DC v SD, 2023 ABKB 243

Court of King’s Bench of Alberta Citation: DC v SD, 2023 ABKB 243 Date: 20230427 Docket: 4803 179230 Registry: Edmonton Between: DC Plaintiff - and - SD Defendant Restriction on Publication Identification Ban – See the Family Law Act ,

section 100. By Court Order, no person shall publish or broadcast information that may identify the children involved in this proceeding. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Endorsement of the Honourable Justice J.S. Little _______________________________________________________

I. Issues and Background [ 1 ] The issues before me during this trial were child support, spousal support, and division of matrimonial property. In addition, the parties sought a divorce which I granted at the conclusion of the trial. [ 2 ] Mr. C and Ms. D met in 2009 in Newfoundland when they were both 28. He had grown up there, moving to Alberta after obtaining his engineering degree in Ontario and working in northern Canada. He already had equity in a residential property, a mutual fund portfolio, and some savings. [ 3 ] Ms.

D had been working in Newfoundland since 2007 with the federal Department of Oceans and Fisheries. She moved to Alberta in 2010 to live with Mr. C, taking a transfer to the Prairie Region in the same government department. She had no financial assets of consequence. [ 4 ] They married in 2013 and separated in mid-2016. [ 5 ] There are two children of the marriage: one born in 2010 who is now 12 and one born in 2012 who is now 10. [ 6 ] Both Mr. C and Ms. D were charged with assault as a result of an incident following separation. Ms. D admitted to having placed a tracking device on Mr.

C’s vehicle and following him to a remote parking lot where a brief confrontation took place. The cases were resolved before trial. I confirm that little turns on who was “at fault” for the incident. Any relevance that it may have relates to Mr. Hajduk’s argument that as a result of injuries and trauma occasioned by this incident, Ms. D was unable to work to her full capacity. In my view, there was no credible evidence of that. I accept Mr. C’s version of events, which is to the effect that any harm occasioned to her was at best accidental and at worst self-defence. II.

Testimony of the Parties [ 7 ] Much of the trial was dedicated to an examination of financial records, and those records ultimately determine support payments and property distribution. But the parties’

interpretation of those records and any gaps in those records require a few words on their credibility. [ 8 ] Counsel for Ms. D suggested that Mr. C’s testimony supported his argument that Mr. C was a deceitful, dishonest, manipulative ex-spouse. He based that, in part, on the lack of proper, timely financial disclosure and his conduct respecting the alleged assault referred to above. [ 9 ] I found Mr. C to be both credible and reliable. He considered questions carefully before answering, both in direct and under cross-examination. If he did not understand a question, he asked for clarification.

If he could not recall or recall accurately, he said so. He did not volunteer more information than requested, but neither did he evade any questions. He did not demonstrate any animosity towards Ms. D. He did show some confusion at the end of the first day of his testimony respecting the origin of the proceeds for the purchase of two of the rental properties he and Ms.

D owned, which he clarified the following day. [ 10 ] Recognizing that many of the questions he was asked related to expenses he deducted from support payments in 2017 and other financial details that I would not expect many people to remember after six years, he was not impeached on any important points under a rigorous cross-examination. That cross-examination included questions about mutual funds held in their corporation. Any confusion or inconsistency Mr. C demonstrated about those mutual funds is explained by the fact that while Mr.

C is a hard worker capable of earning a good income and wanting to earn investment income as well, he is not a financial advisor. [ 11 ] I did have some difficulty with Ms. D’s credibility. She was evasive or vague in answering questions about the various leaves she took from her employment as an enforcement officer and appeared to feign a lack of understanding of financial matters when that was to her advantage. She also tended to focus on minutiae rather than on the bigger picture. From her testimony, she clearly subjectively felt that Mr.

C was controlling, but there was little objective evidence to that effect. Unlike Mr. C who appears to have moved on from this relationship and bears no obvious animosity towards Ms. D, she appeared to want to re-open old wounds. III. Support A. Mr. C's Income [ 12 ] Mr. C is an engineer in Edmonton with a large construction firm. His line 150 (now 15000) income history, rounded, is: 2016 $213,000 2017 $159,000 2018 $181,000 2019 $179,000 2020 $157,000

2021 $159,000 2022 $237,000 (estimate) [ 13 ] The significant bump in his estimated income for 2022 is mostly due to a $44,000 payment from his employer for what he described as restricted share units: a financial incentive offered to employees who remained after his current employer purchased his former employer. A similar payment of $7,500 is included in his 2020 income. Because the $44,000 payment inflates Mr. C’s 2022 income, I determine that a more realistic number going forward is $200,000, though the $44,000 "bonus" must form part of his 2022 income for child support. B.

The Corporation [ 14 ] In 2013, as a source of additional income, Mr. C incorporated C Consulting Inc. (the Corporation) with Ms. D and himself as directors and 51/49 shareholders. The Corporation acted as a general contractor for small construction jobs. Mr. C did the estimating and organizing and hired trades to perform the physical work. Following the couple’s separation, Mr. C removed Ms. D as a director, and the Corporation became inactive in 2017.

It held some cash and marketable securities at that time, and I will deal with those as part of the property division. [ 15 ] Accountant prepared financial statements for the Corporation show net income and taxable income, all rounded, of: Net Income Taxable Income 2014 $29,000 $34,000 2015 $1,700 $1,900 2016 $129,000 $150,000 2017 $33,000 $41,000 (Defendant’s Exhibit Binder 4, Tabs 12-13) [ 16 ] Liabilities include income tax payable to CRA as follows: 2014 $4,700 2015 $271 2016 $21,000 2017 $5,400 [ 17 ] I point this out only because there was discussion in the trial of whether the Corporation paid income tax.

I find that it did, though the parties may not have paid tax on cash they drew from the Corporation. [ 18 ] The fiscal year end of the Corporation is March 31. Therefore the 2016 year is not relevant for child support purposes since the parties were then together. [ 19 ] The fiscal year ending in 2017 shows a net income for the Corporation of $39,000 after income tax. Its expenses that year were about $9,000, only $378 of which for travel and $325 for telephone might be considered soft costs for which he received a personal benefit. But that net income should be added to Mr.

C’s income for 2017 since it is not obvious that it was otherwise retained by the Corporation, i.e. its cash and marketable securities for both 2016 and 2017 were about $200,000. C. Ms. D's Income [ 20 ] Calculation of Ms. D’s income is not quite as simple. That is not because she was self-employed. Rather, it is because she was one of the federal government employees caught up in the Phoenix payroll fiasco. In her case, that involved a confusing series of underpayments followed by compensation payments and damages awards. It is also because she took a number of leaves from her employment.

Her testimony about the reasons for those leaves and whether or how she was compensated for them is unclear. [ 21 ] In Newfoundland she was an enforcement officer with the Department of Oceans and Fisheries. When she moved to Alberta, she was able to get a transfer to the same department in Edmonton but called the Central Region. That position was supposed to be for only three months, but it was later extended to the end of 2010 when she went on maternity leave. She was required to return to work at the end of December 2011 and then worked till their second child was born in May 2012.

In May 2013 when that leave expired, she had to return to Newfoundland to take a post there where she worked until August 2013. On her return to Edmonton, she was able to negotiate something called a spousal relocation - a form of leave - for up to five years so that she could retain a position with the federal government but not necessarily in the same department.

[22] She did not work outside the home from 2013 until 2016 when, around the time of their separation, she got a job offer withEnvironment Canada and started full-time in December 2016. Effectively thereafter, she had full-time work available but took a numberof leaves of varying duration and during some periods worked part time until resuming full time employment in July, 2019. [23] Her employment income from when she started with her original government department in about 2008 until 2012 was in therange of $50,000 to $58,000. There was no decrease when she moved to Alberta in 2010.

Working from her Notices of Assessment(NOA), employer letters for 2013 onwards, and actual calculations shown in Vol 4, Tab 24 of the exhibit book, her annual incomenumbers are in the following ranges: 2013 $41,000 (start of maternity leave) 2014 $7,600 2015 $8,800 2016 $12,000 (partial year) 2017 $41,000 (NOA) $47,000 (employer’s letter) ($73,000 actual, page 1910) 2018 $3,000 (NOA) $18,000 (employer’s letter) ($15,000 actual page 1910) 2019 $72,000 (NOA) ($57,000 actual page 1910) [24] Counsel for Mr. C submits that information from Ms.

D’s employer captured at page 1912 of Volume 4 of her material fixesher salary for 2018 at $70,000 and that she was capable of working full-time during that year but chose not to. [25] Ms. D’s testimony, and her NOAs, are to the effect that her income for the following years was: 2020 $92,000 2021 $109,000 (includes a $33,000 RRSP withdrawal) 2022 $84,000 [26] As I stated earlier, Ms. D’s employment income is difficult to calculate accurately. But what I can take from the evidence isthat since 2017 she has had full-time employment available to her in her chosen profession at a substantial income. [27] Ms.

D testified that she struggled with depression and anxiety as a result of the marriage breakdown which forced her to takeseveral leaves post-separation. But counsel for Mr. C argues that imputation is appropriate given that: (

a) She provided no medical evidence of her inability to work full-time. (

b) She was denied disability insurance coverage on the basis of insufficient evidence of disability. (

c) She applied for Employment Insurance during her third leave but did not apply for medical employment insurance or CPPdisability at any point. (

d) She continued to travel to and from Newfoundland. (

e) She took training in Ottawa for her new job in 2017. [28] I decline to impute income to Ms. D starting on separation in mid-2016.

She had not been working full-time for several years.The parties had just split, and some period of transition is to be expected (Leskun v Leskun, 2006 SCC 25 , [2006] 1 SCR 920). [29] But I do not accept that her frequent leaves of absence from full time employment were the result of the marriage breakdown.She does have a statutory obligation to maintain self-sufficiency and support her children, and she had the skills and training to do so. [30] Given that her new job offered full-time employment from January, 2017 onwards, I find the following employment incomenumbers for her to be justified by the evidence: 2017 $73,000 2018 $70,000 2019 $72,000 2020 $92,000 2021 $76,000 2022 $84,000 [31] Note that the 2021 number above excludes the RRSP cashed in for about $34,000 and transferred to her pension, which I willdeal with in the matrimonial property analysis. [32] Mr.

C's income for the 2017 to 2022 years is as set out in paragraph 12 with the addition of $39,000 corporate income for

2017. D.

Section 3 Child Support [ 33 ] Various orders granted during the litigation provided for set-off payments of child support on an interim, without prejudice basis. [ 34 ] The parties agree on the need to revisit child support for the current shared parenting regime and to have it determined going forward. Where they diverge is on the issue of whether set-off is appropriate. Counsel for Ms. D argues that because of their income disparity, the set-off payments “resulted in [Ms. D] suffering from significant emotional and financial hardship”. [ 35 ] I reject that argument. Recognizing that a

section 9 set-off is not a default but an appropriate starting point, I find that analyzing the financial responsibilities taken on by the parties clearly shows that Mr. C was the one burdened with ensuring that the family finances did not deteriorate following the parties’ separation. Requiring full payment to Ms. D, who does not have a particularly good record of making, for example, mortgage and utility payments, might well, and in fact did, result in Mr. C then also having to continue to pick up those expenses. [ 36 ] Further, while there is income disparity, Ms.

D has what most would consider a respectable employment income capable of supporting two children. [ 37 ] The set-off method should continue to be employed. [ 38 ] But now that I have determined the incomes of the parties, all of the child support numbers need to be re-worked. I do not propose to do the math for these parties, both of whom are represented by competent counsel. I note, however, that the income numbers I have determined are relatively close to those submitted by Ms. Coles, who concedes that Mr. C may owe retroactive child support. [ 39 ] Using her numbers: Mr.

C should have paid to December 1, 2022: $171,748 Ms. D should have paid to December 1, 2022: ( 76,892) Net payable by Mr. C to December 1, 2022: $94,856 Actually paid by Mr. C to December 1, 2022: ( 67,196) Total shortfall to December 1, 2022: $27,660 [ 40 ] I accept as well that Mr. C is entitled to an additional credit of $9,460. Ms. D, whether intentionally or otherwise, represented to the Maintenance Enforcement Program that Mr. C had failed to make payments between May and October 2017 in the approximate amount of $10,000 for which MEP made demand. Mr.

C, in fact, had made the payments to her but had made deductions for her share of daycare and utility costs for which she was otherwise responsible. I find that those deductions were properly made and that therefore Mr. C paid twice. [ 41 ] I direct that the parties re-calculate the parties’ respective

section 3 child support obligations to December 31, 2022, on a set- off basis, using their respective incomes which I have determined above, including the extraordinary payment received by Mr. C in 2022. Any adjustment is to be set-off against the spousal support overpayment and then factored into the equalization payment if necessary. [ 42 ] On a go-forward basis commencing January 1, 2023, their estimated 2022 incomes of $200,000 and $84,000 shall be used until each has made full disclosure of his or her actual 2022 income. E.

Section 7 Expenses [ 43 ] Little or no time was spent during the trial on

section 7 expenses, but the parties seek a ruling. [ 44 ] Ms. Coles has referred in her written materials to Exhibit Book 1, Tab 6 which outlines what she believes to be

section 7 expenses, but it is not clear to me whether those are expenses paid by Mr. C or paid by both of the parties in some fashion. [ 45 ] What I will direct is that all of those expenses listed in Tab 6 above are proper

section 7 expenses and should be shared by the parties in proportion to their incomes, with the resulting over or under payment being factored first into any over or underpayment of support and then into the ultimate equalization payment. [ 46 ] Football and cheerleading are approved extra-curricular activities for future

section 7 purposes. No additional extra-curricular expenses are to be claimed by either party without the consent of the other. [ 47 ] In addition, both parents shall maintain both children on their medical/dental plans, with claims for expenses made first against those plans, with any uncovered amount in excess of $100 shared in proportion to their incomes. F. Spousal Support [ 48 ] Mr. C paid spousal support during the course of this litigation pursuant to three separate orders. His counsel seeks a credit of about half of the amount paid on the basis that if Ms. D had been entitled to spousal support, it should have been at the low end of the

Spousal Support Advisory Guidelines (SSAGs). [ 49 ] Counsel for Ms. D seeks retroactive and ongoing spousal support at the high end of the SSAGs. [ 50 ] On separation in about June 2016, Mr. C moved in with an aunt and uncle, where he lived for the next three years, helping them around the house and contributing financially when he could. Ms. D remained in the matrimonial home until Mr. C obtained an order for exclusive possession in March 2019 to permit its ultimate sale in October 2019. [ 51 ] Until December 2016, Mr. C continued to deposit his employment earnings into the parties’ joint account. Ms.

D had access to that account. She had access as well to three other accounts which the parties maintained for each of three rental properties. [ 52 ] Except for a brief period, Mr. C paid the major expenses for the matrimonial home consisting of the mortgage, insurance, utilities, and property taxes. Ms. D paid the mortgage from their joint account from October 2017 until February 2018 when she notified the bank that she would no longer make those payments. Mr.

C then paid the mortgage arrears and continued the monthly payments. [ 53 ] Pursuant to various orders made during the course of this litigation, for 6 years and 10 months, from December 2016, when Ms. D no longer had access to the parties’ joint account with Mr. C’s employment income, up to and including February 2023, Mr. C paid spousal support to Ms. D in the amount of $94,120. That is an average of about $1,350 per month. [ 54 ] I find that Ms. D was entitled to spousal support on a compensatory basis. As is contemplated by s. 15.2(4) (

b) of the Divorce Act , spouses may make differing contributions and perform different functions during a marriage. In this case, Ms. D was the one who stayed home with the children while they were young, and her doing so permitted Mr. C to advance his career. He worked long hours, often out of town, which would have required childcare expenses had Ms. D not been at home. [ 55 ] I find that she was not and is not entitled to spousal support on a non-compensatory basis. She had access to funds available to both parties during separation.

She had investments in her own name worth in the region of $60,000 on separation. She had a full-time position. She now has a budget of expenses of $6,800 per month and income of $7,540, so she runs a surplus. She has not proven any need. [ 56 ] As to the length of time for a support order, at thirteen years, this is not what may be considered a short term relationship. But the parties were only together for about six of those thirteen years, which puts this into the low end of the medium length. [ 57 ] As to the rationale for a support order, referencing the criteria in

section 15.2(6) of the Divorce Act : (

a) Recognition of any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown. [ 58 ] Ms. D initially benefited from the marriage financially. Unlike Mr. C, she brought few assets into the partnership, but she will benefit from the wealth accumulated by them during the marriage. [ 59 ] Her moving from Newfoundland was not a disadvantage. She disliked her remote posting there. [ 60 ] She claims to have suffered emotional consequences from the marriage breakdown, but I find that those were no more severe than those faced by anyone whose marriage fails.

She maintained her same employment position and has advanced it. She took additional training which may expand her options for employment outside of her current role. (

b) Apportionment between the spouses of financial consequences arising from the care of any child over and above any obligation for the support of a child. [ 61 ] I do not see the relevance of this factor to these parties’ situation. Neither child has special needs. I do not accept that Ms. D was required to stay out of the workforce following separation to look after the children. That was a choice she made. (

c) Relief of any economic hardship of the spouses arising from the breakdown of the marriage. [ 62 ] Again, apart from some legitimate worry that Ms. D may have incurred about her ability to continue the same lifestyle following separation when one income had to fund two households instead of one, she suffered no economic hardship. She remained in the matrimonial home with most of its cost borne by Mr. C. There was equity built up in the rental properties from which she will benefit. (

d) Promotion of self-sufficiency. [ 63 ] While initially Ms. D was reluctant to pursue full-time employment after separation, she did so shortly thereafter and has done so since. She is working in her field and earning a good income. She has a pension and, in fact, was able to “buy back” her entitlement to pension benefits otherwise lost as a result of the various leaves of absence she took from work. [ 64 ] The parties acknowledge that I am not bound by the SSAGs but that they ought to be used as a frame of reference. [ 65 ] I accept Ms. Coles’ argument that Mr. C has overpaid.

Her calculation, based on the low end of the SSAGs and with Ms. D’s income steady at about $72,000, is that he overpaid even in his high income earning years. [ 66 ] I find that based on the length of the cohabitation of these parties, their income disparity, and recognizing that Mr. C effectively paid support for the last six months of 2016, Mr. C should have paid spousal support for a further four and a half years to the middle of 2021. That length of time fairly compensates Ms.

D for the interruption in her career that may have been the result of a decision by both parties that she remain home at least while the children were young. But it recognizes as well that coming out of this six year relationship, Ms. D has the obligation and ability to be self-sufficient even though she may no longer enjoy the same lifestyle as if the parties had remained together for a longer period. She receives a sizeable sum from division of the matrimonial property. And Mr. C

assumed responsibility for that matrimonial property during their separation. [ 67 ] The last interim support order was that of Fraser, J, which required payment of $1,300 per month beginning April 1, 2021. That is also the number that I find to be appropriate for purposes of a final Order.

Because I have determined that those payments should have stopped with the June 2021 payment, there is an overpayment beginning July 1, 2021 of twenty-one months, for a total of $27,300 to and including March 1, 2023 plus any support paid since then. [ 68 ] That overpayment is to be factored first into any over or underpayment of child support and then into the equalization payment. G.

Occupation Rent [ 69 ] Justice Slatter, as he then was, in Kazmierczak v Kazmierczak , 2001 ABQB 610 and Justice Clackson in Busenius v Busenius , 2006 ABQB 162 set out what I see as the principles for the determination of whether occupation rent is an appropriate remedy. It is discretionary. It is difficult to factor into a property division model. And it is generally tied to the issues of child and spousal support, i.e. the “renter” may waive spousal support if permitted to live in the matrimonial home rent free. [ 70 ] The evidence here is overwhelming that Mr. C bore the brunt of the cost of Ms.

D remaining in the matrimonial home following separation. As the more fiscally prudent of the two, he ensured that the house was insured, utilities were paid, and mortgage arrears cleared off. He also paid, and in fact overpaid, spousal support, though it may be determined that he underpaid child support by about the same amount. [ 71 ] In addition, Mr. C had to obtain an order of exclusive possession just to ensure Ms.

D’s cooperation in its sale, which she had resisted. [ 72 ] Both parties, as residential landlords, understand that property ownership comes at a cost and that the capital they had tied up in the house might better have been employed in a different fashion. [ 73 ] In fairness to Ms. D, however, the matrimonial home was well-suited for the children and provided stability to them at least as to their residence that may have countered some of the instability in other areas of their lives when their parents separated. That certainly would have been the case in the second half of 2016 after separation.

But that initial period of instability can be expected to have ended at some point during the two and half years during which she remained in the house. [ 74 ] I note also that Mr. C was able to find alternate accommodation with relatives – he sacrificed his comfort and convenience to that extent. Ultimately, following the sale of the house, Ms. D was able to find an equivalent property subsidized by her family as well, and no rationale was given as to why she could not have done that earlier. [ 75 ] Weighing these competing factors, I decline to award occupation rent. Mr.

C’s spousal support, while resulting in an overpayment, was not onerous given his proven ability to earn income. I have factored into the matrimonial property statement the payments he made for matrimonial home expenses. And his children benefited from remaining in the home. IV. Matrimonial Property Division [ 76 ] I stated earlier that the parties focused considerable attention on voluminous financial documentation during the trial.

That focus included attempts to have the parties hearken back up to six years to explain small credits and debits on the statements for various accounts. [ 77 ] I do not consider my role to be to attempt some form of forensic audit of the various accounts. I do not have the expertise. Nor is the documentation, while voluminous, necessarily complete. [ 78 ] The big picture is that Mr. C came into the relationship with more financial assets, the parties grew those assets, and they added others to them by dint of their joint efforts. [ 79 ] For purposes of

section 8 of the Matrimonial Property Act, and for common law trust principles before the marriage, unless otherwise set out below, I determine that the growth in value of assets brought to the relationship, consisting mostly of residential rental real estate, and assets acquired during the relationship is best distributed equally, because this was what might be considered a traditional relationship. The growth in assets acquired during the marriage which grew as a result of market factors must be shared equally in this relationship in which Ms. D looked after the family which freed up Mr.

C to earn a substantial income. [ 80 ] But for the purpose of dividing Mr. C’s RRSP and TFSA and Ms. D’s pension, following separation the parties to this relatively short relationship were capable of functioning and did function as two independent financial units, each of which is responsible for assets acquired post-separation. In other words, each was contributing only to his or her own assets for the purpose of an unequal division pursuant to

section 8(

f) of the Act. [ 81 ] My calculations are contained in the MPS spreadsheet at the end of these reasons. Loosely following the template contained in Ms. Coles written submissions, I have initially credited Ms. D with the net proceeds from the sale of the parties’ residential properties, which are being held in trust pending distribution according to this decision. The equalization payment is to be made from those funds. A. Plum Point and Dhillon Crescent [ 82 ] Mr. C owns a house in Plum Point, Newfoundland which he inherited from his grandfather. It was subject to the right of his

grandfather’s partner to continue to live in it. After she died in 2014 or 2015, Mr. C rented it out about 75% of the time for $400 per month to cover some expenses. Sometimes he received that rent directly and put it in a personal account. Sometimes his aunt would pick up the rent in cash and take it to the local hardware store to be applied against an account he has there. [ 83 ] According to the parties’ tax returns, their accountant allocated the rental income and expenses to the parties equally, which resulted in a loss to each party each year. Mr.

Hajduk submits that that net rental allocation, and the fact that Ms. D did some painting and cleaning of the house once when both she and Mr. C were both in Newfoundland, should result in the court finding a constructive trust in favour of Ms. D and assigning a value of about $20,000 to Ms. D based on the capitalization of its income stream of $4,800 per year. [ 84 ] Nothing turns on whether their accountant allocated half of the net income or loss to each. [ 85 ] Nor am I persuaded that Ms.

D’s contribution to its painting and cleaning is sufficiently material to entitle her to some sort of trust remedy or that a property in rural Newfoundland can be valued accurately based on its sporadic income stream. [ 86 ] I find that as an inheritance, the Plum Point property is fully exempt from distribution. [ 87 ] Post-separation, Mr. C purchased 9 Dhillon Crescent with approximately $40,000 down, borrowed from a cousin, and the balance by a new mortgage. There is no reason to factor that property into the MPS. B. RRSPs [ 88 ] Mr.

C’s RRSP was valued at about $346,000 at the time of trial, (which according to the September, 2022 statement at Exh 2, Tab 23 is about $50,000 less than its book value). I do not have its value when he came into the relationship. But the RRSP contribution history (Exh 2, Tab 23) shows contributions from 2010 through 2020 to be about $284,000. Total contributions during the currency of the relationship from 2010 through 2016 were $174,000.

Following separation, his contributions were $110,000. [ 89 ] I conclude that he came into the marriage with an RRSP valued at about $62,000 ($346,000 - $284,000). [ 90 ] I find that the $174,000 increase during the relationship, from $62,000 to $236,000 is divisible equally as matrimonial property. [ 91 ] I find that the balance from $236,000 to $346,000 was due solely to the efforts of Mr.

C who was paying spousal and child support at the time and therefore not using family funds to increase this personal asset. [ 92 ] Therefore, a total of $172,000 ($62,000 exemption + $110,000 increase post-separation) is exempt from distribution. [ 93 ] On separation, Ms. D had an RRSP with a value of $13,000.

Based on her testimony that she came into the relationship with no financial assets, I infer that that amount, plus the $33,700 that she withdrew from her RRSP following separation to buy back her pensionable service, was the result of contributions during the relationship and is therefore a matrimonial asset with a value of $46,700. C. Matrimonial Homes and Residential Revenue Properties [ 94 ] As I stated earlier, Mr. C had started to build a financial foundation by the time he met Ms. D. [ 95 ] He and his mother held title to the Springfield Crescent property, which Ms.

D moved into briefly when the parties began cohabiting. It was mortgaged, with Mr. C’s equity being about $82,000. Title to that property was transferred to Mr. C and Ms. D jointly in 2013, and Mr. C then refinanced it to pull out some of the equity to purchase 21 Venice as a revenue property. [ 96 ] In the interim, in 2010, the parties purchased 49 Huntington Crescent as their matrimonial home, and while the evidence is not perfect, it appears as though they both contributed equally to the down payment. [ 97 ] In 2012, the parties purchased 11 Vista Street, again as a rental property with title in joint names.

Mr. C testified that he sold a truck to generate the down payment at a time when he and Ms. D still kept their finances separate. [ 98 ] By the time of trial, the three rental properties, Springfield, Vista, and Venice, and the matrimonial home, Huntington, had been sold. The net proceeds of $251,720 are being held in trust. [ 99 ] Much time was spent at trial in tracing the parties’ funds to these various properties. What I find is that Mr.

C is entitled to an exemption for his equity in the Springfield property in the amount of $82,000 and to an exemption for $16,700 as the value of the truck he owned pre-cohabitation which he sold to purchase the Vista property. But with respect to the equity from the three revenue properties and Springfield Crescent, I find that after their cohabitation and marriage, their funds were largely commingled and all four properties were treated as part of a joint enterprise. [ 100 ] I find that to prepare the matrimonial home for sale, Mr. C incurred costs totaling about $3,700. [ 101 ] Lastly, Ms.

D kept a number of rent cheques from the Venice property rather than depositing them to the account they maintained for that property. In addition, Mr. C obtained a Residential Tenancy Dispute Resolution Order for $7,725 against a tenant, which remains unpaid. Both will be treated as liabilities in Mr. C’s column. D. Corporation

[ 102 ] Mr. Hajduk elicited testimony from Mr. C that he may not have complied with what are known as his “Cunningham Disclosure” obligations before trial. That may be a matter for costs, but otherwise I am satisfied that the Corporation did not pay salaries to either party and provided no personal benefits to either party except with respect to monies that were withdrawn from it by both parties following separation. Judging from the volume of material available at trial, it is hard to believe that there was a stone unturned in the quest for Mr.

C’s financial information. [ 103 ] As at August 5, 2016, around the time of separation, the Corporation held cash of about $100,000 plus a portfolio of marketable securities with a value of $103,000 which included 3400 Dynamic Mutual Funds – 1770 Series, each with a value of $15.50 for an aggregate of $52,000. The balance were in Series 1800. [ 104 ] As at September 20, 2020, the most current information available shows that portfolio was valued at $39,404.45 which then consisted of 2600 Dynamic Mutual Funds – 1770 Series, each with a value of $15.16. There were no Series 1800 units.

The inference I draw, therefore, is that about 800 of the Series 1700 units were redeemed and all of the Series 1800 units, ie. the portfolio was depleted and not devalued. [ 105 ] Mr. C was unable to provide a satisfactory explanation for that depletion, and accordingly I infer that he withdrew the difference of $63,600 for which he will have to account. [ 106 ] Ms. D acknowledged withdrawing $35,000 from the Corporation before Mr. C removed her as director and signing officer and for which she will have to account. [ 107 ] Mr.

C must have removed the remaining cash of $60,000, for which he will have to account. [ 108 ] I do not propose to deal with the removal of any funds from the Corporation while the parties were together. E. Other Chattels [ 109 ] Mr. C retained a camping trailer which I find to be matrimonial property with a value of $13,000. [ 110 ] He retained a newer snowmobile purchased while they were together for about $15,000. He claims that he damaged it in an accident and sold it for $1,500 to an unknown buyer without a bill of sale.

I find it hard to believe that it was so badly damaged, and uninsured, that it was worth only ten percent of its purchase price and will treat its inferred value of $10,000 as a matrimonial asset. [ 111 ] Ms. D retained a 2012 Murano which I find to be matrimonial property with a value of approximately $14,000. I note parenthetically that she purchased an Audi for herself after separation and gave no reasonable explanation for leaving the Murano parked for several years while Mr. C continued to pay its insurance. F. Pension [ 112 ] Ms. D has an employment pension.

Evidence was led, and not disputed, that at the end of August 2021 she used $33,700 from her RRSP to buy back her pensionable service that she lost during her leaves of absence from her employment. [ 113 ] Ms. Coles proposes either a division of that pension at source or an accounting for the RRSP withdrawal. Mr.

Hajduk argues that the pension is not divisible as matrimonial property, having been earned after separation. [ 114 ] Lux v Lux , 2019 ABCA 454 establishes the basic principle: the presumption is for an equal division of pensions earned during the marriage, and ordinarily the period of accrual would be the date pensionable employment commenced to the date of trial. [ 115 ] Volume 3 of 4 at Tab 11(

f) contains a statement letter from Public Works and Government Services Canada dated April 26, 2022 that reads as follows: Subject: Pension Benefit Division Estimate Please find enclosed copy of estimate that was original (sic) processed in August, 2021 as per your request. Please be informed that there was nothing to be paid to your ex-spouse since you were on LWOP [assumed to be Leave Without Pay] for the time of cohabitation.

Your deficiencies were not paid during cohabitation therefore he’s not entitle (sic) to any amount. (parentheses added) [ 116 ] In McMorran v Alberta Pension Services Corporation , 2014 ABCA 387 the Court of Appeal spoke on an issue of relevance here: [18] A pension plan is a particular asset with defined rights and benefits. If the litigants have an interest in a pension plan, they must take the plan “as is”, just as they must accept the advantages and limitations of any matrimonial asset. Their rights and options cannot extend beyond those inherent in and consistent with the plan.

The court has no ability to vary the terms of the plan, or to grant rights or benefits inconsistent with it: (Legislative Provisions) Regulation, s. 23. Likewise, the parties have no ability to vary the terms of the plan by private agreement, or to agree that any of them will have rights or benefits inconsistent with it. [ 117 ] I read that statement, in light of the Public Works letter, as precluding division of Ms. D’s pension at source. Of course, it does have some value. But its entire value must go to Ms.

D since it cannot be split at source. [ 118 ] She must, though, account for the RRSP withdrawal she made to buy back her pensionable service. All or most of the value of that RRSP was created during the relationship. Therefore Ms. D’s withdrawal is factored into the attached spreadsheet.

G. Tax Free Savings Accounts (TSFAs) [ 119 ] Mr. C established TFSAs for both parties during their relationship. [ 120 ] His TFSA balance at trial was about $78,500, with about $39,500 being contributed post-separation. [ 121 ] In 2019, Ms. D took $25,000 from her TFSA to repay a personal loan from her mother, leaving the value of her TFSA on separation and at trial at about $24,000. [ 122 ] Those figures are accounted for in the MPS. H. Other [ 123 ] Without going into further detail, Ms. Coles includes in her statement car insurance, leisure centre payments, and utilities which were paid for by Mr. C.

I decline to include those as liabilities. The numbers are small, and as I stated earlier, I am not attempting a full forensic audit of the parties’ finances. V. Conclusions [ 124 ] The equalization payment due from Ms. D to Mr.

C is to be made from the real estate net sale proceeds being held in trust. [ 125 ] Counsel are to complete the detailed calculations required for child and spousal support. [ 126 ] Any adjustments for that support, including the $9,640 overpayment, are to be made first by a set-off against child/spousal support overpayments or underpayments, then from the real estate net sale proceeds being held in trust. [ 127 ] No ongoing spousal support is payable. [ 128 ] For child support purposes, the incomes of Mr. C and Ms.

D until known accurately are $200,000 and $84,000, respectively. [ 129 ] Child support is payable on a set-off basis for a shared parenting regime. [ 130 ] The parties are to maintain the children on their respective benefit plans. [ 131 ] The parties remain joint holders of their children’s RESPs and an Equitable Life insurance policy. [ 132 ] Ms.

D is to discharge her certificate of lis pendens against the Dhillon property. [ 133 ] If counsel are unable to agree on costs, they may make arrangements for a short hearing before me for that purpose within 30 days of release of these reasons. [ 134 ] Thank you to counsel for their helpful written submissions. Heard on the 16 th – 20 th and 30 th – 31 st days of January, 2023. Written submissions received on the 9 th day of March, 2023. Dated at the City of Edmonton, Alberta this 27 th day of April, 2023. J.S. Little J.C.K.B.A. Appearances: Ms. Collista Coles Huizinga Di Toppa Coles & Layton

for the Plaintiff Mr. Richard Hajduk Hajduk LLP for the Defendant Matrimonial Property Statement (MPS) in DC v SD Assets Mr. C Ms.

D Total House sale proceeds in trust $251,720.00 $251,720.00 Household items $10,000.00 $10,000.00 Murano $14,000.00 $14,000.00 Camper $13,000.00 $13,000.00 Newer snowmobile $10,000.00 $10,000.00 Cash ($60,000) withdrawn from Corporation less 45% tax $33,000.00 $33,000.00 Securities ($103,000) withdrawn from Corporation less 45% tax $56,600.00 $56,600.00 Cash withdrawn from Corporation $35,000.00 $35,000.00 RRSP$346,000 less $25% tax $259,500.00 $259,500.00 TFSA $78,500.00 $78,500.00 RRSP $13000 less 25% tax $9,750.00 $9,750.00 RRSP withdrawal to buyback pension (assumed tax neutral) $33,700.00 $33,700.00 Withdrawal from TFSA for parents $25,000.00 $25,000.00 TFSA $24,000.00 $24,000.00 Bank accounts close to separation $3,000.00 $3,000.00 Bank account close to separation $18,000.00 $18,000.00 Rent cheques wrongfully converted $10,700.00 $10,700.00 Total Assets: $468,600.00 $416,870.00 $885,470.00 Exemptions Springfield equity $82,000.00 $82,000.00 Huntington down payment $20,000.00 $20,000.00 $40,000.00 Vista downpayment $16,700.00 $16,700.00 TFSA Contributions post separation $39,500.00 $39,500.00 RRSP Contributions pre and post separation $174,500.00 $174,500.00 Total Exemptions: $332,700.00 $20,000.00 $352,700.00 Liabilities/Reimbursement Tax on Ms.

D's $35,000 withdrawal from Corporation @ 45% $15,750.00 $15,750.00 Repairs to matrimonial home pre-sale $3,700.00 $3,700.00 Unpaid judgment for Vista tenancy $7,725.00 $7,725.00 Matrimonial home insurance payments $9,300.00 $9,300.00 Matrimonial home mortgage payments (Exh 2 Tab 29A) $32,000.00 $32,000.00 Venice mortgage payments (Exh 2, Tab 29B) $6,740.00 $6,740.00 Credit card payments post-separation $1,200.00 $1,200.00 Total Liabilities/Reimbursement: $60,665.00 $15,750.00 $76,415.00 Total Assets less Exemptions and Liabilities: $75,235.00 $381,120.00 $456,355.00 $152,942.50 -$152,942.50 Each party to receive: $228,177.50 $228,177.50 $456,355.00