Gudiel Alecio v Ropson, 2021 ABQB 810

Court of Queen’s Bench of Alberta Citation: Gudiel Alecio v Ropson, 2021 ABQB 810 Date: 20211012 Docket: 4803 172920 Registry: Edmonton Between: Adriana Maria Gudiel Alecio Plaintiff - and - Jason Ted Ropson Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice D.S. Dunlop _______________________________________________________ 1. Introduction [ 1 ] On September 24, 2021 I conducted a binding judicial dispute resolution with Ms. Gudiel and Mr. Ropson. They submitted briefs and supporting materials in advance.

The parties agreed on some issues during the judicial dispute resolution. On some issues where they did not agree, I made decisions that day. Those things were described in a WebEx courtroom on the record on September 24, 2021.

[ 2 ] The parties did not agree on property division and we did not have time on September 24, 2021 for me to hear complete oral submissions and make a decision about that. I invited written submissions from counsel, which I received on October 1, 2021 from Ms. Gudiel’s lawyer and on October 7, 2021 from Mr. Ropson’s lawyer. [ 3 ] The parties were married on July 21, 2006 and separated on January 31, 2015. As they separated before January 1, 2020, the Matrimonial Property Act applies rather than the Family Property Act . 2.

Evidence [ 4 ] The parties agree that the assets and debts to be divided are a house, their pensions, some vehicles, and a mortgage and other debts. Mr. Ropson included two alternative matrimonial property statements in his materials. Ms. Gudiel provided no matrimonial property statement in her materials. Consequently, for some assets and debts, I have specific values for assets and debts from Mr. Ropson but not from Ms. Gudiel. [ 5 ] I also have some documents with information about values at various times. Most of those documents are not attached to affidavits which swear to or affirm their accuracy.

With one exception, neither party disputes the accuracy of any of the values set out in the documents. [ 6 ] Ms. Gudiel disputes the accuracy of the Mr. Ropson’s pension statements which provide closing market values for Mr. Ropson’s CLAC pension at December 31, 2015, December 31, 2017 and December 31, 2020. During the judicial dispute resolution on September 24, 2021, Ms. Gudiel submitted that the CLAC statements show Mr. Ropson’s contributions only and do not include any contributions by his employer. Mr.

Ropson stated during the judicial dispute resolution on September 24, 2021 that the values include both his and his employer’s contributions. Mr. Ropson’s evidence is supported by page 4 of each CLAC statement which divides the market value into “employee”, employee voluntary”, and “employer”. I am satisfied that the CLAC statements accurately value Mr. Ropson’s pension at the date of each statement. [ 7 ] The Agreement for Binding Judicial Dispute Resolution signed by both parties includes the following: 4.

The Justice shall apply the principles of natural justice and shall not be bound by the strict rules of evidence in force in the Courts of this Province, but may receive any evidence submitted to him by the parties which he believes to be relevant to the matters in controversy or that will enable him to arrive at a fair and proper decision. 5.

The Justice shall have full power and authority to rule on any questions of law applying to the admission of evidence or determination of the issues in the same manner as a Justice at trial. [ 8 ] I admit into evidence all of the documents provided to me by the parties for the truth and accuracy of the values of assets and debts set out in those documents. For some assets and debts, the evidence of value is not consistent. In those cases, I make findings of value, set out below. 3.

Assets and Debts Acquired After Separation [ 9 ] Each of the parties acquired some assets and some debts without involving the other party after they separated on January 31, 2015. Neither party suggests that those assets be included in the property division. I agree that each spouse should retain those assets they acquired after they separated and they should each be solely responsible for the debts they incurred post separation.

This departure from a division of assets and debts as of the date of trial is justified by the fact that these things were acquired when the parties were living separate and apart and solely through the efforts of the party that now holds these assets and debts: Matrimonial Property Act s. 8 (

c) and (f). [ 10 ] The assets and debts acquired after separation are: Acquired by Ms. Gudiel • 2014 Audi A4 car • Audi A4 loan • BMO Chequing *257 • BMO Airmiles Mastercard *3846 • Capital One Airmiles Mastercard *6415 • Line of Credit Acquired by Mr. Ropson • 1994 Ford F150 • TD SDRSP

• ATB Line of Credit • CLAC pension (see

section 5, below) 4. House and Mortgage [ 11 ] The parties agree that the former matrimonial home is worth $390,000 today, assuming it is transferred to Mr. Ropson at that value, with Mr. Ropson refinancing the house in his own name. [ 12 ] The most recent mortgage statement shows $302,181.86 owing as of August 27, 2021. The parties separated on January 31, 2015 and Mr. Ropson has had exclusive possession of the house since separation. He has paid all of the mortgage payments, property taxes and insurance which total $185,803.48 from February 2015 to the present. [ 13 ] Mr.

Ropson submits that an adjustment should be made to the property division to reflect his payment of the carrying costs of the house and his reduction in the principal owing on the mortgage. Ms. Gudiel submits that Mr. Ropson should be liable for occupation rent because he had the use of the house and she did not. Ms. Gudiel submits that occupation rent would offset the mortgage payments made by Mr. Ropson with the result that the current equity in the house should be divided equally between them. [ 14 ] I agree that Mr.

Ropson should receive credit for his reduction in the principal owing on the mortgage because it benefitted both parties as they are jointly liable for the mortgage debt: IMD v RAD 2019 ABQB 963 at para 82 and cases cited earlier in that decision. The appropriate adjustment is to decrease Mr. Ropson’s total assets by one half of the principal reduction and increase Ms. Gudiel’s assets by the same amount. [ 15 ] I do not agree that any adjustment should be made for the interest, property tax and insurance payments Mr.

Ropson made on the house, because those were the carrying costs of the house which were entirely to Mr. Ropson’s benefit, as the person occupying the house: IMD v RAD 2019 ABQB 963 at para 82 . Ms. Gudiel had no use of the house after separation. From her point of view, the house could have and should have been sold immediately after separation, which would have avoided the carrying costs. [ 16 ] Mr. Ropson submits that Ms. Gudiel refused to renew the mortgage which resulted in the bank charging a higher rate of interest. He seeks an adjustment to account for the extra interest he has paid. I disagree. Ms.

Gudiel moved out of the home in 2015. Mr. Ropson could have avoided any interest payments by agreeing with Ms. Gudiel to sell the home shortly after they separated. Any increased interest paid by Mr. Ropson is the result of him refusing to sell the house, rather than her refusing to renew the mortgage. [ 17 ] Mr. Ropson and Ms. Gudiel purchased the home in July 2011 for $386,000. The mortgage was registered then in the amount of $377,516. The balance owing on the mortgage was $353,959.84 on December 31, 2014, a month before the parties separated, and it is $302,181.86 as of August 27, 2021.

Those figures are from the December 31, 2014 mortgage statement and the mortgage ledger dated August 28, 2021. The reduction in the principal from the date of separation to the present is $51,778. Mr. Ropson’s assets should be reduced by $25,889 and Ms. Gudiel’s assets should be increased by $25,889 to account for Mr. Ropson’s reduction in the principal of the mortgage debt. 5. Pensions [ 18 ] Both parties have pensions. Although it may be possible to divide them at source, they each prefer to keep their own pension, with an adjustment for the different values.

In each case, the pension’s value has increased since the parties separated in January 2015. [ 19 ] Based on the December 31, 2015 CLAC pension statement, Mr. Ropson’s CLAC pension had a nil value on January 1, 2015 which had increased to $8,667 by December 31, 2015. That statement records a “date of entry” of January 27, 2015. I infer that Mr. Ropson began contributing to the CLAC pension just a few days before the parties separated. The most recent statement for Mr. Ropson’s CLAC pension shows a value as of December 31, 2020 of $55,420. Based on those facts, I find that all of the present value of Mr.

Ropson’s pension was accumulated by him after separation. [ 20 ] According to the LAPP pension statements for Ms. Gudiel, she started contributing to her pension in January 2012, so she had been contributing to that pension for a little over 3 years at the time the parties separated on January 31, 2015.

The LAPP statements before me provide values at different dates for different joint accrual periods: • $33,054.47 as of November 30, 2017, based on a joint accrual period ending January 31, 2015 • $135,633.99 as of October 5, 2019, based on a joint accrual period ending October 5, 2019; • $28,887.60 as of August 6, 2021, based on a joint accrual period ending January 31, 2015; [ 21 ] During the hearing on September 24, 2021 Mr.

Ropson’s counsel advised that the method of calculating pension values changed at some point, which explains why the value is lower in 2021 than it was in 2017, for the same joint accrual period. [ 22 ] Based on the most recent information from LAPP, I find that the present value of the portion of Ms.

Gudiel’s pension that she had accrued by the date of separation is $28,887. [ 23 ] I find it to be just and equitable for the parties not to divide the portions of their pensions which they have accrued since the separation, because that portion of those assets was acquired through their own work, without any contribution by the other party: Matrimonial Property Act , s. 8(

c) and Harbaugh v Harbaugh, 2018 ABQB 922 at para 81 – 86 affd 2020 ABCA 280 at para 48 – 51 .

[ 24 ] The present value of the portion of Mr. Ropson’s CLAC pension which he had accrued to the date of separation is nil and the present value of the portion of Mr. Gudiel’s pension which she had accrued to the date of separation is $28,887. 6. Motor Vehicles [ 25 ] The parties agree that Mr. Ropson will retain possession of three motor vehicles they acquired before they separated. Mr. Ropson’s 2021 matrimonial property statement sets the current value of those vehicles as follows: • 2013 Mitsubishi Outlander $7,500 • 2013 Kawasaki Versys 1000 $5,000 • 1983 Honda v45 Sabre $400 [ 26 ] Ms.

Gudiel does not dispute the values of the Kawasaki and the Honda. Her 2021 matrimonial property statement sets the value of the Mitsubishi at $12,000. I accept the Ms. Gudiel’s proposed valued for the Mitsubishi because Ms. Gudiel has experience working at a car dealership, so her estimate of value is likely the more accurate of the two. 7. Bank and Investment Accounts [ 27 ] There are three accounts the parties held at separation which they still hold. They propose that they be kept by Mr. Ropson. Those account balances are: • TD TFSA (formerly BMO TFSA) $600 • Chequing *659 $7,000 • Savings $38 8.

Debts [ 28 ] In addition to the mortgage against their house, Ms. Gudiel and Mr. Ropson had several debts when they separated, some of which they have paid partially or in full. Mr. Ropson submits he should receive credit in the property division for his reduction in the principal owing on these debts. I agree with respect to unsecured debts. 8.1 Unsecured Debts Generally [ 29 ] The parties agree that between them they had a BMO line of credit, a home buyers’ program loan, two BMO Mastercards, a BMO overdraft and a Future Shop loan when they separated.

There is no dispute regarding the balance owing on those debts when they separated except for the BMO line of credit, which Ms. Gudiel says was $6,617 in her unsworn 2015 statement of income, assets and liabilities, and which Mr. Ropson says was $7,810 in his sworn 2015 statement of income, assets and liabilities. Given that dispute in the evidence, I set the amount owing on the BMO line of credit when the parties separated at $7,200. [ 30 ] Mr.

Ropson has reduced some of the unsecured matrimonial debts as follows: • BMO line of credit reduced from $7,200 to $3,164 • Home Buyers’ program reduced from $14,214 to $8,749 • BMO Mastercard *1989 reduced from $10,207 to $7,555 • BMO Mastercard *4389 reduced from $5,913 to $2,600 [ 31 ] Mr. Ropson has reduced the matrimonial debt by $15,466. His assets should be reduced by half that amount, $7,733 and Ms. Gudiel’s assets increased by the same amount. [ 32 ] I take the same approach to the matrimonial debt which Ms.

Gudiel has reduced: • BMO Overdraft reduced from $1,500 to nil • Future Shop debt reduced from $1,305 to nil [ 33 ] Ms. Gudiel has reduced matrimonial debt by $2,805. Her assets should be reduced by half that amount, $1,403 and Mr. Ropson’s should be increased by the same amount. 8.2 Parental Debt [ 34 ] Mr. Ropson claims that he and Ms. Gudiel borrowed from his parents and he has reduced those debts. Ms. Gudiel asserted at the hearing on September 24, 2021 that she understood that funds received from Mr. Ropson’s parents were gifts, not loans. The

documentary evidence with respect to these alleged loans is: • Mr. Ropson’s sworn statements of income, assets and liabilities dated October 30, 2015 and August 30, 2021 which refer to a $12,000 loan from his parents in 2011 for the house, an unspecified amount in 2014 for expenses and $10,000 in 2015 to reduce debts; • Ms. Gudiel’s unsworn statement of income, assets and liabilities dated July 28, 2015, and sworn statements of income, assets and liabilities dated September 10, 2018 and August 30, 2021, which make no reference to loans from Mr. Ropson’s parents; and • Mr.

Ropson’s mother’s unsworn letter dated August 27, 2021 addressed “to Whom it May Concern” which states that she lent both Mr. Ropson and Ms. Gudiel $12,000 to help with the down payment for the purchase of their house and she lent $10,000 “to help pay off the Mastercard”. [ 35 ] Based on Mr. Ropson’s mother’s omission from her letter of any loan for expenses in 2014, I find that no such loan was made. Based on the descriptions of the 2015 loan by both Mr. Ropson and his mother as being to pay off debts, I find that the benefit of that loan to the matrimonial debt is accounted for in crediting Mr.

Ropson with the reduction in principal of the matrimonial debt by a total of $15,466, as set out in

section 8.1 above. Based on Mr. Ropson’s sworn evidence and his mother’s unsworn letter, together with Ms. Gudiel’s acknowledgement that Mr. Ropson’s parents provided funds for the purchase of the house, I find that there was a loan of $12,000 from Mr. Ropson’s parents to both Mr. Ropson and Ms. Gudiel in 2011. Based on Mr. Ropson’s sworn 2015 and 2021 statements of income, assets and liabilities, he reduced the principal owing on that loan from $4,480 to nil. He should be credited for that by reducing his assets by $2,240 and increasing Ms.

Gudiel’s assets by $2,240. 8.3 Vehicle Loans [ 36 ] When they separated, the parties had two debts secured by two of the three vehicles which Mr. Ropson has retained since separation. Mr. Ropson has reduced those debts to nil. As the party who exclusively benefitted from the possession of those vehicles, Mr. Ropson should be fully responsible for their carrying costs, including depreciation. However, those vehicles had negative equity at the time of separation, so by paying those debts entirely, Mr. Ropson provided a benefit to Ms. Gudiel.

There is a dispute regarding the value of the Outlander vehicle at the date of separation and the amount owing on the Outlander loan. I accept the figures from Ms. Gudiel’s unsworn 2015 statement of income, assets and liabilities, based on Ms. Gudiel’s experience working at a car dealership, and because the larger amount owing in Mr. Ropson’s sworn statement of income, assets and liabilities is dated November 2014, two months before the parties separated. On that basis: • Mr.

Ropson eliminated the negative equity in the 2013 Mitsubishi Outlander, which was the amount owing on the loan of $37,930 minus the value of the vehicle of $21,000, for a negative equity of $16,930; and • Mr. Ropson eliminated the negative equity in the 2013 Kawasaki Versys 100, which was the amount owing on the loan of $7,690 minus the value of the vehicle of $6,500, for a negative equity of $1,190. [ 37 ] Mr. Ropson is entitled to credit for his elimination of negative equity in the vehicles, totaling $18,120. His assets will be reduced by half that amount, $9,060 and Ms.

Gudiel’s assets will be increased by $9,060. 9. Conclusion [ 38 ] The division of matrimonial assets and debts and adjustments set out above results in Ms. Gudiel retaining net assets with a greater value than Mr.

Ropson, summarized below: Ropson Gudiel ASSETS house $390,000 Ropson mortgage principal reduction -$25,889 $25,889 LAPP pension $28,887 notional 25% tax on pension -$7,222 2013 Mitsubishi Outlander $12,000 2013 Kawasaki Versys 1000 $5,000 1983 Honda v45 Sabre $400 Ropson negative equity reduction -$9,060 $9,060 Ropson general debt reduction -$7,733 $7,733 Gudiel general debt reduction $1,403 -$1,403 Ropson parental debt reduction -$2,240 $2,240 TD TFSA $600 Chequing *659 $7,000 Savings $38 TOTAL ASSETS $371,519 $65,184 DEBTS mortgage $302,182 BMO line of credit $3,164 Home Buyers Program $8,749

BMO Mastercard *1989 $7,555 BMO Mastercard *4389 $2,600 TOTAL DEBTS $342,250 nil NET ASSETS (assets – debts) $47,269 $65,184 equalization payment $8,958 -$8,958 final position $56,227 $56,227 Ropson Gudiel [ 39 ] The parties shall retain the assets and debts as set out above. Ms. Gudiel will transfer her interest in the house to Mr. Ropson and he will obtain refinancing eliminating Ms. Gudiel’s liability on the mortgage. Ms. Gudiel will make an equalization payment to Mr. Ropson of $8,958 which may be set off against arrears of child support which Mr. Ropson owes Ms. Gudiel.

The parties’ agreement for binding judicial dispute resolution did not include costs as one of the issues to be determined by me. It may be they intended that they each bear their own costs. If they intended that I determine costs, I find that they should each bear their own costs, because neither was entirely successful with respect to the judicial dispute resolution in general and t Heard on the 24 th day of September, 2021. Dated at the City of Edmonton, Alberta this 12 th day of October, 2021. G.S. Dunlop J.C.Q.B.A. Appearances: Nduka Ahanonu Duke Law Office for the Plaintiff Sam W.

Rollans Bruyer & Mackay LLP for the Defendant