Gole v Meier, 2021 ABQB 965

Court of Queen’s Bench of Alberta Citation: Gole v Meier, 2021 ABQB 965 Date: 20211207 Docket: 2110 00265, FL10 07759 Registry: Red Deer Between: Mark William Gole Plaintiff - and - Priscilla Leonie Meier Defendant FL10 07759 And Between: Mark William Gole Applicant/ Cross-Respondent - and - Priscilla Leonie Meier Respondent/ Cross-Applicant

_______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice C.C.J. Feasby _______________________________________________________ Introduction [ 1 ] This matter concerns issues arising out of the dissolution of an adult interdependent relationship between Mr. Gole and Ms. Meier. Mr. Gole applies in Action No. 2110-00265 for partition and sale of the jointly owned family acreage where Ms. Meier currently resides with their four-year-old daughter. Ms. Meier cross-applies in Action No.

FL10-07759 for a recalculation of child support and partner support, and for exclusive possession of the acreage. Cross-Application for Increased Child Support & Partner Support [ 2 ] On February 10, 2020 in morning chambers, the late Mr. Justice Hopkins made an interim, without prejudice order for child support and partner support. The order was to remain in effect until the parties attended an Early Intervention Case Conference or, failing agreement at an EICC, a Special Chambers Application. The order provided, among other things:

a) Mr. Gole shall pay monthly child support in the amount of $844; and

b) Mr. Gole shall pay monthly partner support in the amount of $500. [ 3 ] The child support and partner support numbers were calculated by Justice Hopkins based on an estimated income for Mr. Gole of $100,000 and $46,200 for Ms. Meier. Justice Hopkins set the partner support at the mid-point of the range using the formula for partner support in the guidelines. [ 4 ] After separation and prior to the Hopkins Order, Mr. Gole made contributions to the payment of the mortgage on the family home and provided some money towards other expenses. Since the Hopkins Order, Mr.

Gole has made the required child support and partner support payments without any further contribution towards the mortgage on the family home. [ 5 ] Ms. Meier suffered a brain injury as a result of an accident at work in 2013 and has been unable to work since that time. She received Workers Compensation Board benefits in the amount of $38,146 in 2020. The amount that she receives from WCB is not taxable. Ms. Meier’s WCB benefits have been stable over the last several years. [ 6 ] Mr. Gole works for Alberta Health and earned approximately $81,000 in 2020.

He also moonlighted as a janitor at Saputo and earned a further amount of approximately $25,000 through his company. At one point, it was disputed whether all of the $25,000 should be counted as income for the purposes of calculating child and partner support as there were approximately $4,000 in expenses deducted on Mr. Gole’s income tax return. Counsel for Mr. Gole helpfully conceded that for the purposes of calculating child and partner support no deductions should be made. [ 7 ] Based on 2020 income tax returns, Mr.

Gole’s income is $106,166 not including small non-recurring grants and scholarships for continuing education. In 2020, Ms. Meier received $38,146 in non-taxable benefits from the WCB. Pursuant to the Alberta Child Support Guidelines , s. 19(h), non-taxable income is to be grossed up. To put Ms. Meier’s income on a basis that can be compared with Mr. Gole’s pre-tax income, she must be imputed to have pre-tax income of $42,918. [ 8 ] Starting effective December 1, 2021, child support is set at $939 per month consistent with the Alberta Child Support Guidelines .

Going forward, the parties shall provide financial information to each other and to the Maintenance Enforcement Program to permit child support to be adjusted annually. Alberta Child Support Guidelines

section 7 expenses are to be shared proportionately to the parties’ incomes after child support and partner support has been paid ( ie . 65% Mr. Gole; 35% Ms. Meier). [ 9 ] Counsel for Ms. Meier, citing Anand v Anand , 2016 ABCA 23 at para. 57 and Furry v Goodwin , 2020 ABCA 127 at paras. 8-10 , submitted that the relevant considerations in an application for interim partner support are the needs of the dependent partner and the ability of the payor partner to pay. The evidence shows that Ms.

Meier has a legitimate need for an increase in partner support beyond that awarded in the Hopkins Order but the need does not extend as far as Ms. Meier claims. [ 10 ] Ms. Meier prepared a monthly budget for the purpose of illustrating her need for increased partner support payments. The budget shows that she is responsible for $7,130 total monthly expenses including a $2,330.09 mortgage payment. As will be discussed below, these expenses far outstrip her financial capacity and the capacity of Mr. Gole to contribute by way of partner support payments.

The solution to this issue, as will be explained, is to sell the family acreage and move into a more appropriate home, thereby reducing Ms. Meier’s monthly expenses.

[ 11 ] Starting effective December 1, 2021, partner support is set at $748.50. This represents halfway between the mid- and high points generated using the Childview 2021 program given the parties’ incomes and the duration of the relationship (13 years). The award of partner support is set at this level because Ms. Meier is presently unable to work due to the brain injury suffered during the relationship and she is the primary caregiver for their four-year-old daughter.

The Court of Appeal in Shigehiro v Shigehiro , 2017 ABCA 392 at para. 41 quoted with approval from J Payne and M Payne, Canadian Family Law , 7 th ed (Toronto: Irwin Law, 2017) at 246-247: Courts must look to the economic consequences of the marriage and its breakdown on a sick or disabled spouse and not simply whether the illness or disability is causally connected to the marriage. [ 12 ] The partner support award may be varied at trial or if circumstances change. The record before me on this application was insufficient to make any decision as to the appropriate duration for partner support.

In particular, the evidence did not include any expert assessment of Ms. Meier’s ability to return to work or any timeframe for such a return to work. Further, it cannot be known how much Ms. Meier may earn if she returns to work. [ 13 ] I decline to order any retroactive revision to child or partner support as sought by Ms. Meier. Ms. Meier has enjoyed the benefit of residing in the family home since the dissolution of the relationship. In addition, Ms. Meier deferred eight mortgage payments in 2020 amounting to $18,641. Essentially, she lived in the family home for free for those months.

Application for Sale & Partition and Cross-Application for Exclusive Possession [ 14 ] Since Ms. Meier and Mr. Gole were separated, Ms. Meier has resided on the family acreage near Rimbey. Mr. Gole now lives in a rental accommodation in the area. It is unclear on the record before me whether Mr. Gole resides with a new partner. [ 15 ] If the family home is sold, it is estimated that there will be significant equity available to the parties after the payment of the mortgage.

The estimated value of the family acreage and the estimated equity will not be stated in these reasons so as not to prejudice efforts to sell the property at its highest price. [ 16 ] Counsel for Mr. Gole suggested that it could be assumed that the equity remaining in the property would be divided equally between the parties. Counsel for Ms. Meier countered, stating that Ms. Meier recently commenced another action – the third involving these parties – for division of family property and unjust enrichment. He emphasized that if Ms.

Meier is successful in her new claim, the equity will not be divided equally between the parties. He also explained that Ms. Meier has claimed an entitlement to a share of Mr. Gole’s pension with Alberta Health. [ 17 ] Mr. Gole obtained an order for partition and sale on March 31, 2021. That order was subsequently vacated on the grounds that counsel inadvertently advised the Court that there was no possible defence to the application. This was inaccurate and at the time Ms. Meier was self-represented. Counsel appropriately consented to the order for partition and sale being vacated.

The present application is heard de novo without regard to the circumstances and outcome of the earlier application for partition and sale. [ 18 ] Mr. Gole’s position is that it is obvious that the family home must be sold and that there is no sense in the parties’ equity being tied up in the property when both may wish to deploy the equity to obtain new accommodation. Counsel for Ms. Meier submitted that one possibility was that if she was successful in her property division claim, she may wish to purchase the family home. This, in turn, would require an appraisal of the property. Counsel for Ms.

Meier further submits that a sale cannot proceed prior to a trial of her property division and unjust enrichment claim because the division of the equity in the home cannot be determined separately from the division of other property including the Alberta Health pension. [ 19 ] Prior to a trial, Ms. Meier seeks an order for exclusive possession of the family home. Her position is that an order for exclusive possession would preclude the partition and sale of the family home prior to trial. Ms. Meier claims that it is in the best interest of her daughter that the two of them remain in the family home.

She also seeks an order directing that Mr. Gole contribute to the insurance and mortgage payments on the family home until trial. [ 20 ]

Section 15 of the Law of Property Act , RSA 2000, c L-7 gives the Court the authority to direct a partition and sale of co- owned land.

Section 21 of the Law of Property Act provides that the Court may stay proceedings for partition and sale where there is a pending application under the Family Property Act, RSA 2000, c F-4.7 or pursuant to s. 68 of the Family Law Act , SA 2000, c F-4.5. For the reasons that follow, I decline to exercise my discretion to stay the proceedings for partition and sale. [ 21 ] The Alberta Court of Appeal in Garnett v Garnett , 2019 ABCA 282 considered whether a family home should be sold prior to a determination of the division of family property.

The issue in Garnett was that the parties could not afford the family home because of a significant decline in income associated with one party going on long-term disability due to a cancer diagnosis. The Court of Appeal upheld the Chambers Judge’s direction for partition and sale of the family home.

The present case is different as there has been no material change in the parties’ financial situation nor is there an imminent risk of foreclosure as there was in Karagic v Karagic, 2017 ABCA 394 . [ 22 ] Justice Woolley in Wolf v Wolf, 2019 ABQB 200 at para. 49 , quoting Justice Veit in Buskas v Reid, 2017 ABQB 454 at para 29 , held “ the ordinary rule in favour of partition and sale does not apply to matrimonial property.

In the context of matrimonial property litigation, ‘the Court should not order the sale of the former matrimonial home if there are significant other financial matters still to be resolved.” In Buskas there was both a lack of urgency and a possibility that “the party occupying the home might ultimately have sufficient assets to buy out the other party’s interest in the home.” Wolf and Buskas can be distinguished because in the present case the status quo is unsustainable and there is no reasonable prospect that Ms. Meier will be able to afford to buy the family home.

Further, selling the family home in the present case will simplify, not complicate, the resolution of the outstanding financial matters

between the parties. [ 23 ] Ms. Meier’s monthly budget is $7,130 which comes to $85,560 per year. This should be compared to her WCB benefits which amount to just over $38,000 net per year and the increased child and partner support payments set out earlier in these reasons which amount to $20,250 per year. Even if Ms. Meier were to be awarded all of the equity in the family home at trial, that would not reduce the mortgage payments so she would still be unable to come anywhere close to meeting her estimated monthly expenditures. The monthly budget is either grossly inflated or Ms.

Meier seeks to live a lifestyle that she cannot afford. While certain line items in the budget can be debated and revised, none would make a material difference. The real problem is that even under the most optimistic assumptions Ms. Meier cannot afford to live in the family home. [ 24 ] During oral argument, I put to counsel for Ms. Meier that the position that Ms. Meier might purchase the family home following trial was unrealistic based on the monthly budget presented even assuming the most favourable trial outcome. Counsel for Ms. Meier candidly admitted that Ms.

Meier’s position and her efforts to maintain possession of the family home was her leverage to get Mr. Gole to the table to settle the various outstanding issues between the parties. The Court, however, is not in the business of delaying the inevitable so that one party may exert pressure on another in an effort to extract more favourable settlement terms. [ 25 ] The submission that a sale cannot proceed without an appraisal first is also without merit.

The purpose of an appraisal is to determine the value of a property based on an expert appraiser’s estimation of the price at which a willing seller and a willing buyer would enter a transaction in an open market ( i.e . fair market value). An appraisal is often required in a division of family property to ensure that the transaction price is fair where one party is going to purchase the remaining interest in the property from the other without it being exposed to the market. The present situation is very different. Ms. Meier cannot afford the family home.

The obvious answer is to list the property for sale and let the market decide its value. Further, the estimated value of the family home in the parties’ respective disclosure statements shows that there is not a significant disagreement between the parties on the issue of value. [ 26 ] Ms. Meier’s cross-application for exclusive possession of the family home pursuant to Family Property Act s. 19 and Family Law Act s. 68 requires consideration of the factors set out in Family Property Act s. 20 and Family Law Act s. 69. The factors from those sections relevant to the present circumstances are: (

a) the availability of other accommodation within the means of both the spouses or adult interdependent partners, (

b) the needs of any children residing in the family home, (

c) the financial position of each of the spouses or adult interdependent partners, and (

d) any order made by a court with respect to the property or the support or maintenance of one or both of the spouses or adult interdependent partners. [ 27 ] The evidence before me on the availability of alternative accommodation within the means of Ms. Meier was sparse. I note, however, that Mr. Gole lives in the same general area in rental accommodation. I am satisfied that given the preceding directions increasing child support and partner support there is accommodation within the means of Ms.

Meier available in the countryside or communities proximate to the family home, whether on a rental basis or the purchase of a new home. [ 28 ] The submission that Ms. Meier should be permitted to remain in the family home because of the needs of her child is without merit. The child is four years old. What a four-year-old child needs is a home where her basic needs are met and she is loved.

Absent conditions such as a disability requiring specialized accommodation, a four-year-old child does not need to live in a specific property. [ 29 ] Both Family Property Act s. 19 and Family Law Act s. 68 provide that an order for exclusive possession may be “made subject to any conditions and for any time that the Court considers necessary.” Counsel for Mr. Gole advised in his submissions that there was no objection to Ms. Meier having exclusive possession of the family home until it is sold. Accordingly, an order for exclusive possession of the family home is made in favour of Ms.

Meier until the family home is sold. This order recognizes and preserves the status quo pending the sale. [ 30 ] The parties in this case would be best served by commencing the disentanglement of their property interests now. Waiting more than a year until a trial can occur and then months after while a sale process unfolds will prolong the entanglement of these parties and potentially dissipate value. An order for partition and sale now allows for the sale to be completed prior to the trial over the division of family property.

This, in turn, will make for a more efficient trial because the value of the family home will no longer be a triable issue. [ 31 ] Failing agreement between the parties, the listing price of the family home shall be the value stated by Mr. Gole in his disclosure statement which was higher than the value stated by Ms. Meier in her disclosure statement. As noted above, these values are not disclosed to protect the ability of the parties to market the property and obtain the best price possible.

The process for the sale of the family home shall be as follows: 1) The parties shall each identify a listing agent by January 10, 2022; 2) The parties shall agree on a listing agent by January 24, 2022; 3) Failing agreement on a listing agent the parties may apply to the Court in writing to determine the listing agent. Submissions must be in the form of a letter 2 pages in length or less.

Responding submissions are due one week after the initial submission; 4) If 60 days after listing the property for sale the property has not been sold and the parties cannot agree on a price reduction, the price shall be reduced to the mid-point between the values stated by Ms. Meier and Mr. Gole in their disclosure statements; 5) If after a further 60 days the property has still not been sold and the parties cannot agree on a price reduction, the price shall be

reduced to the value stated by Ms. Meier in her disclosure statement; and 6) If after a further 60 days the property has still not been sold and the parties cannot agree on a price reduction, the parties may apply to the Court in writing to determine the price reduction. Submissions must be in the form of a letter 2 pages in length or less. Responding submissions are due one week after the initial submission. [ 32 ] Since Ms. Meier will be required to vacate the family acreage once it is sold, she will need new accommodation. To facilitate Ms.

Meier purchasing a new home if she chooses to do so, 30% of the equity in the home may be distributed to Ms. Meier upon completion of the sale of the family home and prior to the trial. Since Mr. Gole has expressed an interest in purchasing a home, 30% of the equity in the family home may also be distributed to him upon completion of the sale. The precise shares of the equity in the family home and other family property to which Ms. Meier and Mr. Gole are each entitled will be determined at trial.

I am satisfied that an interim distribution of 60% of the equity in the family home prior to trial will not prejudice either party. The remainder of the proceeds of the sale of the family home shall be held in trust pending trial unless there is agreement between the parties or a further order of this Court. Conclusion [ 33 ] Mr. Gole’s application was successful and Ms. Meier’s cross-application was substantially successful. Accordingly, each party shall bear their own costs. Heard on the 1 st day of December, 2021. Dated at the City of Red Deer, Alberta this 7 th day of December, 2021. C.C.J. Feasby J.C.Q.B.A.

Appearances: Rick E. Howarth for the Plaintiff, Mark William Gole Larry Hawkeye for the Defendant, Priscilla Leonie Meier