Nykolyshyn v Dalton, 2022 ABKB 860

Court of King’s Bench of Alberta Citation: Nykolyshyn v Dalton, 2022 ABKB 860 Date: 20221222 Docket: 4803 176477 Registry: Edmonton Between: Anatole Gregory Nykolyshyn Plaintiff - and - Jamie Lynn Dalton Defendant _______________________________________________________ Memorandum of Decision of the Honourable Justice A. Loparco _______________________________________________________ Corrected judgment: A corrigendum was issued on December 30, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment.

Table of Contents I. Introduction . 3 II. Brief Conclusions . 4 III. Issues . 4 A. Credibility . 4 B. Cohabitation period . 4 C. Guideline Income . 5 i. Plaintiff . 5 ii. Defendant 6 a. Should Income be Imputed to the Wife? . 6 b. Law on imputing income . 7 c. Analysis . 7 d. Medical Issues . 8 e. Plaintiff’s position . 9 f. Possible employment opportunities . 10 g. Conclusion on imputing income . 11 D. The quantum and duration of child support 13 i. RESPs . 13 E. Entitlement, quantum, and duration of spousal support (retroactive and ongoing) 14 i. Roles of the parties . 14 ii. The Parties’ Positions . 15 iii.

Support Payments and Adjustments made by the Husband to date . 15 iv. Law .. 16 v. Inability to Work Due to CFS . 20 vi. Analysis . 21 F. Division of matrimonial property . 26 i. Was there an agreement as to date of valuation, exemptions, and the property to be divided? 26 ii. Jewellery . 28 iii. Value of the Husband’s Book of Business . 28 iv. Equalization . 36 A. Parenting and decision-making over medical issues such as Covid-19 vaccination . 36 i. Parenting . 36 ii. Vaccination . 37 IV. Conclusion . 38 Appendix- Parenting Plan . 40 General 40 Transportation and communication . 40

Holidays, vacations and special parenting days . 40 Travel and absences . 41 Communication . 41 Education expenses and savings . 41 Health care and emergencies . 42 Extracurricular activities . 42 I. Introduction [ 1 ] Mr. Nykolyshyn (Husband) and Ms. Dalton (Wife) seek a divorce. They began living together in November 2001, married on May 27, 2004, and separated in February 2016. However, they agreed to use December 31, 2015, for the purpose of valuing their matrimonial property for division. [ 2 ] The Husband filed a Statement of Claim for Divorce and Division of Matrimonial Property on June 17, 2016.

The Wife filed a Statement of Defence while self-represented.

A Counterclaim was filed by counsel on her behalf on March 1, 2021. [ 3 ] There are two children of the marriage: LN, born May 13, 2005 (presently 17 years of age) and RN, born August 31, 2007 (presently 15 years of age) (Children). [ 4 ] After separation, the parties continued to live in the Matrimonial Home for approximately 1 ½ years, until the Wife relocated on August 1, 2017. [ 5 ] The corollary issues to be resolved in this trial are the Guideline Incomes of the parties and whether there should be an imputed income to the Wife, as well as entitlement, duration, and quantum of spousal support. [ 6 ] Given the ages of the Children, the parenting issues were largely resolved, except for the question of whether they should be vaccinated against COVID-19. [ 7 ] On the matrimonial property side, the major issue involved the determination of a value for the book of business, and whether the division of this asset should result in a corresponding reduction in Guideline Income for the Husband.

II. Brief Conclusions [ 8 ] A divorce is granted. I conclude that the Husband’s Guideline Income shall be as reported on his tax returns for all years, without any adjustment for his business deductions. I further impute a part-time income to the Wife commencing in 2019. She is owed 10 years of spousal support at the mid-range of the SSAG on both a compensatory and non-compensatory entitlement basis. [ 9 ] The parties shall continue to have shared parenting on a weekly rotating basis.

As mature minors, the Children shall consult their family physician on their own to determine whether to be vaccinated against COVID-19. Unless a serious risk arises, their choice as to whether to be vaccinated shall be respected. [ 10 ] The Husband’s Book of Business shall be valued (without a reduction for any notional disposition tax) at $373,401.00, based on the multiplier of 1.5 on total commissions (recurring and non-recurring income). His Guideline Income will not be reduced because of the asset division. III. Issues A.

Credibility [ 11 ] Although much has been presented to try to diminish the opposite party’s testimony, I do not believe credibility is a major issue in this trial. The discrepancies are minor, can be explained by turns of phrases, and the general difficulties with memory and answering questions in a trial, an experience not common for most people. [ 12 ] I found that both parties testified honestly and to the best of their abilities. Where there is a necessary finding of fact related to a legal issue, I will explain the reason why I may prefer one party’s testimony over the other. B.

Cohabitation period [ 13 ] There is a dispute as to the date the parties started to live together. [ 14 ] I conclude that the date of cohabitation was November 2001, as noted in Exhibit 313, a letter jointly sent by the parties to the Canada Revenue Agency on July 12, 2003.

[ 15 ] In the Wife’s Counterclaim, filed March 1, 2021, she advanced a property claim for property acquired while cohabiting before marriage; the Husband’s Statement of Defence to the Counterclaim agreed to an equal distribution of property acquired, without specifying whether it included property acquired before marriage or only after. [ 16 ] As the parties came to an agreement (discussed below) on the division of all matrimonial property (except for the Husband’s Book of Business and the jewelry), no one argued unjust enrichment at trial. Any such claim would likely be statute barred.

Therefore, the date of cohabitation is relevant only for spousal support entitlement purposes. C. Guideline Income i. Plaintiff [ 17 ] I accept the evidence that the Husband’s Guideline Income is as follows: $182,820.00 (2016) $189,044.00 (2017) $191,027.00 (2018) $206,858.00 (2019) $178,893.00 (2020). [ 18 ] The Husband has a Bachelor of Commerce Degree from the University of Manitoba.

In addition, he has several designations including that of a certified financial planner, elder planning counselor, chartered health specialist, and registered retirement consultant; all of these were obtained through his employment. [ 19 ] At the time the parties met, the Husband was working for the company that produced Cheemo Perogies. The Husband started working for Freedom 55 Financial/London Life about the time the parties moved in together. He has been with them since. Canada Life bought out London Life in 2021. [ 20 ] The Husband gave up his downtown office to reduce expenses and does not have any staff.

He works at full capacity and most of his clients are older than 66 years of age, followed by individuals aged 51 to 65. [ 21 ] The Husband’s expenses are approximately 15-20% of his gross income annually. [ 22 ] The Husband provided detailed information and testimony as to his business deductions, mostly consisting of meals, entertainment, and vehicle use.

In respect of the vehicle expenses, he deposed that he uses an application to annually allocate all maintenance, fuel, and depreciation between business and personal use (approximately 60-40). [ 23 ] The Wife asserts that the Husband’s disclosure did not comply with the disclosure requirements in Cunningham v Seveny, 2017 ABCA 4 or Sweezey v Sweezey, 2016 ABQB 131 , and as a result, his income must be set at the mid-point between gross and net income.

Despite the detailed spreadsheets and explanations explaining the annual $30,000 to $40,000 tax deductions, the Wife argued that disclosure was inadequate and did not provide the details of all categories of expenses (e.g., cell phone, entertainment, gifts, meals). In particular, the Wife testified she believed the Husband inappropriately wrote off meals, used a business Line of Credit to buy personal gifts, and improperly claimed driving expenses.

However, I find her testimony on this point to be vague, speculative, and unsubstantiated. [ 24 ] I am satisfied that the Husband provided sufficient disclosure, including a detailed breakdown of the expense deductions. When asked if he derived a personal benefit from any deductions, he testified that they were all solely for business purposes; this testimony was not contradicted on cross-examination.

The fact that he admitted he may have included a meal with his wife (who is a client) does not lead to the remedy that the Wife seeks. [ 25 ] Overall, I conclude that the expenses are in line with the number of clients serviced and are reasonable. [ 26 ] I further reject the Wife’s general assertion that disclosure deficient and should therefore result in a higher imputed income for the Husband. First, the Wife testified she received disclosure in 2016. The Husband states his disclosure has been compliant throughout.

There was no evidence about what disclosure remained deficient as of trial and I am not prepared to accept the Wife’s closing submissions that it was non-compliant at various other points of time. All questioning was complete and parties certified being ready for trial. If there was a dispute about disclosure, a pre-trial application ought to have been brought to resolve the issue. I note the Wife had previous counsel for most of the time leading up to trial. ii. Defendant a. Should Income be Imputed to the Wife? [ 27 ] The Wife was born in Gander, Newfoundland and raised in Halifax.

She completed grade 12 in 1990 and a course in tourism. She worked in restaurants and at the front lobby of a couple of hotels before moving to Edmonton in 1997.

[ 28 ] The Wife worked in Edmonton at Stream Flo for a few years, then with FIDO, followed by work at Telus Mobility. Her tasks involved sales support, cold calling, and general administrative work. Her average earnings, including bonus, at her last job before the Children were born, were $50,000. [ 29 ] At the time the parties met, the Wife was working full-time for Telus. She accumulated 17 years of work experience from the time she left high school until shortly before the birth of their first child. [ 30 ] LN was born in May of 2005; the Wife took a one-year maternity leave and then returned to work.

After RN’s birth in August of 2007, the parties decided the Wife would stay at home with the Children until they started school, mostly because daycare costs were excessive. [ 31 ] The Wife suffered from post-partem depression and had challenges with fatigue and migraines and difficulty sleeping throughout the Children’s lives.

The Husband urged her to return to work to assist with the financial situation and because he felt it would help her with her depression. [ 32 ] During the marriage, the Wife worked full-time until mid-2005, full-time for a year in 2006/2007, and almost full-time in 2013/2014 for her father’s company. During this latter period of employment, the Wife testified that she started at 10 am daily and would work until 7 pm, with a break only to pick up the Children.

She testified to an enormous amount of work, assisting in various warehousing and administrative tasks, and her inability to keep up with household tasks during this time. She earned $18 per hour and overall made approximately $25K. Her earnings went into her personal account and were mainly used for the children and various other personal expenses. [ 33 ] Following separation, the Wife did not seek employment as she was experiencing numerous health issues.

She submits that I should treat her income as “zero” for support purposes. [ 34 ] The Husband submits that income of $40,000.00 should be imputed to the Applicant. b. Law on imputing income [ 35 ]

Section 19 of the Child Support Guidelines permits the court to “impute such amount of income to a spouse as it considers appropriate in the circumstances...” Such circumstances include intentional under-employment or unemployment.

While there is no similar provision under the Divorce Act , RSC 1985, c 3 (2 nd Supp ) in relation to determination of income for spousal support purposes, the Divorce Act does permit the Court to make such order for spousal support “…as the court thinks reasonable for the support of the other spouse.” [ 36 ] Determination of what is reasonable must start with determination of the parties’ respective incomes.

The terms of s 19 of the Child Support Guidelines, while not applicable to spousal support per se , nevertheless represent a useful guide in considering whether to impute income for spousal support purposes as well. [ 37 ] The Alberta law on imputing income for the purposes of child and spousal support has recently been modified by the Alberta Court of Appeal in Peters v Atchooay , 2022 ABCA 347 . The Court in Peters reconsidered its decision in Hunt v Smolis-Hunt , 2001 ABCA 229 , which had confined imputing income to circumstances where a parent deliberately attempted to evade child support obligations.

The Court brought its jurisprudence in line with the other Canadian provinces and rather than requiring deliberate intent, imposed a test of reasonableness in assessing whether to impute income.

Courts are now required to determine if the actions or decisions of the parent are reasonable having regard to all the circumstances. [ 38 ] While Peters deals with child support under s 19(1)(a), the general approach has been to find that if income is imputed for the purposes of determining child support, there is no principled bases for using a different income for spousal support ( Myers v Hawco (2005), 2005 NLCA 74 , at para 42 ; Shigehiro v Shigehiro , 2017 ABCA 392 (at para 54 ); LAG v CGG , 2019 ABQB 433 (at para 70 ).

There are some cases that have suggested that a different test should apply when imputing income for spousal support ( Jean v Jean , 2006 ABQB 938 at paras 106-113 ; Gordon v Gordon, 2014 ABQB 596 at para 82 ), but those cases applied the reasonableness standard to spousal support, rather than the intentional evasion under Smolis-Hunt , and since Peters now applies the reasonableness standard, I conclude that these cases are now reconciled. c.

Analysis [ 39 ] The Wife is 50 years of age with a consistent work history before the Children were born, including strong marketing and people-skills, and a demonstrated potential to advance in her career, despite not having post-secondary education. [ 40 ] The Wife’s earned approximately $50,000 annually before LN was born. She returned to work in 2013-2014, but only earned $25,000 in total that year.

Post-separation, she collapsed her TFSAs, RRSPs, exhausted all her savings and settlement amounts, sold her wedding rings, and declared no other income. [ 41 ] The Wife has standard skills including word processing, administration, and marketing, although they are somewhat dated now. She presents as well-groomed, speaks clearly, and appeared to manage giving evidence for extended periods of time without seeking a break. However, I am mindful that this is not necessarily indicative of her capacity to earn a living. d.

Medical Issues [ 42 ] In addition to the pre-existing migraines, headaches, and trouble sleeping, after separation, the Wife was diagnosed with Chronic Fatigue Syndrome (CFS), also known as myalgic encephalomyelitis. She testified to having ongoing symptoms including joint

pain, depression, migraines, chronic daily headaches, digestive problems, and vision disturbances. The Wife believes CFS precludes her from obtaining any employment, even on a part-time basis, and she believes the situation will continue indefinitely. [ 43 ] The Wife called her family doctor, Dr. Shmoorkoff, to testify as to her medical history. He was not qualified as an expert and did not provide a prognosis or a vocational capacity assessment. He described his role to be that of a ‘patient advocate’.

In my respectful view, while he testified in a straightforward and honest manner, this testimony was redundant, as he could only confirm what was already in his medical records. [ 44 ] Notably, CFS was first raised in March 2014 when the Wife reported brain fog, and extreme fatigue, which she said she had been experiencing for 10 years by that point. She also reported sleep problems, joint symptoms, and mood problems. By September 2016, which was the year the parties separated, the Wife was reporting she could only function for about two hours per day.

In May 2017, a psychologist diagnosed her with major depression, Attention Deficit Disorder (ADD), and obsessive-compulsive traits. [ 45 ] The Wife’s medical records are extensive. Referrals to many specialists continued over the years. By August 2019, a psychiatrist noted the impression of unspecified depressive disorder and CFS. [ 46 ] The Wife testified that she understands that CFS is a disorder that causes her extreme fatigue, daily joint pain (approximately 4/10 on a pain scale), dizziness, sore throat, digestive problems, memory, and recall problems.

She also described having episodes of flank pain years ago, loss of vision in her right eye, and partial body paralysis, which she also attributes to CFS. [ 47 ] Dr. Shmoorkoff explained that there are no specialists that treat CFS. He referred the Wife for extensive examinations at her request, but the medical notes indicate there was no secondary or organic cause for her condition. Although the Wife asked to be referred to a clinic in Vancouver, Dr. Shmoorkoff has not agreed to do so.

As of trial, she testified she also believes she should be referred to a rheumatologist and an immunologist for further investigation. [ 48 ] As of March 17, 2020, the Wife’s psychiatrist, Dr. Nkire, recorded notes indicating that the Wife takes medication for migraines and insomnia, as well as an anti-depressant. She has been sleeping well since about 2017, but her main ongoing issue was fatigue, even with small tasks. [ 49 ] The Wife testified that all her energy is exhausted with minor tasks, she cannot exercise, and has no social life.

During the week when she does not have the Children, she states that she sleeps 15-20 hours per day, and only has two hours a day to do things on her feet. However, in cross examination, the Wife agreed that she took care of most household tasks, child-rearing, and volunteered at the kids’ activities, which are all physically taxing activities. She has also participated in many family vacations, and recently spent two weeks in Arizona on a holiday where she was able to participate in activities.

As the household and child-rearing activities all continued after separation and would have been more difficult while living alone, I find that it is difficult to reconcile the Wife’s testimony about her lack of capacity and the reality of her day-to-day tasks. I have attempted to better comprehend her symptoms by referring to her medical records at various points in time since separation. [ 50 ] Dr. Shmoorkoff confirmed that the Wife’s diagnosis currently is CFS. He explained that it is a diagnosis of exclusion, that is a diagnosis when all other objective testing cannot explain the subjective symptoms.

He agreed in cross-examination that the symptoms were likely exacerbated by the stress of the separation. [ 51 ] I note that in September 2018, Dr. Shmoorkoff wrote in his records that the Wife ‘gets really annoyed when I tell her she can do things. Is well groomed and not anxious’. [ 52 ] The medical records indicate that she recently responded well to transcranial magnetic stimulation treatment. There were steady improvements in her mood, reduced anxiety, and better sleep. However, the Wife testified that these effects are not long-lasting, and she cannot afford ongoing treatment. [ 53 ] Dr.

Shmoorkoff noted in September 2020 that the Wife was seeing multiple doctors and several different investigations were done. By July 2020, he noted that the Wife had better mental clarity and was more organized. [ 54 ] The psychiatrist Dr. Nkire notes that the Wife was finding time to connect with friends and was coping well with the Children. She was sleeping relatively well. In March 2020, Dr. Nkire noted that she was less depressed, had improved motivation, and was hopeful for the future. As of June 2020, Dr.

Nkire noted that the Wife was having good sleeps and was again hopeful for the future. [ 55 ] The Wife had attended a sleep study, which resulted in normal findings. The records note that the Wife was not interested in following recommended sleep hygiene (e.g., routine bedtime, putting phone away, turning off the lights), as she did not believe these to be the root of her problem. In re-direct, she explained that she tried to implement some of the recommendations. She did not return for the follow up. Despite this, she, testified that she believes that a level 3 sleep study is still required. e.

Plaintiff’s position [ 56 ] The Husband disputes that the Wife cannot work. He argues that the Wife engaged in many social activities with friends, including late night texting and trysts, suggesting that there are other reasons for her daytime fatigue and inability to function. I disagree that this evidence contradicts her testimony that she was an insomniac or that she was incapable of working at times. It is not uncommon for a person having difficulty sleeping to be on their electronic devices.

Moreover, her ability to socialize from time to time is not inconsistent with her testimony that she has periods of normality, followed by fatigue. This evidence alone does not prove her capacity to work. [ 57 ] While the Wife asserted in her evidence that the Husband was controlling with money and aware of her health issues limiting her ability to work, the Husband stated the Wife was a spendthrift and that he had to put some limits in place to safeguard their financial situation. He encouraged the Wife to pursue employment outside the home. I have no legal reason to prefer the evidence of either party

over the other on this point. I treat such evidence as neutral. f. Possible employment opportunities [ 58 ] The Wife has expressed interest in a career as a nurse but has taken no steps towards registering in any post-secondary program. In closing argument, her counsel stated that she simply could not afford it.

However, the Wife’s evidence indicated she never sought any information on costs, nor inquired about loans, grants, or scholarships; it is obvious that she took no steps to research any post-secondary options available to her. [ 59 ] The Wife’s psychologist, Felicia Anderson, explored with her the career possibilities in record management or transcription from home, contract work that would accommodate her need for flexible work. [ 60 ] In June 2018, Ms. Anderson noted that the Wife was coping well with the divorce.

In terms of testing, she fell within the moderate range of depressive symptoms and the mild range of anxiety symptoms. The Wife chose to pause therapy. She denies this was because she disliked the advice she was getting. Rather, she testified it was because the Husband was not providing her with access to his benefits for the therapy. I reject the Wife’s testimony on this point.

I find she was evasive in her answers and did not have a good reason for why she would not follow all recommended steps in seeking employment. [ 61 ] She has also been advised to exercise to manage her symptoms, but she disagrees with the advice (although I acknowledge she tried to exercise to a minimal degree) and states that doing so makes her condition worse. [ 62 ] Her medical records indicate a tendency to procrastinate and a general reluctance to follow up on medical recommendations that she does not agree with.

I also note that despite receiving conclusive test results, she believes that there is no treatment available locally and that because she cannot afford to seek out-of-province private treatment, she is incapable of moving forward with any career goals. [ 63 ] The medical notes also indicate that Botox and Topomax as preventative medication were working well to help with the headaches.

There do not appear to be any further referrals to neurologists since about 2017 for migraines or headaches. [ 64 ] In cross-examination, the Wife was asked to explain how she could manage day-to-day activities such as shopping, cooking, cleaning, and driving the kids around, but was unable to look for work. Her explanation was that she has bursts of energy that at times lasts days, but those periods are followed by the need to sleep and rest. She stated the duration of both are variable and any regularity is unpredictable, causing her to be unemployable. [ 65 ] I infer from Dr.

Shmoorkoff's statement in the medical records from September 2018, along with other medical evidence, that the Wife did not pursue all advice and employment recommendations to assist her in becoming self-sufficient. I also conclude from Dr. Shmoorkoff’s testimony, including his demeanour in cross-examination, that he could not explain from a medical perspective why the Wife is unable to return to any form of employment. He stated that her lack of employment is consistent with her symptomology and that CFS is largely diagnosed as a result of subjective reporting by patients.

He confirmed that in the Wife’s case, the testing did not find any secondary or organic causes for the fatigue. [ 66 ] I accept that given her health challenges, there was a period in time when the Children were young where it would have been difficult for the Wife to juggle taking care of them and working.

However, they are now 15 and 17 years old and largely independent. [ 67 ] Further, I find that there is an inconsistency in how she describes the pattern of her disability and fatigue at present; she has been able to manage all child-rearing and household tasks on her own, take vacations, and enjoy other activities as planned, but states that any form of work remains impossible.

I conclude from all of the evidence available that the symptoms are not as debilitating and unpredictable as she claims and that she is capable of working part-time. [ 68 ] When her symptoms improved and the Children were less dependent towards the middle of 2018, I find that she could have been upgrading her skills or seeking out part-time or flexible employment. g.

Conclusion on imputing income [ 69 ] In my view, while the Applicant possesses many of the antecedents to a promising employment career, from the point of separation to approximately mid-2018, she was impeded by her health issues and her belief that she was incapable of working. [ 70 ] The Wife’s ongoing concerns are fatigue, depression, inability to focus, migraines that can be controlled, and unspecified bouts of pain.

I disagree that they rise to the level of complete incapacity for work. [ 71 ] While I accept that the Wife has ongoing and challenging medical concerns, I conclude that there is no evidence of any health-related reasons for her inability to seek any form of employment. Her headaches, sleep troubles, and pain are mostly manageable with medication. She describes her depression as not one where she feels sadness, but rather one that causes her to freeze up and suffer brain fog.

I note that she is being treated with antidepressants (for both depression and CFS) and that the medical reports indicate her ability to cope reasonably well with daily tasks. The other issues that have arisen appear episodic and have either resolved, been treated, or after medical tests, not determined to be of ongoing concern. [ 72 ] On her evidence, the busy parenting weeks are followed by intense periods of fatigue and rest. However, I do not believe the cycles of energy and fatigue are unpredictable and therefore prevent her from any meaningful work.

Other than when she suspected she had COVID-19, she was able to parent the children on her scheduled weeks and complete all her household and parenting tasks. In other words, I conclude that when she has a scheduled task that is important to her, and she puts her mind to it, she has few limitations.

[73] I conclude that the Wife has the capacity to work, albeit with the need for accommodations.

Although she reported to herdoctor around March 2016 that she only had two hours of productive time daily, the current evidence and testimony reveals that she hassignificantly longer stretches of time, when she is able to manage all the child-rearing activities and household tasks without assistance. [74] What matters is not whether there is intent to evade child support, as was the law in Alberta until recently, but rather, “whetherthe parent is earning what the parent is capable of earning”: Barker v Barker, 2005 BCCA 177 at para 19.

In the rest of Canada, a“parent is intentionally unemployed when he or she chooses not to work when capable of earning an income”: Drygala v Pauli (2002), (ON CA), 61 OR (3d) 711 (Ont CA) at para 28.

When imputing income, “a court must consider what is reasonablein the circumstances” (Drygala at para 45). [75] See also: Linn v Frank, 2014 SKCA 87 at para 97; Horbas v Horbas, 2020 MBCA 34 (at para 32: the Court must “assess thereasonableness of the underemployment in light of the parents’ obligation to ensure a fair standard of support”); JDF v JLF-F, 2020NBCA 70 (at para 25); Smith v Helppi, 2011 NSCA 65 (at para 16, citing with approval Gould v.

Julian, 2010 NSSC 123 at para 33);ALM v CGM, 2019 PESC 24 (at para 14, citing Drygala at para 45); and Bowes v Bowes, 2021 NLCA 10 (at para 38, citing Drygala). [76] The Court of Appeal in Peters (at para 60) set out a three-step approach to the analysis: 1. Is the spouse intentionally under-employed or unemployed? ... 2. Do the listed exceptions to imputation in s 19(1)(

a) apply? ... 3. If the answer to questions #2 is negative, what income is appropriately imputed in the circumstances? ... [77] The Court went on to note (at para 67) that each stage of the framework requires “credible and cogent evidence that is asobjective as possible”. In particular, the Court noted (at para 67): For example, if the under-employment or unemployment is due to the payor’s health concerns, medical evidence will generally berequired for the entire duration of time in question.

If the payor argues the under-employment or unemployment results fromcircumstances beyond their control, they must provide evidence of efforts to find alternate employment. [78] The spouse asserting that income should be imputed bears the initial onus, but this is a low bar, and the onus shifts to thespouse opposing imputation to defend the income they claim (Peters, at para 63).

The evidence should focus on establishing thespouse’s capacity to earn income. “At minimum, establishing employment capacity includes evidence of the payor’s age, technical skills,education, health, and work history, and the realities of the labour market” (Peters at para 67). [79] Here, the evidence satisfies the Husband’s initial onus to establish a prima facie basis to impute income. Before the Childrenwere born, the Wife was consistently employed, in a number of fields, and was capable of earning $50,000 annually.

She is not presentlyemployed, and the Children are teenagers, thus no longer in need of full-time parenting. [80] I find that for multiple reasons, including not wanting to commit to work until all her medical concerns are explored, and alack of confidence in her ability to hold down a job, the Wife has not taken any steps to become self-sufficient, but that she ought to have. [81] Moreover, given the relative stability in her medical condition, the evidence of her ability to manage all household tasks forthe weeks that the Children are with her without outside assistance, the fact that the Children are now older and require much less hands-on parenting, and the lack of medical and vocational evidence about her potential to work, I conclude that there is no longer anyobjective reason preventing the Wife from employment.

In other words, she has not proven – either through a vocational assessment,medical opinion, or from attempts to seek work – that she could not work since separation. [82] While I acknowledge the daily challenges that arise from CFS symptoms, which may result in the need for flexible work, I donot believe they are completely debilitating such that any gainful employment is impossible on an indefinite basis. In short, I do notbelieve the Wife is earning what she is capable of earning to meet her child support obligations.

Given the lack of confidence in herabilities, she may need career counselling to assist in finding work that will accommodate her limitations. However, she has an obligationto take active steps to seek out available options. [83] I conclude, based on the evidence at trial, the Wife is capable of finding employment with appropriate accommodations,including flexible hours and remote work options. It was recommended to her that she look into employment as a home-basedtranscriptionist as this would provide her with flexible work hours and accommodations -I agree that this is one of many options.

Although there is no evidence on the realities of the current labour market, the pandemic has greatly shifted the availability of alternativetypes of working arrangements that could suit her needs. Given that the Wife has been out of the workforce for a significant period oftime, she would likely only be able to earn an entry-level salary at this point. [84] In

summary, the Wife had acute symptoms in the years after separation, but they seem to have abated or were manageable bymid-2018 and described in the mild to moderate range. Although I conclude she is no longer capable of working full-time, I find the Wifehas had the ability since mid-2018 to transition back into the workforce in an entry-level position and to work at least on a part time basisfrom about January 2019. Since she had, and continues to have, ongoing limitations due to fatigue, brain fog, episodic headaches, andmoderate pain, I impute her income to be $20,000 annually from that point onward to 2022. Further imputation of income will beconsidered and addressed in the

section dealing with spousal support (see paras 148, 162-163) D. The quantum and duration of child support [85] The payment of child support will continue for both Children until each child is no longer a child of the marriage as definedby the Divorce Act.

[ 86 ] I have determined that Guideline Income for the Husband should be based on the actual tax returns for 2017-2020, and the Wife shall be imputed an annual income of $20,000 from 2019 to the end of 2022. On a go-forward basis, the Guideline Incomes are addressed in paras 148, 162-163. [ 87 ] The Wife seeks retroactive child support, arguing that the Husband underpaid child support.

The Husband opposes paying any retroactive support on the basis that the Wife was intentionally unemployed and that he paid the correct amount, or perhaps overpaid. [ 88 ] I conclude that child support must be recalculated based on my findings on imputing income and retractive child support is payable for any underpayment. [ 89 ] At present, the only

section 7 expense for the Children relates to club volleyball for RN at an approximate cost of $1,500.00 a year. This was not an expense that the Wife agreed to explicitly, but she was aware of it and appeared content to have her son participate in volleyball, even driving, watching, and volunteering at times. This will be considered a

section 7 expense. i. RESPs [ 90 ] It is unclear what the Children’s plans will be upon completion of Grade 12 or how they might contribute to any post- secondary education. I find it therefore premature to determine any relative contributions. [ 91 ] The Husband set up RESPs for the Children, which as of November 12, 2021, were valued at $39,136.93. The Husband’s mother contributed approximately $10,000.00 towards these RESPs, half of which is held by the Husband with the intention of contributing it to the RESPs when appropriate.

In addition, the Husband set up accounts for the Children into which gifts and other savings were deposited over the years. [ 92 ] In Damphouse v Damphouse , 2020 ABQB 101 , I had the occasion to consider the treatment of an RESP that included contributions from only one parent or grandparent (at para 116, 118): The intention of a RESP is to benefit a child who is pursuing a post-secondary education. It is an attractive savings vehicle as the government augments the contributions, thus increasing the amount of money available to the child. Ms.

Swystun argues it was just another investment vehicle to house the inter vivos gift from her parents; this seems contrary to the purpose of a RESP, Julia’s evidence, and the fact Ms. Swystun kept the funds intact in the RESP. I conclude that the RESP was indeed intended to benefit the children for the time they attend post-secondary education. ... Similarly, in this case, I find that the RESP was a trust fund started by the grandparents, which in 2010 had a value of approximately $78,000, and was to be used to defray educational expenses for the children.

I note from the March 31, 2010 statement produced, the children are each specifically listed as beneficiaries, providing further support for this inference. It does not matter where the contribution came from. There is no evidence to support the position that the purpose of the established fund changed when the grandparents transferred the administration of the account to Ms. Swystun; the nature of the investment vehicle remained funds being held in trust for its beneficiaries. [ 93 ] Likewise, I find in this case that the RESP was intended to benefit the Children.

It does not matter where the funds came from. [ 94 ] I conclude that the RESPs should be used in the first instance to pay for costs associated with tuition, books, computers, and other school-related devices, and living accommodations (if the Children reside with neither party). [ 95 ] The Wife asks that the Children’s RESPs and trusts accounts be transferred into a plan in both the parents’ names.

She alleges that the Husband controls the account and does not provide her with information. [ 96 ] Given the high level of conflict between the parties, it will be very difficult for them to jointly manage these accounts. The Husband has managed the funds well and has the expertise to ensure they are properly invested. The Husband will continue to have sole control over the RESP accounts but must report twice per year (in October and April) to the Wife any withdrawals from the accounts, the amounts, the purpose for which the money is withdrawn, and provide her supporting documents. E.

Entitlement, quantum, and duration of spousal support (retroactive and ongoing) i. Roles of the parties [ 97 ] As noted above, the Wife worked full-time earning approximately $50,000 until the eldest child’s birth. After maternity leave, she returned to work full-time until the second child’s birth. The parties then decided it was more economical for her to stay home full- time.

She has not returned to work except for a period of time in 2013-2014 when she worked for her father, earning a total of approximately $25,000. [ 98 ] During the marriage, the Wife did most of the cooking, cleaning, laundry, and daytime child-rearing, while the Husband assisted at various times, took care of the tasks required to upkeep the exterior of the house, and was in charge of taking the boys to most of their after school and weekend extra-curricular activities.

During their younger years, the Wife participated in Mommy and Me groups and took the Children to gymnastics, planned most of their social activities and medical appointments, and volunteered at their schools.

[ 99 ] Both parties were attentive and involved parents. In the earlier years, the mother tended to the Children’s daily needs on full- time basis, including taking them to activities during the day, while the Husband assisted during evenings and weekends. Both parties took the Children to various activities as they aged, with the Husband doing more of the driving and participation as a coach. He was also mostly responsible for taking them to the Forest Warden Program.

The Wife, however, did more of the planning at home, including making appointments, arranging for special events and birthday parties, and volunteering at the kids’ schools. [ 100 ] Both parties attended parent-teacher interviews, doctor visits, and dentist appointments. [ 101 ] The Husband was responsible for the outdoor chores, as well as cleaning the basement. Other cleaning was shared between the parties.

Cooking was mostly done by the Wife in the early years, and then shared by the parties in the later years. [ 102 ] While both parties lived in the Matrimonial Home post-separation to August 1, 2017, the Husband paid all the expenses. This included paying the mortgage, utilities, property taxes, groceries, children’s expenses, and any credit card expenses. The parties had a joint credit card and bank account that they both accessed. ii.

The Parties’ Positions [ 103 ] On both a needs and compensatory basis, the Wife argues she is owed 10 years of spousal support at a rate of $4,500 per month. [ 104 ] She rejects that living in the Matrimonial Home post-separation until August 2017 with a meagre allowance constitutes ‘spousal support’. She further argues that in April 2016, the Husband cut her off from the credit cards and joint finances. During this time, the Wife states she still paid for household expenses, her food and clothing, and school supplies for the Children.

Further, the Wife notes that the Husband paid a single year of spousal support at less than ½ the low-end amount suggested by the Spousal Support Advisory Guidelines (SSAG). [ 105 ] The Husband states that six years is a reasonable length to pay spousal support, and there should be no retroactive spousal support payable. He argues he paid the equivalent of three years spousal support, counting the time the Wife lived in the matrimonial home after separation (2016), during which he paid her $100.00 a week. iii.

Support Payments and Adjustments made by the Husband to date [ 106 ] There are no formal orders with respect to child support and spousal support. [ 107 ] When the Wife relocated on August 1, 2017, the Husband paid her $4,000.00 per month in spousal support until December 2017. Starting in January 2018, the Husband paid monthly child support to the Wife of $2,264.00 and monthly spousal support of $1,570.00. The Husband paid the spousal support portion only to the end of December 2018. This amounts to a total of $38,840.00 over the period after the Wife moved out of the home until the end of 2018.

He has paid no spousal support since then. [ 108 ] The Husband says he is prepared to pay three additional years on a step-down approach. He proposes he pay $3,250.00 per month for the first year, $2,500.00 per month during the second year, and $1,750.00 per month during the third year, after which the spousal support would terminate. [ 109 ] If retroactive spousal support is payable from January 1, 2019, to present, he states there should be no ongoing spousal support payable.

Further, he argues that the retroactive support should be calculated on an after-tax basis as he will not be able to claim it as a tax deduction. [ 110 ] According to the Husband, he chose to use a three-year average of his income from 2014 to 2017 as his Guideline Income ($165,000.00) to set how much spousal support he would pay; he also considered the Wife’s income to be $30,000, an amount he says she agreed to. He chose the lowest range of the SSAG based on these amounts to arrive at the $1,570.00 per month amount.

He used a Guideline Income of $195,000.00, based on his 2017 earnings, to calculate child support, resulting in child support payment of $2,264.00 per month.

Section 7 expenses were split on a 70/30 basis, with the Husband deducting those amounts from the payments he made. [ 111 ] The Wife confirmed during her testimony that the payments made to her, as indicated on Exhibit 30, are correct. The Husband deducted certain expenses, including vehicle insurance, speeding tickets, and 30% of the children’s

section 7 expenses from the support payments. [ 112 ] There are no notes and no formal agreement was reached following the five joint mediation sessions the parties attended. Thus, while these topics may have been discussed, I cannot rely on an agreement as the basis to anchor any imputed income. [ 113 ] Both parties claim inappropriate conduct by the other, which they appear to rely on to influence my support award. The Husband states that the Wife has unnecessarily delayed resolution of this matter and refused to continue with mediation.

The Wife states that after separation, the Husband withheld child support on two separate occasions for extended periods to force her into a settlement and that he behaved aggressively towards her the day she moved out. However, she also admits to causing property damage by ‘keying’ his car. She complains that he unilaterally determined the Guideline Incomes and deducted

section 7 expenses without seeking prior consent to enrol the children in activities. [ 114 ]

Section 15.2 (5) of the Divorce Act states that spousal misconduct is not a factor that can be considered in its determination to award spousal support. The Alberta Court of Appeal in Unterschultz v Clark , 2022 ABCA 335 noted (at para 56 ): A spousal support award is not to be used to punish a spouse for bad behavior or perceived character flaws. Nor are any such factors relevant in a variation application. iv. Law

[115] The leading authorities regarding spousal support are Moge v Moge, (SCC), [1992] 3 S.C.R. 813 and Bracklowv Bracklow, (SCC), [1999] SCJ 14 SCC. While the entitlement for spousal support in Moge is based on compensatoryground, Bracklow stands for the principle that “need alone may be enough”: at para 43. [116] In Bracklow, the Supreme Court of Canada recognized that the mutual obligation theory “posits marriage as a union that createsinterdependencies that cannot be easily unravelled” (at para 43).

The Court added that in some circumstances, “the law may require thata healthy party continue to support a disabled party, absent contractual or compensatory entitlement; justice and considerations offairness demand no less” (at para 48). [117] The distinction between compensatory and non-compensatory grounds were helpfully summarized by Mandziuk J in Fournierv Fournier, 2019 ABQB 97 (at paras 23-24): Compensatory support "is meant to recognize the value of non-monetary contributions to a marriage and seeks to alleviate the economicloss of a spouse who has been disadvantaged by his or her role in the marriage, often because of long interruptions in employment to takeon parenting or domestic responsibilities": Keen v Christian-Keen, 2015 ABCA 314 at para 11.

Non-compensatory support "is intended to alleviate economic hardship arising from the breakdown of the marriage. The focus here isnot on compensation for what the spouses have contributed to or gained from the marriage but rather on post-marital need": Keen at para12, citing Moge at p 878 and Bennett v Bennett, 2005 ABQB 984 at paras 19-20. [118]

Section 15.2 of the Divorce Act applies to this issue.

I am to take into consideration the condition, means, needs and othercircumstances of each spouse, including: a. 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 by their spouse. [119] Pursuant to s 15.2(6) a spousal support order should: a. recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; b. a portion 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. insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [120] Compensatory spousal support is grounded in the need to consider the “condition” of the spouse, the “means, needs and othercircumstances” of the spouse, and “the functions performed by each spouse during cohabitation”.

These compensatory statutoryprovisions can be seen to embrace the independent, clean break model of marriage and marriage breakdown (see Bracklow). [121] Where compensation is not indicated and self-sufficiency is not possible, a support obligation may nonetheless arise from themarriage relationship itself. Subparagraphs (

c) and (

d) of s 15.2(6) speak to non-compensatory factors. [122] Economic hardship arising from the breakdown of the marriage “is capable of encompassing not only health or careerdisadvantages arising from the marriage breakdown properly the subject of compensation... but the mere fact that a person who formerlyenjoyed intra-spousal entitlement to support now finds herself or himself without it” (Bracklow at para 41). [123] Permitting recovery for the economic disadvantages of a marriage breakdown as distinct from “the disadvantages of themarriage” is an explicit recognition of non-compensatory support.

The goal of promoting economic self-sufficiency is not necessarilytied to compensation for disadvantages caused by the marriage or its breakdown (see Bracklow at para 41). [124] In Skrpec v Skrpec, 2015 ABQB 277, summarized the principles of spousal and child support. I note the following (from paras76-88) in addition to those discussed above: 1. The practical issue is whether the payor spouse has gained an advantage in their ability to earn an income or acquire assets andwhether that should be shared with the other spouse; 2.

An obligation to support a dependent spouse may arise if one spouse has means to pay support and the other spouse has needs; 3. The parties’ standard of living is relevant, both before and after separation. The longer the relationship and the closer the economicunion, the greater will be the presumptive claim to equal standards of living upon its dissolution; 4. Means and earning potential of each spouse are relevant as the recipient spouse must make reasonable efforts to obtain even part-time employment to supplement support payments. 5. Self sufficiency is an objective but not a duty.

Self-sufficiency means that the spouse capability to support themselves consistentwith the standard of living enjoyed during the marriage without the aid of financial support. [125] The Plaintiff relies on the following cases: • LL v DB, 2018 ABQB 886: involved spousal support in a four-year common-law relationship in which parties agreed that the

mother would stay home with the child for three years. Lema J awarded 3.5 years of spousal support, imputing no income to the mother for the first nine months, and minimum wage income for the remainder. He set the quantum by selecting the mid-range figure under the SSGA.

This case is distinguishable on a number of grounds: o The recipient spouse provided limited medical evidence of disability; o The relationship was quite short; o The recipient spouse was 29 at the end of the relationship and 32 at the time of the hearing; o The recipient spouse was absent from the work force for a fairly short (3 year) time period; o The child of the relationship was quite young (3 at the time of separation and 6 at time of trial); and o The recipient spouse had pursued some further education and employment post-separation. • ADT v AJT , 2019 ABQB 605 : the parties were married for 11 years, and had shared parenting of the children from separation.

Lema J found the mother was entitled to both compensatory and non-compensatory support, noting that the family functioned as a true economic unit, and she sacrificed her career interests for the father’s career. Lema J awarded the recipient spouse retroactive support in an amount to cover her post-separation debt, a further amount to recognize her decreased standard of living post-separation, and then discounted that support by 30% to account for the payor’s lost effects of tax deductibility. These amounts were then offset against the recipient’s spouse’s obligations in the property settlement.

The goal according to Lema J was to effectively put the mother in the same place as if she had received enough support to cover the expenses she actually incurred over the first four years of separation plus an adequate amount to help her acclimatize to her post-marriage circumstances.” (at para 72) Again, I note that there are some significant differences between this case and ADT : o In ADT , the recipient spouse continued to work, just at a less demanding job than her original career; o There was no intention that the recipient spouse be a stay-at-home parent; o The recipient spouse pursued further education during the marriage; o The recipient spouse met her financial needs by borrowing money; o The recipient spouse kept the matrimonial home; and o The recipient spouse was close to obtaining self-sufficiency. [ 126 ] The Defendant refers to the following cases: • Hunter v Hunter , 2017 ABQB 445 ; The parties were together for 24 years and were both 50 years old.

The wife worked during the marriage. The husband had an annual income of $215,000 and the wife’s income was $28,000. Spousal support was awarded at $5,500 per month. o This case is distinguishable as a long-term marriage, in which the recipient spouse worked. • In Milinusic v Milinusic , 2015 ABQB 6 , the parties had a 35-year traditional marriage, in which the mother remained at home with the children until they left home. The husband had an imputed income of $200,000, the wife’s income was $18,388.

Spousal support was $6,500 per month for an indefinite duration. o This case is distinguishable as very long-term marriage; o The issue before the judge was a review, following the termination of the terms of a Settlement Agreement. • In Vallieres v Butt , 2019 ABQB 940 concerned a long-term marriage of 27 years, and the wife was not in the workforce for most of the marriage. The husband’s income was $224,600, the wife’s was $15,000.

Spousal support was set at $5,860 per month. o This case is distinguishable as it is a very long-term marriage; o The recipient spouse had education and training that lead to some post-separation work that appeared to be increasing in scope, hours and pay; o The payor spouse had recently had his income reduced; o The recipient spouse had pension income that was not split in the matrimonial property division, and so had some independent means. • In BDM v MMM , 2019 ABQB 839 , the parties had a 23-year relationship. The husband’s income was $198,775, and the wife’s

was $0. Spousal support was set at $5,852 per month. This was an interim application. • In Smyth v Smyth, 2021 ABQB 13, concerned a 34-year traditional marriage, in which the husband’s income was $299,837, andthe wife’s was $0. Spousal support was set $9,370 per month. o This was a long-term marriage. o The trial judge determined that it was unreasonable to expect the wife to return to re-qualify as a teacher after 27 years out of theworkforce. o The trial judge concluded that the wife was not capable of meaningful employment. v.

Inability to Work Due to CFS [127] Chronic fatigue has been recognized as a factor justifying spousal support on both compensatory and non-compensatory basis.For example: • In Rozen v Rozen,2016 BCCA 303, the BC Court of Appeal upheld the trial judge’s decision that the recipient spouse had notbeen fully compensated and refused the payor spouse’s application to terminate spousal support.

Among the grounds for furthercompensation was that the recipient spouse had taken early retirement because she was suffering from CFS (at para 37). • In Halliday v Halliday, 2016 BCSC 2036, the recipient spouse was awarded spousal support in the mid-range of the SpousalSupport Guidelines, on the basis of sacrificing years of her career to raise the children and health issues caused by CFS (at para 66). • In Osadchuk v Osadchuk, (BC SC), [1997] BCJ No 166, 27 RFL (4th) 167 (BCSC), the trial judge awardedspousal maintenance on the basis that the evidence established that the recipient spouse suffered from chronic fatigue (although it wasnot yet clear if it was CFS), and that this constituted a change of circumstances warranting a departure from the separation agreement (atparas 52-54). • In Ricciardelli v Ricciardelli, 2010 ONSC 2961, despite an incomplete and unclear medical record, the Court concluded that, onthe whole of the evidence, the recipient spouse suffered from CFS and mental health concerns and was unable to work (at paras 39-40).

Applying the principles in Bracklow, the Court concluded she was entitled to spousal support on both compensatory and non-compensatory bases (at paras 83-84). • In England v England, 2007 ABQB 494, the spouse seeking spousal support led no medical evidence; the only medical evidencewas that of two independent medical examinations submitted as expert evidence by the payor spouse.

The wife indicated she wasdiagnosed with lupus; the rheumatologist expert disputed the lupus diagnosis, and the psychiatrist concluded she suffered fromsymptoms of chronic fatigue (although not CFS), somatoform disorder and personality disorder (para 48-49).

Nielsen J (as he was then)concluded that the wife suffered from a health condition that prevented her from working, and she was entitled to spousal support (paras70-74). [128] In each of the above cases, the Court took into account the medical records and other evidence to conclude that CFS was at leastpartially the cause of the recipient spouse’s inability to work or to work full-time. [129] On the other hand, in DJ v SJ, 2013 ABQB 94, the spouse seeking continued spousal support argued she could not achieve self-sufficiency because of depression, fibromyalgia and CFS.

Park J noted that there was no medical evidence from a health care providerthat diagnosed these conditions or that indicated that she could not retrain or obtain employment (at paras 67-69). He denied heradditional compensatory compensation and reduced spousal support payable, concluding that there was no medical evidence limiting herability to be employed (para 84). [130] Similarly, in Toenjes v Toenjes, 2012 ABQB 409, the recipient spouse alleged health problems. but the medical evidence waslimited to a single year when she suffered a cardiac incident and treatment for ovarian growths.

In the absence of medical records,Poelman J chose not to take into account her complaints about voice difficulties, migraine headaches, and back problems. Ultimately,Poelman J held that there was no medical evidence to support a reduced ability to work (at para 67). [131] Here, I have medical evidence that the Wife suffered from CFS and other health issues. I concluded, for the purposes ofimputing income, that she is no longer capable of working full time hours without accommodations, as she did in 2013-2014.

However, Ialso concluded that the Wife has had the ability since mid-2018 to transition back into the workforce and to work at least on a part timebasis from January 2019. vi. Analysis [132] I conclude that both compensatory and non-compensatory bases for spousal support are established. [133] The parties cohabited from November 2001 to February 2016, for just over 14 years.

Although the parties chose December 31,2015, as the valuation date, I prefer the Wife’s evidence that that date was chosen after separation for accounting purposes only, and thatthe actual breakdown of the relationship was a couple months later. [134] It is a mid-length marriage, not a long-term marriage, but as the parties earned roughly the same income when they met, andthey jointly decided that the Wife would be a stay-at-home mom, the breakdown of the marriage has visited significant economicdisadvantage upon her: she finds herself with outdated skills and a significant gap in her employment history. [135] I note the Husband benefitted greatly from the decision that the Wife leave the workplace to care for the parties’ children;partly as a result, he was able to almost quadruple his income, to the Wife’s economic disadvantage.

[ 136 ] Although the parties have divergent stories about their relative contributions to the household and child-rearing duties, where they differ, I prefer the Wife’s recollection of events.

She was credible and forthright in her recounting of the activities she engaged in, and also honest in admitting her reluctance to participate in other activities such as the Junior Forest Warden program and baseball. [ 137 ] The Husband tended to belittle the Wife’s contributions, likely partly due to his belief that she is lazy and malingering, and partly due to her infidelities, which he relies on to argue that she lacks credibility on her medical status since she had sufficient energy for these other activities.

Because he conducts his own life in an apparently more disciplined fashion, he also tends to minimize, or is ignorant of, her medical ailments, and believes everything can be cured by proper diet and exercise. [ 138 ] I accept that the Wife gave up her career, which appeared to have had a consistent pattern of growth and promise, to become a stay-at-home mother for most of the Children’s lives.

At least for the early years through elementary school, I find that she took care of most of the household tasks and child rearing. [ 139 ] The Husband was also involved in the Children’s lives, and he assisted around the house, mostly with outdoor tasks and as the Children aged, with more of the cooking. He was primarily involved in coaching and taking the Children to their extracurricular activities in the evenings and weekends. [ 140 ] The Wife was out of the work force since the Children were babies, except for approximately one year in 2013-14, when she worked for her father.

Although admittedly that year was challenging and exhausting and required the Husband to take on more household tasks, she continued to manage both work and household duties. [ 141 ] Overall, I find the mother was an attentive, caring, and engaged mother throughout, and continues to be so despite some obvious health challenges. [ 142 ] The non-compensatory entitlement is also made out. The Wife has no financial assets: she cashed out all her RRSPs and TFSAs and spent all her property award on living expenses. The Wife submitted a budget for 2019/2020.

Her current budget is $3,968.00 and her estimated after divorce costs are $4,282.00 per month. The Husband’s budget is approximately $6,500 per month. [ 143 ] The Husband remained in the matrimonial home, paid out the Wife’s share of the equity, and for some period of time, lived with a new partner, a registered nurse. I have no information about the partner’s income or contribution to the household. [ 144 ] The Wife confirmed at trial that her monthly rental costs were being reduced to $1,800.00 per month.

While I agree that her grocery bills are estimated on the high side, I accept that her monthly budget is still approximately $4,000 per month. [ 145 ] The duration of spousal support recognizes her need to upgrade her skills and seek appropriate employment that can accommodate her needs. [ 146 ] While I find she could, and should, have applied herself more diligently in pursuing upgrading her skills given the children were in school full time since separation, I am satisfied that a period was necessary for the Wife to stabilize her medical issues and pursue education or employment opportunities that could accommodate her. [ 147 ] The parties separated over five years ago.

I accept that the Husband paid some support from February 2016 to August 2017 while the Wife lived in the matrimonial home, plus for 17 months after the Wife moved out. These further amounts paid were insufficient, and there will be retroactive spousal support payable for that period of time, and ongoing spousal support ordered. [ 148 ] The SSAG suggest a term of 7-14 years of spousal support is payable. I conclude that 10 years is reasonable. Having concluded that February 2016 to August 2017 full support was paid, spousal support is payable from September 2017 to January 31, 2026.

There will be retroactive spousal support payable (with credit for any payments made), based on the Guideline Incomes below: Husband $189,044.00 (2017) payable for the period September 2017-December 2017 $191,027.00 (2018) $206,858.00 (2019) $178,893.00 (2020). ?

(2021) Wife 0 (2017) 0 2018 $20,000 2019 $20,000 2020 $20,000 2021 $20,000 2022

[ 149 ] The Husband has suggested using a three-year average of the Husband’s income. That is not necessary for retroactive amounts, since the actual amount of income in each year is known. The Husband’s income for 2021 is not in evidence but is undoubtedly known by now and should be used when calculating both the retroactive and ongoing spousal and child support. [ 150 ] The mid-range of the SSAG should be used as the amount of retroactive spousal support payable.

I find that this is the reasonable amount of spousal support that should be payable for the following reasons: • I accept the Wife’s evidence that the Husband unilaterally decided how much and when to pay spousal support (in the years in which he paid it), including averaging his income, imputing income of $40,000 to her, and using the lowest amount suggested by the SSAG without regard to her needs; • I accept the Wife’s evidence that the Husband unilaterally terminated spousal and child support on occasion to pressure the Wife into resolving the issues and enter into mediation; I note this not misconduct that justifies an increase of spousal support, but is a factor in my analysis of what SSAG level is appropriate because the failure to pay the support meant she was forced to liquidate assets that could have remained invested and would likely have appreciated in value to be used for her future needs (discussed below); • I accept the Wife’s evidence that she was forced to liquidate her RSPs, TFSAs, and the proceeds of her share of the matrimonial home. • the overall factors are considered, including the small imputation of income, along with a comparison of the household budgets, and the need for the Wife to upgrade her skills and transition back into the workforce after a long hiatus before she can become self- sufficient. [ 151 ] The Husband asks that the amount of retroactive spousal support be reduced by 30% because he will likely be unable to obtain a tax reduction.

A similar argument was rejected in Kerman v Kerman , 2008 BCSC 852 at para 10 : To the extent that Mr. Kerman is worse off by needing to provide this money to Ms. Hillier tax free, that result is occasioned by the operation of the Income Tax Act . Having caused Ms. Hillier to delay in seeking the spousal support review due to his own non- disclosure, Mr. Kerman cannot now complain that he would have been better off had he paid the spousal support amounts periodically over time. That is exactly what he ought to have done in the first place, but failed to do so due to his own non-disclosure. Mr.

Kerman invested the money that he ought to have paid periodically to her , and he appears to have done very well as a result. (Emphasis added) [ 152 ] Although the Husband is not blameworthy in this case for lack of disclosure, he is solely responsible for the consequences of his underpayment and unilateral termination of all spousal support as of December 2018. [ 153 ] I nevertheless note the comments of our Court of Appeal in Corbeil v Corbeil , 2001 ABCA 220 - that the tax and property consequences of lump sum retroactive support must be considered in every case (at para 68-69).

In that case, the Court of Appeal held that the trial judge did not err in refusing to award retroactive spousal support because “the wife had assets and means on which to live, and the trial judge found that she did not live in poverty during the interim”. Further, the Court noted that the total assets for distribution would have been the same, resulting in a net effect of zero. Here, the Husband raised no evidence that awarding retroactive spousal support would constitute double-counting, and it is clear that the Wife was required to use her entire available assets to meet her day-to- day expenses.

The Husband, as in Kerman , was able to increase his assets by not providing adequate spousal support. [ 154 ] Poelman J in SDZ v TWZ , 2011 ABQB 496 and Mancini v Phelan , 2012 ABQB 536 held that the decision in Corbeil was not intended to provide an iron-clad formula, noting Conrad JA’s comments (at para 181 of SDZ and at para 211 of Mancini ): 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.” [ 155 ] Poelman J went on to conclude (at para 183): I find that it is not necessary to make adjustments to either or both of the spousal support and matrimonial property division orders to ensure overall fairness and equity to both parties.

The concern about double recovery raised in Corbeil does not displace the need 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, the proposition expressed in “simple terms” by Conrad J.A. is less applicable when the evidence fails to convince the court that there is a closed system in which all income of the payor can be traced into divisible assets . (emphasis added) [ 156 ] In Samoilova v Mahnic , 2014 ABCA 65 the Court of Appeal noted that it is necessary to consider the tax consequences of awarding lump sum retroactive support and held that the trial judge did not err in exercising his discretion to reduce the amount by 30%.

Noting that the discount might not have been precisely reflective of the actual tax consequences, it was reasonable based on the evidence before him. It further noted that the trial judge specifically noted that the parties had agreed that the SSAG should be followed, that the SSAG are based on the premise of the tax consequences of periodic payments, and that the payor spouse had paid everything he had been ordered to pay.

The Court noted (at para 28) that retroactive spousal support awards may be paid in a lump sum reduced by a percentage to adjust for the lost tax deductibility to the payer, citing Mew v Mew , 2012 ABCA 382 ; Shukalkina v Shukalkina , 2012 ABCA 274 ; Mancini v Phelan , 2012 ABQB 536 and Arnason v Arnason , 2011 ABQB 393 , but did not say that it was mandatory to make such a deduction. [ 157 ] I conclude that retroactive spousal support should be reduced by 15%, not 30%, on the following basis: • The Wife depleted her assets, including the advance on her share of the matrimonial home; • The Husband increased his assets after the valuation date (December 15, 2015 set by agreement); and

• There is no evidence that retractive spousal support will result in double-counting, the concern expressed in Corbeil . [ 158 ] Retroactive child and spousal support calculations will include the Guidelines Incomes stated above for each party, including

section 7 contribution adjustments based on their relative incomes. Counsel shall recalculate accordingly based on the acknowledged payments and determine if there are any arrears owing. [ 159 ] If after recalculating child support and reconciling credits pursuant to Exhibit 30, there is any overpayment, it shall be applied towards retroactive spousal support. In addition, the Husband is to be credited for having paid spousal support from February 2016 to August 2017 during which time the Wife lived in the matrimonial home.

She had access to the joint account and credit cards until May 2016, after which time she was provided with $100 per week until she moved out. I conclude this constitutes full payment of spousal support for that period. There was no evidence of any financial disadvantage caused by the breakdown of the marriage during this period or a need for further income. [ 160 ] I also find the deduction for the vehicle insurance covering the Honda Pilot, which the Wife drove, to be appropriate.

I also agree that the deducting the cost of speeding tickets was appropriate: the registration of the vehicle was in the Husband’s name, requiring him to pay the tickets, and since the tickets were incurred by her, it was reasonable to deduct the cost of them from her support. [ 161 ] In conclusion, the Wife is entitled to 10 years of spousal support (with credit noted above) at the mid-range of the SSAG.

Counsel will calculate what that amount is, taking into account the Guideline Incomes in paras 148 and 162-163 and the newly calculated child support amounts and submit that figure to me for a final determination of how much spousal support will be payable. I recognize that the spousal support and child support will likely be greater than the Wife’s budget.

This is intentional; it will allow her to re-build the savings and retirement assets she was forced to exhaust when support was not paid and permit her to rebuild her employment skills by pursuing further education or training so that by the time spousal and child support end, she will be self-sufficient. [ 162 ] On a go forward basis, the Wife is entitled to continued spousal support until January 31, 2026.

The Husband’s Guideline Income will be based on a rolling average of his previous three year’s income as follows: 2023- average of income in 2019, 2020, and 2021 2024 – average of income in 2020, 2021, and 2022 2025 – average of income in 2021, 2022, and 2023 January – January 2026 – income from 2022, 2023, and 2024. [ 163 ] Given the Wife’s historic earning capacity ($50,000 prior to having children) and skills, her age, time away from the labour market, the need to upgrade her skills, and her medical issues, the Wife’s income will be imputed on a step-up approach as follows: 2023 $20,000.00 2024 $25,000.00 2025 $30,000.00 2026 $35,000.00 [ 164 ] Child support will be payable based on these Guideline Incomes as long as the Children remain children of the marriage.

F. Division of matrimonial property [ 165 ] Given the date of separation, the matter is governed by the Matrimonial Property Act RSA 2000, c M-8 . i. Was there an agreement as to date of valuation, exemptions, and the property to be divided? [ 166 ] Despite a contrary position taken by the Wife in closing argument, I accept that as of November 9, 2018, there was agreement regarding most of these exemptions.

The Matrimonial Property Statement, marked as Exhibit 70, was entered as to the truth of its contents. [ 167 ] Date of valuation : I conclude that the parties agreed to divide the matrimonial property as at December 31, 2015, although the Wife in closing arguments asserted there was no such agreement. [ 168 ] Values of property: The Wife agreed to the values in Exhibit 3 before trial and included them as part of an affidavit filed in court with the assistance of counsel. There is no reason for this Court to now set that aside.

Parties are expected to narrow issues before trial, and this Court is permitted to rely on valid agreements reached and admissions made, unless a reason that invalidates or vitiates consent on the previously determined values has been demonstrated. [ 169 ] Except for the change in the value of the jewelry and the Book of Business, discussed below, the property division should be as per Exhibit “3”. [ 170 ] Exemptions: In cross-examination, the Wife agrees that she acknowledged the Husband’s exemptions in her Matrimonial

Property Statements attached to her previous affidavits but disagrees that they should be considered as exemptions at trial. Despite attending five mediation sessions where values were discussed and agreed to, she suggests she does not know what acknowledging exemptions means. Up until trial, and even while represented by counsel, the Wife gave no indication that she disagreed with the $169,000.00 claimed exemptions, and she admits the statements she included in her affidavits note them. However, she urges this Court to accept that the statements are based on a misunderstanding.

I reject the Wife’s explanation for her reversal at trial on the exemption issue. [ 171 ] Moreover, I find that in this case, her evidence showing various deposits going into the exempt accounts and being used to pay a line of credit does not change my conclusion. The parties had full opportunity to question on the disclosure prior to trial and the ability to obtain legal advice before reaching any admission on the exemptions claimed. [ 172 ] As set out in the Husband’s brief, I conclude that the Wife acknowledged:

a) The Husband’s Etrade Margin account with an exempt value of $23,410.00 (line 62 of Exhibit 3);

b) The $50,000.00 gift from the Husband’s mother (line 68 of Exhibit 3);

c) The value of the Husband’s Trimark RRSP ($3,076.00), Max/Quadrus RRSP ($24,457.00) and the Etrade RRSP ($62,399.00). This value was reduced by the PC Line of Credit used for investments as well as contingent tax. The net value which is acknowledged (line 63 of the Husband’s Exhibit 3);

d) The Wife acknowledged the figure of $10,000.00 used to purchase RRSPs from the condo sale proceeds. The Husband put this figure at $20,000.00 (line 66 of Exhibit 3);

e) The Wife acknowledged a value of $1,000.00 of exempt assets to purchase the Honda Pilot. The Husband put the figure at $6,000.00 (line 64 of Exhibit 3). [ 173 ] The accepted exemptions are as follows: ▪ Etrade Account - $23,410.00 ▪ Line of Credit – ($17,371.00) ▪ Sale of duplex, Winnipeg, Manitoba – sold in 2003 with net sale proceeds being $58,843.00. The total traceable amount is $25,000.00. The sum of $13,900.00 was traceable into the Wife’s RRSP (2003) and $7,500.00 was traceable to the Husband’s RRSP (2004).

Finally, $3,600.00 was traceable to the Husband’s RRSP (2005) ▪ Trimark RRSP - $3,349.00 ▪ Quadrus RRSP - $24,457.00 ▪ Severance package received in 2002 - $16,100.00. The sum of $9,800.00 was traceable into the RRSPs as of 2002 ▪ Gift from mother - $50,000.00. This was traceable into the Husband’s RRSP as of February 2015 ▪ Gift from mother - $10,000.00. This was deposited into the Children’s RESPs ▪ Etrade RRSP - $62,399.00 ▪ Honda Pilot - $1,000.00 ii. Jewellery [ 174 ] The parties had appeared to agree to most values for personal property (s

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