8 ] The report does raise some issues which I find to be concerning. The children seem to have too much knowledge of the court process and their involvement in it. They were specifically able to cite the ratio of time spent with each parent, and the ratio they might like. It seemed that they were canvassed about where they wanted to reside and what amount of time they like to have with each parent.

It seemed that the parents were discussing adult matters with the children. [ 9 ] In her materials, Ms. Van Berkel states her belief that she is the de facto primary parent. It does seem that she takes a more active role in organizing the children’s lives. I do not find this to be an abdication of parental responsibilities by Mr. Van Berkel, instead it seems to be an acquiescence on his part. In the past, the mother organized those things, and he has continued to let her do so. [ 10 ] I also note that Ms. Van Berkel has a more flexible work

schedule than Mr. Van Berkel. She is self-employed through World Financial Group. She is often able to work from home. Mr. Van Berkel is a director of operations with Valard Construction. He works outside of the home. His

schedule does not permit him to pick up the children after school. He has offered to arrange childcare, but the parties agreed that instead the children would go to their mother’s house and their father would pick them up from there. It is generally preferable that children are with a family member rather than a third-party care provider. I do not find this arrangement to reflect negatively on Mr. Van Berkel’s parenting. [ 11 ] Not surprisingly, the parenting

schedule was thrown into disarray in March 2020. Covid struck and the schools were closed. Mr. Van Berkel worked from home for about four weeks before returning back to the office. While he was home, he assisted the children with their schooling. When he returned to the office, he offered to make arrangements for the children during his parenting time. Instead, the parties agreed that the children would stay with their mother during that time.

She was able to continue to work from home and assist the children with their schooling at the same time. [ 12 ] Covid has created many problems for many people in many organizations, the courts included. The virus essentially created a new reality that no one foresaw. People and organizations scrambled to try and do what was best for everyone involved. This is what Mr. Van Berkel and Ms. Van Berkel did. They found an agreeable solution that was in the best interests of their daughters. Neither party cannot be faulted for these actions. [ 13 ] Mr.

Van Berkel deposed that when school resumed in September, the parties returned to the regular parenting schedule. I note that both children are still in elementary school, so they should be actually attending school in accordance with the regular school schedule. I am hopeful that once the current shutdown ends, and the vaccine rollout begins, life for everyone in the province will return to its normal pattern. [ 14 ] I find that there is no reason to vary the parenting

schedule the parties agreed upon in November 2017. The

schedule was prepared in consultation with a parenting expert, and took into consideration the needs of the children following the breakup of their parents’ relationship. It provided for a gradual increase in Mr. Van Berkel’s parenting time. Although the parties have not strictly adhered to the dates set out in the schedule, it has generally been followed. The next step in the

schedule is an increase to equal parenting time. Consequently, I order that the parties will transition to a 5/2/2/5

schedule no later than February 15, 2021. [ 15 ] As stated earlier, after reviewing the Practice Note 7, the parties were able to come to some consensus regarding parenting They have agreed that they will attend post-divorce counselling to try and improve their communication. They will jointly choose the counsellor and attend a maximum of 10 sessions.

The cost will be shared equally by the parties. [ 16 ] They have also agreed that the new Order, in addition to containing all of the previous clauses regarding parenting from the prior Consent Order, should also contain clauses regarding what is said around the children and also a clause ensuring that the children have privacy when talking to the other parent. These clauses will apply to all adults in the house. [ 17 ] As I stated earlier, it is sad that these clauses need to be included in a Court Order. Loving, responsible parents should realize

that it is not in the best interests of the children to have them hear anything negative about the other parent. It is also not in their best interests to be involved in the legal process. The children have been through a major upheaval in their lives. They would like things to return back to the time when everybody lived in the same house as a happy family. This is evidenced by their statements to the psychologist in the Practice Note 7 Report. However, the former status quo is now gone. Both parents need to do everything possible to help them adapt to this new situation that they did not want or create.

Support [ 18 ] I have found that the parties have been in a shared parenting regime since January 2020. I have now increased the shared parenting time from a 60/40 split to a 50/50 regime. This means that support exchanged by the parties should have been determined under s. 9 of the Child Support Guidelines since the start of 2020. [ 19 ] At the time of the divorce judgment in 2018, support was determined by s. 3 of the guidelines. At that time Mr. Van Berkel’s income was approximately $195,000 per year and Ms. Van Berkel’s income was set at $25,000 per year.

His income was essentially the same as his line 150 tax return income from 2017, while hers was imputed. [ 20 ] As stated earlier, Mr. Van Berkel works in the construction industry and receives a standard T4 income. As a result, his line 150 income provides an accurate representation of his actual income. In 2018 his income was approximately $230,000. In 2019 it dropped to approximately $219,000. His 2020 income will likely be less than that, approximately $195,000. [ 21 ] In contrast, Ms. Van Berkel operates her own business as a financial advisor.

It is unclear from her evidence exactly how the business operates. Her affidavit indicates that she started with World Financial Group in 2015. She then states that she moved to Solomon Financial under HUB Financial in 2017 and that as of October 2020 she was working with PPI as a Managing General Agent. However, her affidavit and her concise letter seem to indicate that she is still working with World Financial Group. It is clear that Ms. Van Berkel operates her business as a sole proprietorship. Consequently, she is able to reduce her line 150 income through legitimate tax deductions.

However, some of the deductions have a personal benefit to them, and some or all of the deductions should be added when determining her income for the purposes of calculating support. [ 22 ] Ms. Van Berkel has provided her tax returns for 2017, 2018, and 2019. Those returns show growth in her gross business income. In 2017, it was approximately $66,000; $51,000 in 2018; and $111,000 in 2019. Business deductions reduced her income in each of those three years.

In 2017, her net income was $15,470; in 2018, $25,347; in 2019, $95,243. [ 23 ] Each of those years, she was able to make legitimate business deductions for expenses related to her vehicle, cell phone, home office, travel and entertainment. However, each of these deductions has some aspect of personal benefit to it, and as a result a portion of the deduction should be added back to Ms. Van Berkel’s income. [ 24 ] For the tax years 2017, 2018, and 2019, Ms. Van Berkel claimed vehicle deduction of approximately $8,700, $8,800, and $7,100 respectively.

Interestingly, the number of kilometres driven for business purposes decreased in 2019, yet her income increased. In 2019, she also started a new lease, upgrading from a 2017 Lexus to a 2019 of the same model. The new vehicle may help her business by projecting a positive, successful image, but it might not be the most financially prudent course of action. [ 25 ] In her October 2, 2020 affidavit, Ms. Van Berkel states that she could have acquired a less expensive vehicle with a lower payment, but kept the Lexus in order to avoid penalties.

However, her 2018 tax return indicates that the lease expires in July 2020. Yet she upgraded from a 2017 to a 2019 Lexus in 2019. The payments appear to have increased from $748 per month to $857 per month. There is no explanation as to why she needed to again lease a Lexus instead of opting for a lower cost vehicle. It is entirely her choice regarding what vehicle she chooses to drive. However, choosing to operate a newer vehicle at a greater cost indicates that cost was less of a consideration. [ 26 ] In 2019, Ms. Van Berkel claimed that 55% of the time the Lexus was being used for business purposes.

Her affidavit states that she makes frequent trips to Calgary and other places for business. However, the business records provided do not allow for a confirmation of when and how often these business trips take place. She does not dispute that in August 2018 she travelled to Ontario with the children. She is licensed in Ontario, and claimed the trip at least partly as a business expense. Again, it is unclear from her record-keeping what portion of the costs were for business and what portion was personal. [ 27 ] Mr. Van Berkel submits that only 25% the vehicle expenses should be attributable to business.

He seems to choose this percentage due to Ms. Van Berkel claiming the trip to Ontario as a business expense. He provides no breakdown of the numbers supporting his position. However, that would be a difficult task given the records provided. [ 28 ] I am not prepared to agree with the numbers suggested by either party. I note that the onus is on Ms. Van Berkel to justify her claim. I note that it is in her interests to maximize her vehicle expenses, as it ultimately reduces her taxable income. This may be part of the reason for her decision to increase her annual vehicle costs in 2019.

Looking at all of the factors, I find that 50% of vehicle costs should be included in Ms. Van Berkel’s income. [ 29 ] Regarding her cell phone, Ms. Van Berkel provided a monthly budget allocating $150 for cell phone costs. I note both of the children have cell phones. It is unclear if this amount includes the cost of their cell phones. It is unclear from the information received what portion of the cell phone costs are used as a business expense. It is likely that the cell phone costs are captured under the utilities category of her tax returns. In 2018, the utilities deduction was $2,140.

In 2019, it jumped to $4,374. There is no explanation for this large increase. I have no doubt that at least a portion of the cell phone usage is for business purposes. Again, I note that the onus is on Ms. Van Berkel to justify the deduction. I find that 50% of the cell phone expenses should be attributable to her as a personal benefit. [ 30 ] Ms. Van Berkel is able to claim a portion of her household expenses as a business expense, thereby reducing her net income. In 2017, she claimed approximately 8% of those costs as a business expense. Approximately the same amount was claimed in 2018. In

2019, she claimed approximately 26% of those costs as a business expense. There is no explanation for the over 300% increase. I find that 92% of the cost of household expenses should be included as a personal benefit. [ 31 ] Regarding deductions for travel and entertainment, Ms. Van Berkel admits that at least a portion of a trip to Ontario with the children was claimed as a business expense. With the records provided, it is impossible to determine who was travelling, or being entertained, or why the expense was being incurred.

Again, I have no doubt that at least some of these expenses were for business purposes. I am just unable to determine what portion of the expenses should be included as a personal benefit. Mr. Van Berkel submits that 75% of the expenses should be included. I am prepared to agree with that percentage. [ 32 ] From her tax returns, I note that Ms. Van Berkel’s expenses for rent increased by more than 50% from 2018 to 2019. Her affidavit indicates that her rent with World Financial Group increases as her sales increase.

It is unclear whether this large jump is entirely due to a rent increase, or if it is due to a new method of calculating the expense. There may be a portion of this cost that should be added as a personal benefit, but that is unclear. Mr. Van Berkel is not contesting this deduction, so I make no changes to Ms. Van Berkel’s income as a result. [ 33 ] Having made the preceding decisions regarding personal benefits, I find that Ms. Van Berkel’s 2019 income should be $98,117. I arrive at this number by starting with her net income, $85,457.

To that, I add $1,682 for meals, $4,024 for travel, $4,119 for household expenses, $2,187 in cell phone expenses, and $648 for vehicle expenses. This amount includes $15,192 in spousal support payments. [ 34 ] I earlier found that Mr. Van Berkel’s income for support purposes would be his line 150 income. In 2019, that amount was $213,253. However, in 2019 he withdrew $18,000 from his RSP. I am prepared to deduct that amount from his line 150 income for the purposes of calculating support.

That makes his 2019 income $195,253. [ 35 ] When trying to determine the incomes of the parties, it is important that the court have a sound evidentiary foundation to assist with the analysis. This is especially important in the case of a self-employed parent. It is even more important in joint custody situations where s. 9 of the Child Support Guidelines is involved. It is difficult, if not impossible, to properly analyze the factors set out in s. 9 without a proper evidentiary foundation. [ 36 ] This has been recently confirmed by the Court of Appeal in MacDonald v Brodoff , 2020 ABCA 246 .

There needs to not only be an estimated budget, but also confirmation of the actual expenses. There also needs to be evidence regarding the different standard of living the children experience when moving from one house to the other. In this case, that evidence is not available. [ 37 ] I do note that the parties agree that the children spend some extra time with Ms. Van Berkel. Even when Mr. Van Berkel has parenting time, the children go to their mother’s house after school and are picked up from there by their father. This is by agreement of the parties. This must result in some increased cost to Ms.

Van Berkel, but the amount is unclear. [ 38 ] Using a straight set-off approach, Mr. Van Berkel would pay $2,730 per month in support for the two children and Ms. Van Berkel would pay $1214 per month. This would mean Mr. Van Berkel would need to pay $1,516 per month to Ms. Van Berkel. There is no evidence, other than the after-school care, as to how the shared parenting regime might increase the costs of either party.

There is also little evidence regarding the conditions, means, needs, and circumstances of either party or either of the children. [ 39 ] There is no evidence indicating the children have access to more things at one parent’s residence compared to the other parent’s residence. There is no evidence of disparity between the parties, other than the difference between their incomes. There is no evidence of either party’s standard of living. Presumably one of the parties had the extra expense of setting up a new household when the parties separated.

This likely would have included new bedroom furniture, clothes, and assorted other household items that would need to be present in both residences. However, there is no evidence of this expense. [ 40 ] Using the evidence provided, I find that a straight set-off approach is not appropriate in this case. Ms. Van Berkel essentially provides after-school care for the children during Mr. Van Berkel’s parenting time. I find that this should result in an increase in child support to her of $200 per month.

This results in net child support to her of $1,716 per month. [ 41 ] In the settlement agreement, which is incorporated into the divorce judgment, Mr. Van Berkel agreed to pay $698 per month toward s. 7 expenses and Ms. Van Berkel contributed $25 per month towards those expenses. Her income has greatly increased since the agreement was made. I find that the parties should now share s. 7 expenses based on their actual income. Mr. Van Berkel would be responsible for 66% of the expenses and Ms. Van Berkel would be responsible for 34% of the expenses.

Section 7 expenses need to be agreed upon in advance by the parties. If a party wants to be reimbursed for an expense, that party must notify the other party within 30 days of incurring the expense and provide a copy of the receipt. If this is not done, the party will be deemed to have waived reimbursement for that expense. [ 42 ] Both parties seek retroactive adjustments to s. 3 and s. 7 child support. Each party has provided calculations showing that there was either an overpayment or underpayment of support. Mr. Van Berkel submits that he has overpaid child support by approximately $14,000. Ms.

Van Berkel provides calculations that indicate she was underpaid child support by approximately $10,000. [ 43 ] It does appear that Mr. Van Berkel increased his monthly child support in August 2019. Additionally, the two older children would have ceased to be children of the marriage when they turned 18. This should have affected the set-off amounts of child support, as the older children lived with their father. It is unclear if that happened. [ 44 ] In the settlement agreement, Mr. Van Berkel agreed to pay $698 per month towards s. 7 expenses.

This amount reflected costs for school expenses, child care, and extracurricular activities. In her materials, Ms. Van Berkel provides a document outlining s. 7 expenses between October 2018 and December 2019. It shows total s. 7 expenses for both children as $8651 for that time. This is substantially less than the amount Mr. Van Berkel agreed to pay. [ 45 ] Interestingly, Ms. Van Berkel has included a $100 donation to the Alberta Cancer Foundation as a s. 7 expense. This appears

to be part of a fundraiser organized by the daughter’s ringette team. However, a charitable donation made by Ms. Van Berkel should notbe included as part of s. 7 expenses. [46] Despite Ms. Van Berkel’s income increasing, the s. 7 percentages paid by the parties never changed. She continued to pay $25per month towards s. 7 expenses while Mr. Van Berkel contributed $698 per month towards those expenses. It appears that the partiesdid not do an annual reconciliation of s. 7 amounts.

Instead, each continued to pay the same amount monthly despite the changes inincome and expenses. [47] As said by the Court of Appeal in Stuve v Stuve, 2019 ABCA 142, “trial judges are not forensic accountants”. Each party nowwants the court to go back and look over prior payments and expenses to try and calculate what, if anything, is owed by one party to theother. The parties did not try and do an annual reconciliation of the amounts paid. The amounts claimed by each party are relativelysimilar. I am not prepared to make any retroactive adjustments to either s 3 or s 7 support.

Spousal support [48] In addition to seeking a recalculation of child support, the parties also seek to revisit spousal support. Their divorce judgmentordered Mr. Van Berkel to pay $1,266 per month in spousal support. It is unclear whether the entitlement to spousal support was basedon a compensatory, non-compensatory, or needs basis. Mr. Van Berkel now wants that support terminated. Ms. Van Berkel wants it tocontinue for an unspecified period of time. The divorce judgment includes a clause stating that spousal support shall be reviewed afterone year. That review did not happen.

The parties attempted to conduct a review through non-court methods, but were unsuccessful. Thisis the first review of spousal support. [49] Prior to the marriage, Ms. Van Berkel worked as a nanny for Mr. Van Berkel. At that time, she was a temporary foreignworker and earned a gross monthly income of approximately $1,600 and netted approximately $1,000. After the parties married, sheexplored various job opportunities. She started a small business that was unsuccessful and then worked at various other part-time, lowwage jobs.

She then pursued an education, ultimately obtaining her certification to sell life insurance. It is this certification that allowsher to pursue her current line of employment. [50] During the marriage Ms. Van Berkel was primarily responsible for child care and maintaining the household. At varioustimes, she had assistance from her family members. Her mother, brother, and sister-in-law all helped with child care and householdchores. They also provided a financial contribution towards the household. [51] The parties financially assisted Ms. Van Berkel’s brother and sister-in-law in purchasing a vehicle and a house.

The partiesused their line of credit to purchase the home. Her relatives paid the costs for the house. After the parties separated, Ms. Van Berkel usedher equalization payment to pay off the remaining balance on her brother’s loan. [52] Ms. Van Berkel’s family must have provided considerable assistance to the maintenance and upkeep of the parties’household. Even though Mr. and Ms. Van Berkel facilitated the purchase of a house and vehicle for her family members, Ms. VanBerkel swears that her family helped she and Mr. Van Berkel more than they help them. [53] As noted earlier, Ms.

Van Berkel’s income has steadily increased since the parties separated. In the divorce judgment, spousalsupport was based on her having an income of $25,000 per year. I have found that her 2019 income, excluding spousal support, is$82,925. That is over three times the income used for calculating spousal support in the divorce judgment. [54] Variation of spousal support is governed by s 17(7) of the Divorce Act. A court is required to: 1. Recognize any economic advantage or disadvantages to the spouses arising from the marriage or it’s breakdown; 2.

Apportion between the spouses any financial consequences arising from the care of any child of the marriage; 3. Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and 4. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable time. [55] As stated by our Court of Appeal in Bone v Bone, 2020 ABCA 323: No one factor takes precedence and all must be considered. These objectives can be viewed as an attempt to achieve an equitable sharingof the economic consequences of marriage or marriage breakdown: Moge v.

Moge, (SCC), [1992] 3 S.C.R. 813 (S.C.C.)at pp 849, 864; Anand v Anand, 2016 ABCA 23 (Alta. C.A.) at para 19. The objectives intermingle with the primary grounds forentitlement to support: compensatory and non-compensatory. (para 22) [56] The parties have provided little information regarding economic advantages or disadvantages arising from the breakdown ofthe marriage. They were able to agree on the division of matrimonial property, and that division resulted in an approximately $10,000equalization payment to Ms. Van Berkel.

There is no indication as to the total value of the property divided. [57] There is no doubt that Mr. Van Berkel received some advantage during the marriage. Ms. Van Berkel and her family providedassistance with child care and other household duties. He was able to focus on his employment without having to worry about childcareor household duties. [58] Ms. Van Berkel worked part-time during the marriage. Had it not been for her household obligations, she likely could havefound full-time employment. This was a financial disadvantage to her.

However, at that time and with her education, it may have beendifficult for her to find employment that paid anything more than minimum wage.

[59] Ms. Van Berkel chose to advance her education during the marriage. She was able to obtain a designation that permitted her tosell life insurance. In her affidavit, she claims this was done without the help of Mr. Van Berkel. However, as he was the only oneworking, he must have at minimum provided food and shelter while she was taking the courses. Obtaining her education during themarriage provided her with a financial advantage. [60] Most of the financial consequences of providing childcare fell upon Ms. Van Berkel. Her duties at home meant that she couldnot work full-time.

Also, it is likely that if she chose to pursue full-time employment, the cost of obtaining outside childcare wouldnegate any financial advantage to the parties. They were in the fortunate position that Mr. Van Berkel could support the family on hisincome. His full-time employment meant that he could not provide as much help around the house, but his income made it possible forMs. Van Berkel to stay at home with the children. [61] It is unclear what, if any economic hardships either party suffered as a result of the breakdown of the marriage.

Regarding thisfactor, the definition of hardship is expanded beyond its strict dictionary definition. It goes beyond the inability to meet one’s basicneeds, and instead should be examined in relation to the standard of living spouses enjoyed during the marriage. [62] However, it is important to note that neither party is guaranteed to maintain the same standard of living that he or she enjoyedprior to the breakup of the marriage.

As said in Moge v Moge, (SCC), [1992] 3 S.C.R. 813, at para 85: Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of livingenjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v.Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of supportare often a revealing indication of the economic disadvantages inherent in the role assumed by one party.

As marriage should beregarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptiveclaim to equal standards of living upon its dissolution (see Rogerson, "Judicial

Interpretation of the Spousal and Child SupportProvisions of the Divorce Act, 1985 (Part I)", supra, at pp. 174-75). (p. 870). [63] In this case, the marriage was relatively short, nine years. There is little direct information as to what standard of living theparties enjoyed during the marriage. Noting the activities of the parties and the children, it is likely that they lived a comfortable, middle-class life. [64] Each party has submitted a budget outlining their current income and expenses. Mr. Van Berkel swears that he has a monthlyincome of $9,730.

His monthly expenses, excluding spousal and child support are $7211. His budget includes $300 for vacations, $172for life insurance, and $763 for RSP contributions. I note that his monthly income approximates the likely net pay of a person earning$192,000 per year. [65] Ms. Van Berkel swears that her monthly income, including child support, spousal support, the child tax credit, and herbusiness income was $7,155. Her total expenses for September 2020 were $7,400, leaving a short fall of $245. Her expenses included$500 for vacations, $1,200 for life insurance, and $200 for TFSA contributions.

Her budget also included $600 per month in sport,school fees and supplies. [66] In her October 2, 2020 affidavit Ms. Van Berkel swears that her predicted 2020 income might be $60,000 before expenses.This number does not agree with the budget attached to the same affidavit. Her business budget dated September 2020 shows a grossbusiness income of $10,000 per month. There is another document attached that shows income through September of just over $58,000.For some reason, that document shows no income for the remainder of the year.

These discrepancies make it difficult to rely on herbudget. [67] This is a situation that calls for a robust financial record, as described in Contino v Leonelli-Contino, 2005 SCC 63. As statedin paragraph 106 of the decision, the budget alone presents an incomplete snapshot of the situation. Supplementary information would behelpful. This means providing more information than simply a spreadsheet created by one of the parties. Unless the parties agree on thenumbers being put into the spreadsheet, there should be some evidence to support the numbers being used. [68] As noted earlier, Ms.

Van Berkel chose to increase her vehicle costs in 2019. Increasing one’s expenses is not something aperson usually does when they are suffering from financial hardship. There was also little explanation provided regarding the highamount paid for life insurance. There is no evidence as to whether it is a term life policy, or a whole life policy that has some aspect ofsavings involved. The parties’ separation agreement requires each of them to have a $400,000 life insurance policy. The $1,200 she paysis more than six times the amount that Mr. Van Berkel pays for life insurance.

This large expenditure on life insurance is also notindicative of a person experiencing financial hardship. [69] When Ms. Van Berkel entered the marriage, she was a relatively new immigrant to Canada with a low-paying job. There is noevidence regarding what education or employment skills she had prior to the marriage. During the marriage she pursued variousemployment opportunities. She was also able to pursue a course of education that has allowed her to significantly increase heremployment skills and earning potential. [70] Since becoming licensed to sell insurance in 2015, her income has steadily increased.

Initially, she only worked part-timeselling insurance. She started to work full-time after the parties separated. In 2017, her gross income was approximately $66,000. In2019, it was over $110,000. Her September budget attached as an exhibit to her affidavit estimates a gross business income of $120,000in 2020. From these numbers, it seems that Ms. Van Berkel’s financial position improved during the marriage. She went from low-income employment to a position that allows her to earn an income greater than the median income in Alberta. [71] Even though Ms.

Van Berkel earns an above average income, this does not automatically mean that she is self-sufficient. InHeimsoth v. Heimsoth, 2009 ABCA 129, the court used the following definition of self-sufficiency: “capable of supporting herself at alevel in keeping with the standard of living she enjoyed during the marriage without the aid of financial support” [72] As stated earlier, there is little direct evidence regarding what sort of standard of living the parties enjoyed during the

marriage. There is also little direct evidence of how either party’s standard of living may have changed since separation. This makes it difficult to evaluate Ms. Van Berkel’s progress towards self-sufficiency. Her income is still less than Mr. Van Berkel’s income, but it is approaching half of the total income of the parties when they were together and she was earning a very small income. It is likely that she is close to achieving self-sufficiency, if she has not already achieved it. [ 73 ] Looking at the four factors under s 17 of the Divorce Act as a whole, I find that spousal support should be varied. Mr.

Van Berkel has provided some form of support since the parties separated in January 2017. No formal agreement regarding spousal support was reached until November 2017. However, he must have been providing some support prior to that date as Ms. Van Berkel did not have the means to support herself at that time. Since November 2017, he has provided spousal support $1,266 per month. That number was based on his income being $194,600 and Ms. Van Berkel’s income being $25,000.

It seems that the $1,266 number was chosen as that amount when combined with monthly child support resulted in an approximately equal income for each party. [ 74 ] I have found that Mr. Van Berkel’s 2019 income was $195,253 and that Ms. Van Berkel’s income was $98,117, which included $15,192 and spousal support. Using these incomes, the Spousal Support Advisory Guidelines provide a range of approximately $650 - $2000 per month for spousal support. [ 75 ] Support at the $1200 per month level provides a relatively equal monthly income for each party.

I find that spousal support should continue at that level through 2021. In 2022, spousal support will be reduced to $800 per month. This will decrease to $400 per month in 2023. Spousal support can be revisited in 2024. [ 76 ] The reason for the gradual decrease in spousal support is that Ms. Van Berkel is approaching self-sufficiency. The gradual decrease will ease her transition into self-sufficiency. By December 2023, she will have been receiving formal spousal support for six years. Hopefully she will continue to have success in growing her business.

By 2024, she should be in a position of self-sufficiency and any financial disadvantages or consequences arising as a result of the marriage breakdown should be alleviated. [ 77 ] Both parties in this matter have been partially successful. It is also likely that the only way this matter could have been settled was through the court process. Consequently, I am not prepared to award costs to either party. Heard on the 17 th day of November, 2020. Dated at the City of Edmonton , Alberta this 21 st day of January, 2021. G.R. Fraser J.C.Q.B.A. Appearances: Christopher King CK Family Law for the Applicant Collista A.

Coles Huizinga Di Toppa Coles & Layton for the Respondent

_______________________________________________________ Corrigendum of The Honourable Mr. Justice G.R. Fraser _______________________________________________________ In paragraph 6, line 3, “have the primary” was changed to “have primary”; in line 6, “and school drop” was changed to “school drop- off”. In paragraph 7, line 5, “get along” was changed to “would get along”. In paragraph 9, line 4, “organized these things” was changed to “organized those things”. In paragraph 14, line 7, “January 31, 2021” was changed to “February 15, 2021”. In paragraph 31, line 7, “this percentage” was changed to “that percentage”.

In paragraph 35, line 5, the word “three” was deleted. In paragraph 39, line 1, “how” was changed to “at”. In paragraph 66, line 4, “$120,000” was changed to “$10,000 per month”. In paragraph 77, line 2, “better” was changed to “matter”.