Hooge v Hooge, 2022 ABKB 824

Court of King’s Bench of Alberta Citation: Hooge v Hooge, 2022 ABKB 824 Date: 20221207 Docket: 4803 185560 Registry: Edmonton Between: Christopher L. Hooge Plaintiff/Respondent - and - Jennyka C. Hooge Defendant/Applicant _______________________________________________________ Reasons for Judgment of the Honourable Justice T.G. Rothwell _______________________________________________________ A. Introduction and Background [ 1 ] These reasons arise out of a five-day trial following the breakdown of the marriage of Christopher Hooge (“Chris”) and Jennyka Hooge (Jennyka). Chris is 45 and Jennyka is 43.

Chris and Jennyka have two children that I will refer to as B and K. B and K are respectively 13 and 10 years old. [ 2 ] These reasons address the following issues:

• Parenting; • Retroactive and ongoing child support; • Retroactive spousal support; and • Division of Matrimonial Property. [ 3 ] The parties also seek a divorce. I heard evidence from the parties that satisfies me they have been living separate and apart for over one year and I am satisfied the other requirements of the Divorce Act , RSC 1985, c 3 (2nd Supp ) have been met including that there has been no collusion and there is no possibility of reconciliation. Chris also filed a copy of the parties’ marriage certificate following the conclusion of the trial.

I grant the divorce sought in the pleadings and direct it be included in the formal order that flows from these reasons. B. Facts [ 4 ] An Agreed Statement of Facts (ASF) was filed.

While the parties did not sign the ASF, they both acknowledged before me that they accepted the ASF. [ 5 ] I will not repeat everything in the ASF but will highlight some key matters that are not in dispute: • The parties began dating in 2003 when they were living in Lethbridge. • They began living together in April of 2004 and were married on April 9, 2011. • Chris has worked continuously for Precision Drilling Inc. in a variety of field roles related to drilling. • Jennyka was attending the University of Lethbridge when the parties began dating and was employed as a server.

She earned a Bachelor of Science Degree in 2005, Master’s Degree in 2008 and a PhD in 2014. Jennyka’s PhD focused on biomolecular science. • Chris and Jennyka experienced difficulties in their marriage and attended marriage counselling in 2013. • During the summer and fall of 2015, Jennyka experienced some mental health issues and sought treatment for them. • The parties separated on August 27, 2015. • In August of 2015, they resided in a home in Lethbridge that was in registered in Chris’ name. Chris moved to Red Deer with B and K to live with his brother.

Jennyka moved into an apartment in Lethbridge. • Chris resided in Red Deer with B and K until early 2016. He and B and K then moved to Edmonton and began living with his new partner Kim. Kim and Chris are the parents of W who is 6 years old. • Jennyka moved from Lethbridge to Whitecourt in April of 2018 for a position with Acreage Pharms Ltd.

She then moved to Medicine Hat in September of 2019 for a position with Aurora Cannabis. • The position with Aurora Cannabis terminated in April of 2021; Jennyka subsequently moved to Lethbridge. • Jennyka currently lives in Lethbridge with her partner Jason and has a consulting contract with a company associated with Aurora Cannabis. C.

Analysis Issue 1 – Parenting Position of the Parties [ 6 ] In July of 2016, Justice Hopkins made an Interim Without Prejudice Order (Hopkins’ Order) granting Chris primary day to day care of the children and granting Jennyka summer access for 2016 as well as alternating weekends. [ 7 ] The Hopkins’ Order has been amended several times to adjust for summer access, weekend access, travel arrangements, passport issues etc.; however, Chris has maintained primary care of the children since the date of separation. [ 8 ] Chris seeks to maintain primary care of B and K in Edmonton and to have sole decision-making authority.

He proposes that Jennyka’s access remain the same (i.e. every second weekend, long weekends, shared/alternating holidays and 4 weeks in the summer). Chris argues that B and K have been living with him for the past 7 years and they are settled into their schools and routine in Edmonton. He also notes that B and K have a strong relationship with W their half-brother. Chris raises concerns about Jennyka’s ability to parent and points to her numerous moves and past mental health challenges.

Finally, Chis notes that B and K have bonded with Kim and that she is a capable caregiver; he highlights her training and skills as a Registered Nurse. [ 9 ] Jennyka seeks primary care and decision -making and wishes to have B and K relocate to Lethbridge and live with her and her new partner. Jennyka is also supportive of B and K having parenting time with Chris and Kim. Jennyka candidly admits that she

experienced mental health challenges in the past but notes that she has dealt with those issues and is a stable individual who continues to seek assistance as required. She also notes that she is in a stable relationship with a supportive partner and has established herself in Lethbridge. Additionally, she has a new consulting contract that allows her to work from home. Jennyka does not argue that Chris is incapable of parenting, but argues that he actively undermines her role as a parent and does not support her relationship with B and K. Finally, Jennyka notes her role as primary caregiver prior to separation. Divorce Act Factors [ 10 ]

Section 16 of the Divorce Act sets out a number of factors for the Court to consider when determining a parenting order in the best interest of a child: (

a) The child’s needs, given the child’s age and stage of development, such as the need for stability. [ 11 ] B was diagnosed with Oppositional Defiance Disorder (ODD) and Attention Deficit Hyperactivity Disorder (ADHD). K has been diagnosed with language delay. B takes medication and has received some counselling and an educational assistant at his school. K was enrolled in a “100 voices” program in pre-school to assist with his language delay. B and K both attend the same school in Edmonton and have lived in Edmonton since 2016.

Stability in home, school and social environment is an important consideration for all children. [ 12 ] In light of B and K’s challenges, I find that stability is integral to their wellbeing. B is a teenager and K is 10 and both will have formed relationships with others at their school and community where they have lived for the past 6 years. Chis has the support of his employer to work 2 weeks on and 2 weeks off. [ 13 ] Jennyka has moved a number of times over the past 7 years seeking employment. Jennyka appears to be settled in Lethbridge and has secured new employment.

It is often necessary to move for employment and Jennyka is not to be faulted for this; however, Chris has demonstrated a better ability to provide a stable environment for B and K. (

b) The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents, and any other person who plays an important role in the child’s life . [ 14 ] Both parents testified that they had a strong relationship with their children. Jennyka testified that Chris has sought to undermine her relationship with the children by not facilitating contact between herself and B and K.

Conversely, Chris testified that Jennyka has not fostered a strong relationship between herself and B and K and claims she sought to increase her contact because of the Voice of the Child Assessment (VOC report) that was ordered in November of 2021. [ 15 ] I deal with the VOC report below but note that the children reported a lack of engagement with their mother prior to 2021. Chris reported a lack of engagement as well. Jennyka blamed Chris for her inability to communicate with B and K; however, neither party offered any detailed testimony regarding missed parenting time. The testimony was general and anecdotal.

Based upon my review of the correspondence between the parties, there clearly was a high degree of conflict between the parties and Chris’ emails at times were inappropriate in tone and content. I find that while Chris has a stronger relationship with B and K, Jennyka, as of late, has sought to augment her relationship with them and that Chris’ communications have not fostered Jennyka’s relationship with B and K. [ 16 ] Chris’ mother testified that she has spent time with B and K and looked after them more frequently when the parties first separated.

I accept her testimony in this regard. [ 17 ] Jennyka’s mother lives in Brooks and B and K have spent time with their maternal grandmother in Brooks. Jennyka has taken them to see her father as well in British Columbia. The VOC report indicated that B and K both wished to spend more time with their maternal grandmother. [ 18 ] Both new partners reported having a good relationship with B and K and I accept their testimony in this regard. (

c) Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent [ 19 ] Chris testified that he had concerns regarding Jennyka’s ability to properly look after B and K and pointed to several instances when they returned sick from Jennyka’s care. He also expressed concern about her mental health and testified that she went long periods of time without contacting B and K.

Chris, in closing submissions, acknowledged that it was important for the children to spend time with Jennyka. [ 20 ] Jennyka testified that Chris has undermined her relationship with B and K by failing to facilitate appropriate communication. Jennyka pointed to an instance where Chris withheld K from a visit following a surgical procedure. In response, Chris testified that he was concerned that Jennyka would allow K to go swimming and that swimming might have an adverse effect on his oral surgery. [ 21 ] Jennyka also pointed to a series of emails regarding a request to

schedule a set time for B and K to call her in the December of 2021 to January 2022 time period. Jennyka argues that Chris did not cooperate in setting up a time. Based upon my review of the emails Chris did not assist in setting up a time for a weekly call but instead noted that Jennyka had not called them in the past. Chris raised other issues with Jennyka and took the position that B and K were old enough to call her on their own. Chris also accused Jennyka of only seeking to initiate contact because of the VOC process.

The email exchange did reveal that Chris directed B and K to call Jennyka. [ 22 ] I also note an email exchange in March of 2021 wherein Jennyka proposes providing an older phone for B and K to use to allow them to more easily contact her. Chris referred to the phones as “spy phones” and indicates Jennyka can contact them on his phone or pay for a phone. I find the tone of his emails to be abrasive. These emails are contained at Tab 159 of the Agreed Exhibit Book. [ 23 ] Based upon my review of the emails and the parties’ testimony, it is apparent that they have different parenting and communication styles.

Chris and Jennyka have had disagreements over B taking medication for ADHD and COVID-19 vaccinations. It is

not uncommon for separated parents to have disputes and both parties have at times demonstrated a lack of cooperation, but I find Chris’ to be less cooperative with respect to communication. I find that Chris, at times, allows his frustration/anger with Jennyka to undermine his stated commitment of wanting the boys to have a strong relationship with their mother. [ 24 ] I accept Jennyka’s testimony that she would foster a relationship between K and B and their father. While I do not find that Chris would prevent a relationship or withhold the children, I do have some concerns about his willingness to fully embrace supporting B and K’s relationship with Jennyka. (

d) History of Care of the Child [ 25 ] Prior to the parties’ separation, Jennyka was the primary caregiver for B and K as Chris worked long hours and was often away from their home in Lethbridge for extended periods of time. When Chris and Jennyka separated, B and K were 6 and 3 respectively. While Jennyka was the primary caregiver some childcare was provided to allow her to focus on completing her PhD. [ 26 ] Following separation, Chris moved to Red Deer and moved in with his brother and relied upon his mother for assistance with childcare.

He moved to Red Deer because he had no family to assist him in Lethbridge. Chris’ mother resides in Calgary. Chris’ partner Kim parents B and K and is responsible for their care when Chris is away for work. He generally works a 2 weeks on and 2 weeks off

schedule when drilling is occurring in the oil and gas sector. [ 27 ] Chris testified that there are gaps in Jennyka contacting B and K, but there was no suggestion that she did not exercise her parenting time on a regular basis. [ 28 ] The Hopkins’ Order granted primary parenting to Chris on an interim without prejudice basis so Jennyka does not need to demonstrate a material change in circumstances to allow me to consider altering the parenting arrangements.

However, B and K have primarily been living with Chris for the past 7 years. [ 29 ] A move to Lethbridge and change in who is the primary parent would be a significant change for B and K given the length of time that they have resided in Edmonton. While B and K could adjust to such a move, the focus is on what is in their best interest not whether it could be achieved. (

e) The child’s views and preferences . B and K, through the VOC Report, expressed a preference to remain with Chris and Kim in Edmonton but also expressed a desire to spend more time with Jennyka. I summarize the findings in the VOC Report below. B and K are old enough, in my view, for their views to be accorded some weight when determining what is in their best interest. (

f) The child’s cultural, linguistic, religious and spiritual upbring and heritage, including Indigenous upbringing and heritage Jennyka referenced obtaining B and K’s Métis cards in argument. No other evidence was called on this point. This factor has little to no relevance. (

g) Any plans for the child’s care [ 30 ] Chris’ plan for the care of the children was for them to continue attending the same school in Edmonton and to maintain a similar routine and lifestyle in Edmonton. Chris testified that they enjoy camping, quadding, and skiing. The boys are also enrolled in a variety of extra-curricular activities. Chris and Kim would essentially continue the boys’ routine. Chris works a 2 week on and 2 week off

schedule and testified that he is generally off work in the spring and summer months due to seasonal drilling restrictions. [ 31 ] Jennyka testified that she has identified potential schools for K and B to attend in Lethbridge, if she was granted primary care of them. She said the children would reside with her and Jason in Jason’s home and that the boys would have their own rooms. Jennyka proposed that the transition to her primary care occur in January and that a counsellor be retained to assist with the transition.

She testified about plans to take B and K to Castle Mountain for skiing and golfing in Lethbridge. [ 32 ] I am satisfied that both parents present appropriate plans for the care of the children. (

h) The ability and willingness of each person in respect of who the order would apply to care for and meet the needs of the child [ 33 ] Chris raised concerns about Jennyka’s past mental health challenges, addictions, and her ability to care for the children. The parties filed a book of agreed exhibits which included two letters from Jennyka’s treating psychiatrist. The documents were entered for the truth of their contents. [ 34 ] Jennyka’s psychiatrist reported that in February of 2022 Jennyka was taking all prescribed medications and that both her mood disorder and alcohol use disorder were in remission.

The psychiatrist also reported that Jennyka was receiving counselling and suggested it would be in Jennyka’s best interest to have more contact with her children. [ 35 ] The contents of an earlier letter from the same psychiatrist dated November 2020 was largely similar. Chris noted that in the 2020 letter the psychiatrist characterized Jennyka’s condition as a minor mood disorder but in 2022 described it as a major mood disorder and argued this was evidence that her condition was worsening.

The psychiatrist was not called to give evidence and I place little weight on this difference in language and, instead, focus on the consistent conclusion that her mental health is stable. [ 36 ] Jennyka was candid in her testimony when describing her mental health challenges. I am satisfied that she is aware of the need to continue to receive treatment and counselling as required.

I am also satisfied that Jennyka’s mental health is stable and that she is able and willing to care for B and K. [ 37 ] Jennyka’s current consulting contract allows her to work from home and she currently works approximately 30 hours per

week. Jennyka’s partner Jason also has the ability to work from home. [ 38 ] Chris did not raise any concerns with Jason’s home or his children being present in the home while B and K are present. [ 39 ] Chris pointed to several incidents where B and K were returned to his care and they had Staph infections and one time when one of the boys was experiencing respiratory distress.

The evidence was not sufficiently detailed enough to allow me to determine the cause of these infections or to conclude that Jennyka was not properly caring for B and K. [ 40 ] Jennyka raised concerns that B and K are often wearing clothes that do not fit them well or that they are lower quality clothes. [ 41 ] Jennyka also noted that she and Jason would not have to employ any third-party childcare as they both work from home. Chris and Kim still use third-party childcare when Chris is away for work and Kim is working. Kim works 12 hour shifts as a Registered Nurse.

Chris and Kim are not comfortable leaving the children unattended. [ 42 ] I am satisfied that both parties are able and willing to care for B and K. They have different parenting styles, but I don’t find a discernible difference in their ability or willingness to parent. Similarly, the use of some third-party childcare by Chris and Kim does not cause me significant concern especially given the ages of B and K. Third party childcare is a reality for parents who are both employed outside the home. (

i) Family violence [ 43 ] There were no allegations of any physical violence in either parties’ testimony before me. Jennyka testified that Chris was verbally and emotionally abusive. While some of Chris’ emails are aggressive and contain inappropriate language, I do not find that they rise to a level that causes me concern. The VOC Report indicated that Jennyka had a concern that Chris was spanking B and K. B and K denied this, and I did not hear any testimony regarding any maltreatment of the children. (

j) Other proceedings relevant to the safety, security, and well-being of the child There was no evidence of any such proceedings. Voice of the Child Report [ 44 ] Cory Hrushka, PhD, a registered psychologist, was retained to prepare a Practice Note 7 Voice of the Child Assessment to obtain the childrens’ perspectives on residential and visitation arrangements. Dr. Hruska’s Report was entered by consent as a sealed exhibit in these proceedings, but he was not called as a witness. Dr. Hrushka met with both parents once and B and K three times. The key findings of Dr.

Hrushka are as follows: • The children did not express any significant concern about either parents’ parenting method or style. • The children both advised that they were free to contact their mother when in their father’s care and reported that they both forgot on occasion to contact her. One child expressed a concern that Kim sought to monitor their conversations.

They both expressed a desire for a set time to contact their mother. • Neither child expressed any concern with the other parents’ new partner. • Both children reported increased contact from their mother after September of 2021 and reduced contact prior to then. • Neither child reported any significant instances of either party speaking ill of one another.

One child reported some rare and infrequent commentary but nothing of significant concern. • Neither child reported any substance use or self-harm activities relative to either parent. • Both children desire more contact and engagement with their mother but consistently stated a preference to reside with their father. • There is no finding in the report that Chris was alienating the children or imposing undue influence upon them.

Conclusion on Parenting [ 45 ] The factors listed under s 16(3) of the Divorce Act are not exhaustive and s 16(2) directs me to give primary consideration to the children’s physical, emotional and psychological safety, security, and well-being. In this case, I have concluded that both parents are able to care for B and K, and while Lethbridge and Edmonton both offer differing advantages and disadvantages, I don’t find that either location is preferrable for the children.

Lethbridge is closer to Jennyka’s family in Brooks and Medicine Hat and offers some advantage in that regard. [ 46 ] Similarly, both parents present reasonable plans to care for the children. While the absence of third-party childcare under Jennyka’s plan offers an advantage, B and K will soon be at an age where third-party care will not be necessary. [ 47 ] I have concerns with Chris’ past conduct relative to supporting and maintaining B and K’s relationship with Jennyka and this factor weighs against B and K remaining with Chris. However, I have to balance this against B and K both reporting that they can call

their mother when they wish to. More reinforcement is likely needed to ensure calls are made given B and K’s ages. [ 48 ] Conversely, B and K have resided with Chris and Kim for the past almost 7 years in Edmonton and have made Edmonton their home. While I did not hear extensive evidence regarding their school situation, they have no doubt formed relationships with friends at school and in their neighbourhood. B and K have also developed a strong relationship with W as well. [ 49 ] A move to Lethbridge would represent a significant change and would not foster stability.

I find that B and K’s special needs are relevant and that remaining at their existing school is in their best interests. Jennyka’s plan to engage a counsellor and to have the move occur in January would mitigate the impact of such a move but would not eliminate the adjustment period. [ 50 ] B and K’s views are not determinative given their ages, but they do merit consideration. They wish to remain living primarily with Chris. Jennyka’s testimony concerning parental alienation and undue influence caused me concern; however, the VOC Report indicated that neither B nor K raised any concerns in this regard.

Similarly, the VOC Report noted that B and K both reported a lack of contact with Jennyka as the primary reason for estrangement in their relationship. [ 51 ] I find it appropriate to place significant weight on the VOC Report because it was prepared by an objective and expert third- party who met with all the parties and B and K on multiple occasions. [ 52 ] Notwithstanding that Jennyka is a capable parent, I find it is in B and K’s best interest for Chris to remain their primary caregiver. I come to this conclusion for the reasons outlined above and in

summary: • A move to Lethbridge does not facilitate stability and would constitute a significant upheaval after living in Edmonton for almost 7 years; • B and K have formed a strong bond with W; • B and K have a stronger relationship with Chris; • B and K wish to live with Chris and they are at an age where their views deserve consideration; • Despite my concerns about Chris’ willingness to support a relationship with Jennyka, the VOC Report did not confirm parental alienation and I am confident that I can structure the parenting order to ensure opportunities for frequent communication will be present; and • As they grow older, B and K will continue to become more independent and will be able to more easily contact Jennyka, express their views more easily, and more effectively enhance their relationship with Jennyka. [ 53 ] For those reasons, I direct that the interim parenting order of Justice Mah dated July 5, 2021 continue with the following changes: • The drop off and pick up of B and K shall occur at the Crossfield Esso on the east side of Queen Elizabeth II Highway as this represents a closer half-way point. • When B and K are with Chris and Kim, no activities or events will be scheduled between 19:30 and 20:00 hours on Sunday evenings.

This time is set aside for Jennyka to contact B and K by telephone or other electronic means. Jennyka and B and/or K are also free to communicate at any other time but I am not going to impose a set time for these communications.

If B and K are camping on a Sunday in a location where there is no cellular service, an alternate make up day shall be arranged by the parties. • While Chris shall have primary day to day care of B and K the parties shall have joint decision making over B and K. • Jennyka shall be entitled to have B and K for one 15-day block of time and one 10-day block of time during the months of July and August and Chris shall have them for the remainder of July and August. Jennyka will advise Chris in writing of her two blocks of time on or before February 1st of each year.

Issue 2 – Child Support Background [ 54 ] Chris seeks retroactive and ongoing child support. [ 55 ] Chris made an interim application for child support on August 22, 2019 and Justice Fraser, on an interim and without prejudice basis, ordered s 3 child support in the amount of $900 per month and set Jennyka’s Guideline income at $100,000. On September 22, 2021, Justice Hayes-Richards reduced Jennyka’s s 3 and s 7 child support to a combined payment of $700 per month on an interim without prejudice basis. [ 56 ] Chris seeks s 3 and s 7 child support from the date of separation to November 1, 2019.

He also seeks a retroactive adjustment from present to 2019 and to impute an income to Jennyka for the years 2021 and 2022 in the amount of $110,000. [ 57 ] The leading decision regarding retroactive child support remains DBS v SRG , 2006 SCC 37 [ DBS ]. However, I have also had regard to Michel v Graydon , 2020 SCC 24 [ Miche l ] which reviewed many of the principles enunciated in DBS .

Michel confirms that child support remains the right of the child (para 10), “retroactive child supportive is not exceptional relief” (para 31), and “retroactive child support simply holds parents to their existing (and unfulfilled) legal obligations” (para 25). [ 58 ] DBS contemplates a four-step approach to a retroactive child support application:

(

a) Can the Court order retroactive child support? (

b) Should the Court order retroactive child support? (

c) If so, what is the commencement date for the retroactive award? (

d) How much retroactive child support should be ordered? (

a) Can the Court Order Retroactive child support? All of the Orders made to date have been interim without prejudice orders. B and K remain children of the marriage. I am satisfied that I have jurisdiction to order retroactive child support if I determine that such an order is appropriate. (

b) Should the Court Order Retroactive Child Support? DBS directs the consideration of several factors; however, none are determinative, and the DBS factors are not exhaustive: Goulding v Keck , 2014 ABCA 138 [ Goulding ]. Factor 1 : Reasonable Excuse for why Support was not sought earlier [ 59 ] In my view there are two periods at play here.

The first period is the time period from separation to service of the Statement of Claim on May 9, 2016, and from service until August of 2019, when an application for interim and retroactive support was brought. [ 60 ] With respect to the first time period, Chris testified that he was experiencing financial difficulties when he and Jennyka separated and that he had to move to Red Deer for family support. I accept his testimony in this regard, and based upon my review of the financial matters, including his debt load, I also accept that he was in financial difficulty.

Marital breakdown is stressful and I don’t find it reasonable to expect a party to immediately issue a Statement of Claim. [ 61 ] With respect to the second period of time, Chris testified that he was still experiencing financial difficulties, did not want to spend further funds on lawyers, and that once he learned how to represent himself, he brought the application. Both he and Jennyka began to represent themselves in and around 2019. I note that during this period of time Chris was still earning an above average income notwithstanding that his income did decline from previous years.

A distinction, in my view, should be drawn between not being able to afford a lawyer and not wanting to spend money on legal representation. [ 62 ] Chris did not suggest that he declined to bring the application due to any misconduct or threats of misconduct by Jennyka. I do not find Chris’ excuse for not seeking child support earlier to be particularly compelling. Factor 2: Conduct of the Payor Parent [ 63 ] Blameworthy conduct is described at paragraph 106 to 109 of DBS .

It is not a prerequisite to ordering retroactive child support: Goulding at paras 44-48 . [ 64 ] Jennyka testified that she did not make any child support payments prior to 2019 because she was experiencing financial difficulty following the separation. I accept that both parties were struggling following separation; however, Jennyka was employed during that period of time and was earning an income.

There is no suggestion that she was mistaken as to her obligation or made voluntary payments. [ 65 ] In Goulding the Court of Appeal held that “the real question is whether the payor’s conduct had the effect of privileging his or her interests over the child’s right to support”: see para 44.

Jennyka offered no explanation for failing to pay child support other than her alleged financial difficulty. [ 66 ] While Jennyka was adjusting to supporting herself, she was employed and was able to purchase a vehicle after Chris sold the vehicle she was using. [ 67 ] I am satisfied that Jennyka’s failure to pay appropriate child support had the effect of privileging her interests over that of her children.

Factor 3 – Circumstances of the Children [ 68 ] In Goulding the Court of Appeal directed that the needs of the children must be considered and that a loss of benefits is presumed when a payor parent does not make payments over a period of time: para 52. [ 69 ] While I did not receive specific testimony regarding Chris’ inability to provide for B and K, I am satisfied that he had significant debt obligations following the separation and that he financially struggled when he initially moved to Red Deer. [ 70 ] I am satisfied that B and K would have benefitted had Jennyka made the required child support payments.

Factor 4 – Would hardship be caused by a retroactive award? [ 71 ] Jennyka declared bankruptcy in May of 2021 and was recently discharged. Jennyka has very little debt as a result of the bankruptcy. She is presently earning $80 per hour as a contract consultant and working an average of 30 hours per week. On a monthly

basis she should be grossing approximately $9,600. She also lives with Mr. Turner. No evidence was called regarding how she and Mr. Turner share expenses. [ 72 ] The Court of Appeal in Goulding held that the obligation to meet the Guidelines Table amount does not constitute hardship and that to the extent hardship exists it can be mitigated through a structured payment plan: see paras 57 and 58 of Goulding . [ 73 ] I have considered s 10 of the Guidelines as well. [ 74 ] I am not persuaded that a retroactive award would result in undue hardship to Jennyka.

To the extent it presents difficulty, it can be mitigated through a structured payment plan. [ 75 ] Chris does not have a particularly strong explanation for his delay in bringing his first application; however, no one factor is determinative of whether retroactive support should be awarded. The other factors support a retroactive award. It is important to ensure that children are not prejudiced by recipient parent’s delay. Conversely, payor parents should not be rewarded for failing to remit child support, especially when they are aware child support is being sought.

I am satisfied, after considering all of the factors, that it is appropriate to make a retroactive award. (

c) What is the appropriate commencement date? [ 76 ] The appropriate commencement date for a retroactive order is generally the date when “effective notice” is provided to the payor parent: Smith v Gulka , 2020 ABQB 32 [ Smith ]. [ 77 ] Chris filed his Statement of Claim for Divorce and Division of Matrimonial Property on January 14, 2016 and sought ongoing and retroactive child support retroactive to September 1, 2015 Jennyka was served with the Statement of Claim on May 9, 2016. [ 78 ] I find that Jennyka had both effective and actual notice on May 9, 2016.

Chris’ application for interim support on August 19, 2019 sought both ongoing and retroactive support. [ 79 ] In DBS , at para 123 , the Court held: Once the court determines that a retroactive child support award should be ordered, the award should as a general rule be retroactive to the date of effective notice by the recipient parent that child support should be paid or increased, but to no more than three years in the past.

Effective notice does not require the recipient parent to take legal action; all that is required is that the topic be broached. [ 80 ] I have considered whether the 3-year deadline should run from August of 2019 when Chris made his first chambers application for child support. However, I reject that date because DBS is clear that the recipient parent is not required to take legal action. In any event, Chris did take legal action by filing and serving his Statement of Claim. [ 81 ] Jennyka had actual notice on May 9, 2016 of Chris’ claim for child support.

She was aware of his claim and was represented by counsel at that time and would have been aware of her obligations. Ordering retroactive support back to the date of separation is clearly within the 3-year DBS guideline. Therefore, I find it appropriate to order retroactive support back to September 1, 2015. (

d) How much retroactive child support should be awarded? [ 82 ] Chris seeks to impute an income to Jennyka for the years 2021 and 2022. Chris does not take issue with Jennyka’s reported incomes for the prior years. In order to calculate the appropriate amount of retroactive support it is necessary to resolve this issue first. Section 19(1) (

a) of the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ] provides for the imputation of income. [ 83 ] Until very recently, the leading decision on imputing income under s 19 of the Guidelines was Hunt v Smolis-Hunt , 2001 ABCA 229 [ Hunt ].

Hunt required the party seeking to impute the income to demonstrate “proof of a specific intention to undermine or avoid support obligations, or circumstances which permit the court to infer that the intention of the obligor is to undermine or avoid his or her support obligations”: see para 42 [ 84 ] On October 31, 2022, the Alberta Court of Appeal released its decision Peters v Atchooay , 2022 ABCA 347 [ Peters ] and reformulated the framework in Alberta for imputing income to a payor parent to be consistent with other Canadian provinces and territories, where a reasonableness test based on earning capacity is applied. [ 85 ] The new general analytical framework is set out at para 60 of Peters : [60] The following analysis will apply when the issue of under-employment or unemployment and possible imputation of income is raised under s 19(1)(a): 1.

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

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

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

3. Should judicial discretion to impute income be exercised? If the under-employment or unemployment arises from voluntary choice and the listed exceptions to imputation do not apply, the court may exercise its mandate to impute income under s 19(1)(a).

However, because this is discretionary, the question of whether to impute income (and if so, how much) involves determining if the voluntary under-employment or unemployment was reasonable, having regard to all the circumstances. [ 86 ] The Court of Appeal described the onus on an initial application for child support at paras 63 and 64: [63] With initial applications, financial disclosure is often missing or incomplete, in which case the court will estimate income under s 19(1)(f). If financial disclosure is complete, a person seeking an imputation of income under s 19(1)(

a) has an initial onus to establish an evidentiary basis for the imputation sought. This acts as a preliminary screening mechanism and helps focus the court’s analysis. Where a prima facie case for imputation is made out, the onus shifts to the person opposing imputation to defend the actual income claimed: Julien D. Payne & Marilyn A.

Payne, Child Support Guidelines in Canada, 2022 (Toronto: Irwin Law, 2022) [Payne] at 185; Homsi v Zaya , 2009 ONCA 322 at para 28 ; Zapiola at para 36 ; Horbas at para 34 ; Drover v Drover , 2020 NLCA 9 at paras 12-27 . [64] In most instances, this initial onus to establish an evidentiary basis is a low bar. It will be met where, for example, the person seeking imputation can point to the payor’s sustained drop in income. Establishing a prima facie case may be more difficult where there is no such income history, the allegation being instead that the prospective payor has been perpetually under-employed.

Establishing a prima facie case in this example may require evidence of the payor’s capacity to earn income, including age, education, experience, skills, and availability of work. [ 87 ] Jennyka’s employment with Aurora Cannabis in Medicine Hat ended in April of 2021 and she relocated to Lethbridge and began to search for employment. Her income declined from approximately $111,000 in 2020 to approximately $58,500. Jennyka worked in quality assurance for Aurora. [ 88 ] Jennyka testified that she searched for employment beginning in April of 2021 and applied for a number of positions in her field.

She provided documentation of job interviews and acknowledgement emails regarding positions applied for. The documents were marked as Exhibit 17 and spanned the period of April 2021 to July 2022. [ 89 ] Jennyka also testified that she thought she had secured a position beginning in January of 2022 with another cannabis producer, but the start date kept getting postponed. Mr. Turner also testified that he witnessed Jennyka searching for positions on a regular basis and detailed some of his efforts to assist her in finding a position through contacts that he had. I also accept Mr.

Turner’s evidence but note that some of it was hearsay as he was repeating matters that Jennyka had related to him about her job search efforts. [ 90 ] Jennyka received employment insurance during this period of time as well. [ 91 ] I accept Jennyka’s testimony regarding her job search efforts and note that it was supported by the documentary evidence.

Jennyka relocated from Lethbridge on two occasions to accept new positions and was steadily employed from 2014 to 2021. [ 92 ] Chris argued that Jennyka should have taken any type of employment and that an income should be imputed to her for the period of time she was unemployed. [ 93 ] Having regard to all the circumstances, including my finding that Jennyka was diligently searching for employment, I decline to exercise my discretion to impute an income to Jennyka. I reject the proposition that she should have accepted any position.

At a certain point it may be necessary for someone to accept a position outside their field, but an individual is entitled to seek work in their field for a reasonable period of time and her employment income in 2021 was still $58,584. Jennyka’s 2022 child support obligations will be based upon her estimated income of $73,528. [ 94 ] Table 1 below sets out the parties’ respective Line 150/15000 incomes as set out in the parties’ Agreed Exhibits and their updated financial disclosure for the years 2014 to 2021. It includes adjustments to income required by s 3 of

Schedule III to the Guidelines . I note Jennyka did not report any spousal support income in her 2019 Income Tax Return. Table 1 – Line 15000 Income Year Chris’ Income Jennyka’s Income 2015 $197,230 $68,406 2016 $126,733 $51,323 2017 $158,711 $50,537 2018 $171,158 $94,668 2019 $173,551 $114,645 2020 $112,480 $111,453 2021 $178,176 $58,584 [ 95 ] I will deal with s 3 child support payable first. Table 2 – Retroactive

Section 3 Child Support Payable by Jennyka Year Monthly Annual Paid Owing 2015 $974 x 4 $3,896 Nil $3,896 2016 $723 x 12 $8,676 Nil $8,676 2017 $730 x 12 $8,760 Nil $8,760 2018 $1,384 x 12 $16,608 Nil $16,608 2019 $1,677 x 12 $20,124 $2,916 $17,208

2020 $1,661 x 12 $19,932 $17,496 $1,896 2021 $847 x 12 $10,164 $15,222 -$5,058 2022 $1,072 x 11 $12,864 $6,300 $6,564 Total $58,550 The 2015 and 2016 values were calculated using the 2011 Tables. 2022 values reflect payments made to September 30, 2022. [ 96 ] Chris and Jennyka both provided tables to me outlining their calculations for s 7 expenses. There was very little dispute between the parties as to the expenses incurred and Jennyka conceded in closing argument that she was content with Chris’ calculations.

Jennyka took issue with how far back a retroactive award should be made, but not the actual calculations. The table below represents Chris’ calculations adjusted for the income amounts that I have found were the parties’ incomes for the relevant years.

Table 3 – Retroactive S 7 Child Support Payable by Jennyka Year Jennyka’s Proportion Childcare Medical Extra Curricular Jennyka’s Share Paid Owing 2015 32.53 nil 2016 34.55 $2,400 $234 $910 $910 2017 30.46 $816 $628 $440 $440 2018 38.77 $2,247 $452 $1,046 $1,046 2019 41.86 $8,763 $1,112 $4,134 $4,134 2020 49.77 $1,528 $334 $927 $927 2021 30.57 $3,830 $970 $1,467 $1,413 $54 2022 29.14 Total $19,584 $1,112 $2,618 $8,924 $1,413 $7,511 Jennyka’s proportion was calculated using income amounts from Table 1, adjusted for my spousal support award set out in paragraph 140 below Childcare in column 3 represents childcare expenses related to B and K only. [ 97 ] Jennyka also claimed s 7 expenses for 2016, 2018, 2019 and 2021.

Table 4 – Retroactive S 7 Child Support Payable by Chris Year Chris’ Proportion Medical Extra Curricular Chris’ Share Paid Owing 2016 67.47 $494 $333 $333 2018 61.23 $16 $10 $10 2019 58.14 $48 $28 $28 2021 69.43 $50.00 $35 $35 Total $64 $544 $406 $406 Chris’ proportion was calculated using income amounts from Table 1, adjusted for my spousal support award set out in paragraph 140 below [ 98 ] Chris is entitled to retroactive s 7 expenses in the amount of $7,511 - $406 = $7,105 Issue 3 – Spousal Support Entitlement [ 99 ] Entitlement must exist before an order for spousal support may be granted. [ 100 ] Justice Fraser’s October 2019 Child Support Order referenced in the prior

section ordered Chris to pay $900 per month in spousal support commencing November 1, 2019. On August 17, 2020, Justice Manderscheid lowered the spousal support to $700 per month effective September 1, 2020 and terminated spousal support effective November 1, 2020. Justice Lee made a further Order on April 15, 2021, ordering spousal support in the amount of $500 per month commencing May 1, 2021 and terminating it November 1, 2021. [ 101 ] As a result of these Orders, Jennyka received the following amounts of spousal support: • 2019 - $1,800 • 2020 - $9,300 • 2021 - $3,000

• Total - $14,100 [102] All of these Orders were made on an interim without prejudice basis. [103]

Section 15 of the Divorce Act sets out the relevant and applicable provisions concerning spousal support. [104] Jennyka seeks retroactive spousal support for the years of 2015 to 2022 but does not seek spousal support on an ongoing basis. [105] Chris argues that Jennyka has no entitlement to spousal support and seeks repayment of the spousal support he paid. [106] The leading authorities regarding spousal support are Moge v Moge, (SCC), [1992] 3 SCR 813 [Moge] andBracklow v Bracklow, (SCC), [1999] 1 SCR 420 [Bracklow]. [107] In Bracklow, the Supreme Court of Canada identified three conceptual grounds for entitlement to spousal support.

Entitlementmay exist as a result of one, or a combination, of these grounds. The grounds are compensatory, non-compensatory, and contractual. [108] Chris argues that throughout the marriage he supported Jennyka and paid for the majority of their expenses. It is not disputedthat Chris worked fulltime during their relationship prior to marriage and after marriage. While Jennyka did incur significant studentloans she was able to focus on her studies. Chris also testified that he paid for childcare after the children were born to allow Jennyka tofocus on her studies.

Jennyka did not dispute this, and I accept that Chris paid for childcare while she worked on her PhD. Chris alsoargues that by 2018 Jennyka was earning $120,000 per year working for Acreage Pharms Ltd. and was not disadvantaged by themarriage. [109] Compensatory support is frequently awarded to a spouse who has been economically disadvantaged as a result of marriage. Thedisadvantage may occur because they have reduced their participation in the paid labour force as a result of childcare responsibilities.

Inthe present case, while Jennyka focused on completing her PhD, she also took the lead role in caring for B and K prior to separation.Jennyka testified that she defended her Master’s thesis approximately a month after giving birth to B.

She then began work on her PhDand gave birth to K and completed her PhD by age 35. [110] Notwithstanding that Jennyka earned her PhD during the marriage and was largely supported by Chris, I find that she hasestablished an entitlement to spousal support on a compensatory basis for the following reasons: • Jennyka was largely responsible for childcare from 2008 to 2015 while she was pursuing graduate studies and I find she likelywould have completed her studies more quickly if she was not responsible for childcare during this period; • Chris was gone from home working for extended periods of time during the 2008 to 2015 period and was able to focus on hiscareer.

Jennyka at times was the equivalent to a single parent when Chris was away for work; and • Jennyka’s entry into the paid workforce was delayed as a result of her childcare obligations. [111] I find that Jennyka was economically disadvantaged by the parties’ marriage, albeit not to the same degree as a stay-at-homeparent who has been absent from the workforce and re-enters with the same skill set as they possessed at the time the first child was bornor perhaps with dated skills. [112] In Bracklow, Justice McLachlin, as she then was, offers the following explanation of non-compensatory support at para 31: First, it recognizes the reality that when people cohabit over a period of time in a family relationship, their affairs may becomeintermingled and impossible to disentangle neatly.

When this happens, it is not unfair to ask the partners to continue to support each other(although perhaps not indefinitely). Second, it recognizes the artificiality of assuming that all separating couples can move cleanly fromthe mutual support status of marriage to the absolute independence status of single life, indicating the potential necessity to continuesupport, even after the marital “break”. [113] I also find that Jennyka is entitled to spousal support on a non-compensatory basis for the following reasons: • Jennyka testified about a significant change in lifestyle following separation.

She moved from a single family dwelling to anapartment and her income was significantly less than Chris’ income. She also testified that she enjoyed trips and an active lifestyleinvolving boating, camping and other outdoor recreational activities while the parties were married. I accept her testimony and note thatit is consistent with Chris’ testimony regarding their pre-separation lifestyle. • Chris’ income far exceeded Jennyka’s income. It is not reasonable to expect that Jennyka would immediately achieve self-sufficiency.

Jennyka’s ability to achieve self-sufficiency was also adversely affected by her mental health challenges. In short, Jennykahad need relative to her pre-separation lifestyle. • The length of the relationship is not determinative of entitlement; however, in this case the parties were together for approximately12 years and I find that a relationship of dependency did form. This dependency translates into need as contemplated by Bracklow. Is Retroactive Spousal Support Appropriate? [114] Kerr v Baranow, 2011 SCC 10 [Baranow] is the leading decision on retroactive spousal support.

The decision confirms that thedetermination of the effective date of retroactive spousal support is a matter of judicial discretion that is informed by the particularcircumstances of each case. [115] My colleague Loparco J undertook a detailed consideration of the principles underlying retroactive spousal support in Friesen vFriesen, 2020 ABQB 103 [Friesen].

[116] At para 100 Justice Loparco explained: The usual commencement date is the date the applicant commenced legal proceedings seeking spousal support, unless there is a reasonnot to make the order effective from that date: Kerr at para 211; MacKinnon v MacKinnon (2005), (Ont CA), 75OR (3d) 175 (Ont CA) at para 24 [MacKinnon]; MacQuarrie at para 54; and PM v SM, 2012 SKCA 55 at para 22 [PM]. [117] Jennyka sought retroactive spousal support in her June 14, 2016 Statement of Defence and Counterclaim. [118] Similar to my finding with respect to retroactive child support above, I find that Jennyka provided Chris with effective noticethat she was seeking retroactive spousal support back to the date of separation when she served him with the Statement of Defence andCounterclaim. [119] While the foundations underpinning child and spousal support differ, the principles governing entitlement to retroactive supportare similar: see Baranow at para 207. [120] Factors to consider include the need of the recipient, conduct of the payor, the reason for delay in applying for support and anyhardship that a retroactive award may visit upon the payor: Baranow at para 207.

Need [121] At the time of separation Jennyka was leaving a relationship where Chris had been the primary breadwinner and had taken careof the couple’s financial responsibilities, save for her school expenses. Her income was significantly less than his and she had to rent anapartment and establish herself. I am satisfied that she had need at the time of separation and beyond.

Delay and Conduct [122] Jennyka filed her Statement of Defence and Counterclaim for spousal support within approximately five weeks of receivingChris’ Statement of Claim (Fraser-Tabak v Tabak, 2016 ABCA 79 at para 93) and within 10 months of the parties’ separation. WhileChris may not have been aware of Jennyka’s exact income he was aware of his income and their past income differential. [123] Jennyka testified that she did not bring a chambers application for a spousal support order until 2019 as she was trying to re-establish herself and she did not have funds for a lawyer.

Jennyka has pursued her claim for support with diligence since 2019. [124] I appreciate that Chris was experiencing financial difficulties as a result of the breakdown of his marriage, change in workresponsibilities and decline in income; however, he was still earning significantly more than Jennyka and chose not to make anyvoluntary spousal support payments to her. [125] Both parties struggled financially following separation. Jennyka testified that she withdrew some RESP funds.

Hardship [126] While Chris’ income decreased following separation for a variety of reasons (e.g. economic, shift change) he has still earned anabove average income. [127] Chris has been aware since he was served with Jennyka’s Counterclaim in 2016 of a potential outstanding obligation. He hasmade interim without prejudice payments of varying amounts since 2019. [128] The evidence does not satisfy me that an award of retroactive spousal support will cause Chris any hardship and I note that itwill be set off against the s 3 and 7 child support that Jennyka owes Chris.

Conclusion on Retroactive Support [129] While Jennyka lacked diligence in pursuing her spousal support application until 2019, I accept that she was seeking to establishherself following separation and that her delay was not inordinate. Chris was aware of the potential spousal support obligation within 10months of separation. I find that Jennyka’s delay does not disentitle her to retroactive spousal support. [130] Following consideration of all of the relevant factors, I find she is entitled to retroactive spousal support to the date ofseparation.

Quantum [131] Having determined that entitlement to spousal support exists and having determined that it is appropriate to award spousalsupport back to the date of separation, I must now determine what quantum of spousal support is appropriate. [132] The applicable provisions of the Divorce Act provide as follows: • Subsection 15.2(4) sets out factors the Court is to take into consideration, and (6) sets out the objectives of a spousal supportorder. • Subsection (4) reads:

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

a) The length of time the spouses co-habited; (

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

c) Any order, agreement or arrangement relating to the support of either spouse. • Subsection (6) reads, in part:

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

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

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

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

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 133 ] Having regard to the Spousal Support Advisory Guidelines (SSAG) , which are not binding upon me but are immensely useful, and using the income amounts in Table 1, produced the below table that sets out the SSAG amounts for 2015 – 2021: [ 134 ] Notwithstanding the spousal support award made in 2019, she did not include spousal support in her income in 2019.

She included spousal support of $9,300 in her income in 2020 SSAGs Calculation Year Low Mid High 2015 $1,303 $1,522 $1,742 2016 $737 $861 $986 2017 $1,012 $1,180 $1,351 2018 $676 $793 $911 2019 $507 $595 $683 2020 $0 $0 $0 2021 $1,111 $1,300 $1,490 [ 135 ] Jennyka’s standard of living declined when she and Chris separated. Jennyka has been living with Mr. Turner since April of 2021 and has been able to enjoy travel and benefits of living in his single family-dwelling in Lethbridge. Mr.

Turner has paid for these trips. [ 136 ] With respect to means, Jennyka has declared bankruptcy and is no longer saddled by any debts from the marriage or her student loans. [ 137 ] Self-sufficiency is also a key consideration. Jennyka has demonstrated the ability to earn an above average income in the cannabis sector. I do not accept that she was entirely self-sufficient when she graduated with her PhD as she was still working in a post- doctoral role; however, by 2019 she had transitioned to the private sector and was earning an above average salary.

I acknowledge that she was unemployed for a period of time but that appears to be transitory given that she was employed from 2014 to 2020. [ 138 ] Jennyka is seeking 7 years of spousal support. The SSAGs set the duration at 5.5 to 11 years. [ 139 ] In conclusion, Jennyka did suffer economic disadvantage as a result of the marriage and experienced a change in lifestyle following the separation and I reject the argument that she was self-sufficient upon separation. However, Jennyka was able to build her skills and move from a post-doctoral research role into more lucrative private sector roles.

Moreover, she is now residing with a new partner and enjoys travel and a lifestyle that is similar to her pre-separation lifestyle. [ 140 ] Upon consideration of the relevant factors set out in s 15 of the Divorce Act , I find that 6 years is the appropriate duration of spousal support in this matter.

Therefore, Jennyka is entitled to spousal support from September 1, 2015 to August 31, 2021. [ 141 ] Having regard to the parties’ financial circumstances and the SSAGs , I set the spousal support amounts as follows: Spousal Support Award Table Year Monthly Amount Annual Total 2015 $1,500 $6,000 2016 $850 $10,200 2017 $1,100 $13,200 2018 $700 $8,400 2019 $500 $6,000 2020 Nil Nil

2021 $1,150 (Jan to Aug) $9,200 Total $53,000 In 2020 a nil amount is ordered because Jennyka made more than Chris. [ 142 ] Chris is entitled to a credit of $14,100 as result of the spousal support already paid. Therefore, his retroactive spousal support obligation is $53,000 -$14,100 = 38,900. [ 143 ] However, I need to consider the tax implications of this spousal support order given I am making a lump sum award as opposed to a periodic payment award.

A lump sum spousal support award is generally not taxable, whereas periodic spousal support payments are taxable in the hands of the recipient and deductible by the payor. Neither party called any financial evidence regarding the appropriate adjustment that should be made to account for the lump sum payment. Having regard to the parties’ respective income, I apply a 30% reduction to account for the lump sum payment, reducing the retroactive payment to $27,230.

Issue 4 – Division of Matrimonial Property [ 144 ] Sections 7 and 8 of the Matrimonial Property Act , RSA 2000, c M-8 [ MPA ] set out how property is to be distributed between spouses upon marriage breakdown. Chris included a claim for unjust enrichment and unequal division of matrimonial property in his Statement of Claim for Divorce and Division of Matrimonial Property.

The Claim references “the acquisition, preservation, and maintenance of assets during the course of marriage.” I have considered Chris’ request for unjust enrichment and an unequal division of property by applying the factors under s 7 and 8 of the MPA .

Jennyka sought an equal division of matrimonial property in her Counterclaim for Divorce and Division of Matrimonial Property. [ 145 ] In Hodgson v Hodgson , 2005 ABCA 13 [ Hodgson ], the Alberta Court of Appeal interpreted ss 7 and 8 of the MPA and established the following four-step process to be followed to achieve a just and equitable division of the matrimonial property owned by the parties at the date of trial: 1. Determine all property owned at the date of trial 2. Determine the property that is exempt from distribution under s 7(2), or that can be traced to s 7(2) property.

The value of this property, as at the date of acquisition, or date of marriage, is excluded from distribution. 3. Determine what property falls under s 7(3). This includes the increase in value of exempt property, from the date of acquisition or marriage, to the date of trial. This property is distributed between the parties in a manner that is just and equitable taking into consideration the s 8 factors. 4. Divide the balance of the property equally unless it would be unjust and inequitable to do so considering the factors in s 8.

Step 1 – Property at Date of Trial [ 146 ] The parties both filed Matrimonial Property Statements (MPS) setting out their assets at the date of separation and May 31, 2022. Both parties indicated a desire to divide assets at the date of separation; however, they did not have any evidence regarding the value of their family home at the date of separation. Hodgson is clear that matrimonial property should be divided at the date of trial. [ 147 ] At the time of separation, the majority of the assets were in Chris’ name and most of the personal property was encumbered by debt.

Chris’ Real and Personal Property – Date of Trial Asset Value Debt Associated with Asset 2020 F-350 $74,402 $69,405 2012 Quad $3,500 2013 Quad $8,800 2015 Snowmobile $8,600 2004 Fifth Wheel Trailer $8,650 2007 Boat $26,000 $2,156 Wedding Ring $3,500 RBC Chequing Account $2,644 RBC TFSA $28 TD Chequing Account $245 RBC Business Account $101 Sunlife Pension $78,066 Chris’ Unsecured Debt Creditor Amount RBC – Line of Credit $16,814 RBC – Line of Credit (assumed by Chris) $4,725 RBC Visa $4,201

Citi Financial $12,053 Mrs. Trudy Hooge (Legal fees) $11,870 Mrs. Trudy Hooge (Down payment on home) $22,284 Stage Right Home Staging $2,678 Vivint Alarms $704 Jennyka’s Personal Property – Date of Trial Asset Value Debt Associated with Asset 2017 Lexus NXT $30,000 $30,693 CIBC Chequing Acct - 088 $1,080 RBC RRSP Acct - 862 $26,733 [ 148 ] Jennyka disclosed an additional debt owed to Canada Revenue Agency in the amount of $453. [ 149 ] As a result of her bankruptcy in May of 2021, all of her other debts were eliminated. She is a discharged bankrupt.

Her trustee was notified of the trial and took no position and indicated they had no interest in attending the trial. F-350 [ 150 ] Chris listed the 2020 F-350 truck in his sworn statement dated May 31, 2022 and testified that he owned it. When his mother testified, she said that she had to sign for the truck loan for the F-350 and claimed it was in her name. She also explained how Chris was paying her back for the truck with monthly payments.

Jennyka noted the inconsistency and argued that it undermined the credibility of both Chris and his mother. [ 151 ] Chris sought to offer unsworn evidence to clarify his mother’s position on ownership. I found Trudy Hooge to be a careful and measured witness who was able to explain her calculations and the financial transactions that she had arranged or entered into with her son. I find that she was mistaken with respect to the ownership of the truck. The financial records confirm that Chris is paying for the truck, and I find that even if the truck is in Mrs. Hooge’s name, Chris is the beneficial owner of it.

I don’t find this undermines Chris’ testimony as Chris has no motive to lie about owning the truck as his ownership of the truck increases his assets and does not reduce his liability to Jennyka. Camping and Boating Accessories [ 152 ] Jennyka through cross-examination elicited testimony from Chris with respect to camping gear and boat accessories. Chris agreed that they possessed a number of camping accessories that were not listed in his disclosure. He denied they were worth $2,000.

Chris also agreed that he had not included boat accessories including two wakeboards, ropes and towables that had been acquired during the marriage. I received no specific evidence regarding the value of these items but based upon my review of the pictures shown to Chris, I set the value of the camping and boating accessories at $2,500. Household Goods [ 153 ] Jennyka also cross-examined Chris about the contents of their home in Lethbridge and asked why he was sleeping on a blow-up mattress in Red Deer.

Chris agreed he took some of the items but testified others were left in the matrimonial home until it was sold. Jennyka purchased new furniture from the Brick in the days following the parties’ separation in the approximate amount of $3,812. She conceded in cross-examination that the debt was incurred post-separation, notwithstanding that she listed it as a debt existing at the date of separation. That debt was discharged by the bankruptcy. [ 154 ] No specific evidence was called regarding the value of the household items that Chris kept.

In the absence of specific evidence regarding the value, condition, and description of the items I decline to assign any value to these items. Dissipated Assets [ 155 ] Jennyka raised the sale of a snowmobile that occurred shortly after separation. Chris does not dispute that he sold a 2013 snowmobile for $4,200. He said he needed funds to cover his overdraft obligations.

Jennyka entered an exhibit showing similar snowmobiles that ranged in price from $8,500 to $11,795 as well as a text from Chris notifying her that he sold it and indicating he took a “bit of a hit on it.” I did not receive any evidence regarding the condition of the snowmobile or the number of kilometers on it to allow me to make a fulsome comparison. I also note that advertised prices are not the same as sale prices. However, I am prepared to find that the fair market value of the snowmobile may have been approximately $8,000 when it was disposed of.

Matrimonial Home [ 156 ] Chris purchased the matrimonial home in August of 2008 for $585,000. Title remained in his name until it was sold in September of 2016 for $487,500. The mortgage balance due on September 1, 2015 was $435,671. Chris’ MPS states that he was required to pay $1,858 to pay the final mortgage arrears and property taxes when the property was sold. He claimed a loss of $163,709 from the sale of the matrimonial home and seeks to have the loss considered in the distribution of matrimonial property.

[ 157 ] No evidence was called with respect to the value of the matrimonial home at the date of separation. The house has been sold and is not available for distribution. I deal with Chris’ claim of a loss under step 4 of the Hodgson process. Step 2 – Determine Exempt Property [ 158 ] Section 7(2) of the MPA states:

(2) If the property is (

a) property acquired by a spouse by gift from a third party, (

b) property acquired by a spouse by inheritance, (

c) property acquired by a spouse before the marriage, (

d) an award or settlement for damages in tort in favour of a spouse, unless the award or settlement is compensation for a loss to both spouses, or (

e) the proceeds of an insurance policy that is not insurance in respect of property, unless the proceeds are compensation for a loss to both spouses, the market value of that property at the time of marriage or on the date on which the property was acquired by the spouse, whichever is later, is exempted from a distribution under this section. [ 159 ] The party seeking to establish an exemption bears the onus of proving such an exemption: McCulloch v McCulloch , 2003 ABQB 432 at para 156 . [ 160 ] Chris claimed an exemption for a boat, fifth wheel trailer and the cargo trailer. [ 161 ] Jennyka objected to Chris claiming the boat, fifth wheel and cargo trailer as exemptions but did not offer any specific evidence as to when the items were acquired.

Chris maintained in his testimony that the cargo trailer was a gift from a welder at a job site and that he acquired the boat and trailer prior to marriage. [ 162 ] Jennyka cross-examined Chris with respect to accessories related to the boat but did not specifically put to him that the boat was acquired on a certain date. I am mindful that Chris bears the onus of establishing any exemptions or gifts. Chris listed the boat as a 2008 model year in his 2015 MPS and as a 2007 in his 2022 MPS.

Both MPSs indicate that it was acquired in 2008. [ 163 ] Chris’ MPSs contained a few errors with respect to the model year of certain items and he had assets that increased in value from 2015 to 2022 when one would expect them to depreciate. Jennyka invited me to draw an adverse inference regarding his credibility. While Chris did have some errors, he was quick to admit such errors when confronted with them and on several occasions, he was asked about the values of items and his testimony was later confirmed by documents filed with the Court.

While there may be some reliability issues with his documents, I did not have any credibility concerns. [ 164 ] In the absence of any evidence to the contrary regarding the acquisition of the boat and trailer, I accept Chris’ testimony that both were acquired prior to marriage. [ 165 ] Similarly, Jennyka did not challenge Chris’ evidence that he received the cargo trailer from a welder on a jobsite. She did contest the value but not that he received it as a gift. It was not clear when he received this trailer as a gift.

I am satisfied that Chris received it as a gift and it should be treated as an exempt asset. [ 166 ] Jennyka did not claim any exemptions. Step 3 – Determine what property falls under s 7(3) of the MPA, including the increase in value of any exempt property, and a distribute it in a manner that is just and equitable taking into account the s 8 factors [ 167 ] The cargo trailer has been sold and the fifth wheel trailer and boat have depreciated in value since acquisition so there is no increase in value to distribute.

Step 4 – Property Acquired During the Marriage [ 168 ] Section 7(4) of the MPA , in essence, directs that property that is acquired during the course of the marriage, that is not property referred to in ss 7(2) and 7(3), should be divided equally unless the Court finds that it would be unjust and inequitable to do so having regard to the factors set out in s 8 of the MPA . [ 169 ] I will now consider each of the s 8 factors that has significance or relevance in this case: (

a) The contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent [ 170 ] As I have already noted, Jennyka primarily cared for the children prior to separation and was responsible for managing most of the day-to-day household matters given Chris’ demanding work schedules. Jennyka’s contribution as a homemaker and parent allowed Chris to work longer hours away from home and to earn an above average income. Chris was the primary income earner. Both parties contributed to the marriage but had distinct roles. I find this factor favours an equal distribution.

(

b) The contribution, whether financial or in some other form, made directly or indirectly by or on behalf of a spouse to the acquisition, conservation or improvement of the property [ 171 ] I find that this factor has limited relevance to Chris and Jennyka’s situation. During their relationship they acquired a number of assets and incurred significant debt in order to finance their lifestyle. There are a few assets left and while Chris has a successful career and Jennyka earned her PhD they did not build a business or acquire any investments of significant value. To the extent this factor has relevance, it favours an equal distribution. (

c) The income, earning capacity, liabilities, obligations, property and other financial resources [ 172 ] Jennyka testified that Chris kept all the assets in his name and controlled their finances. I accept her testimony and note that it is consistent with the financial disclosure that was filed. When the parties separated, the majority of the secured matrimonial debt was in Chris’ name. Jennyka had some credit card debt as well as significant student loan debt. Some of the student loans were incurred prior to marriage and some after.

All that debt has been eliminated by Jennyka’s bankruptcy. [ 173 ] Joint matrimonial debt, like matrimonial assets, should generally be split equally unless it would be unjust and inequitable to do so. [ 174 ] Since separation Chris has paid off the debt on the 2013 quad and 2015 snowmobile. In both cases the debt exceeded the value of the quad and snowmobile both at the date of separation and trial. Chris’ 2022 MPS valued both the quad and snowmobile at higher values than in 2015. I take judicial notice that the COVID 19 pandemic did cause some price inflation for assets that normally depreciate.

Jennyka did not call any contrary evidence, but instead argued that the debt associated with each item equated to its value. I do not accept Jennyka’s position as I do not have any evidence regarding the amount financed or the purchase price of the assets. Given that Chris paid off the debt associated with these two recreational vehicles he is entitled to retain them. While the debt exceeded the value of the assets, Chris benefitted from the use of them and therefore I do not find it appropriate to require Jennyka to be responsible for any the debt associated with these assets.

Neither the 2013 quad nor the 2015 snowmobile will be included in Chris’ side of the ledger in the Matrimonial Property Statement prepared by this Court. [ 175 ] There was no debt associated with the 2012 quad and I note that Chris valued it at $5,301 in 2015 but only $3,500 in 2022. Whereas the 2013 quad increased in value from 2015 to 2022. I find it difficult to reconcile this difference and in the absence of an explanation, I will use the 2015 value of $5,301. [ 176 ] Chris included as one of his listed assets in his MPS a wedding ring valued at $3,500. Jennyka did not include any jewellery in her MPS.

It is possible that she still has her engagement and/or wedding ring, and other jewellery of value. To be fair to both parties, each should retain their respective jewellery without having to account to the other for the date of trial value of same. Chris seeks contribution from Jennyka for the $163,709 loss on their matrimonial home. Chris purchased the home prior to their marriage. If the home had appreciated in value during the marriage, Jennyka would have been entitled to half of the increase in the value since the date of the marriage. However, the opposite occurred.

Alberta’s MPA is silent with respect to whether a party may have a negative property value. Section 4(5) of Ontario’s Family Law Act , RSO 1990, c F 3 deems a negative property value to be zero for the purposes of distribution. Neither party cited any authority to me regarding this issue and my review of caselaw revealed that there was no judicial consideration of this issue by Alberta Courts. [ 177 ] The focus of s 7 of the MPA is on the distribution of property and liabilities existing at the time of trial. Chris purchased the matrimonial home prior to the marriage with the assistance of his mother.

I accept Jennyka’s testimony that Chris declined to place her name on title prior to or after marriage despite her requests. The home was sold prior to the date of trial and while Chris sold the home for less than he paid for it, there is no outstanding liability associated with the home, save for the staging costs and alarm invoice. Both parties vacated the home in August of 2015 and the home went into foreclosure.

Documents contained at Tab 45 of the Agreed Exhibit Book reveal mortgage arrears of approximately $36,205 were owing at that time, as well outstanding property taxes. [ 178 ] Marriage is, in part, a joint economic endeavor and the parties work together with a common goal of providing for one another in a variety of ways. It is evident that Chris and Jennyka were overextended prior to their separation and following separation for a variety of reasons Chris was unable to maintain the payments on the matrimonial home.

They both suffered a loss when the home sold for $487,500 in that Jennyka was not able to share in any increase in value of the home; however, there is no subsisting liability and there is no property remaining to distribute. [ 179 ] Therefore, I conclude that Jennyka is not liable to Chris for the loss he suffered on the sale of the matrimonial home. RRSPs [ 180 ] Chris and Jennyka accrued retirement assets through their employers during the course of the marriage. Chris testified that he started contributing to his Sunlife work RRSP pension in 2013 and stopped in 2016 due to financial difficulties.

At the date of separation, his Sunlife work pension was valued at $42,386 and at the date of trial it was valued at $78,066. [ 181 ] Jennyka withdrew her pension contributions from her employment with Alberta Agriculture and Rural Development and Agriculture and Agri-Food Canada and deposited them into a locked in retirement account (LIRA) with RBC. [ 182 ] At the date of separation, Jennyka’s RRSP was valued at $10,089 and at the date of trial it had grown to $26,733. The $10,089 was received during the marriage.

This growth resulted from both contributions and investment growth. [ 183 ] Chris made some contributions to his RRSP for a short period after separation but has not contributed a significant sum due to his financial difficulties. Jennyka withdrew pension contributions from past employers and had them deposited into locked in retirement accounts.

[ 184 ] It is difficult to determine how much of the increase in Jennyka’s RRSP was due to investment growth versus additional contributions. Both parties have benefitted from the growth of their investments over the past 7 years. I find no compelling reason to depart from the presumption that the RRSPs should be divided equally based upon their value at the date of trial. [ 185 ] I assign an adjustment of 20% for future income tax liability to

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