JM v SM, 2022 ABKB 622

Court of King’s Bench of Alberta Citation: JM v SM, 2022 ABKB 622 Date: 20220919 Docket: 4803 186245 Registry: Edmonton Between: JM Plaintiff - and - SM 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 child involved in this proceeding. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Decision of the Honourable Justice J.S. Little _______________________________________________________ I. Background and Divorce [ 1 ] This decision follows a five day trial on parenting, child support, spousal support, and division of property. I provide a skeletal background below.

But first, having satisfied myself that there has been a breakdown in the marriage without collusion or possibility of reconciliation and that this judgment confirms reasonable arrangements for support of the child of the marriage, I grant the

divorce also requested in the pleadings. [ 2 ] The parties, JM and SM, met in 2009 and began living together in 2010. He (JM) was about 30, and she (SM) was about 26. They married in 2012 and separated in January, 2019. Their daughter M was born in May, 2011, so she is now eleven. SM has a 16 year old son, J, from a previous long term relationship. He is mostly in his mother’s care. She is not seeking support for him. [ 3 ] When the parties met, JM worked as a site supervisor for a real estate developer, and SM worked as a bartender Friday and Saturday nights at a large local bar and its associated venues.

They lived in JM’s condo, using a second bedroom for J when he stayed with SM. [ 4 ] There is an inconsequential disagreement about how long SM worked during her pregnancy. She says she stopped three months into pregnancy because she was sick. JM says she worked up to M’s birth. In any event, she worked up to and during part of her pregnancy. They then moved into a house owned by JM’s family in the west end.

Both parties agree that SM then stayed home to take care of M, though they shared most parenting responsibilities until she went back to bartending two or three years after M’s birth. [ 5 ] SM testified that she grew tired of the late evening weekend hours required for bartending and wanted to change careers. She got into sales, eventually working for a company based out of Red Deer. An incident with her employer occurred in January, 2019 which sounded the death knell for the parties’ already rocky relationship and for SM’s new job.

Much was made by JM and his father of that incident with a view to painting an unfavourable picture of SM’s character. I will not dwell here on details of the incident because fault plays no

part in the legal test for divorce or the financial issues, and the incident has no relevance to SM’s ability to parent. But it does have some relevance in explaining the parties’ conduct after the incident. [ 6 ] The incident occurred in early January, 2019 when JM grew suspicious about his wife’s explanation for being away. He drove to a location just outside of Edmonton where he found SM with her boss. SM testified that he threatened to kill them. JM denies that.

But it is common ground that he took photos and videos at the scene, some of which he shared with his father. [ 7 ] SM then stayed in another hotel for a few days. She and JM communicated by text until she returned to the matrimonial home where she planned to live in the basement while they worked things out. [ 8 ] After a few days, JM told her that he had to let his parents know what had happened because they were his support system. SM testified that she then got a call from her mother who told her that JM’s father had called and that she would be safer if she left the house.

She did so, taking M with her, stayed in a hotel for a few days where her mother met them, and they then drove to her mother’s home in British Columbia where SM had grown up. [ 9 ] Over the next six weeks by her count and ten weeks by his count, SM kept M with her and her mother in British Columbia, returning to Edmonton twice, without M, to consult counsel. Her mother arranged for home schooling for M.

JM did not see his daughter during that period but did have a few FaceTime sessions with her. [ 10 ] On her return to Edmonton, SM retained custody of M while she couch-surfed for a time with friends and her sister until she could find more permanent accommodation. II.

Parenting [ 11 ] Two interim parenting orders were then granted: • February 25, 2019 Interim Consent Order: Shared parenting on a two weekday on, two weekday day off and alternating weekends rotation; • June 13, 2019 Interim Variation Order: This was given after a Special Chambers application and provided for a two week rotation whereby JM would have primary care of M with SM parenting her Thursday afternoon till Monday morning one week and Thursday overnight the second week. Summers were to be shared on a two week on, two week off rotation, and spring break and Christmas were to be split.

The recitals for that Order include that M needed stability during the parents’ period of transition and restructuring. [ 12 ] JM seeks to confirm the June 13, 2019 Order as a final order with some minor modifications, including removal of SM’s Thursday overnights. [ 13 ] SM seeks shared parenting on a week on, week off basis. [ 14 ] Unfortunately, no objective third party evidence was presented by either party respecting the best interests of M.

The evidence consists of the testimony of the two parties, JM’s new partner, and JM’s father. [ 15 ] JM’s arguments that M’s best interests are served with him having primary care fall into three broad categories: 1. He has been the primary caregiver since 2016. 2. He is more capable of assisting M with her schoolwork and encouraging a focus on schooling generally. 3. His is the more stable environment. 1. Primary Caregiver

[ 16 ] Certainly from M’s birth until SM’s efforts to change careers in 2016, she was the primary caregiver. JM worked full-time, and SM worked weekends. He was an involved parent, but the bulk of childrearing fell to SM. [ 17 ] From 2016 until their split in January, 2019, the picture is less clear. JM submitted as evidence a calendar showing the dates on which SM was away on sales trips, and based on that calendar, even with certain dates which were contested, her time away from home was in the range of 50%.

JM testified that when she was home she was sleeping. [ 18 ] But JM testified as well that by the summer of 2018, he was spending a lot of time in the hospital with his ailing mother, and it is not clear who would have been looking after M then. I accept, however, that for about the last two years of the relationship, JM would have been home more regularly than was SM. 2. School [ 19 ] JM testified that M frequently missed or was late for school on the Fridays after Thursday nights with her mother. She was absent 10.5 days between September, 2020 and June, 2021.

SM acknowledged this and explained that M was being bullied at school and was often sick or claiming sickness to avoid school on Fridays. Those may not be good reasons to simply accede to her request not to go to school, though I do not consider one absence a month as being particularly problematic, given that there was no evidence of M falling behind in her studies. SM also testified that this was a time of uncertainly for in-person school attendance because of the pandemic, and I do accept that explanation. 3.

Stability of Environment [ 20 ] JM stayed in the matrimonial home following the parties’ separation and remains there today. Since mid-2021 he has been living with a new partner, K, a student advisor in the Faculty of Grad Studies, who works one week in the office and two at home. She testified that she gets along well with and is good for M. While clearly JM’s new partner cannot be considered an objective observer, I found her testimony credible and am persuaded that she is a good influence on and provides support for M.

In fact, SM conceded that she is glad M has this new support when she is at JM’s home. [ 21 ] JM made much of SM’s frequent residence moves following the separation. It must be remembered, though, that he remained in the matrimonial home which SM felt she had to leave for fear of JM’s father. She had lost her job and had no independent means of paying for suitable accommodations. Turning to her mother, sister, and friends for a place to stay with M was a logical and necessary decision, albeit unsettling for both her and M.

For the last two and a half years, she has lived in the same large house in the Windermere area of Edmonton with her boyfriend and his son. M has her own bedroom there just like at JM’s home. SM testified that M gets along well with her boyfriend and his son. [1] [ 22 ] JM and his father testified that SM was a heavy user of Shatter, a concentrated form of marijuana. SM denied this, and there is no other evidence that she abuses drugs. She does have a prescription for medical marijuana. 4. Divorce Act Factors [ 23 ]

Section 16 of the Divorce Act sets out some of the factors to consider when determining a parenting order in the best interests of a child:

a) The child’s needs, given the child’s age and stage of development, such as the need for stability. [ 24 ] While SM’s residence is now more stable than during the period following their separation, I do find instability in her recent work history. Her testimony about her work in sales before the separation was vague. Her testimony about her current remote work with some sort of debtor assistance program was extremely vague in terms of when she started, how long her current period of leave will last, and how much she earns. Her testimony about efforts to further her education was vague.

Insofar as it is important that working parents, as role models for their children, need to show some stability in or commitment to their employment or education, JM is the more stable and committed of the two.

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. [ 25 ] Here, according to their testimony uncontradicted by any other witnesses, both parents have a strong and healthy relationship with M. [ 26 ] According to SM, M also has a good relationship with her older brother, though the parenting arrangement for that older brother is not fixed, ie. it is not clear how much time he spends with SM and how much with his father. [ 27 ] According to both SM and JM’s new partner, K, K has a good relationship with M and is good for her. [ 28 ] The only evidence presented about the relationship between M and SM’s partner at the time of trial was from SM and was to the effect that the relationship was fine. [ 29 ] SM testified that her parents have a good relationship with M, and that is supported by the evidence of SM’s mother willingly taking in SM and M immediately after the split. [ 30 ] JM’s father claims to have a good relationship with M.

That may be the case, though his testimony on other matters was so contradictory that I give it little credence. Based upon what I can believe of his testimony, he will do whatever he can to poison the

relationship between M and her mother. The concern I have respecting the home environment of JM relates to his father’s influence. He made it clear at the trial, by his testimony and his actions, that he has nothing but contempt for SM. I cannot help but presume that he makes that clear around M as well, which cannot be good for her relationship with her mother.

c) Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent. [ 31 ] JM’s testimony respecting SM was to the effect that she was lazy during the relationship and continues to be so after their split, so that he is the only parent who can properly raise M. I am not confident that he has any genuine interest in supporting M’s relationship with her mother. [ 32 ] SM, on the other hand, recognizes JM’s strong points as a parent, his weakness being that his focus is on playing with M and being her friend rather than being a parent.

She testified that she is supportive of M’s relationship with her father. I do not see that she would attempt to sabotage M’s relationship with her father.

d) The history of care of the child. [ 33 ] As discussed above, until a year or two before the split, SM was the primary caregiver with JM being an involved parent but working full time. In the year or two preceding the split, JM and his mother appeared to be the primary caregivers until his mother’s illness. And after the split, based on the second interim parenting order, JM was the primary caregiver, with SM making every effort to parent during her designated times. The status quo need not be maintained, but JM has been the primary caregiver for over three years of M’s life, and a change may be difficult for her.

e) The child’s views and preferences. No evidence was presented respecting this factor.

f) The child’s cultural, linguistic, religious upbringing. No evidence was presented respecting this factor.

g) Any plans for the child’s care. [ 34 ] While neither parent presented a formal plan for M’s care, it is clear that JM would rely heavily on the willing and capable assistance of his partner K, since he works full-time. He did testify, and I accept, that his employer recognizes his need for flexible work hours. [ 35 ] SM testified that when she returned to work, she would organize her hours around M’s needs. Her testimony respecting her ability to resume that work was not persuasive.

h) The ability and willingness of each parent to care for and meet the needs of the child. [ 36 ] I have no concerns about the ability and willingness of either parent to care for and meet M’s emotional needs. [ 37 ] As to her physical needs, SM clearly is better equipped than JM to deal with the changes that M’s body will be undergoing now or shortly, though he enjoys the assistance of K in that regard who has assisted with M’s diet and sleep issues and her periodic resistance to attending school. [ 38 ] JM is clearly in the better position to financially care for M, given his full-time job and his father’s financial wherewithal. [ 39 ] SM’s financial situation may be described as dire, though of course a child and/or spousal support order could alleviate that situation.

i) The ability and willingness of each parent to communicate with the other on matters affecting the child. [ 40 ] Communication between SM and JM is problematic. According to JM, they communicate mostly by email and sometimes by text through M’s phone. SM appears to want better communication. That did not appear to be the case with JM. He is clearly still bitter about the 2019 incident.

j) Family violence. There is no credible evidence of this.

k) Other proceedings relevant to the safety, security, and well-being of the child. There are no such proceedings. III. Conclusion on Parenting [ 41 ]

Section 16 is not intended to be a mathematical exercise of tallying up the points attributed to each parent. In this case, my weighing of the factors leads me to conclude that a fifty-fifty shared parenting arrangement is not appropriate, in large part because of the continued animosity of JM towards SM which prevents the kind of communication necessary to make shared parenting work. Further, M needs the stability of spending the bulk of time with one parent as opposed to splitting her time equally between them. I have a better appreciation of M’s life, and the people in her life, in JM’s care than in SM’s care. I find it in M’s best interests that her father be her primary caregiver.

[ 42 ] For those reasons, I will largely track the interim parenting order, with minor modifications: JM shall have primary care of M with specified parenting time to SM as follows: Week one: Thursday after school to Monday morning at school (Tuesday in the event of a holiday Monday), with SM responsible for picking her up from school on Thursday, JM responsible for getting her to school on Friday morning, and SM responsible for getting her to school on the Monday morning (or Tuesday in the case of a holiday Monday).

Week Two: Thursday evenings after school to Friday morning at school time, with SM responsible for picking her up from school on Thursday and JM responsible for picking her up from SM’s house on Friday morning in time to get her to school. If Friday is a holiday, JM shall pick her up at 4:00 p.m. The change to the Friday morning pick-ups for school is intended to address JM’s concern that M was too often absent on Fridays while in her mother’s care. Summer holidays shall be shared two weeks on, two weeks off, with the exchange on Sunday evenings. Christmas and Easter/spring breaks shall be shared equally.

Father’s Day and Mother’s Day: The respective parent shall have at least four hours if their respective day does not fall on what would otherwise be their parenting time. M’s birthday shall be subject to the same regime. [ 43 ] I will leave to counsel the task of determining when Week One commences and details respecting any times or holidays with which I have not dealt. If counsel are unable to agree within a reasonable time, they may make arrangements to have me make those determinations. IV.

Child Support [ 44 ] As at the date of the trial, SM was on leave from her commission-based employment, details of which are at best murky. I will therefore impute to her the annual equivalent of the minimum wage of $31,200 for the purpose of calculating her child support payable to JM effective July 1, 2022. [ 45 ] The child support portion of the Order arising from this decision shall include the parties’ reciprocal obligation to exchange financial information annually and the standard recalculation clause. [ 46 ] Counsel did not address

section 7 expenses but may do so and incorporate any agreement into the Order using JM’s $70,000 employment income and SM’s imputed $31,200 income. V. Matrimonial Property [ 47 ] Much of the trial was dedicated to a microscopic analysis of the parties’ financial positions, particularly how SM’s spending habits led to their precarious financial position.

There was a focus on funds provided to JM by his father, including his payment for improvements made to the matrimonial home, and whether those payments were gifts or loans and therefore did or did not fall into JM’s income available for support purposes and whether they factor into the parties’ respective equity in the matrimonial home. Counsel for JM seeks a $60,000 exemption for JM’s father’s contributions to the matrimonial home and a resultant large equalization payment from SM.

Counsel for SM points out that SM left the relationship literally with the clothes on her back while JM retained all of their assets, such that an equalization payment from SM is not only mathematically incorrect but would be inequitable. [ 48 ] JM made much of how he had always been the primary breadwinner earning a good income and that the reasons for their financial difficulties were SM’s careless spending habits and her failure to contribute her income to their joint enterprise.

JM’s father testified that before his son met SM, he was financially secure with numerous properties to his name. [ 49 ] There was little evidence to support either of those claims, and I do not accept them. [ 50 ] I do accept that JM made the bulk of the major financial decisions. He was the one who decided to sell the condo and move to a house owned by his family after M was born. No evidence was presented respecting how much equity he received from the sale of his condo or what happened to that equity. Apparently very little was available two years later when they moved out of the family house.

The move to the house owned by JM’s father turned out to be a poor decision because the house was mouldy. And notwithstanding that JM made the decision to move into that house and was responsible for their finances, his father blamed SM for the fact that their failure to pay rent cost him $60,000. [ 51 ] Because of the mould problem in the family house, JM and his father then determined that the couple should buy a new home in 2014 for $475,000, with a $40,000 deposit provided by his father and a $650,000 bank mortgage. JM did not know why the mortgage was so much more than the purchase price.

He and his father then claimed that they spent considerable sums, in the $100,000 range, landscaping that property and finishing the basement. The best evidence as to the value of that house as at the date of trial was from a professional appraiser who fixed the value at $440,000.

It is clear to me from this evidence that JM, in purchasing a house eight years ago which is now valued at less than its purchase price, notwithstanding expensive improvements, cannot blame his financial position on SM’s spending habits. [ 52 ] JM testified that he received considerable sums of money from his father during the course of the marriage, including after the split when he lost his job and relied on severance and government assistance for a time. Between 2019 and 2021, those sums totaled

about $89,000. He testified that he intended to pay those sums all back, with the exception of the deposit for the house which was a gift from his father. [ 53 ] JM’s father’s testimony was to the same effect, except that he testified that he would also be paid back the deposit for the house – the “gift letter” that he provided to the bank was only for the purposes of the lender, but as between him and his son that was just a loan like all the other funds he provided. He also testified that he did this for his other children and that there were no written agreements.

He then conceded that there was a mortgage in the case of his other son and may have been a mortgage in the case of his daughter. And he has given or will give instructions to his lawyers to sue his son and SM if he does not receive repayment of all of that financial assistance – he stated in fact that there are two or three lawsuits started already. Neither father nor son testified as to how JM would repay these large sums, on top of two mortgages, on his $70,000 annual salary. [ 54 ] I place no reliance on the testimony of JM’s father.

He cannot be heard to say both that the deposit was a gift and that he required repayment. The deposit was made at a time when both his son and daughter-in-law purchased the house. Similarly, the amounts provided to his son for which he is suing his son and SM, or intends to do so, cannot be both gifts and loans. Despite his protestations that he would not have given his daughter-in-law anything, that is the effect of what he did.

As counsel for SM argued, while his animus toward SM is clear, JM’s father made these contributions at a time when he was doing so in the best interests of his granddaughter. [ 55 ] With a value of $440,000 and mortgages now totaling $371,000, the equity in the matrimonial home is $69,000. Even assuming that it might have some relevance, I cannot determine how much of the mortgage paydown was before the split when both parties may have been contributing to it and how much was after the split.

Certainly after the split it was JM who was paying it down, with his income and financial help from his father, but he also had possession of the house following without compensation to SM. [ 56 ] I note here as well that JM received an insurance settlement of approximately $15,000 for damage to the interior of the house, and the house appraiser testified that it did not appear as though that money was used for the necessary repairs. [ 57 ] In short, I see no reason to deviate from the principle in s. 7(4) of the Matrimonial Property Act that family property be distributed equally unless that would not be just and equitable. [ 58 ] The parties disagree on the value of JM’s older truck ($6900 according to him) and household items ($44,000 according to her) that JM retained in the matrimonial home – SM seeks compensation of half of the value of those items.

No persuasive evidence was led respecting those values. I find that an equitable distribution of the value of those items can be factored into my calculation of SM’s equity in the home. [ 59 ] SM’s share of the equity of $69,000 in the matrimonial home is therefore $34,500.

Counsel for SM submitted that in fairness, that equity can be assumed to include the roughly $43,000 value for household furnishings which SM agrees can be retained with the house since she has done without them for over three years. [ 60 ] I am satisfied that with the exception of some photo albums and family heirlooms that JM has returned or agreed to return to SM, there is no other family property subject to division. VI.

Spousal Support [ 61 ] I find that SM is entitled to spousal support both on a compensatory and non-compensatory basis. [ 62 ] On a compensatory basis, when M was young, she stayed home or tailored her work

schedule to avoid the need for child care, which allowed JM to maintain his employment in the construction business. She then determined to change her career path so that she could spend more time with her family on weekends. [ 63 ] On a non-compensatory basis, following their split, SM lost her job, lost her access to the matrimonial home, and had no funds of her own on which she could draw. She briefly had access to a line of credit in her name and her mother-in-law’s name, and she drew $500 from that when she fled to BC with M. At that point, the bank froze that line of credit.

JM’s father denies any involvement in that decision, but I find that he stepped in to have the bank freeze that line of credit. He further commenced a collection action on a 2013 Ford Taurus that JM testified he had purchased for SM during the marriage. JM’s father testified that its seizure was the bank’s idea in order to repay the joint line of credit, but the documentation shows that the security interest claimed on the vehicle lists his corporation as the creditor and his son as the debtor.

That vehicle was seized from an acreage where SM was staying following their separation, leaving her unable to drive M to school.

So while JM’s father continued to advance thousands of dollars to his son, he was preventing SM’s access to funds and instructing the seizure of an old vehicle used by SM to recover $9075.76. [ 64 ] Further, JM retained all of the couple’s bank account balances and personal property on separation, though he later released to her over 20 garbage bags of her personal belongings. [ 65 ] For those reasons, I am satisfied that SM had and continues to have a need for spousal support and that JM is capable of providing it to her. [ 66 ] I accept Ms. Smith’s calculations of Mr.

P’s income, including government Covid assistance, rent from his partner, K, and money from his father, as being $99,400 for 2019, $64,500 for 2020, and $67,500 for 2021. Based on those amounts and SM’s much more modest incomes for those years, I accept also Ms. Smith’s calculation of a lump sum retroactive entitlement of $17,500 to the date of trial, representing the mid-point from the Spousal Support Guidelines (Guidelines). [ 67 ] On an ongoing basis, I will award spousal support to SM of $500 per month, commencing July 1, 2022.

This is at the high end of the Guidelines, because of JM’s access to sources of funds available for support purposes in addition to his $70,000 salary.

Recognizing the length of the relationship and that SM has an obligation to become self-sufficient, this award may be reviewed after a period of four years on application by either party. VII. Costs [ 68 ] The parties had mixed success and shall each bear their own costs. Heard on June 13-17, 2022. Supplemental submissions by counsel September 13, 2022 Dated at the City of Edmonton, Alberta this 19 th day of September, 2022. J.S. Little J.C.K.B.A. Appearances: Mr. E. Bruveris for the Plaintiff Ms. K. Smith for the Defendant