Kaser v Kaser, 2023 ABKB 6

Court of King’s Bench of Alberta Citation: Kaser v Kaser, 2023 ABKB 6 Date: 20230105 Docket: 4803 176058 Registry: Edmonton Between: Leanne Marie Kaser Plaintiff - and - Karl Scott Kaser Defendant _______________________________________________________ Decision of the Honourable Justice G.S. Dunlop _______________________________________________________ 1. Introduction [ 1 ] On January 5, 2021, Jerke, J. ordered this action to go to a one-day

summary trial on the issues of: a. retroactive and ongoing child support; b. retroactive and ongoing spousal support; and

c. division of matrimonial property [ 2 ] The

summary trial was scheduled for March 2022, but it was adjourned due to a late affidavit filed by Karl Kaser. [ 3 ] The January 5, 2021 order directed a one-day

summary trial. This was shortened to a half day in a September 9, 2022 family docket endorsement. A half day was barely sufficient to hear argument on the three issues directed to a

summary trial. It was not sufficient for my deliberations and a decision on those three issues. Although the parties referred to other issues in written and oral submissions, including parenting and a divorce, I make no findings on those issues because they are not properly before me. These reasons are confined to the issues ordered to a

summary trial by the January 5, 2021 order. [ 4 ] On December 13, 2022, I heard oral argument on the

summary trial. In addition to oral and written argument from each party, I also received the following evidence: • Leanne Kaser’s January 7, 2022 affidavit; • Karl Kaser’s February 18, 2022 affidavit; • Karl Kaser’s October 12, 2022 affidavit; • Leanne Kaser’s October 29, 2022 affidavit; and • transcripts of questioning on affidavit of each party on November 3, 2022. [ 5 ] The January 5, 2021 order permitted Karl Kaser to file only one affidavit. However, Leanne Kaser did not object to both the February 18, 2022 and October 12, 2022 affidavits of Karl Kaser being before me. [ 6 ] Although the January 5, 2021 order required the parties to attempt to agree on some facts in advance of the

summary trial, no agreed statement of facts was provided to me. [ 7 ] The Kasers have three children together: a son born in May 2007, a second son born in January 2010 and a daughter born in November 2011. [ 8 ] The Kasers have lived together in three houses: a house Karl Kaser owned when they met (the “45 th Street home”), Leanne Kaser’s parents’ home (the “parents’ home”) and a house Karl Kaser and Leanne Kaser purchased together in 2009 and where Karl Kaser has resided since they separated (the “21 st Avenue home”). 2.

Guideline incomes [ 9 ] The parties do not agree on their Guideline incomes for each year from 2016 to the present. 2.1 Karl Kaser’s incomes [ 10 ] When their relationship began, Karl Kaser was working for Inner City Housing. He left that employment in 2003. In 2008 he obtained employment with Diversity Technologies as a Facilities Manager. [ 11 ] Karl Kaser has not filed a tax return for any of the years 2016 – 2021. His T4s and a T4E for 2016 show employment income as follows: 2016 $109,907.57 2017 $127,824.60 2018 $128,972.79 2019 $132,889.82 [ 12 ] The evidence before me does not include Mr.

Kaser’s T4s for 2020 and 2021, but it does include December pay stubs for those years. His December 12, 2020 pay stub shows year to date earnings of $107,238.51 and current period earnings of $3,845.94. Assuming there was another pay period in 2020 after December 12, 2020, his earnings in 2020 were $107,238.51 + $3,845.94, which is $111,084.45. It appears that the figures on the December 2020 pay stub include a vehicle allowance of $13,200.20.

There is no obvious reference to an RRSP contribution. [ 13 ] Leanne Kaser argues that Karl Kaser had Employment Insurance income in 2020 which is not included in his pay stubs. In support of this she refers to “a letter from his employer indicating that a portion of his decreased salary would be made up by Employment Insurance benefits.” That letter is not in evidence before me. Karl Kaser does not say in his affidavits that he received Employment Insurance in 2020 and he was not questioned on this point. [ 14 ] Mr. Kaser’s December 25, 2021 pay stub shows gross pay, including bonus, of $123,117.46.

It is not clear from that pay stub whether the gross pay includes taxable benefits of an RRSP in the amount of $3,755.92 and a taxable car allowance of $11,169.40. Consequently, it may be that Mr. Kaser’s income in 2021 was $123,117.46 + $3,755.92 + $11,169.40, which is $138,042.78, which would be in line with the upward trend in his income in the previous years, with a temporary decrease in 2020 when the pandemic started.

[ 15 ] Mr. Kaser submits that his vehicle allowance and employer RRSP contributions, which are included in his employment income in box 14 on his T4, and may be included in his paystubs, should not be included in his income for support purposes. In support of this proposition he refers to a Canada Revenue Agency webpage which is not attached to his brief and which I have not found on the Canada Revenue Agency website. He also relies on

Schedule III to the Federal Child Support Guidelines , s. 1(f.1), which reads: 1. Employment expenses – Where the spouse is an employee, the spouse’s applicable employment expenses described in the following provisions of the Income Tax Act are deducted: … (f.1) paragraph 8(1)(h.1) concerning motor vehicle travel expenses [ 16 ]

Section 1 of the Guidelines permits deduction from a spouse’s income of certain expenses. There is no evidence before me regarding what, if any, motor vehicle expenses Mr. Kaser has incurred in the course of his employment. He submitted during oral argument that I should accept that the vehicle allowance his employer paid him is equal to his motor vehicle expenses. There is no reason to make that assumption. I am not satisfied that the motor vehicle allowance should be deducted from Mr. Kaser’s income. Mr.

Kaser provided no authority or rationale for deducting his employer’s contribution to his RRSP. [ 17 ] Consequently, on the limited evidence the parties have put before me, I find that Mr. Kaser’s Guideline income was as follows: 2016 $109,907.57 2017 $127,824.60 2018 $128,972.79 2019 $132,889.82 2020 $111,084.45 2021 $138,042.78 [ 18 ] Based on my finding regarding Karl Kaser’s 2021 income, I find that his 2022 and 2023 incomes will be $138,042.78. 2.2 Leanne Kaser’s incomes [ 19 ] Leanne Kaser worked as an accounts receivable clerk at White Ridge Inc. until the Kasers’ first child was born in May 2007.

She earned approximately $45,0000 per year working full time at White Ridge. After her first maternity leave she returned to White Ridge, working a modified schedule. She took a maternity leave after their second child was born, following which she returned to White Ridge working part time for a few months in 2011, until their third child was born in November 2011. Leanne Kaser did not work outside the home again until after the parties separated.

She ran a day home from some time in 2016 until late 2017 when she obtained new employment as an accounts receivable clerk for Iris NDT Corp, earning approximately $45,000 per year. [ 20 ] Mr. Kaser agrees that Ms.

Kaser’s income was as shown on her notices of assessment, as follows: 2016 $3,395 2017 $12,798 2018 $45,246 2019 $49,638 2020 $43,603 2021 $46,254 [ 21 ] However, Karl Kaser submits that Leanne Kaser was underemployed in 2016 and 2017 and that an income of $45,000 should be imputed to her for each of those years. [ 22 ] The Alberta Court of Appeal, in its recent decision in Peters v Atchooay , 2022 ABCA 347 , addressed the imputation of income pursuant to s. 19(1)(

a) of the Federal Child Support Guidelines , which reads: 19(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [ 23 ] The Court of Appeal at paragraph 60 of Peters v Atchooay , established a three-stage analysis: The following analysis will apply when the issue of under-employment or unemployment and possible imputation of income is raised

under s 19(1)(a): 1. Is the parent in question intentionally under-employed or unemployed? Imputation of income is not available under s 19(1)(

a) where the under-employment or unemployment arises through circumstances truly beyond the control of the payor, and thus involuntary. Examples include lay-offs, reduced hours, or termination without cause. (At some point, however, the continued under-employment or unemployment may become unreasonable for purposes of s 19(1)(a), making imputation of income available). Moreover, even ostensibly “voluntary” decisions to make less money than in the past will not always amount to “under-employment” where factors like age mean that present and future earning capacity is being met but is less than past earning capacity. 2. Do the listed exceptions to imputation in s 19(1)(

a) apply? Is the under-employment or unemployment required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse? These exemptions are not intended to be automatic or permanent, and their availability will depend on the circumstances of the case: Spring v Spring, 2022 ABCA 19 at para 18 . The factors set out in Demers v Moar, 2004 ABCA 380 at para 21 provide a useful starting point for the consideration of the “needs of the child” exemption in the context of parental leaves and child-care requirements of young children. 3.

Should judicial discretion to impute income be exercised? If the under-employment or unemployment arises from voluntary choice and the listed exceptions to imputation do not apply, the court may exercise its mandate to impute income under s 19(1)(a). However, because this is discretionary, the question of whether to impute income (and if so, how much) involves determining if the voluntary under-employment or unemployment was reasonable, having regard to all the circumstances. [ 24 ] Karl Kaser stated in his first affidavit that Leanne Kaser could have returned to work at her former employer, White Ridge, in 2016.

Leanne Kaser testified in questioning that she requested part-time work with White Ridge in 2015 or 2016 and tried it for one day but it was not feasible because of the cost of childcare while she was working. After that she started the day home and ran it until November 2017, when the Kasers’ youngest child was in school full time and she and Karl Kaser had shared parenting of the children. At that point she obtained full-time employment with Iris NDT. [ 25 ] Leanne Kaser testified that she did not seek full time employment with White Ridge.

The evidence does not clearly establish that she could have obtained full time employment with White Ridge, or any other employer, before November 2017. However, for the purpose of applying the Peters v Atchooey analysis, I am prepared to assume that she could have obtained full-time employment earning approximately $45,000 at any time.

Consequently, in operating a day home earning much less than that Leanne Kaser was intentionally underemployed, which is the first stage of the analysis. [ 26 ] At the second stage I must consider whether Leanne Kaser’s underemployment was required by the needs of the children and at the third stage I must consider whether her underemployment was reasonable. One factor relevant to both is the children’s need for stability. In February 2016 Leanne Kaser moved out of the family home and the Kasers began a shared parenting arrangement. (Whether parenting was shared from March through August 2016 is in dispute.

For the reasons set out in the next

section of these reasons, I find the Kasers had shared parenting during that period.) That was a major change in the children’s lives, who at that time were ages 4, 6 and 8. Then, in September 2016 the parenting arrangement changed again to the children living primarily with their mother and the father having alternating weekend parenting time with the children. It changed yet again in November 2017, when the Kasers resumed shared parenting.

I conclude that, even if the children’s need for stability did not strictly require that Leanne Kaser continue to be available to care for the children immediately following the separation, it was reasonable for her to make that choice in the initial period following separation, with a view to the best interests of the children. In the context of this family, Leanne Kaser’s decision not to seek full-time employment until the youngest child was enrolled in school full time and the Kasers had re-established their shared parenting arrangement, was reasonable.

Given that finding, I exercise my discretion not to impute income to Leanne Kaser. [ 27 ] I find Leanne Kaser’s Guideline incomes were as set out in her notices of assessment: 2016 $3,395 2017 $12,798 2018 $45,246 2019 $49,638 2020 $43,603 2021 $46,254 [ 28 ] Leanne Kaser said in her first affidavit that she anticipated her 2022 income to be about the same as her 2021 income. Based on that evidence, I find that her Guideline income in 2022 and 2023 will be $46,254. 3.

Child support 3.1 s. 3 and s. 9 support [ 29 ] The parties agree that a straight set-off of the Guideline amounts is appropriate s. 9 support for periods when they had shared parenting, which is the current arrangement. [ 30 ] The parties agree that the children resided primarily with Leanne Kaser from September 2016 through October 2017 and that from November 2017 to the present, they have had shared parenting of the children. They disagree regarding the parenting arrangement for the first six after they separated: March to August 2016.

The father’s position is that they had shared parenting then and the mother’s

position is that the children resided primarily with her. [ 31 ] Leanne Kaser testified in her first affidavit and in questioning that when she and Karl Kaser first separated they tried week on, week off parenting, but with Leanne Kaser taking care of the children from 8 am to 5 pm each weekday, even when it was Karl Kaser’s week to parent the children. That is 9 hours out of each weekday, or 45 hours out of each five-day work week.

Leanne Kaser testified in questioning that this arrangement lasted through August 2016. [ 32 ] There are 168 hours in a week, so, according to Leanne Kaser, she was parenting the children for 45 of those hours on non- holiday weeks which were Karl Kaser’s parenting weeks, which was 26.8% of Karl Kaser’s parenting time. If there were no holidays or vacation days that would mean Leanne Kaser was parenting the children 63.4% of the time and Karl Kaser was parenting them for 36.6% of the time over both parenting weeks.

However, holidays such as Easter, Victoria Day, Canada Day, and Heritage Day would increase Karl Kaser’s share of parenting time, assuming he did not leave the children with Leanne Kaser on days he was not working. Similarly, if he took summer vacation and did not leave the children with Leanne Kaser during those periods, that would also increase his overall parenting time, to the point where it likely exceeded 40%.

Pursuant to s. 9 of the Federal Child Support Guidelines , the cut-off for shared parenting is each parent having not less than 40% of the parenting time. [ 33 ] Based on Leanne Kaser’s evidence, which on this point is consistent with Karl Kaser’s evidence, I find that the parties had shared parenting of the children from March 2016 through August 2016.

This finding is supported by one of the recitals to the Consent Order the parties agreed to on December 5, 2017: AND UPON the parties having shared parenting of the children of the marriage on a 50/50 basis for between March and August, 2016, and again commencing in November, 2017 and the Plaintiff having had the children residing with her primarily between September 1, 2016 and October 31, 2017; [ 34 ] I order ongoing s. 9 child support commencing January 1, 2023 as a straight set-off of the Guideline amounts based on Karl Kaser’s income being $138,042.78 and Leanne Kaser’s income being $46,254, subject to adjustment if their 2023 incomes are different than those figures. [ 35 ] I order retroactive s. 9 child support for the period March 1 – August 31, 2016 as a straight set-off of the Guideline amounts based the incomes I have found for Karl Kaser of $109,907.57 and for Leanne Kaser of $3,395. [ 36 ] I order retroactive s. 3 child support payable by Karl Kaser to Leanne Kaser for the period September 1 – December 31, 2016 based on his income in 2016 of $109,907.57 and for the period January 1 – October 31, 2017 based on his income in 2017 of $127,824.60. [ 37 ] I order retroactive s. 9 child support for the period November 1 – December 31, 2017 as a straight set-off of the Guideline amounts based the incomes I have found for Karl Kaser of $127,824.60 and for Leanne Kaser of $12,798. [ 38 ] I order retroactive s. 9 child support as a straight set-off of the Guideline amounts for the following years and based on the following incomes: Year Karl Kaser’s income Leanne Kaser’s income 2018 $128,972.79 $45,246 2019 $132,889.82 $49,638 2020 $111,084.45 $43,603 2021 $138,042.78 $46,254 2022 $138,042.78 $46,254 The child support Guideline calculations provided by the parties do not allow me to set the precise amounts of child support for several reasons.

The calculations submitted by Karl Kaser set his income lower than I have found it in every year and they assume that Leanne Kaser had an income of $45,000 in 2016 and 2017. The calculations provided by Leanne Kaser assume she had primary parenting rather than shared parenting from March through August 2016, and they do not include a calculation for 2021.

Neither party provided child support calculations for 2022. 3.2 s. 7 expenses [ 39 ] Based on the incomes I have found for each party, their shares of s. 7 expenses are as follows: Year Karl Kaser’s income / share Leanne Kaser’s income / share 2016 $109,907.57 / 97.0% $3,395 / 3.0% 2017 $127,824.60 / 90.9% $12,798 / 9.1% 2018 $128,972.79 / 74.0% $45,246 / 26.0% 2019 $132,889.82 / 72.8% $49,638 / 27.2% 2020 $111,084.45 / 71.8% $43,603 / 28.2% 2021 $138,042.78 / 74.9% $46,254 / 25.1% 2022 $138,042.78 / 74.9% $46,254 / 25.1%

[ 40 ] Neither party claims to have incurred s. 7 expenses in 2020 or 2021. [ 41 ] Leanne Kaser said in her first affidavit that she incurred the following amounts of

section 7 expenses from 2016 to 2019: • $435.75 in 2016 for gymnastics; • $5,037 in 2017 for soccer, preschool, skating, and daycare; • $9,575.75 in 2018 for daycare, swimming and first aid education; and • $1,818.20 in 2019 for gymnastics, swimming, young engineers, and football. [ 42 ] Leanne Kaser attached to her affidavit documents supporting those expenses. Two of the supporting documents indicate that some expenses were paid by Karl Kaser, specifically, soccer fees of $585 which Leanne Kaser has included in her 2017 expenses.

In questioning Leanne Kaser testified that while Karl Kaser incurred these expenses, he reimbursed himself for those expenses from a joint bank account where child tax benefits were deposited and where Karl Kaser deposited his support payments. Karl Kaser provided similar evidence in his first affidavit. [ 43 ] Karl Kaser in his first affidavit said that the balance in this joint account came from pre-separation savings and child tax credits and tax refunds from the 2013, 2014 and 2015 years. He has not provided any supporting documentation.

He stated that he has never been able to obtain statements for this account, but he does not explain why he would not be able to obtain statements for a bank account of which he was a joint owner. In questioning Karl Kaser admitted he does not remember trying to obtain statements for this account. [ 44 ] Statements for a joint account covering the period March 11, 2016 to June 12, 2017 are attached as an exhibit to Leanne Kaser’s second affidavit.

Those statements show a balance as of March 11, 2016 of $1,582.82 and deposits of the child tax benefit and other federal and provincial deposits that could be tax refunds. Mr. Kaser has provided no documentation supporting his contention that income tax refunds or child tax benefits attributable to 2013, 2014 and 2015 were deposited to that account after separation or are included in the March 11, 2016 balance.

If Karl Kaser received tax refunds for prior years which were deposited into the joint account in 2016 or later, he should be able to produce notices of assessment showing the refunds with a date and amount corresponding to a deposit to the joint account. He has not introduced any such documents into evidence. [ 45 ] I accept Leanne Kaser’s evidence that the deposits to the joint account consisted primarily of child tax benefits and Karl Kaser’s support payments. Deposits after separation by Karl Kaser will be accounted for in the support paid

section of these reasons (section 5, below).

When Karl Kaser reimbursed himself for the soccer expenses from this account, he effectively turned those expenses into Leanne Kaser’s expenses, so it is appropriate that they be included in Leanne Kaser’s s. 7 expenses. [ 46 ] Except for cooking courses for one child in 2022, which are not included in Leanne Kaser’s claimed s. 7 expenses, Karl Kaser has not raised any objection to the reasonableness of the expenses claimed by Leanne Kaser or whether they qualify as s. 7 expenses. [ 47 ] I find that Leanne Kaser has incurred s. 7 expenses and that Karl Kaser’s percentage share is as follows: Year s. 7 expenses Karl Kaser’s share 2016 $435.75 $422.69 2017 $5,037.00 $4,578.58 2018 $9,575.75 $7,088.85 2019 $1,18.20 $1,323.74 2020 nil nil 2021 nil nil [ 48 ] Leanne Kaser anticipates incurring ongoing s. 7 expenses for ski and snowboard lessons, bus passes, firefly aerial arts, and coding class.

Karl Kaser has not raised any objection to those being reasonable s. 7 expenses. [ 49 ] Karl Kaser has not proven any s. 7 expenses incurred or anticipated by him, other than those reimbursed out of the joint account. 3.3 Conclusion on child support [ 50 ] I order retroactive s. 9 child support from March 1, 2016 to December 31, 2022 on a straight set-off basis, except for September 1, 2016 to October 31, 2017, for which period I order s. 3 child support payable by Mr. Kaser to Ms. Kaser. I also order ongoing s. 9 straight set-off child support starting January 1, 2023.

I order the Guideline amounts based on the incomes I have found for each party for each year. If the parties can agree on the amounts, they may be inserted into my order. If they are not able to agree they may each provide their calculations to me and I will issue brief supplemental reasons on that point. [ 51 ] I order retroactive s. 7 child support in proportion to the parties’ incomes which I have found.

Karl Kaser’s total s. 7 child support for the period 2016 – 2021 is $13,413.87 [ 52 ] I order ongoing s. 7 child support in proportion to the Kasers’ incomes for ski and snowboard lessons, bus passes, firefly aerial arts and coding class. 4. Spousal support

[ 53 ] Karl Kaser concedes that Leanne Kaser is entitled to spousal support, on a non-compensatory basis only. Leanne Kaser submits she is also entitled to spousal support on a compensatory basis. [ 54 ] The parties disagree on the amount and duration of spousal support. 4.1 Compensatory basis for spousal support [ 55 ] At the beginning of their relationship, both Karl Kaser and Leanne Kaser worked full time. After their first child was born in 2007 and their second child was born in 2010, Karl Kaser continued to work full time while Leanne Kaser took one year of maternity leave.

In 2011 Leanne Kaser worked part time until their daughter was born in November of that year. After their third child was born, and until they separated in February 2016, Leanne Kaser was a stay-at-home mom. (The parties disagree regarding when they separated. For the reasons set out in

section 4.2 of these reasons, below, I find they separated on February 27, 2016.) Leanne Kaser testified that they agreed she would not return to full-time employment following her maternity leaves. Karl Kaser testified that he did not agree with that. In his view, they needed both their incomes, but he had no ability to force Leanne Kaser to return to work. [ 56 ] In her first affidavit Leanne Kaser said that during the relationship, she was primarily responsible for caring for the children and doing the housework.

Karl Kaser has not provided any evidence to the contrary. [ 57 ] Karl Kaser claims that Leanne Kaser had ample opportunity to advance her education and job training, both before and after the children were born. This is not realistic, given that she was caring for young children from May 2007 until September 2017 when the youngest child began attending school full time.

During that period Karl Kaser changed employers and increased his earnings. [ 58 ] In 2017 Leanne Kaser obtained a full-time accounts receivable position with Iris NDT earning $45,000 per year, which is approximately the same position and salary as she had ten years previously at White Ridge. Typically, people progress in their positions and salaries as they gain experience and add responsibilities. I find that Leanne Kaser’s non-monetary contributions to the family as childcare provider and homemaker impaired her income-earning ability while Karl Kaser was able to work full-time and advance his career.

Had she been able to work full-time outside the home for the entire duration of the relationship, she would be able to obtain a better paying position today. She is therefore entitled to spousal support on a compensatory basis. 4.2 Amount of spousal support [ 59 ] The parties disagree regarding the appropriate amount of support, partly because they disagree about their incomes. My findings regarding their incomes are set out in

section 2 of these reasons, above. [ 60 ] The Spousal Support Advisory Guidelines calculations provided by the parties do not allow me to set the amount of spousal support for several reasons. The calculations submitted by Karl Kaser set his income lower than I have found it in every year and they assume that Leanne Kaser had an income of $45,000 in 2016 and 2017. The calculations provided by Leanne Kaser assume she had primary parenting rather than shared parenting from March through August 2016, and they do not include a calculation for 2021. Neither party provided spousal support calculations for 2022.

Both parties submit that spousal support in the mid-range is appropriate. If the parties can agree on an amount of spousal support for each year, they may include it in my order. If not, they may each make a written submission attaching their calculations based on my findings regarding incomes and shared parenting in 2016, following which I will provide supplemental reasons on that point. 4.3 Duration of spousal support [ 61 ] Karl Kaser submits that spousal support should end now (December 2022), and Leanne Kaser submits it should continue until March 2026.

In part this is based on different positions regarding when they began living together and when they separated. [ 62 ] Leanne Kaser’s position is that she and Karl Kaser began cohabitating in the 45 th Street home in November 2000. Karl Kaser’s position is that they began cohabitating in the parents’ home in late 2003.

They agree that they lived in the parents’ home for approximately two years while Leanne Kaser’s parents resided in British Columbia, following which they moved into the 45 th Street home. [ 63 ] Leanne Kaser said in her first affidavit that she and Karl Kaser started living together in the 45 th Street home in November 2000, but in her reply affidavit she said it was in 2001, without referring to a month.

When questioned about renovations her father did on the 45 th Street home, Leanne Kaser said she is a little mixed up about years. [ 64 ] On questioning, Karl Kaser agreed that he and Leanne Kaser were dating in 2001 and she sometimes spent the night with him at the 45 th Street home. He agreed that she kept clothes at the 45 th Street home but he could not recall when that fully happened.

However, Karl Kaser also testified in questioning that his previous girlfriend was living in the 45 th Street home until October 2001 and that late 2001 was the first time Leanne Kaser stayed in the 45 th Street home and moved some of her stuff in. Leanne Kaser Kaiser produced a letter from her employer dated August 7, 2002 which shows her address as the 45 th Street home. [ 65 ] It is impossible to determine precisely when the Kasers began cohabitating.

On the evidence before me, I conclude it was in late 2001 or early 2002. [ 66 ] Although Leanne Kaser claims she separated from Karl Kaser in October 2015, while residing in the same home until February 27, 2016, Karl Kaser claims they were not separated until February 27, 2016 when Leanne Kaser moved residences. Leanne Kaser provided no details to support her assertion, whereas Karl Kaser described good days and bad days after Leanne Kaser raised concerns about their relationship, until January 2016 when she told him she had purchased a new home an intended to move out. I accept

Karl Kaser’s evidence on this point and find that they separated on February 27, 2016 when Leanne Kaser moved out. [ 67 ] The parties cohabited from late 2001 or early 2002 until February 2016, a period of approximately 14 years. [ 68 ] Pursuant to s. 8.5 of the Spousal Support Advisory Guidelines , an initial spousal support award where child support is also being paid is usually indefinite, with a view to being reviewed as circumstances change. Nevertheless, the length of cohabitation and the ages of the children can be used to determine a range of duration of spousal support.

In this case the range is between 7 and 14 years based on the length of cohabitation, which would have spousal support terminating between March 2023 (7 years after separation) and March 2030 (14 years after separation). Based on the ages of the children the range is between September 2017, when the youngest child started attending school full time and June 2030, when the youngest child will likely finish high school. The longer duration applies to both the upper and lower end of the range, so in this case the termination date would be between March 2023 and June 2030.

The termination date proposed by Karl Kaser, December 2022, falls outside that range. The termination date proposed by Leanne Kaser, March 2026 falls withing the range. However, as this is an initial order, the December 2017 order having been interim and without prejudice, the order flowing from these reasons shall be indefinite, subject to review as circumstances change. 4.4 Conclusion on spousal support [ 69 ] Leanne Kaser is entitled to spousal support from Karl Kaser commencing March 1, 2016 and continuing indefinitely, subject to review upon a change of circumstances.

The amount shall be mid-range as determined by the Spousal Support Advisory Guidelines based on the parties’ incomes found by me for the years 2016 through 2023. If the parties are not able to agree on the precise amounts payable, they may make written submissions to me including their calculations and I will provide supplemental reasons. 5. Support paid [ 70 ] The parties agree that Karl Kaser has been paying Leanne Kaser support since 2016. Karl Kaser has provided no evidence of what amount he has paid. Leanne Kaser has provided detailed calculations and some supporting documentation.

I accept her evidence and find that Karl Kaser has paid Leanne Kaser, both directly and through Maintenance Enforcement a total of $131,629.99 in combined child and spousal support from March 1, 2016 to December 31, 2021. 6.

Division of matrimonial property [ 71 ] The parties largely agree on the assets and liabilities to be divided and in some cases agree on their values or balances. 6.1 Assets and debts with agreed values [ 72 ] The parties agree that they own the following accounts and a credit card with the following balances: Divertek Group RRSP $54,238.92 RBC Direct Investing Karl $13,611.00 RBC RRSP $10,971.20 RBC chequing $9,161.88 PC Financial chequing $193.60 Capital One Mastercard -$1,116.52 6.2 Matrimonial home, mortgage, and line of credit [ 73 ] Leanne Kaser testified that she had the 21 st Avenue home valued through a market analysis by an appraiser, who told her the home was worth $425,000.

She did not put a written document into evidence and she did not identify the realtor or the date this was done. [ 74 ] Karl Kaser attached as an exhibit to his first affidavit a residential appraisal report by a licensed appraiser estimating the value of the 21 st Avenue home to be $404,000 as of September 7, 2018.

He also stated in that affidavit that the property assessments have consistently been approximately this value “to date”, which I take to mean the date of his affidavit, February 18, 2022. [ 75 ] I accept the appraiser’s report combined with Karl Kaser’s evidence regarding the consistent assessed values to the present as the best evidence regarding the present value of the 21 st Avenue home. I find its current value to be $404,000. [ 76 ] There is both a mortgage and a line of credit registered against the 21 st Avenue home.

Karl Kaser did not put into evidence any mortgage or line of credit statements, but he asserts through his matrimonial property statement attached to his first affidavit that the balance owing on the mortgage as of the date of separation was $127,797 and that the balance owing on the line of credit as of that date was $115,015. [ 77 ] Leanne Kaser attached as an exhibit to her affidavit an undated bank statement showing the balance owing on the mortgage as

$97,539.01 and on the line of credit as $153,164.76. [ 78 ] Leanne Kaser testified in questioning that she did not make any payments on the mortgage after the parties separated.

I conclude that the reduction in the mortgage balance from $127,797 at the date of separation, according to Karl Kaser, to $97,539.01, according to the undated bank statement attached to Leanne Kaser’s affidavit, is a result of Karl Kaser making payments on the mortgage after separation, and while he had exclusive use of the 21 st Avenue home. [ 79 ] Both parties testified that they took a combined total of $37,493 from the line of credit after separation.

I conclude that this accounts for the increase in the balance owing on the line of credit from $115,015 at the time of separation, according to Karl Kaser, to $153,164.76, according to the bank statement attached to Leanne Kaser’s affidavit. [ 80 ] Karl Kaser submits that the balances on the mortgages at the time of separation should be used for property division because it has been six years since the parties separated and it would be nearly impossible to calculate the benefits paid to each party. I disagree.

Karl Kaser’s payments on the mortgage which reduced the balance owing were a housing cost for him and should not be adjusted.

The withdrawals that each party took from the line of credit are precisely defined in Leanne Kaser’s affidavit and they are close to equal such that no adjustment is required, since they each took the same benefit, within a few hundred dollars. [ 81 ] In general property is to be valued as of the date of trial: Family Property Act , s. 7(2.1). [ 82 ] I find that the current balance on the mortgage is $97,738.04 and the current balance on the line of credit is $153,268.15, based on the undated bank statement attached to Leanne Kaser’s first affidavit. 6.3 Other assets and debts with disputed values 6.3.1 Property tax adjustment [ 83 ] Karl Kaser submits that there is a debt or adjustment that should be recognized for “the property tax payment made by the Defendant while the Plaintiff remained in the 21 st Avenue home in 2016 (for June 2015 – June 2016)”.

I understand this to refer to the property taxes on the 21 st Avenue home. I do not agree that an adjustment should be made for that on the division of property. Property taxes were a joint housing expense while the parties cohabited and Karl Kaser’s sole expense after he had exclusive use of the 21 st Avenue home. 6.3.2 Vehicles and trailer [ 84 ] The parties have attribute slightly different values to their vehicles and trailer. Neither has provided a basis for their estimated values.

I find those values to be the average of the two values in evidence as follows: 2013 GMC Sierra $37,500 Jayflight trailer $8,500 2005 Honda Odyssey $8,000 6.3.3 Financial assets and credit cards [ 85 ] The parties agree that their financial assets and credit card debts should be valued as of the date of separation, because changes in those values have been made by each of them on an individual basis. They agree on the values for some of these, which are set out in

section 6.1 of these reasons, above. They disagree on the balances of some accounts. Unfortunately, neither party used account numbers in their property statements which makes it difficult to correlate accounts between the two statements where the values differ. Even when I can make that correlation, I have almost no evidence regarding which is the correct figure. 6.3.4 RBC spousal RRSP [ 86 ] Karl Kaser values an RBC spousal RRSP at $5,000. Leanne Kaser values it at $5,007.70.

Leanne Kaser attached to her first affidavit a 2022 RBC statement which shows a spousal RRSP valued at $5,007.70, but also a 2016 RBC statement which does not show the spousal RRSP at all. I find the value of the spousal RRSP to be $5,007.70 on the assumption that nothing was added or withdrawn after separation. As discussed in

section 6.5 of these reasons, below, I conclude that the spousal RRSP was started with a $5,000 contribution Karl Kaser made shortly after the parties separated. 6.3.5 RBC direct investing Leanne [ 87 ] Karl Kaser values an RBC Direct Investing account at $25,359.25. Leanne Kaser values it at $31,339, which is the value shown on the 2022 RBC statement attached to Leanne Kaser’s first affidavit. Again, this account does not appear to show on the 2016 RBC statement.

I find the value of the RBC direct investing account to be $31,339 based on Karl Kaser’s property statement and on the assumption that nothing was added or withdrawn after separation. 6.3.6 RBC bank accounts [ 88 ] The RBC bank accounts are very confusing. Both parties include two RBC chequing accounts and one RBC savings account on their property statements. I have done my best to correlate them.

[ 89 ] Karl Kaser’s statement has an RBC chequing account which he puts under the heading “husband” with a value of $9,161.88. This appears to be the same account which Leanne Kaser describes as an RBC chequing account with the same value, $9,161.88. The 2016 RBC statement attached to Leanne Kaser’s first affidavit shows a chequing account with that balance, $9,161.88. I have included this account in s. 6.1 of these reasons, above. [ 90 ] Karl Kaser’s statement has an RBC joint chequing account which he values at $2,933.14.

The 2016 RBC statement attached to Leanne Kaser’s first affidavit shows a joint savings account (account number ending in 742) with almost the same balance, $2,933.15. Leanne Kaser attached to her second affidavit several bank statements for the joint savings account (account number ending in 742), the earliest of which shows a balance as of March 11, 2016 of $1,582.82. [ 91 ] Leanne Kaser’s property statement shows an RBC savings account with a balance of $0.00 and a chequing account, which she does not describe as joint, with a balance of $5,189.01.

Those figures align with the 2022 RBC statement, but the account numbers on the 2022 statement do not match those on the 2016 statement, and of course both parties have submitted that 2016 values should be used. [ 92 ] Karl Kaser’s statement also has an RBC Savings account under the heading “wife” with a value of $1,800.

A bank account with that balance does not show up on either the 2016 RBC statement or the 2022 RBC statement. [ 93 ] I find that the RBC bank accounts the parties had in 2016, and which therefore are subject to property division, are the two accounts shown on the 2016 statement: a chequing account with a balance of $9,161.88 and a savings account with a balance of $1,582.82. 6.3.7 TD bank account [ 94 ] Karl Kaser’s property statement includes a TD joint savings account with a balance of $2,970.46.

Leanne Kaser’s statement includes a TD minimum chequing account with a balance of $14.45, which corresponds to the balance showing on an undated TD statement which shows balances for the mortgage of $97,539.01 and for the line of credit of $153,164.76, which I understand to be the balances in 2022, not 2016. I find the value of the TD bank account to be $2,970.46 based on Karl Kaser’s property statement. 6.3.8 TD auto loan [ 95 ] Leanne Kaser’s property statement includes a TD auto loan with a balance of $10,145.11. Karl Kaser does not include this on his statement.

An automobile loan with that balance shows up on the undated TD statement, but my understanding is that that is a 2022 statement. There is no evidence that the TD auto loan existed in 2016 and its absence from Karl Kaser’s statement suggests it did not. I find the TD auto loan should not be included in the property division.

I also note Leanne Kaser’s testimony in questioning that the auto loan has been paid in full. 6.3.9 RBC Visa [ 96 ] Karl Kaser includes two RBC Visa credit card debts on his property statement, one with a balance of $316, under the heading “husband” and the other with a balance of $1,300 under the heading “wife”. Leanne Kaser includes only one Visa credit card on her statement, with a balance of $0.00. The 2016 RBC statement shows only one Visa credit card with a balance of $366.44.

The 2022 RBC statement shows only one Visa credit card (but with a different account number than the Visa credit card on the 2016 statement) with a balance of $0.00. I find that there is only one Visa credit card debt for property division, with a balance in 2016 of $366.44. 6.4 Tax adjustment [ 97 ] Both parties submit that an adjustment should be made for taxes which will be payable in the future when funds are withdrawn from tax sheltered investments. Karl Kaser has used a tax adjustment of 24% and applied it to all tax-sheltered investments, including investments that are exempt property.

Leanne Kaser has used a tax adjustment of 20% and applied it to tax sheltered investments which are not exempt property. Neither party has provided evidence to support the tax adjustment rate they have used. I find that the correct rate is the average of the two, 22% and it should only be applied to non-exempt tax-sheltered investments.

Specifically, the following adjustments should be made: investment value tax adjustment Divertek Group RRSP $54,238.92 (-$11,932.56) RBC Direct Investing Karl $13,611.00 (-$2,994.42) RBC RRSP $10,971.20 (-$2,413.66) RBC Spousal RRSP $5,007.70 (-$1,101.69) RBC Direct Investing Leanne $31,339.00 (-$6,894.58) 6.5 Post-separation property and debt [ 98 ] Both parties agree that they each drew on the line of credit secured against the 21 st Avenue home after separation. Leanne Kaser withdrew $18,631.10 and Karl Kaser withdrew $18,861.85.

These amounts are almost equal, and they are included in the balance I have found is owing on the line of credit in

section 6.2 of these reasons, above. Consequently no adjustment is necessary for those withdrawals. [ 99 ] Both parties agree that Karl Kaser transferred $5,000 to Leanne Kaser’s RRSP and provided her with $2,000 cash to purchase

items for her new home shortly after separation. Given the $5,007 balance in Leanne Kaser’s spousal RRSP, I find that Karl Kaser’s contribution to the Leanne Kaser’s RRSP is already included in the property values set out above.

The $2,000 cash used to purchase items for Leanne Kaser’s new home should be shown as an asset in Leanne Kaser’s possession in the property division. 6.6 RESPs and children’s bank accounts [ 100 ] Both parties agree that the RESPs and children’s bank accounts should not be included in the property division. 6.7 Exemptions [ 101 ] The parties agree that they are each entitled to exemptions for certain investments they hold, being two Canada Life Investments held by Karl Kaser in the amounts of $10,049.67 and $16,989.67 and one Quadrus investment held by Leanne Kaser in the amount of $2,986.04. [ 102 ] The parties disagree regarding two exemptions claimed by Karl Kaser.

He claims an exemption of $133,000 for his equity in the 45 th Street home when he began cohabitating with Leanne Kaser and an exemption of $42,000 for renovations he did to that home. Leanne Kaser submits that Karl Kaser has failed to prove those exemptions. [ 103 ] There are several problems with these claimed exemptions. First, Karl Kaser has adduced no evidence of the value of his equity in the 45 th Street home or the value of his renovations to it, beyond his bald assertions. [ 104 ] Second, he has not accounted for dissipation and depreciation.

Karl Kaser claims to have used the line of credit on the 45 th Street home to pay for family expenses including the purchase of vehicles for himself and Leanne Kaser. To the extent Karl Kaser drew on the line of credit to pay for food, gas, utilities, and other expenses which do not result in assets currently in the parties’ hands, there is nothing on which to claim an exemption. In that case, the exempt asset has been dissipated and no exemption can be claimed: Scheffelmeier v Krassman, 2011 ABCA 64 at para 14 . Furthermore, vehicles depreciate.

In his first affidavit, Karl Kaser identifies three vehicles and a trailer purchased using the line of credit on the 45 th Street home. Two of the vehicles were sold during the relationship. The third vehicle is the 2005 Honda Odyssey which the parties still own. The total amount Karl Kaser says was drawn from the 45 th Street home line of credit to purchase those three vehicles and the trailer is $80,000.

The total depreciation on the three vehicles and the trailer, according to Karl Kaser’s evidence, is $43,000, leaving $20,000 which he says was applied to the mortgage on the 21 st Avenue home, $10,000 in the current value of the Honda Odyssey and $7,000 in the current value of the trailer.

At best he would be entitled to an exemption of $37,000 being the current value in the assets held by the parties which were obtained using the $80,000 drawn from the line of credit on the 45 th Street home. [ 105 ] Third, on Karl Kaser’s evidence, the 45 th Street home increased in value from $185,000 when he and Leanne Kaser started living together, to $250,000 in 2009. The increase in value of an exempt asset during cohabitation and marriage is not exempt.

Karl Kaser has not adduced any evidence from which it would be possible to determine how much of the $70,000 proceeds of the sale of the 45 th Street home in 2012 is attributable to its value at the time of cohabitation and how much is attributable to the increase in its value during cohabitation. [ 106 ] Fourth, Karl Kaser has not produced any documents showing the use of the $70,000 proceeds of the 45 th Street home or the proceeds of the sales of the two vehicles to pay the mortgage on the 21 st Avenue home. [ 107 ] For those reasons, I find that Karl Kaser has failed to prove an exemption with respect to his equity in the 45 th Street home or renovations to that home. 6.8 Property division [ 108 ] Based on their property statements, I understand the parties are in agreement regarding who will retain which assets, with a couple of exceptions. [ 109 ] Karl Kaser submits that the RBC savings account and TD bank account should be divided equally between them whereas Leanne Kaser suggests they should go to her solely.

Given the fact that each party may have contributed and withdrawn from those accounts since separation, and given the absence of evidence of the extent to which they have done that, I find it is most equitable to divide those accounts equally for the purposes of property division. [ 110 ] Karl Kaser submits that Leanne Kaser should take the 2005 Honda Odyssey whereas Leanne Kaser submits that Karl Kaser should take it.

Based on the evidence of both parties that Karl Kaser has possession of that vehicle, I find that he should take it in the property division. [ 111 ] Karl Kaser submits that he should take the RBC Visa. Leanne Kaser says she should take it. I find Karl Kaser should take it. [ 112 ] Based on my findings set out above, I order distribution of family property as follows: asset / liability Karl Kaser Leanne Kaser 21 st Avenue home $404,000.00 mortgage (-$97,738.04) line of credit (-$153,268.15)

Divertek Group RRSP $54,238.92 tax adjustment (-$11,932.56) RBC Direct Investing Karl $13,611.00 tax adjustment (-$2,994.42) RBC RRSP $10,971.20 tax adjustment (-$2,413.66) RBC spousal RRSP $5,007.70 tax adjustment (-$1,101.69) RBC Direct Investing Leanne $31,339.00 tax adjustment (-$6,894.58) RBC savings $791.41 $791.41 TD account $1,485.23 $1,485.23 RBC chequing $9,161.88 PC Financial chequing $193.60 2013 GMC Sierra $37,500.00 Jayflight trailer $8,500.00 2005 Honda Odyssey $8,000.00 RBC Visa (-$366.44) Capital One Mastercard (-$1,116.52) post separation cash to furnish Leanne’s home $2,000.00 net value before equalization $278,623.45 $32,627.07 equalization (-$122,998.19) $122,998.19 net value after equalization $155,625.26 $155,625.26 [ 113 ] As agreed by the parties, Karl Kaser shall retain his two Canada Life Investments and Leanne Kaser shall retain her Quadrus investment, as these are exempt from property division. 7.

Conclusion [ 114 ] I order ongoing s. 9 child support as a straight set-off of the Guideline amounts starting January 1, 2023 based on Karl Kaser’s income being $138,042.78 and Leanne Kaser’s income being $46,254.00, subject to adjustment once they know their actual 2023 incomes. [ 115 ] I order retroactive child support from March 1, 2016 to December 31, 2022 based on the incomes I have found for the parties.

For most of that period, I order s. 9 support being a set-off of the Federal Child Support Guidelines amounts, but for September 1, 2016 to October 31, 2017, I order s. 3 support payable by Karl Kaser to Leanne Kaser. [ 116 ] I order ongoing spousal support starting January 1, 2023 based on Karl Kaser’s income being $138,042.78 and Leanne Kaser’s income being $46,254.00 in the mid-range of the Spousal Support Advisory Guidelines , subject to adjustment once they know their actual 2023 incomes. [ 117 ] I order retroactive spousal support from March 1, 2016 to December 31, 2022 in the mid-range of the Spousal Support Advisory Guidelines, based on the incomes I have found for the parties. [ 118 ] My spousal support award is indefinite.

Either party may apply to terminate it at any time. [ 119 ] Karl Kaser shall have credit against arrears of child and spousal support for the amounts he paid up to December 31, 2021, which total $131,629.99. He is also entitled for credit for amounts paid in 2022, but I have no evidence on which to make a finding of that amount. [ 120 ] If the parties agree on the amounts of child and spousal support pursuant to my findings, and arrears after crediting Karl Kaser for amounts paid, they may insert those amounts in my order.

If there are any amounts on which they do not agree, they may each make a written submission of no more than ten pages. The submissions should attach calculations. The calculations are not part of the ten-page limit. The deadline for those submissions is January 31, 2023. After receiving those submissions, I will issue supplemental reasons. [ 121 ] I order a division of matrimonial property as set out in

section 6.8 of these reasons, above. [ 122 ] If the parties are not able to agree on costs, they may speak to costs at a one-hour hearing to be scheduled through my assistant and the appropriate court coordinator. Heard on the 13 th day of December, 2022. Dated at the City of Edmonton, Alberta this 5th day of January, 2023 .

G.S. Dunlop J.C.K.B.A. Appearances: Jordan Bienert Capital City Law for the Plaintiff Mark Dupres Long Family Law Group LLP for the Defendant