Byrne v. Byrne, 2016 NSSC 279

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Byrne v. Byrne , 2016 NSSC 279 Date: 20161020 Docket: 1201-068075 Registry: Halifax Between: Patrick Joseph Byrne Petitioner v. Georgina Ann Byrne (Lipon) Respondent ______________________________________________________________________________ LIBRARY HEADING ______________________________________________________________________________ Judge : The Honourable Justice Beryl MacDonald Heard : June 21, 2016, Halifax Nova Scotia Keywords: Family; Separation Date; Division of Assets; Division of Judgment Debt Owed by One Party; Retroactive Child Support; Spousal Support; Legislation : The Divorce Act , R.S., 1985, c.3 s.17

Summary: Wife knew or should have known the marriage was at an end by February 25, 2014. The Wife’s claim for retroactive child support failed because the child was over 19 at the time the request was made. The Husband’s claim for retroactive child support failed because the Wife’s income was below the minimum guideline amount requiring payment. The Husband’s chart for the division of assets was accepted. The Judgment Debt against the Wife was hers alone. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT ’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRA RY SHEET.

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Byrne v. Byrne , 2016 NSSC 279 Date: 20161020 Docket: 1201-068075 Registry: Halifax Between: Patrick Joseph Byrne Petitioner v. Georgina Ann Byrne (Lipon) Respondent Judge: The Honourable Justice Beryl A. MacDonald Heard: June 21, 2016 Counsel: Michelle Rogers, counsel for the Petitioner; Karen Killawee, counsel for the Respondent By the Court: [ 1 ] This is a divorce proceeding. I am satisfied all jurisdictional requirements of the Divorce Act have been met and there is no possibility of reconciliation.

I am satisfied there has been a permanent breakdown of this marriage. The parties have lived and they continue to live separate and apart from one another for a period in excess of one year from the commencement date of this proceeding.

A Divorce Judgment will be issued. [ 2 ] Patrick Byrne commenced this divorce and included a request for the following relief: • child support for the period of time when the parties’ son lived with him • a determination about what, if any, spousal support he is to pay to Georgina Byrne • a determination about the separation date • a division of assets and debt including an order giving him the authority to sell the matrimonial home without requiring Georgina Lipon’s co-operation [ 3 ] Georgina Lipon (formerly Byrne) filed an Answer in this proceeding and requests similar relief including a determination about child support that should have been paid to her when the parties’ daughter was living with her.

She does not want Mr. Byrne to have exclusive authority to sell the matrimonial home. Background [ 4 ] Patrick Byrne and Georgina Lipon were married for 18 years. They raised two children, a daughter who is now 24 and a son

who is 20. [5] When the parties’ daughter graduated from high school she obtained employment and was independent for a period of timeuntil August 2014 when she left her employment and went to Alberta to live with Ms. Lipon. She has a child who is three years old andwhile in Alberta she enrolled in and completed a paralegal course. While attending the paralegal course she lived with Ms. Lipon whoprovided childcare.

At the same time she was taking this course she was working part time but I have no evidence about her earnings orabout the cost of her course or what other sources of income may have been available to her. After graduating and obtaining employmentshe moved into her own residence. [6] The parties’ son continued to reside with Mr. Byrne after Ms. Lipon moved to Alberta. When he graduated from high school at18 he obtained minimum wage employment that was not full time. He continued to rely on Mr. Byrne for accommodation, food and transportation expense. February 15, 2015 was his 19th birthday.

He continued to live with Mr. Byrne for one year after that. I have noevidence about his earnings from February 15, 2015 until he obtained his own residence one year later. [7] Mr. Byrne is an airline pilot. In the late 1990s he had advanced to become a Captain with Canadian Regional Airlines whicheventually became Jazz Aviation. He was offered an opportunity to move to Halifax and both parties agreed to this move. In November2013 he was in an accident that caused a break to his arm and a rotator cuff injury.

At the date of the hearing he was unable to return towork because he had not been cleared to pilot an airplane. He was on disability benefits. [8] Counsel have requested that I base my decision on his present situation. They have informed me Mr. Byrne has returned “tothe payroll” but has not yet been “cleared to work”. “It is therefore uncertain whether his return “to the payroll will be permanent”. Hisannual go forward income is $79,621.00. If he resumes flying he will receive a per diem to cover his daily expenses but those are “yet tobe determined”.

His employer may assist on any real estate commission expense required upon the sale of the matrimonial home if he isto be relocated. No decision on relocation has been made. This information comes from written communication received from counsel on September 19th and 20th , 2016. [9] Ms. Lipon worked throughout the parties’ marriage although Mr. Byrne was the higher income earner. Mr. Byrne’semployment opportunities resulted in his acceptance of positions that caused the parties to move to and from various cities in Albertabetween 1995 and 2003. In 2003 they moved to Halifax and Mr. Byrne has remained here. Ms.

Lipon returned to Alberta in August 2014. [10] Ms. Lipon left high school in Grade 10. She did receive a Certificate in Marketing from the Northern Alberta Institute ofTechnology in 1990-1991. However her employment has typically been in minimum wage positions. She worked in retail sales, sheworked at a meat packaging plant and she worked as a dispatcher for a temp agency. There is no information before me to substantiatewhether or not she could have advanced in any of these positions and was prevented from doing so because of child rearingresponsibilities or relocations required as Mr.

Byrne advanced in his career. [11] The only employment that gave Ms. Lipon significant income was her employment from 2004 until 2009 and then from 2010until 2014 as a General Manager for Boston Pizza at its location in Sackville, Nova Scotia. Although lacking in formal education theevidence suggests Ms. Lipon had sufficient skills, presumably recognized by others, including Mr. Byrne, to be employed as a GeneralManager. She also appears to have been able to present herself as a viable candidate for public office. In 2000 she was elected as amunicipal counsellor in Alberta.

She offered as a candidate in the Halifax municipal election and twice ran unsuccessfully to benominated as a candidate in upcoming provincial elections. [12] Since she has been in Alberta Ms. Lipon has had sporadic minimum wage employment. She has used her RRSP’s to supportherself and to provide a residence for herself and the parties’ daughter. At one point she was on social assistance. Family is now assistingher. [13] The reason why Ms. Lipon had an opportunity to become a General Manager was because both she and Mr.

Byrne decided theywould financially benefit from an investment in a Boston Pizza franchise although neither had any experience as franchisees or inrestaurant management. Unfortunately for them this endeavor eventually failed causing other investors to seek compensation. [14] A number of reasons have been suggested for the failure of this enterprise. It is not necessary for me to make any determinationabout why the enterprise failed but it is possible the parties’ lack of experience may have contributed to that failure as did inadequatesupport provided by the franchisor.

The parties are left with considerable debt arising from this failed enterprise and they disagree aboutwho should bear the burden of repayment. Separation Date [15] The parties disagree about their separation date. In MacNeil v MacNeil, 2016 Justice Dellapinna said: [9] In order to prove that the parties have lived “separate and apart” for divorce purposes, it is necessary that (1) the parties live apart and(2) at least one of the parties had the intention to live separate and apart i.e. to withdraw from the marital relationship (McKenna vs.McKenna (1975), (NS CA), 10 N.S.R. (2d) 268 (N.S.C.A.)).

It is not necessary for the parties to share the intention toseparate. As said by McDermot J. in O’Brien v. O’Brien, 2013 ONSC 5750 at para. 50: “Unlike the decision to marry, the decision to separate is not a mutual one. It is a decision which is often made by one party over theobjections of the other. Those protestations matter not; once one party has decided to permanently separate and has acted on it, the otherparty has no ability to stop the process or object to it. This is confirmed by s. 8(3)(

a) of the Divorce Act, which states that “spouses shall

be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other”.[Emphasis added by McDermot J.]. As stated by D.L. Corbett J. in Strobele v. Strobele, [2005] O.J. No. 6312 (Ont. S.C.J.) , the separation occurs when “the parties knew or, acting reasonably, ought to have known, that their relationship was over and would not resume” [paragraph 29].

Importantly, and applicable to the present case, he also says that, “Groundless hopes of reconciliation should not extend a valuation date where one spouse has been clear in his or her intentions to end the relationship” [paragraph 32]. [ 16 ] Courts have reviewed a number questions that may assist in this determination some of which are: • Do the parties occupy separate bedrooms? • Do the parties engage in sexual relations? • Do the parties share bank accounts? • Do the parties attend social and recreational activities together putting themselves forward as a couple? • Do the parties eat together? • Has either party told others the marriage is at an end? [ 17 ] Mr.

Byrne considers October 31, 2013 to be the separation date. The parties’ relationship had been deteriorating for some time. He had moved into a separate bedroom in the basement of their home in August 2012. They did very little together as a couple and maintained very different schedules. Ms. Lipon does not deny this. [ 18 ] In late October 2013 the parties had what Ms. Lipon calls “very important disagreement”. Mr. Byrne testified that “Genna specifically told me she wanted a divorce”. Ms. Lipon testified that she told him “if we don’t improve this could lead to divorce”.

She alleged they began to discuss a joint move to Calgary through the fall and into December 2013. Mr. Byrne denies this. Ms. Lipon does acknowledge that on February 25, 2014 the parties seriously discussed divorce and this is why she used that date in her Answer. I take this as an admission she recognized the parties’ relationship was over and although Mr. Byrne considered this to have happened earlier I accept February 25 th 2014 as an appropriate separation date. Shortly after this Mr. Byrne prepared a Separation Agreement that he provided to Ms. Lipon.

She refused to enter into any voluntary agreement even though it would have provided her with spousal support. Division of Matrimonial Property and Debt / Boston Pizza Franchise [ 19 ] After separation the parties continued to live in the matrimonial home because they had no other economic option. Their investment in the Boston Pizza franchise continued to yield negative returns and the other shareholders were pointing fingers of blame particularly at Ms. Lipon and Mr. Byrne. [ 20 ] In June 2014 Ms. Lipon was terminated from her position as General Manager. [ 21 ] By July 2014, Mr. Byrne, Ms.

Lipon and other shareholders were being sued by a majority shareholder. Ms. Lipon had an opportunity to prepare a defense because she also was a shareholder in this enterprise. She may have had her own legal action to pursue as an employee but she did not engage independent counsel for that purpose. The parties also were at risk of being sued by creditors who had lent money to the corporate structure that had been created to operate the franchise for which the parties had issued personal guarantees. [ 22 ] Ms. Lipon alleged she had the commitment of Mr.

Byrne to look after her interest in any and all of the lawsuits that were commenced or may be commenced against them. Mr. Byrne denies that he accepted this responsibility and he has given significant evidence about his attempts to engage Ms. Lipon in this process. He was unable to reach her at email addresses he expected her to access. She alleged many of these emails, because they were set up initially by him, were merely a tool for him to harass her. She testified he had other means by which to contact her.

However, almost in the same breath, she testified she had to cut off all contact with him because he was “invading my privacy”. She admitted she told their daughter not to give Mr. Byrne her address in Alberta or her phone number. She alleged that letters emailed to her by a lawyer who was assisting Mr. Byrne and other shareholders in their defense were manufactured by Mr. Byrne. She testified she had never received those emails. I do not believe her. [ 23 ] The emails clearly informed her about the deadline for filing defenses to the action. They also informed her that the law firm involved was representing Mr.

Byrne and other shareholders. It was not representing her but invited her to join settlement discussions. Because she felt she was an employee, and was owed money by the Company for unjust dismissal, she was not prepared to participate in the settlement discussions which eventually did lead to a positive conclusion at least in respect to the amount of money owed by Mr. Byrne and others involved. Because she did not give instructions to a lawyer to file a defense on her behalf and because she refused to participate in settlement conversations there is now a default judgment against Ms. Lipon for $71,790.00.

This has been registered as a lien against her interest in the matrimonial home. It must be paid when the home is sold. Ms. Lipon considers this to be a matrimonial debt, or a business debt that must be shared by both parties. However, she fails to recognize that Mr. Byrne has paid his portion of this debt as a result of the settlement negotiations. This is her share. This debt will not be included in the asset and debt division.

Family Finances [ 24 ] Mr. Byrne has presented a detailed report about what has happened in respect to the family finances. It appeared Ms. Lipon wanted the Court to engage in a forensic examination of Mr. Byrne’s management of bank accounts and assets to determine whether he misappropriated funds or assets for his personal benefit. [ 25 ] At trial she had numerous questions about the “sale” of one of their vehicles to their son, the consolidation loan Mr. Byrne negotiated, and his payment of household utility expenses. Mr.

Byrne’s answers were reasonable and unsurprising. [ 26 ] There is no evidence of misappropriation. Politely put, the parties’ financial position was and still is on the edge of bankruptcy. By June 2014, Ms. Lipon was unemployed, Mr. Byrne was disabled from his workplace, their business enterprise was heading into receivership and it was becoming likely they would be sued for thousands of dollars. Nevertheless, Ms. Lipon relocated to Alberta in August and categorized Byrne’s attempts to reach her to talk about what was to be done as an “invasion of her privacy”.

In her affidavit (Exhibit 15) she said: 32…..I absolutely acknowledge that I did bury my head in the sand somewhat at this time. I did not respond to the Divorce Petition. There was so much going on at this time with the business law suit and a divorce that I had hoped would not happen. My emotional stress level was through the roof, and I was effectively incapable of dealing with the issues at hand… [ 27 ] No doubt Ms. Lipon wished and hoped the nightmare she was living would go away but willful blindness has its consequences, consequences that courts cannot unravel. Ms.

Lipon rationalized to the detriment of both parties. She believed, wrongly, that Mr. Byrne had the financial capacity to bail both of them out of the mess that had been created. He may have been able to assist her but she rejected his attempts. Through the intervention of his family he has been able to mitigate his personal liability somewhat but given the parties’ lack of assets, Mr. Byrne’s continuing disability and Ms. Lipon’s limited earning capacity Mr. Byrne may be the only person from whom creditors can seek recovery. The specter of personal bankruptcy haunts this proceeding. Pensions [ 28 ] Mr.

Byrne’s Air Canada defined benefit pension is to be divided equally at source up to the date of separation. Mr. Byrne has requested the Order for division require a deduction to pay the equalization amount he suggests is owed by Ms. Lipon and any cost award he may be granted. He has made this request because it is unlikely he will receive payment from Ms. Lipon. Her employment prospects are limited and she has no assets independent from those that were accumulated during the marriage. I accept this request as reasonable given that she has delayed the resolution of this matter by refusing to communicate with Mr.

Byrne and others when she should have thus increasing expenses he was forced to pay. She complains he should bear these expenses because he was not paying her spousal support but she did nothing to advance her claim for spousal support. He is the person who requested the trial to resolve the issues she refused to address. [ 29 ] I am concerned about Mr. Byrne’s request because I do not know whether the pension administrator can deduct the amounts owed by Ms. Lipon to Mr. Byrne from her pension division entitlement.

If this entitlement is to be reduced to actual dollars and then placed into a locked in RRSP, this goal may easily be accomplished. I will only sign an Order requiring this upon confirmation from the pension administrator or other reliable source that this can be accomplished. Asset and Debt Division [ 30 ] The last market appraisal for the matrimonial home was prepared in November 2014. The suggested value was $289,000.00. If this property sold for this amount deduction of the estimated closing costs and payment of the mortgage would leave the parties in a deficit position in the amount of $3,401.80.

This must be paid by Mr. Byrne when the property is sold. The deficit will increase if the property does not sell for the appraised value. Mr. Byrne realizes this but he has based the equalization of the parties’ assets on the 2014 market appraisal. Ms. Lipon has provided nothing to suggest the home will sell for more than this amount. [ 31 ] The closing costs may be reduced if Mr. Byrne relocates and his employer pays all or some of the closing costs. Ms. Lipon wants an Order deferring a final adjustment until the property is sold.

No doubt this is because she is hopeful it will sell for more than the appraised value and/or Mr. Byrne’s employer will be paying some or all of these closing costs. Either event would reduce the equalization payment she would owe. If the sale produced a “profit” neither would benefit because that money must be paid to the judgment creditor. [ 32 ] I must deal with the situation as it presently appears based upon reasonable assumptions, not hoped for outcomes. Mr. Byrne has made reasonable assumptions in preparation of the equalization chart. Many of the values he has used have not been contested by Ms. Lipon.

I attach as

Schedule “A” the equalization chart provided by Mr. Byrne. He originally requested compensation for all of the expenses he paid related to the mortgage, utilities, and household debt. He has considerably reduced his claim although not all of these may have been subject to an equal division. There is no value given for household contents. Ms. Lipon has provided no values to attach to household contents. She has provided no suggestion about how these may be divided two years after she left the matrimonial home. Mr. Byrne is to keep the contents free from any claim for division.

I accept his calculations that require an $8,916.72 equalization payment from Ms. Lipon. If pension authorities permit, this amount is to be deducted from her share of Mr. Byrne’s pension.

Child Support [33] During the course of this proceeding both parties have requested child support for a child residing with them who theyconsidered to be a “dependent child”. [34] By August 2014, one child was living with Ms. Lipon in Alberta. That child was 22 years old. She had a child of her own butwas unemployed. She eventually returned to school and moved to her own residence in June 2015. I have no information about sourcesof income this child may have had. Ms. Lipon did not make any claim for child support until March 23, 2015 when she filed an Answerto this proceeding. Ms.

Lipon has failed to provide sufficient information for a declaration that this child was a dependent child when shefiled her answer. This finding is required to provide the Court with jurisdiction to order child support whether prospectively orretroactively. (S.(D.B.) v. G.(S.R.)et. al. , 2006 SCC 37 , 2006 Carswell Alta 976 (SCC); in particular paragraphs 88,89 and113.) [35] When Ms. Lipon left the matrimonial home for Alberta one child continued to live with Mr. Byrne. When Mr. Byrne filed hisPetition for Divorce he did not claim child support. He did so by Amended Petition filed April 15, 2015.

At this time the child living withhim was 19 years old. Mr. Byrne’s testimony is that this child became independent in February 2016, when he moved into his ownaccommodation. At best any retroactive claim for this child would be for an 11 month period – commencing on the effective date ofNotice which was the filing date for the Amended Petition. In 2015, Ms. Lipon’s Tax Return

Summary indicates $12,286.00 as line 150income. Her income for the months of January and February 2016 would not yield a different calculation for annual income. Nomeaningful child support would have been ordered to be paid on these low incomes. I have been asked to impute income to Ms. Lipon.Although I will impute income to her on a prospective basis, I am not prepared to do so on a retroactive claim. [36] Both claims for retroactive child support are dismissed. Spousal Support [37] Mr. Byrne has not contested Ms. Lipon’s entitlement to spousal support.

He argues that any request for spousal support from theparties’ separation to date should be denied because it has been paid as a result of his assuming her portion of matrimonial debt. It iscorrect that he has assumed some of this debt but not all. He also argues income should be imputed to her in calculating prospectivespousal support. He suggests the imputed amount should be the annual income she earned as a manager of the Boston Pizza franchise, aposition she has not held since June 2014.

He argues she has been underemployed in Alberta and suggests she could and should findanother managerial job. [38] While she may not have been as diligent in seeking out employment as she could have been, Ms. Lipon’s testimony is that herlack of resources and the need to be supported by her family resulted in her living with them in a place where these jobs are not readilyavailable. [39] I have been asked by Ms. Lipon to use the Spousal Support Advisory Guidelines to determine the quantum and duration ofspousal support.

Determining the basis of entitlement is a required first step to ensure proper utilization of the Spousal Support AdvisoryGuidelines. Significant compensatory claims may suggest spousal support at the higher level of the range. Lesser compensatory claimsand non-compensatory claims may suggest support at a lower level of the range. Duration will also be determined based upon thestrength of the claim. [40] How to assess entitlement and the evidence required to do so was commented upon by L'Heureux-Dubé, J. in Moge v. Moge (SCC), [1992] 3 S.C.R. 813.

She commented: [84] 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 Lintonv. 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). (emphasis added) [41] In Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420 the Supreme Court decided the factors set out in s. 15.2(4) and the objectives set out in s. 15.2 (6) of the Divorce Act R.S., 1985, c.3 created three rationales for spousal support: 1. Compensatory support to address the economic advantages and disadvantages to the spouses flowing from the marriage orfrom the roles adopted in marriage. 2. Non-compensatory dependency based support, to address the disparity between the parties, needs and means upon marriagebreakdown.

3. Contractual support, to reflect an express or implied agreement between the parties concerning the parties’ financialobligations to each other. [42] The seeds for the Bracklow analysis were planted in Moge but the framework for that analysis was not clarified by Bracklow. An interesting exploration of the various effects of Moge and Bracklow is contained in the

article written by Carol Rogerson, Professor,Faculty of Law, University of Toronto, 2001, 19 Can. Fam. L.Q. 185, entitled “Spousal Support Post-Bracklow: The Pendulum SwingsAgain?” In this

article she quotes with apparent agreement the comment of Quinn J. in Keller v. Black, 2000 CarswellOnt 74 (Ont. S.C.J.): [22] It seems that Bracklow has taken us to the point where any significant reduction in the standard of living of a spouse resulting fromthe marriage breakdown will warrant a support order – with the quantum and/or duration for the support being used to tweak the order soas to achieve justice in each case. [43] In her

article Professor Rogerson comments further at page 224: As Quinn J. recognizes, most of the action in spousal support cases is now with quantum and duration. And on that issue, Bracklowprovides little guidance except to say that it is all discretionary. However, it may be slightly misleading to think that what goes on at theentitlement stage of analysis is not significant, given that the basis for entitlement will likely influence the subsequent analysis and theassessment of the appropriate award in terms of quantum and duration.

It may still, therefore, be important to distinguish whetherentitlement is based on compensatory or non-compensatory grounds. The way in which a court categorizes the marriage and theapplicable models of spousal support may exert a significant influence on the actual outcome. [44] In this case there is ample evidence before me to determine the nature and extent of the Wife’s entitlement and to apply theSpousal Support Advisory Guidelines. I recognize the Guidelines are advisory. However, they do provide a focused consideration ofthe requirements mandated by

section 15.2 (6) of the Divorce Act and a theoretical construct from which to justify the quantum andduration of an award. [45] I am also mindful of the challenges faced by middle aged divorced women as was highlighted by Justice Proudfoot in Story v. Story, (1989), (BC CA), 65 D.L.R. (4th) 549 (B.C.C.A.) at 566: It is often, in my opinion, totally unrealistic to expect that a 45- or- 50 year old spouse who has not been in the job market for many,many years to be retrained and to compete for employment in a job market where younger women have difficulty becoming employed.

Employment and self-sufficiency are simply not achievable. [46] The parties have two children. Child rearing responsibilities do interfere with career advancement, if only because one of theparties, most often the female spouse, does assume a significant majority of the child rearing tasks. Mr. Byrne suggests an equal attentionto these tasks but, because of the nature of his employment, I give little weight to that evidence. He suggests he has done nothing toimpede Ms. Lipon from pursuing advanced education or employment opportunities. This may be so but active prevention is notnecessary.

The relationship itself may result in this failure. The urgency to advance one’s education and skill development, even whenthese opportunities may have been available, is often absent because there is a partner who is providing financial support and there arechildren whose needs often take precedence. [47] Few spouses look ahead to the possibility of separation and divorce. When this occurs fingers are pointed suggesting there wasno prevention by one party of the other’s opportunities. The argument often made is that the party seeking support chose not to pursueadvanced education or employment advancement.

But the spousal support analysis is not based upon what might have been. It is basedupon what actually happened during the relationship. Have there been advantages and disadvantages arising from the marriagerelationship. One of the advantages may be the financial support the other party provides. Unfortunately when the relationship ends thisbecomes a disadvantage to both parties. One spouse can’t become financially self-supporting and the other has to pay spousal support. [48] Determining whether a party has been advantaged or disadvantaged by marriage is often difficult to determine.

L'Heureux-Dubé, J. gave some guidance about how this may be accomplished when she wrote in Moge v. Moge, supra, [46] Fair distribution does not, however, mandate a minute, detailed accounting of time, energy and dollars spent in the day to day lifeof the spouses, nor may it effect full compensation for the economic losses in every case. Rather, it involves the development ofparameters with which to assess the respective advantages and disadvantages of the spouses as a result of their roles in the marriage, asthe starting point in determining the degree of support to be awarded.

This, in my view, is what the Act requires. [84] ….Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often arevealing indication of the economic disadvantages inherent in the role assumed by one party….

[ 49 ] In this case there were dislocations in Ms. Lipon’s employment caused by the frequent residential moves required as Mr. Byrne advanced his career. [ 50 ] Ms. Lipon did have child rearing responsibilities during the marriage. [ 51 ] Ms. Lipon was financially dependent upon Mr. Byrne during their relationship. [ 52 ] There is a significant disparity in the standard of living Ms. Lipon will experience in the absence of spousal support. [ 53 ] Ms. Lipon was 46 when the parties separated. She is now 49 years old.

She has limited formal education and her work history to date may not easily translate into further managerial employment. [ 54 ] Ms. Lipon has a compensatory entitlement to receive spousal support. Incomes [ 55 ] Mr. Byrne’s total annual income is $79,621.00. [ 56 ] Ms. Lipon’s incomes contributed to the family but until the parties invested in the Boston Pizza franchise her annual income was generally no more than $25,000.00. Ms. Lipon has limited formal education and, given what has happened in respect to the franchise operation, it is doubtful she will obtain any recommendations for a managerial position.

She most likely will be limited to minimum wage employment. In Alberta the minimum wage is $12.20 per hour. If her work week was for the typical 37.5 hours her annual income would be $23,473.00. [ 57 ] I do not want to make unreasonable assumptions about the amount of income Ms. Lipon should be able to earn but it is appropriate to impute some income to her under these circumstances. She is 49 years old and will not be able to receive any financial benefit from the Canadian Pension Plan until she is 60. She will need to find employment because Mr.

Byrne cannot meet all of her financial needs and because becoming self-sufficient over time is a factor to be encouraged. Prior to the Trial Ms. Lipon was employed in a minimum wage job that she hoped would provide her with an annual income of $28,000.00. By the trial date she had lost that job and her original expectations were inflated. I impute an annual income of $23,000.00. [ 58 ] Based upon the parties’ incomes, the Spousal Support Guidelines suggest a range for spousal support from $1,274.00 per month to $1,699.00 per month with an indefinite duration. Ms.

Lipon has a significant compensatory claim but she has ability to work and should be encouraged to find remunerative employment. She has no child rearing responsibilities. Some of the marital debt she might have been required to pay has been paid by Mr. Byrne. He is not responsible for the judgment debt she now owes. I have decided Mr. Byrne is to pay $1,400.00 per month for spousal support commencing July 1, 2016. I will not order Mr. Byrne to pay spousal support for any earlier date. My reasons for this are: • the delay in bringing this matter to conclusion because of Ms.

Lipon’s failure to respond to these court proceedings in a timely manner the details about which were delivered to the parties as part of the March 3, 2016 Conference Memorandum • the assumption of some of the matrimonial debt by Mr. Byrne • Ms. Lipon did not pay child support for the parties’ son who was under the age of 19 until February 2015. [ 59 ] While Mr. Byrne did not succeed to convince me he should pay limited spousal support he did succeed in his submissions about the division of property and debt.

He was forced to take many unnecessary steps to bring this matter to conclusion and the majority of the submissions related to the property and debt issues rather than to the spousal support issue. To this extent he is the successful party and is entitled to a cost award. If counsel do not resolve the amount to be awarded they are to inform me whether they wish to provide oral or written submissions on costs. ______________________________ Beryl A. MacDonald, J.

Attached:

Schedule “A”

Schedule “A” Asset/Debt Retained by Husband Retained by Wife Matrimonial home at 138 Haliburton Crescent to be sold Anticipated value of $289,000 (but state of disrepair may decrease sale price substantially) Sale of home must satisfy: -Commission: $14,450 [1] -HST: $2,167.50 -Legal: $1,000 -Homeline: $271,999.98 -Property taxes: $2,785.15 Anticipated deficit of -($3,401.80) 2010 Suzuki * $8,072 2011 Suzuki* $10,526 2003 Thunderbird At trial Ms.

Byrne agreed that the proceeds had been equally divided $6,400 $6,400 2009 Suzuki $7,525 (account receivable from the parties’ son Tim) $475 RBC direct investing* margin account $61.26 CSV of Sunlife Policy* $750 $750 Jazz Shares* $145.57 Gina Spousal RRSP $14,000 Sunlife Locked In RPP* $58,198 Joint RBC credit line (19- 001)* -($22,900) Patrick RBC Credit Line (90- 001)* -($9,995.92) Scotialine Line of Credit (351) -($37,716) RBC Gold Visa* -($111.09)

Scotiabank Visa* -($1,801.82) Patrick vehicle loan* -($11,139) Gina vehicle loan -($20,231.37) Patrick Boston Pizza debt – either business, or equal value to Gina’s BP debt Gina Boston Pizza debt - either business, or equal value to Patrick’s BP debt TOTAL ASSETS/DEBTS RETAINED -($5,913.80) $11,919.63 Equalization payment from Wife to Husband = $8,916.72