Helgeson v Laframboise, 2021 ABQB 596

Court of Queen’s Bench of Alberta Citation: Helgeson v Laframboise, 2021 ABQB 596 Date: 20210729 Docket: 4803 187834 Registry: Edmonton Between: Jason Edward Michael Helgeson Plaintiff/Respondent - and - Shelby Lynn Anne Laframboise Defendant/Applicant _______________________________________________________ Memorandum of Decision of the Honourable Mr.

Justice Donald Lee _______________________________________________________ Introduction [ 1 ] The Applicant Mother applies for a parenting order, retro-active and on-going child support, and retro-active and on-going compensatory and non-compensatory spousal support. The Respondent Father applies for primary parenting of the children, child support from the Applicant Mother, an order imputing income to the Mother, and an order declaring that the Mother is not entitled to spousal support.

Background [ 2 ] These parties began cohabiting in 1994 and married on May 21, 1994. There are three children of the marriage currently ages 12, 16 and 18. The 18 year old child of the marriage is not intending at this time to continue with post-secondary education. [ 3 ] In June 2019, the Father served the Mother with a Statement of Claim for Divorce and Division of Matrimonial Property. In October 2019, this Court ordered the parties to commence a “nesting” arrangement as both parties had applied for exclusive possession of the matrimonial home.

At some point the parties resumed cohabitation and continued to reside together in a conjugal relationship until December 2020, when the Mother left the matrimonial home. [ 4 ] In January 2021, this Court granted a Consent Parenting Order whereby the 16 year old would reside primarily with the Father, while the parties would continue parenting of the other two children. [ 5 ] In April 2021, I granted the Applicant Mother interim, without prejudice, non-compensatory spousal support in the amount of $700 per month commence May 1, 2021. [ 6 ] These parties have cohabited for approximately 26 years, as they began living together in Saskatoon, when the Mother was 19 and the Father was 20 years of age.

At the beginning of their cohabitation, both the parties had high school educations. [ 7 ] Subsequently, the Mother worked administrative positions while obtaining a Bachelor of Education at the University of Saskatchewan, and after the Mother’s graduation in 1999, she worked full time as a teacher. [ 8 ] The Father worked full time in several positions, primarily with the Saskatoon Health Region between 1994 and 2007. [ 9 ] In the summer of 2007, the Father began training for employment with the RCMP in Regina, and he completed training in late 2007.

He was immediately posted to Sherwood Park, Alberta, and between 2007 and 2014, the Father worked 12 hour shifts on a 4 on/4 off schedule. Between 2014 and the present, the Father works as a school resource officer from Monday to Friday from 8 am to 4:30 pm. [ 10 ] The Mother has taken maternity leave during the birth of their three children, and was unemployed for a period following the end of her maternity after the youngest child was born. She then returned to work for periods of time in temporary part-time positions or as a substitute teacher.

She has not however returned to work as a primary school teacher since April 2018, prior to the date of separation. The Mother continues to work in multiple simultaneous and temporary contract positions, including jobs at the University of Alberta, Grant MacEwan University, and several First Nation organizations. [ 11 ] In 2010, the Mother began working on a Master’s degree in Education, and completed her Master’s degree in 2014.

Her First Nation paid for the expenses of the Master’s degree, and she continued to pay matrimonial home expenses during her Master’s program. [ 12 ] The Mother left the formal matrimonial home as she says in response to increasingly frequent and aggressive sexual demands by the Father. By December 2020, these encounters, according to her, were no longer consensual. The Father is currently facing charges of assault and sexual assault relating to the breakdown of their relationship.

Amongst other things, this has resulted in the Father not being able to work any overtime with the RCMP as he is confined to certain duties. [ 13 ] The Father currently resides in the matrimonial home, as the Mother moved from the home directly into subsidized housing, where she remains. Counsel for the children indicate that their only reluctance in seeing the Mother is a result of not being able to bring their pets into the Mother’s subsidized housing unit. [ 14 ] There is no child support order, and no agreements between the parties for the payment of child support.

In 2021, the Father is on track to earn approximately $86,000 to $96,000, and the children are currently residing with the Father more than 60% of the time. His 2017 and 2018 incomes were both approximately $130,000, and in 2020 it was approximately $100,000. [ 15 ] The Mother’s income in 2017 and 2018 was $92,000 and $77,000 respectively. In 2019, the Mother earned $22,000, and in 2020, the Mother earned $36,000.

Conclusion Parenting and Child Support Obligations [ 16 ] In January 2021, this Court granted a consent Parenting Order whereby the 16-year-old child of the marriage would reside primarily with the Father, and the parties would continue parenting the other two children on a shared basis. This Order was a Without Prejudice Interim Order. [ 17 ] The Mother has not been receiving the parenting time allocated in this Order, and the parties disagree on the reasons.

The Mother blames alienating behaviour by the Father, however counsel for the children states that they are reluctant to spend time at the Mother’s subsidized housing project simply because they are not able to take their pets with them during these visits. Despite the Consent Order between the parties, the children do currently reside with the Father more than 60% of the time. [ 18 ] Counsel for the Mother indicates that child support pursuant to the Consent Order would result in $631 monthly child support payments from the Father to the Mother as a result of their respective current incomes.

However, the Father seeks to impute income to the Mother of $92,000 per year based on her 2017 income, or $98,000 per year based on the amount the Mother was earning at the time she unilaterally quit, or $101,000 per year if she applied for a full-time teaching job in her school system, based on her Master of

Education degree and her teaching experience. The Father submits that all these incomes are greater than his base salary with the RCMP of $86,000 per year, which may approach $96,000 per year in 2021. [ 19 ] The Court has concluded that it is not able to impute income to the Mother in part because the Mother may have quit her employment for good reason in December 2018 although the Father complains it was without any justification.

Notwithstanding the events of December 2018, the parties continued in a conjugal relationship of some sort, resuming cohabitation until December 2020, when the Mother finally left the matrimonial home. [ 20 ] In any event, Hunt v Smolis-Hunt , 2001 ABCA 229 applies because there cannot be bad faith presumed on the part of the Mother when she quit her job approximately two years prior to the parties actually separating, even though the Mother’s decision to leave her employment was a factor in the parties’ marriage ending ultimately. [ 21 ] Admittedly, the Mother could increase her income significantly in full-time teaching positions currently due to her qualifications and teaching experience.

However, Hunt does not require that a party maximize their income producing potential. [ 22 ] While the Father may not be responsible, according to the information received from counsel for the children, for the fact that the children do not spend all the time allowed pursuant to the Court’s Consent Order, he should also not benefit from the problem that the Mother has in not being able to welcome the children’s pets to her subsidized housing unit. [ 23 ] Equally however, while child support of approximately $631 per month would be paid by the Father to the Mother pursuant to the respective incomes of the parties as outlined herein, this would also be inappropriate given that the children primarily reside with the Father through no fault of his.

Spousal Support [ 24 ] The Father is of the view that the Mother is not entitled to any spousal support, essentially for the reasons given previously with respect to child support obligations. However, I find that Hunt applies equally to spousal support cases.

The Mother is of the view that she is entitled to spousal support after a marriage of 26 years on both a compensatory and non-compensatory basis. [ 25 ] Compensatory spousal support compensates spouses for any economic disadvantage flowing from shared decisions in the interest of the family, but can arise even in the absence of an economic disadvantage if an economic advantage was conferred on the other spouse.

In this particular case, compensatory entitlement can be based on the economic disadvantage of an uninterrupted career enjoyed by the Father as a result of the Mother’s assumption of a disproportionate share of the child care responsibilities. [ 26 ] Non-compensatory entitlement can arise when an unmet need persists after the marriage has ended, whether it was caused by the marriage or the marriage breakup. The concept of need is relative to the marital standard of living.

Obviously in this case the Mother has suffered a significant decline in her standard of living given that the Mother is currently in subsidized housing that amongst other things does not allow pets, while the Father remains with the children in the former matrimonial home. [ 27 ] Non-compensatory support reflects the economic interdependency that develops as a result of the shared life over the course of a 26-year marriage.

Notwithstanding that the Mother had years in which she made significant income prior to the marriage breakup, she never made as much income as the Father did in any given year. [ 28 ] As such, there should be an order issued in this case for at least non-compensatory spousal support in order to allow the Mother to obtain some self sufficiency, which she is not able to do presently on her current restricted income.

Therefore, I am ordering the father pay the sum of $2,000 monthly to the Mother as of September 1, 2021 in interim non-compensatory spousal support, until further Order of this Court, to be reviewed in any event in two years, without any evidence of a material change of circumstance. Costs [ 29 ] Given the mixed success in this matter, there will be no costs awarded to either party for this application. Heard on the 6 th day of July, 2021. Dated at the City of Edmonton, Alberta this 29 th day of July, 2021. Donald Lee J.C.Q.B.A. Appearances:

Sam W. Rollans of Bruyer Mackay Family Law for the Applicant Ms. Laframboise Terri-Lynn McLaughlin of Jenkins & Jenkins for the Respondent Mr. Helgeson Elizabeth L. Turner of Legal Aid Alberta Counsel for the Children