Myren v Myren, 2023 ABKB 424

Court of King’s Bench of Alberta Citation: Myren v Myren, 2023 ABKB 424 Date: Docket: 2203 02711 Registry: Edmonton Between: Krista Fay Myren (also Known As Krista Fay Gallagher) Applicant - and - Coleman Roy Myren Respondent _______________________________________________________ Reasons for Judgement of the Honourable Justice T.G. Rothwell _______________________________________________________ A. Overview [ 1 ] Krista Myren (“Krista”) and Coleman Myren (“Coleman”) met in 2008, cohabitated on and off and eventually married on May 6, 2017. They separated in March of 2019 after over 10 years of cohabitation.

They have two children. [ 2 ] Following the breakdown of the parties’ marriage they entered into an Arbitration Agreement on April 15, 2021, seeking to resolve their outstanding parenting, child support, spousal support and matrimonial property disputes. [ 3 ] The parties selected Ms. Michele Reeves, KC, (the “Arbitrator”) to conduct the Arbitration.

[ 4 ] The Arbitration was heard November 22 and 23, 2021 and the Arbitrator issued her Final Property and Corollary Relief Award (the “Arbitration Award”) on January 21, 2022, and an Amplification Award on March 18, 2022.

She also issued a Costs Award on May 3, 2022. [ 5 ] Krista seeks leave to appeal the Arbitration Award on the following four primary grounds: • Disclosure Errors, • Income Errors, • Spousal Support Errors, and • Property Errors. [ 6 ] Krista argues that all of the proposed grounds are questions of law, are of sufficient importance and impact the rights of the parties to a degree that the test for leave is satisfied. [ 7 ] I elaborate further on each ground of appeal later in these Reasons. [ 8 ] Coleman opposes the application for leave on the basis that the questions raised are not questions of law and, in the alternative, they do not meet the test for leave. [ 9 ] For the reasons that follow, I grant leave on the following alleged Spousal Support Errors: • That the Arbitrator failed to consider elements of the test in s 15.2(4) Divorce Act , RSC 1985, c 3 (2 nd Supp ) ( Divorce Act ) relative to both parties. • That the Arbitrator failed to consider all four objectives set out in 15.2(6) of the Divorce Act ; and • That the Arbitrator failed to consider the test for determining Retroactive Spousal Support. [ 10 ] I decline to grant leave on the remaining issues.

B.

Test For Leave to Appeal Statutory Provisions [ 11 ] The parties’ Arbitration Agreement contemplated an appeal only on a question of law in accordance with s 44(2) of the Arbitration Act, RSA 2000, c A-43 : see para 14 of the Arbitration Agreement. [ 12 ] Section 44(2) provides: If the arbitration agreement does not provide that the parties may appeal an award to the court on a question of law, a party may, with the permission of the court , appeal an award to the court on a question of law. [emphasis added]. [ 13 ] Section 44(2.1) further provides: The court shall grant the permission referred to in subsection (2) only if it is satisfied that. (

a) the importance to the parties of the matters at stake in the arbitration justifies an appeal, and (

b) the determination of the question of law at issue will significantly affect the rights of the parties. [ 14 ] The parties agree that leave is required and that leave may only be granted on a question of law. [ 15 ] I agree with the parties and find it is consistent with Justice Lema’s decision in Mailer v Mailer , 2021 ABQB 423 [ Mailer ]. The clause in the present matter contains the same wording as that considered by Lema J in Mailer . [ 16 ] The parties’ understanding is also consistent with this Court’s

interpretation of s 44 in Driscoll v Hautz , 2017 ABQB 168 at para 18 [ Driscoll ]. [ 17 ] Section 44(3) provides: Notwithstanding subsections (1) and (2), a party may not appeal an award to the court on a question of law that the parties expressly referred to the arbitral tribunal for decision. [ 18 ]

Section 44 imposes a high threshold and leave is rarely granted: 1285592 Alberta Ltd v Moderno Homes Inc , 2018 ABQB 23 [ Moderno Homes ]. Put another way: “… this standard will neither be easy nor impossible to satisfy”: Driscoll at para 22 . [ 19 ] Justice Wittman in Capital Power Corporation v Lehigh Hanson Materials Ltd , 2013 ABQB 413 [ Capital Power ] offered the following guidance at para 50: What the Act requires, in both its general scheme and under s 44(2) specifically, is a very high standard when considering whether the

importance to the parties or the matter at stake in the arbitration justifies an appeal. Mere pecuniary interest may not suffice, though I do not think it necessary to conclude that a pecuniary interest, no matter how significant, could not suffice on its own. [ 20 ] If I find that a proposed ground of appeal is a question of law, I am not to consider the merits; however, I am required to consider whether the proposed question has arguable merit: Alberta Medical Association v Alberta Health Services , 2019 ABQB 82 at para 114 [ Alberta Medical Association ].

What Is a Question of Law? [ 21 ] Justice Fruman in Alberta (Workers’ Compensation Board) v Appeals Commission , 2005 ABCA 276 [ Alberta (Workers’ Compensation Board) ] discussed the difference between a question of law and a question of mixed fact and law. At para 29 Fruman JA stated: The concept of an extricable legal error can be difficult to understand. In Housen at para . 36 , the Supreme Court provided clarification. In that case the alleged error was a finding of negligence, a question of mixed fact and law.

The Court noted that when the error in a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test or a similar error in principle, such an error can be characterized as an extricable error of law. However, when the issue on appeal involves a trial judge’s

interpretation of the evidence as a whole, or the application of the correct legal test to the evidence, there is no extricable error of law. [ 22 ] Justice Antonio, as she then was, set out the following analytical framework in Driscoll at para 23 to assess whether leave should be granted: 1) Is the proposed question a question of law? If no, the application fails. 2) Was it expressly referred to the Arbitrator for decision? If so, the application fails. 3) Will determining the question of law significantly affect the rights of the parties?

If not, the application fails. 4) Are the matters at stake of sufficient importance to the parties to justify an appeal? If not, the application fails. [ 23 ] I adopt and will apply this framework, except for the second prong of the above analysis. Neither party argued that the alleged legal errors were legal questions expressly referred to the Arbitrator for decision. I agree and do not find it necessary to consider that prong of the test. If necessary, I will also consider whether the question has arguable merit as discussed in Alberta Medical Association . C.

Analysis Proposed Ground #1: Disclosure Errors [ 24 ] At the commencement of the Arbitration, Krista raised the issue of Coleman’s failure to answer a number of undertakings relating to property and income calculation matters. The matter had been discussed between counsel and the Arbitrator on the Friday prior to the Arbitration commencing (being the following Monday morning). [ 25 ] There was no dispute that Coleman had failed to answer a number of undertakings.

The Arbitrator and counsel discussed several options including that it would be open to Krista to request the Arbitrator to draw a negative inference against Coleman arising out of his failure to provide disclosure where relevant. [ 26 ] The Arbitrator raised the possibility of an adjournment and provided Krista and her counsel with the opportunity to consider their position. [ 27 ] Following a short adjournment Krista’s counsel returned and stated: We’ve decided that we would like to proceed on the record that we have, and we will be asking for adverse inferences to be drawn where we don’t have the documents that were required to be produced, and we will also reserve our right to address this when we speak to costs. (Page 18 of the Transcript, lines 7-12). [ 28 ] Krista alleges two errors of law: • The Arbitrator erred in not requiring Coleman to discharge his disclosure obligation, including accepting Coleman’s unqualified opinion for valuation purposes, and substituted his evidential burden with a “reasonable man” assessment of value. • The Arbitrator erred in her “adverse inferences” drawn or not drawn at the Arbitration. [ 29 ] Beginning with the first alleged error, Krista seeks to cast the issue as one of the Arbitrator failing to require Coleman to discharge his disclosure obligation.

The issue of whether he provided his undertakings is not a question of law, but instead a question of fact. Based upon my review of the transcript there was no dispute that he had not provided all of his undertakings. Krista did not request a further ruling on disclosure. [ 30 ] Krista decided to proceed in the face of incomplete disclosure. Obtaining fulsome disclosure in any family law proceeding can be a difficult task; however, other remedies were available to Krista to compel disclosure and she chose not to pursue them.

[ 31 ] I conclude that the first proposed error is not a question of law. [ 32 ] Turing to the second alleged error, the Arbitration proceeded on the basis of the documents that were before the Arbitrator. It was open to Krista to request that the Arbitrator draw an adverse inference. However, whether an adverse inference is drawn or not is at the discretion of the Arbitrator. [ 33 ] My colleague Marion J considered the issue of an arbitrator failing to draw an adverse inference in Esfahani v Samimi , 2022 ABKB 795 [ Samimi ].

At paragraph 145 Marion J held: Whether an inference is warranted in a particular case fall within the discretion of the trier of the fact, to be determined with reference to all of the evidence. [ 34 ] I cite the above passage to support my conclusion that drawing an adverse inference is discretionary and generally a factual matter, not a question of law.

At best it would be an issue of mixed fact and law. [ 35 ] Krista argues that it was agreed that the Arbitration would proceed on the basis of adverse inferences being drawn with it being defined as “had Coleman produced the undertakings, it would support (Krista’

s) position not his.” [ 36 ] I find this

interpretation mispresents what the Arbitrator stated. The Arbitrator advised Krista could request that an adverse inference be drawn. The Arbitrator did not provide a ruling in advance with respect to the parties’ positions. [ 37 ] I conclude that the second proposed error is not a question of law. [ 38 ] I decline to grant leave in relation to the “Disclosure Errors”.

Proposed Ground #2 – Income Errors [ 39 ] Krista alleges numerous errors related to the Arbitrator’s assessment of Coleman’s income: • The Arbitrator applied s 18 of the Child Support Guidelines for the Michels income, instead of s 16, and failed to apply s 18 to the Coletrain income. • The Arbitrator improperly reduced Coleman’s income for notional “subsistence”. • The Arbitrator erred by averaging Coleman’s income retroactively when his actual income was known. • The Arbitrator erred in prospectively averaging Coleman’s income for 2020-2022 and directing that his income be set on a non- variable ongoing basis. • The Arbitrator erred in failing to require the legally required “evidence of legitimate business plans or commercial expenses” for the retention of corporate income.

Incorrect application of s 18 of the Guidelines [ 40 ] Beginning with the first alleged error, Coleman was an employee of a company called Michels. He received employment income from Michels. Krista, in essence argues that the Arbitrator applied s 18 of the Guidelines to reduce his employment income. [ 41 ]

Section 18 is intended to allow the Court to adjust income where the parent is a “shareholder, director or officer and the court is of the opinion that the amount of the parent’s annual income as determined under s 16 does not fairly reflect all of the money available to the parent …” The application of an incorrect legal test or statutory provision can constitute an error of law. [ 42 ] However, in this case, Krista argues that the Arbitrator erred by creating a notional subsistence amount and reducing Coleman’s income and argues that it is a legal error for a “decision maker to create evidence”: para 31 of Krista’s Written Brief. [ 43 ] At para 142 of the Arbitration Award the Arbitrator references expenses incurred and reduces Coleman’s income.

There is no reference to either s 18 or 16 of the Guidelines regarding his 2019 income. In her Amplification Award the Arbitrator at paras 22 and 24 references Coleman’s evidence and her finding of the quantum of expenses incurred. [ 44 ] Krista describes this an error of law, but I find it is really an attempt to appeal a finding of fact regarding the expenses and the deduction of expenses from Coleman’s employment income which is an application of the law to the facts. [ 45 ] At the outset, I noted that the application of s 18 to employment income may be an error of law.

However, there is no reference to s 18 in the Arbitration Award. As well, s 16 references

Schedule III which allows for the adjustment of income for travel expenses. To the extent that a question of law is posed, I do not find it has arguable merit. [ 46 ] Krista also argues that the Arbitrator did not utilize s 18 of the Guidelines to attribute any income from Coletrain Oilfield Services Ltd (“Coletrain”) to Coleman in 2019.

The Arbitrator found at paras 17-18 that in 2019 Coleman was doing inspection work through Coletrain when he was not working for Michels. [ 47 ] I will not repeat the purpose of s 18 as I have noted it above. [ 48 ] At para 23 of the Amplification Award, the Arbitrator noted Coletrain’s revenue in 2019 and that Coletrain’s year end was July 31. The Arbitrator specifically noted that Coletrain’s 2019 and 2020 pre-tax corporate income were better dealt with as property, not income and that neither was added to his income.

[ 49 ] I do not find that the proposed ground of appeal constitutes a question of law because the Arbitrator did consider attributing pre-tax corporate income from Coletrain to Coleman, but declined to do so. The consideration of whether to attribute pre-tax corporate income is a matter of mixed law and fact. While the Arbitrator did not specifically mention s 18 of the Guidelines, I am satisfied that she considered the possibility of attributing pre-tax corporate income of Coletrain to Coleman and note that she used the phrase “pre-tax corporate income” which is consistent with the wording of s 18.

Averaging of Income [ 50 ] Krista argues that the Arbitrator erred by using historical income to set Coleman’s income for his 2020 to 2022 income and that the Arbitrator set it as non-variable and averaged income amounts.

Krista points to s 3 of the Guidelines which states “Where, for the purposes of these Guidelines any amount is determined on the basis of specified information, the most current information must be used” as well as the decision of Lavergne v Lavergne , 2007 ABCA 169 at para 12 . [ 51 ] Coleman argues that the parties agreed, on the record before the Arbitrator, that they would use the 2020 Guideline income amount as determined by the Arbitrator for 2021 and 2022 with an adjustment first occurring in 2023.

Coleman also notes that the Arbitration Award does not reference averaging. [ 52 ] Paragraphs 142 to 148 of the Arbitration Award deals with the calculation of Coleman’s Guideline income. [ 53 ] I invited further submissions on this point from counsel and they provided submissions to me via correspondence.

I have considered those submissions. [ 54 ] A failure to use the most current information to determine a child support obligation may constitute an error of law if it involves the misapplication of a legal principle. [ 55 ] Applying the “arguable merit” test I don’t find this alleged error of law has merit in light of the agreement of counsel before the Arbitrator to use the 2020 Guideline income determination for 2021 and 2022 (see pages 421-425 of the transcript).

Moreover, in the fall of 2021, the financial statements for Coletrain and Invisible Energy Services Ltd. (“Invisible”) for the July 31, 2021, year-end were not yet available.

Further, I accept Coleman’s argument that there is no suggestion in the Arbitration Award that the incomes were averaged, which supports my conclusion that there is no arguable merit to this alleged error of law. [ 56 ] The Arbitrator directed at paragraph 149: If Coletrain’s 2021 gross revenue is less than $10,000 and Invisible’s 2021 gross revenue is between $295,000 and $315,000 there will be no variation of child support until July 1, 2023, based on the June 30, 2023 disclosure.

This is to provide the parties a respite from litigation as, unless there is a significant change, any such variation of $10,000.00 +/- /annum would net les than the cost of litigation. [ 57 ] This direction may constitute an error of law; however, it represents a practical approach to dealing with a high conflict situation. [ 58 ] Assuming that it is an error of law, I find that the determination of this issue will not significantly affect the rights of the parties. For the period February 2020 to December 2020, Invisible had gross revenue of $307,644.

If its gross income in 2021 was $315,000, this would not materially affect the calculation of Coleman’s Guideline income earned through Invisible, and in turn would not materially affect the amount of child support payable by Coleman. In addition, the Arbitration Award contemplates ongoing disclosure of financial information and a yearly adjustment of the amount of child support payable, effective July 1, commencing 2022.

While the children may potentially be deprived of some small amount of child support in the short term, if Invisible’s 2021 gross revenue was between $307,644 and $315,000, it will be subject to adjustment going forward commencing in 2023. [ 59 ] I decline to grant on leave on this alleged error. Retention of Corporate Income [ 60 ] Since December of 2019, Coleman contracted his services to Midwest Pipelines through Invisible. Invisible is owned by Coleman’s new partner, Jamie Gough.

The parties agreed that the Arbitrator was to treat Invisible as Coleman’s asset and accept that all of Invisible’s revenue are derived from Coleman’s work: see paras 20 and 32 of the Arbitration Award. [ 61 ] Krista argues that the Arbitrator erred in only attributing 75% of Invisible’s Undeclared Pre-Tax Corporate Income (“UPTCI”) to Coleman.

The Arbitrator addresses this issue at paragraph 145 of the Arbitration Award, describing this income as “adjusted pre-tax corporate income.” [ 62 ] Krista argues that Coleman did not call sufficient evidence to demonstrate or justify that pre-tax corporate income was required to be retained for legitimate business purposes. [ 63 ] I accept Coleman’s argument that Krista is not seeking to challenge a question of law, but instead is seeking to challenge a question of mixed fact and law.

The determination of what portion of UPTCI to attribute to a spouse requires the application of law to facts. [ 64 ] The Arbitrator offered reasons and attributed 75% of the Invisible’s adjusted pre-tax corporate income to Coleman. This decision also involves a degree of discretion. [ 65 ] I find no extricable question of law with respect to the retention of corporate income. [ 66 ] I decline to grant leave in relation to any of the “Income Errors”.

Proposed Ground #3 – Spousal Support Errors [67] The Supreme Court of Canada has held that there are three conceptual grounds for entitlement to spousal support:compensatory, contractual and non-compensatory. Moge v Moge, [1992] 3 SCR 813, [Moge]. Moge remains theleading decision for spousal support on the compensatory model. The Alberta Court of Appeal considered and applied the Mogeprinciples in Shields v Shields, 2008 ABCA 213 [Shields] and Keen v Christian-Keen, 2015 ABCA 314. [68] The Arbitrator found Krista did not have a strong compensatory support claim.

She found Krista’s entitlement to spousalsupport was largely based upon non-compensatory grounds, being a need for spousal support to help Krista improve her earning capacitythrough retaining and upgrading her education.

Concluding Krista had already received almost three years of benefits totalling$1,443.37 per month, grossed-up for Krista’s tax rate, which were akin to interim spousal support, the Arbitrator awarded Krista ongoingspousal support of $2,500 per month commencing February 1, 2022, for a fixed additional period of 4 years. [69] The Arbitrator used the Spousal Support Advisory Guidelines (“SSAGs”) to determine the amount and duration of spousalsupport payable. The Alberta Court of Appeal has repeatedly recognized that the SSAGs are a useful “cross-check” or “starting point”for determining spousal support.

See for example: Wild v Wild, 2019 ABCA 159 at paras 11 and 13 [Wild]; Sawatzky v Sawatzky, 2008ABCA 355; Taylor v Taylor, 2009 ABCA 354; and Fraser-Tabak v Tabak, 2016 ABCA 79. [70] The amount of spousal support awarded was lower than the low end of the range suggested by the SSAGs. The Childviewcalculations prepared by the Arbitrator suggested spousal support of $2,600 at the low range, $3,224 at the mid range and $3,849 at thehigh range.

The duration, being in essence a total of almost 7 years, fell just below the middle of the duration range suggested by theSSAGs (3.75 to 11 years) for a period of cohabitation of 7 ½ years. [71] Krista alleges numerous errors related to the Arbitrator’s determination of spousal support: • The Arbitrator erred in failing to consider each of the elements of the test set out in s 15.2(4) of the Divorce Act, RSC 1985, c 3(2nd Supp), Divorce Act failing to apply the test to both parties, and in considering the child support Krista receives as being part of hermeans. • The Arbitrator erred in failing to consider each of the elements of the test set out in s 15.2(6) of the Divorce Act and applying thetest to both parties. • The Arbitrator erred in applying the legal standard for determining entitlement to retroactive spousal support, including theinterpretation and application of the Alberta Court of Appeal’s decision Corbeil v Corbeil, 2001 ABCA 220 [Corbeil]. • The Arbitrator failed to consider and apply MacMinn v MacMinn, 1995 ABCA 377 [MacMinn] - which requires adjustment ofinterim support. • The Arbitrator erred in directing a termination date for the spousal support she determined was payable when there are genuineand material uncertainties about her ability to become self-sufficient.

Failure to Consider All the Elements of the

Section 15.2(4) Test [72]

Section 15.2(4) of the Divorce Act sets out the factors that a court must consider when determining whether to make a spousalsupport order. The provision states: Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition,means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. [73] The Alberta Court of Appeal has described s 15.2(4) as setting out a “statutory test”. See: Wild at paras 11 and 13. [74] By its plain wording the trier of fact is required to consider the “condition, means, needs and other circumstances” of eachspouse, not just the spouse seeking spousal support.

Therefore, the Arbitrator was expected to apply these factors to both parties, not justto Krista. [75] A failure to consider a required element of a legal test can be characterized as an extricable error of law: Housen vNikolaisen, 2002 SCC 33 at para 36 [Housen].

However, when the issue on appeal involves the application of the correct legal test tothe evidence, there is no extricable error of law: Alberta (Workers’ Compensation Board) at para 29. [76] Krista argues the Arbitrator failed to consider Coleman’s needs, means and other circumstances, including his savings andbusiness accounts, the fact that he retained the matrimonial home and his post-separation standard of living. The needs, means and othercircumstances of the payor spouse are relevant to that spouse’s ability to pay spousal support.

They are also relevant to a comparison ofeach spouse’s respective standard of living post separation. [77] The Arbitrator briefly considered Coleman’s ability to pay in paragraph 159 of the Arbitration Award when she pointed outhis income has essentially doubled during the last few years. She did not otherwise expressly consider in the Arbitration Award or in the

Amplification Award Coleman’s conditions, means, needs and other circumstances. Rather, the Arbitrator focused on Krista’sconditions, means, needs and other circumstances and on the parties’ pre-separation lifestyle. See for example paragraphs 20 and 28 ofthe Amplification Award. [78] I find that a failure to fully canvas Coleman’s needs, means and other circumstances raises a question of law, which hasarguable merit. I am satisfied that determining this question of law will significantly affect the rights of the parties and the matters atstake are of sufficient importance to the parties to justify an appeal.

I grant leave to appeal the Arbitrator’s spousal support award on thisground of appeal. [79] In coming to this conclusion, I recognize that the trier of fact is afforded considerable discretion in determining the quantumand duration of spousal support payable: Moge at para 77 [Moge]; Smith v Smith, 2016 ABCA 376 at para 14 [Smith].

In Hickey vHickey, (SCC), [1999] 2 SCR 518 [Hickey], the Supreme Court of Canada explained at para 10: When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, andcriteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerablediscretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes withan appreciation of the particular facts of the case.

It is a difficult but important determination, which is critical to the lives of the partiesand to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellatecourts when such decisions are reviewed. [para. 10] [80] Here, the amount of spousal support awarded by the Arbitrator was $100 lower than the low end of support suggested by theSSAGs attributing an income of $45,000 to Krista and $220,000 to Coleman.

Trial judges have the discretion to award spousal supporteither above or below the levels set in the SSAGs: Smith v Smith, 2011 NBCA 66 at para 47. However, the amount awarded is almost$725 less than the mid-range suggested by the SSAGs and $1,349 less than the high end of the range.

The potential reconsideration ofthe amount of spousal support payable by this Court could therefore have a substantial monetary effect on both parties. [81] Moving on to the next alleged error, that the Arbitrator considered the child support she received when assessing Krista’smeans, this argument is not fully explained in Krista’s written brief.

I do note the Arbitrator makes the following observation atparagraph 159 of the Arbitration Award: The schooling, training and work experience Coleman has obtained during the relationship has benefitted her as well, as he hasessentially doubled his income in the last few years which means child support is higher … [82] What I believe the Arbitrator was trying to say is that Krista has benefited from Coleman’s increased income because hisincreased income has resulted in a higher amount of child support being payable to her.

In any event, the amount of child support aspouse pays to the other spouse is relevant to their ability to pay spousal support and thus to the amount of spousal support payable. Theapplication on this ground fails. Failure to Consider All the Elements of the

Section 15.2(6) Test [83]

Section 15.2(6) of the Divorce Act sets out the objectives of a spousal support order: Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above anyobligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [84] It is not a test per se. However, the Supreme Court of Canada in Moge recognized the importance of a judge considering allof the four objectives set out in s 15.2(6) of the Divorce Act when exercising their overriding discretion in making a spousal supportaward. At para 77, the Supreme Court explained: The four objectives set out in the Act can be viewed as an attempt to achieve an equitable sharing of the economic consequences ofmarriage or marriage breakdown.

At the end of the day however, courts have an overriding discretion, and the exercise of such discretionwill depend on the particular facts of each case, having regard to the factors and objectives designated in the Act. [85] Krista contends the Arbitrator failed to consider the advantages Coleman received and the disadvantages she suffered, as wellas the financial consequences to her including her ongoing day-to-day care of the children.

Krista also essentially argues that theArbitrator erred in her finding that Krista did not have a strong compensatory claim. [86] The Arbitrator considered the objectives of the Divorce Act in paras 158 to 159 of the Arbitration Award. I agree theArbitrator did not squarely consider s 15.2(6)(b), being the financial consequences arising from the care of any child of the marriage overand above any obligation for the support of any child of the marriage. [87] While no single objective is paramount, the trier of fact is expected to consider all four of the objectives.

Without doing so, areviewing court cannot properly assess whether the spousal support award made achieves the objectives of spousal support and whetherthe award was appropriate. See: Legge v Legge, 2021 BCCA 365 at paras 38 and 40 [Legge].

[ 88 ] I find the argument that the Arbitrator failed to consider all four of the objectives of s 15.2(6) of the Divorce Act raises a question of law that has arguable merit. For the reasons outlined in my analysis of the s 15.2(4) test, I am satisfied that determining this question of law will significantly affect the rights of the parties and the matters at stake are of sufficient importance to the parties to justify an appeal. I grant leave to appeal the Arbitrator’s spousal support award on this ground of appeal.

Failure to Consider the Test for Determining Entitlement to Retroactive Spousal Support [ 89 ] In Kerr v Baranow , 2011 SCC 10 [ Kerr ], at paras 207 to 208 , Cromwell J adopted the considerations set forth in DBS v SRG , 2006 SCC 37 [ DBS ] for the purposes of determining whether a retroactive spousal support order should be made.

Cromwell J explained: While D.B.S . was concerned with child as opposed to spousal support, I agree with the Court of Appeal that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse.

However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support. I will mention some of those differences briefly, although certainly not exhaustively. ...[T]here is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support: see, e.g., M. L.

Gordon, “Blame Over: Retroactive Child and Spousal Support in the Post-Guideline Era” (2004-2005), 23 C.F.L.Q. 243, at pp. 281 and 291-92. [ 90 ] The Arbitrator’s analysis of retroactive spousal support is found in paras 151 to 155 of the Arbitration Award. The Arbitrator calculated that using the mid-range of spousal support payable in the years 2019, 2020 and 2021, and applying a tax rate of 17%, Krista might be entitled to a lump sum retroactive award of spousal support of $50,250.

However, she declined to make a retroactive spousal support award apparently based upon her opinion that any lump sum award would have to be shared equally with Coleman as matrimonial property (see para 152). [ 91 ] There is no discussion in the Arbitration Award or the Amplification Award of the factors that are necessary to consider when determining the suitability of a retroactive award of spousal support, as set out in Kerr and DBS .

The factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal support: Kerr at para 207 ; Legge at para 32 [ Legge ]. [ 92 ] Absent a discussion of or comments with respect to these factors and the governing principles laid out in Kerr , I am satisfied there is arguable merit to Krista’s argument that the Arbitrator erred in interpreting and applying the standard applicable to determining her entitlement to retroactive spousal support. See: Legge at para 38 and 40 .

The failure to consider and apply a legal test or relevant legal principles can amount to an error of law. See: Housen at para 36 ; Zubick v ATA , 2009 ABCA 136 at para 10 [ Zubick ]; EMC Holdings Ltd v Low Profile Ventures Ltd , 2018 BCCA 358 at para 33 . [ 93 ] I will now consider whether the Arbitrator may have erred in law in her

interpretation of the Alberta Court of Appeal’s decision Corbeil . The Court of Appeal stated at paras 60-63 of Corbeil : [60] Moreover, retroactive spousal support orders made after or contemporaneously with an order dividing matrimonial property can be problematic. It is very important for a court to consider the impact of a retroactive spousal support order on the property division.

That is because a payment of lump sum retroactive support impacts the property that would or should have been available for division. [61] For example, suppose an order for retroactive support of $30,000 was made and paid prior to trial. The payor spouse would obviously have not been able to save that money and he would have $30,000 less property in his or her hands to divide as at the date of trial. Thus, the total property for division would be reduced by $30,000, meaning that each party would receive $15,000 less assuming an equal division.

Complicating the matter further, the payee may have been able to save $30,000 which would be available to divide. In such a case, the total property would be the same, and each party would end up with equal amounts. The net effect of the maintenance order would be zero. The total assets would be the same, the maintenance would be paid, and each party would share equally in the remaining assets.

The parties would end up in exactly the same position as they did here, but the maintenance would have been paid. [62] Since that would be the result if the payment were made the day before the property division, the result should not change simply because the order is made at the same time as the division.

In other words, any obligation for retroactive support would be an obligation of the husband and an asset of the wife that should be included in the calculation of property and its division. [63] In simple terms, had the payor been ordered to pay and had paid support prior to trial, he would not have been able to save that money so it would not be available for distribution at trial.

Thus, if there is to be a retroactive order, the payor’s assets must be reduced by the amount of that order. [ 94 ] The above analysis has led some Alberta courts to consider whether retroactive spousal support payments should be included in the pool of family assets to be distributed. See for example Mancini v Phelan , 2012 ABQB 536 at paras 211-224 and Trueman v Trueman , 2001 ABQB 819 at paras 50-51 . [ 95 ] After considering the comments of Conrad JA in Corbeil , Justice G H Poelman in SDZ v TWZ , 2011 ABQB 496 explained at paras 181 -183 : [181] [Conrad JA] did not mean to establish an iron-clad formula.

She found that a court must be very conscious of the implications of an order for retroactive spousal support on property division, and that “the effects of any payment on the respective property positions of the parties ... should be considered in every case. ” [182] The concern is with “double recovery”: making the payor (Mr. Z. in this case) liable both for retroactive support payments and

half of post-separation assets from which the payee (Ms. Z.) benefits in the matrimonial property division, but which would not havebeen available if support payments had been made. [183] I find that it is not necessary to make adjustments to either or both of the spousal support and matrimonial property divisionorders to ensure overall fairness and equity to both parties.

The concern about double recovery raised in Corbeil does not displace theneed to consider other factors; there cannot be a formulaic approach to either spousal support or matrimonial property distribution,because both require careful application of the court’s broad discretionary jurisdiction informed by statutory principles.

Furthermore, theproposition expressed in “simple terms” by Conrad J.A. is less applicable when the evidence fails to convince the court that there is aclosed system in which all income of the payor can be traced into divisible assets. [96] The division of family property and spousal support are inextricably linked. The jurisprudence makes it clear that the propersequencing of these claims is to determine property division before making a final order for spousal support: Hartshorne v Hartshorne,2004 SCC 22 at paras 54-56; Legge at para 47.

This issue determination sequence was recognized by the Arbitrator at para 34 of theArbitration Award. [97] The objectives of spousal support can be met by awarding a lump sum amount of spousal support or the reapportionment ofproperty: Legge at para 40. [98] In determining not to award retroactive lump sum spousal support, based upon her belief that the lump sum should be treatedas matrimonial property to be distributed with Coleman (see para 152), the Arbitrator arguably incorrectly focused on the effect of aretroactive spousal support order, rather than on the purpose of the order, which was to fulfill the objectives of spousal support as set outin the Divorce Act: Legge at para 48.

Indeed, at para 35 of the Arbitration Award, the Arbitrator expressed a need for the trier of fact tobe cautious about not disregarding the impact of a retroactive award of support on property division. [99] As the British Columbia Court of Appeal noted in Parton v Parton, 2018 BCCA 273, there is a need to distinguish thepurpose of a lump sum award from its effect. A lump sum spousal support award will always have the effect of transferring assets fromone spouse to the other but the real question is what purpose is to be served by making such an order: Parton at para. 47.

See also: Davisv Crawford, 2011 ONCA 294 at para 62. [100] I find the Arbitrator’s basis for not awarding retroactive spousal support, irrespective of her failure to consider the factors setout in Kerr, raises a legal question that has arguable merit. [101] Given the quantum of retroactive spousal support at stake, I conclude determining these questions of law will significantlyaffect the rights of the parties and the matters at stake are of sufficient importance to the parties to justify an appeal. I am prepared topermit Krista to appeal the Arbitration Award on this ground.

Failure to Consider and Apply MacMinn [102] Krista complains that the Arbitrator failed to consider and apply MacMinn and the test set out in that decision. Krista submitsMacMinn stands for the proposition that “interim support amounts must be adjusted at Trial (Arbitration) once the true financialpositions of the parties are known.” [103] What the Alberta Court of Appeal said in MacMinn was “we are of the view that it is perfectly proper for the trial judge toreview and adjust interim child support awards in light of the true financial positions of the parents” (para 13).

The Court of Appeal wenton to express its view in para 14 that: … the trial judge ought to consider whether it is appropriate to do so as a matter of course. Ordinarily, we would expect a request to bemade by the claiming party. However, it may well be that if the interim child support award is grossly inadequate the trial judge shouldaddress this question on his motion. We do not suggest that it is necessary in every case that the actual calculation of dollars be done, asfrequently the expense involved in that calculation defeats the purpose of the maintenance.

However, in general terms, the trial judgeshould direct his mind to this issue and order an increase where it is obvious that fairness demands an increase. Indeed, in Dunsdon v.Dunsdon (1978) (ON CA), 5 R.F.L. (2d) 89 (Ont. CA), the Court of Appeal indicated that once it was shown that theestimate of income was in error, it was the duty of the trial judge to enquire into what would be an appropriate amount for the support ofthe mother and child, having regard to the father’s actual earnings.

This approach avoids the necessity of the custodial parent’s, or forthat matter the non-custodial parent’s, appealing every interim award and yet provides the flexibility required to ensure a fair andequitable apportionment of responsibility for child support between the parents once the trial judge is provided with all the relevantevidence. [104] Since MacMinn was rendered, the Alberta Court of Appeal has repeatedly stated that interim orders should be re-visited at trialbecause they tend to be estimates based on incomplete or imperfect financial disclosure and evidence.

Interim orders are intended to setan interim balance between the parties pending trial.

See: Lapp v Lapp, 2008 ABCA 15 at para 19; Hartley v Del Pero, 2010 ABCA182 at para 9; Pinter v Pinter, 2016 ABCA 58 at para 33: Anand v Anand, 2016 ABCA 23 at para 57; FJN v JK, 2019 ABCA 305 atpara 55; AAA v KN, 2020 ABCA 141 at para 18. [105] Most recently, Justice Fagnan, as she then was, advised in Lange v Lange, 2023 ABKB 225 at para 107: “The eventual trialjudge has the jurisdiction, as well as the responsibility, to revisit the amount of support ordered on an interlocutory basis back to theeffective date of the first interim order.” [106] Here, there was no order providing that Coleman was to pay Krista a specified amount of interim child or spousal support.

Rather, Justice Henderson in his Order dated December 6, 2019 (“Henderson Order”), set out in paras 11 and 17 certain third-partypayments Coleman was required to pay. These included mortgages, utility, property tax, insurance and a truck payments. In making thisOrder, Justice Henderson set what he thought was an interim balance between the parties pending trial or final adjudication.

[ 107 ] The third-party payments totalled $4,255.00 per month. The Arbitrator attributed $1,443.37 of this amount, grossed-up for Krista’s tax rate, as being on account of spousal support. See para 150 of the Arbitration Award and paras 20 and 28 of the Amplification Award. [ 108 ] A failure to explicitly consider case law cannot usually be considered an error of law unless the end result is that the judge overlooked important legal principles : Zubick at para 10 .

While MacMinn did not set out a legal test or framework per se , the Court of Appeal in that decision, and in several decisions thereafter, set out important legal principles pertaining to the need to assess interim spousal support orders at the time of trial. [ 109 ] It cannot be said that the Arbitrator did not re-visit or re-assess the amount of spousal support that was in essence payable pursuant to the Henderson Order.

At paragraph 151, the Arbitrator expressly considered the amount of spousal support that could have been payable to Krista using a Guideline income for Coleman of $220,000, and the mid-range proposed by the SSAGs , for the years 2019, 2020 and 2021.

She then calculated the total payable, before tax, of spousal support during this three-year period and deducted the total amount that Coleman paid which was attributable to spousal support. [ 110 ] In her Amplification Award, at para 20, the Arbitrator expressly considered whether the equivalent grossed up amount of $1,443.37 per month Krista had received pursuant to the Henderson Order had met her needs.

The Arbitrator explained the mid-range of $3,324 per month, suggested by the SSAGs , was not appropriate and concluded the low-end of $2,600 per month was still more than the parties’ pre-separation lifestyle would dictate. The Arbitrator concluded the ongoing spousal support of $2,500 per month she was awarding was higher than Krista’s demonstrated needs. See also para 28 of the Amplification Award. [ 111 ] I decline to grant leave on this alleged error for the above reasons.

Error in Imposing a Termination Date on Spousal Support Award [ 112 ] The Arbitrator awarded Krista spousal support of $2,500 per month commencing February 1, 2022, until January 1, 2026, being a period of 48 months. The Arbitrator explained in para 20 of the Amplification Award that “The duration of the relationship, which was considered, was only 7.5 years.

This is not a long-term relationship, but rather on the shorter end of a mid-term relationship.” In the Arbitrator’s view, the duration of spousal support she was awarding was “on the high-end.” [ 113 ] Professors Rollie Thompson and Carol Rogerson in the “Spousal Support Advisory Guidelines: The Revised User’s Guide” provide the following guidance with respect determining the duration of spousal support payable utilizing the SSAGs : • The basis of entitlement shapes the determination of the amount and duration of spousal support. • There are two tests for duration under the with child support formula: the length-of-marriage test and the age-of-children test. • A high-range amount can be linked to a shorter duration or, vice versa, a lower amount for a longer duration. • The formula ranges for both amount and duration are quite broad, providing lots of room for the exercise of judgment and discretion to respond to the facts of individual cases. [ 114 ] The authors set out a non-exclusive list of factors to assist in determining location within the range for both amount and duration including the strength of any compensatory claim and self-sufficiency incentives. [ 115 ] It is ultimately within the discretion of the trier of fact, “in an appropriate case, to grant limited duration spousal support .

Multiple factors must be weighed and balanced in the exercise of judicial discretion, but such discretion nonetheless exists”: Shigehiro v Shigehiro , 2017 ABCA 392 at paras 42 and 45 . [ 116 ] The Alberta Court of Appeal explained in Smith at para 14 : Similarly, a trial judge is afforded considerable discretion in the awarding of spousal support and in determining the quantum and duration of such support.

Such a decision will not be overturned absent an error in law or principle, or palpable and overriding error in findings of fact or mixed fact and law. [ 117 ] See also Legge at para 28 which confirms that the standard of review for the duration of spousal support is deferential. [ 118 ] In Hickey , the Supreme Court of Canada, at para 12, explained why deference is owed to trial judges in relation to support orders: There are strong reasons for the significant deference that must be given to trial judges in relation to support orders.

This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge.

Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently. [ 119 ] While the above passages reference trial judges, I find that they apply with equal force to arbitrators, as do the comments regarding the desirability of finality. [ 120 ] As the determination of the duration of spousal support is discretionary, based upon the particular facts of the case, at best it would be an issue of mixed fact and law and not a question of law.

This ground of proposed appeal therefore fails.

Proposed Ground #4 – Property Errors [ 121 ] Krista alleges three property determination related errors: • The Arbitrator used net book value of assets as opposed to market value when valuing corporate assets. • The Arbitrator used the “down payment” method of value at the time of acquisition for the Bighorn Fifth Wheel and the Enclosed Trailer as opposed to the value at the date of trial. • The Arbitrator credited Coleman, as an exemption, a loan that was no longer in existence at the time of trial and had been paid out during the marriage. [ 122 ] Beginning with the first alleged error, Coleman argues that the Arbitrator used the best evidence available and that her determination of value was one of mixed fact and law.

The Arbitrator dealt with the value of the corporate assets at paragraph 130 of the Arbitration Award and para 7-10 of the Amplification Award. [ 123 ] Coleman is correct that the actual valuation is a question of mixed fact and law; however, the proposed ground of appeal focuses on the selection of the appropriate valuation standard, not the actual value. [ 124 ] The Arbitrator noted Coleman argued that book value was appropriate, and Krista argued that acquisition cost should be used. [ 125 ] The Arbitrator did not have market value.

The Arbitrator selected book value. [ 126 ] I am satisfied that the proposed ground of appeal discloses a question of law (allegation that market value was not used): Hodgson v Hodgson , 2005 ABCA 13 at paras 32-33 [ Hodgson ]. [ 127 ] I find that this proposed ground of appeal has arguable merit given the Hodgson decision. [ 128 ] Turning to the issues of the importance and rights of the parties, Krista contends there is more than a pecuniary interest at play here. She argues that Coleman is leaving the marriage with the matrimonial home, two companies and recreational vehicles.

This statement is correct but is somewhat misleading as Coleman is also responsible for the mortgage on the matrimonial home and his debts were reduced for monies he received from the sale of specific recreational vehicles: see Matrimonial Property Statement attached to the Arbitration Award. In short, the matrimonial property was divided by the Arbitrator and an equalization payment was ordered in Krista’s favour. [ 129 ] It is difficult to ascertain the quantum of pecuniary interest at stake. However, the Arbitrator valued the companies primarily based upon the value of the assets the companies owned.

The companies do not appear to have any other value as they are primarily used by Coleman to supply his own services to the oil and gas industry. [ 130 ] I am not satisfied that this issue is of sufficient importance and, having regard to the quantum of the overall matrimonial property being divided, that it will significantly affect the rights of the parties. Krista has not met the high standard required in order to justify leave. Therefore, I decline to grant leave on this proposed ground. [ 131 ] The second proposed ground is similar to the first.

It concerns the value of the Bighorn Fifth Wheel and the Enclosed Trailer.

Coleman argues that the Arbitrator treated these two assets differently as they were acquired post-separation and that the Arbitrator essentially relied upon the factors under s 8 of the Matrimonial Property Act, RSA 2000, c M-8 to affect a division of the property. [ 132 ] The Arbitrator noted in her decision that she didn’t have evidence of the market value of either asset. [ 133 ] The selection of the appropriate time at which to value matrimonial property is a question of law: see Hodgson at paras 32-33 . [ 134 ] I am satisfied that the proposed ground of appeal raises a question of law. [ 135 ] Turning to the issue of the importance of this issue, I note that both assets were acquired post separation and were largely financed.

The Arbitrator accepted Coleman’s evidence that both items were “worth less or same as owed” (para 8 of Amplification Award). The Arbitrator also added the $1,000 that Coleman used as a downpayment on the enclosed trailer to Coleman’s divisible assets. [ 136 ] Krista argues, in her brief, that there is potentially $20,000 at stake regarding the value of these two assets. In the absence of appraisal evidence, it is difficult to assess whether the assets’ value exceeded the debt associated with them and/or whether the older fifth wheel was worth more than the outstanding loan on it.

I find the value proposed by Krista is speculative. [ 137 ] Krista points to Coleman’s failure to disclose financing statements relative to both assets.

Coleman should not be rewarded for his failure to disclose relevant evidence; however, it is my role to determine whether this issue is of sufficient importance and whether it will significantly affect the rights of the parties. [ 138 ] I conclude that the issue is not of sufficient importance and will not significantly affect the rights of the parties for the following reasons: • The potential pecuniary value is speculative. • The assets are subject to depreciation. • The assets were largely financed and likely had little equity in them at the time of the Arbitration.

• The assets were acquired post separation. [ 139 ] The third alleged ground involves a dispute over a portion of the downpayment on the Rainbow Crescent property. The Arbitrator at paragraph 117 of the Arbitration Award found: I am satisfied that the down payment was $26,497. It would appear that exemption was agreed to until after the hearing when exception was taken to the $10,000 loan. [ 140 ] Krista’s counsel wrote to the Arbitrator noting evidence and arguing that the $10,000 loan had been repaid.

Coleman’s counsel wrote and disputed Krista’s counsel’s understanding of the evidence. [ 141 ] The Arbitrator at paragraph 118 of the Arbitration Award noted that the “$10,000 was raised late in the day” and “fairness is achieved by allowing the full exemption.” The Arbitrator further addressed the issue at paragraph 31 of her Amplification Award noting that the loan was not proven. [ 142 ] The Arbitrator made a procedural ruling that she would not hear further submissions on the point as a result of the issue being raised after the close of submissions. [ 143 ] I find that the Arbitrator determined that based upon the circumstances the parties would be bound by their agreement regarding the value of the exemption and it would not be procedurally fair to revisit the issue.

This a finding a mixed fact and law and does not raise a question of law. [ 144 ] I decline to grant leave to appeal on any of the Income Errors. D.

Conclusion [ 145 ] I grant Krista leave to appeal on the following grounds: • That the Arbitrator failed to consider elements of the test set out in s 15.2(4) Divorce Act relative to both parties. • That the Arbitrator failed to consider all four of the objectives set out in 15.2(6) of the Divorce Act . • That the Arbitrator failed to consider the test for determining retroactive spousal support. [ 146 ] I decline to grant to leave to appeal on the remaining proposed grounds.

If the parties are unable to agree on the issue of costs, they may make arrangements to speak to me within 30 days of the release of these reasons. Heard on the 6 th day of July, 2023 . Dated at the City of Edmonton, Alberta this 14 th day of July, 2023 . T.G. Rothwell J.C.K.B.A. Appearances: Rebecca Bell Bell Law Chambers for the Applicant Lesley Kroeker Symmetry Law for the Respondent