JS v JD, 2023 ABKB 155

Court of King’s Bench of Alberta Citation: JS v JD, 2023 ABKB 155 Date: 20230315 Docket: 4803 190909 Registry: Edmonton Between: JS Plaintiff - and - JD Defendant _______________________________________________________ Written Judgment of the Honourable Justice Susan L. Bercov _______________________________________________________ I. Introduction [ 1 ] After almost 13 years of marriage, the parties separated on April 3, 2020. They have one biological child together, LS.

LS is now 15 years old. [ 2 ] JD has two daughters from a previous relationship: M who is now 20, and R who is now 18 years old. [ 3 ] During the trial, the parties reached the following agreements: A. Both parties abandoned their claim for retroactive child support for LS and retroactive spousal support. B. The parties’ pensions and RRSPs would be divided equally with the joint accrual period being the date of marriage to December 31, 2021. C. JD agreed to abandon her claim for retroactive and ongoing child support for R and M providing JS maintains R and M on his benefits plan for as long as the plans allow.

D. Each party will keep their own vehicle and other personal possessions. [ 4 ] The parties disagree on parenting and decision making for LS, whether income should be imputed to JD, ongoing child and spousal support, and how to divide the remaining proceeds of the matrimonial home. II. What Parenting Order is in the Best Interests of LS? A. Legal Principles [ 5 ] The legal principles that apply are well established. They are: 1. In determining the issue of parenting, the sole criteria is what parenting arrangement is in the best interests of the children. 2.

There are no longer any presumptions or default positions that regulate decisions as to parenting. The sole determinant is the best interests of the child. 3. The court shall not consider the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of the child. 4. The court should give effect to the maximum contact principle. This principle does not mean equal parenting. It means that it is in the best interests of the child to have maximum contact with each parent as is appropriate in the circumstances. 5.

The court should also consider the friendly parent rule: AE v TE , 2017 ABQB 449 at paras 29 – 31 . The rule favours parents who are best able to foster a relationship between the child and the non-custodial parent. [ 6 ] These principles are contained in

Section 16 of the Divorce Act . Section 16(3) mandates that I consider all factors relevant to the circumstances of the child including the factors specifically set out in that subsection. B. History of Care [ 7 ] At a case management meeting on January 22, 2021 the parties agreed to a Practice Note 8 Order appointing Dr. Koreen Martfeld as a parenting expert to complete the PN8. The parties agreed to continue shared parenting until the PN8 was completed. [ 8 ] On August 18, 2021 Dr. Martfeld provided her report. [ 9 ] At a case management meeting on October 25, 2021 the parties agreed to continue shared parenting but move to a different

schedule that gave JS more time with LS and that worked around JS’s work

schedule that involves night and day shifts. The parties agreed they would share decision making and that JD would not make any medical decisions without JS’s knowledge and consent. If the parties could not agree on medical issues, JS would have final decision making. The agreements reached at this meeting were formalized in an order of Justice Fraser dated May 16, 2022. [ 10 ] In

summary, the parties have been operating under the

schedule recommended by Dr. Martfeld since October 2021. [ 11 ] During the hearing the parties focused on what happened at the October case conference.. JS argues that JD agreed to the

schedule set out by Dr. Martfeld and is reneging on her agreement. JD argues she only agreed to try this

schedule on the understanding that it would only give her one less day. Regardless, this was an interim order that neither party is bound to at trial. C. The Positions of the Parties [ 12 ] During the trial JD advocated for a shared parenting arrangement on a one week on, one week off basis. In her written submissions, she argues that the parties should revert to the previous

schedule of 4 days on and 4 days off. [ 13 ] JS wants to stay with the parenting arrangement recommended by Dr. Martfeld. Dr. Martfeld recommends a shared parenting arrangement. She proposed a

schedule that accommodates JS’s shift work. JS’s evidence is that his parenting time has equated to 63% and asks for an Order reflecting that he has primary parenting. [ 14 ] For decision making, JS wants sole decision making because JD has not complied with Justice Fraser’s Order to obtain JS’s consent to medical treatment. JD argues that she is better able to decide medical issues and LS is comfortable confiding in her. [ 15 ] I fill first deal with the parenting arrangement that is in the best interests of LS. I will then deal with decision making. D. Parenting Arrangement 1. Allegations of Improper Conduct [ 16 ] Both parties make allegations of improper conduct by the other.

[ 17 ] I should not consider the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of the child. [ 18 ] Some of the allegations of misconduct are not relevant to the parties’ abilities to parent LS. For example, JS alleges that JD made threats and cast blame on him, his counsel, doctors, and others. JD alleges JS or his counsel improperly gave her medical records to Dr.

Martfeld. [ 19 ] Other allegations of misconduct are more relevant to the parties’ abilities to parent LS. [ 20 ] JD argues that it is beyond cruel that JS walked away from his relationship with M and R on advice of his lawyer for financial reasons. She argues this reflects poorly on his ability to make decisions in the best interests of the children. I agree. Notwithstanding that both JD and Dr. Martfeld told JS how much this hurt M and R, he continued to abandon his relationship with them. [ 21 ] In February 2022 JS submitted a passport application for LS with JD’s signature.

When the passport office called JD to verify her signature, she told the officer she did not recall signing the form. This led to the file being flagged for suspicion of forgery. JD told JS she would drop the matter if he paid $3,000.00 support per month and changed the parenting order. [ 22 ] I am satisfied that during this high conflict litigation both parties engaged in misconduct that indicate the parties’ focus was not always on the best interests of the children. 2.

The Friendly Parent Rule [ 23 ] Both parties demonstrated during evidence and argument the high conflict between the parties and each party’s distrust of the other. Notwithstanding Dr. Martfeld’s opinion that each parent is capable of parenting, both parties persist in attempts to demonstrate shortfalls with the other parent. I am not satisfied that either parent will foster a positive relationship with the other. 3. PN8 Report [ 24 ] Dr. Martfeld testified. Her PN8 Report was entered as an exhibit. [ 25 ] Dr.

Martfeld’s evidence is that LS has a strong attachment to both parents and benefits from loving interactions with both. Both parents have adequate knowledge of child development and the ability to support LS’s needs. There are no concerns with child safety in either home. LS’s wishes are to continue to spend time with each parent. She also recognizes that it is in LS’s best interests to maintain a relationship with his paternal grandparents and with R and M. These are all factors to consider under

Section 16 of the Divorce Act . For these reasons, Dr. Martfeld recommends shared parenting. I agree. The evidence at trial supports these conclusions by Dr. Martfeld. [ 26 ] The real issue is what

schedule is best for LS. [ 27 ] While Dr. Martfeld recommends shared parenting, she does not recommend 50/50. She recommends that the division of parenting time be shifted towards more time in JS’s care for several reasons: • There is more stability and less conflict in JS’s home. JD’s daughter lives with her. Due to the challenges in parenting M, there is conflict and emotional outbursts in JD’s home. • There is more structure and routine in JS’s home due to the different parenting styles of the parties.

JD’s laisse-faire approach sometimes results in her not appropriately intervening in disputes between her children resulting in significant conflict. • There are some limitations on parenting due to JD’s health challenges. • LS will benefit from a healthier, less pathological approach to managing problems in JD’ home. Dr. Martfeld opines that it is important that LS not be treated as a child with a disability who is limited in what he can accomplish, but rather as a child with unique strengths and weaknesses who sometimes requires a little extra help. In Dr.

Martfeld’s opinion, JS is better able to create this environment. [ 28 ] JS agrees with Dr. Martfeld’s report. He relies on it to continue the parenting arrangement in place since October 2021. [ 29 ] In arguing that I should place little weight on Dr. Martfeld’s report, JD relies on SK v DG 2022 , ABQB 425 where Justice Loparco was critical of Dr. Marteld’s conclusions. [ 30 ] While I am alive to Justice Loparco’s criticisms of Dr. Martfeld, each case depends on the evidence before the court in the case under consideration. Accordingly, in deciding how much weight to place on Dr.

Martfeld’s recommendations, the issue for me to decide is whether the evidence in this case supports Dr. Martfeld’s conclusions. [ 31 ] JD raises the following concerns with Dr. Martfeld’s report: • While Dr. Martfeld acknowledged in cross that she did not contact any of M’s or JD’s doctors to discuss any concerns, Dr. Martfeld provides opinions regarding M’s and JD’s proper health diagnosis. Further, Dr. Martfeld did not provide JD with an opportunity to comment on the information opposing counsel provided to her. • While Dr.

Martfeld raises concerns about the conflict in JD’s home, this conflict is not raised as a concern by LS. [ 32 ] Dr. Martfeld testified that she did not contact any of JD’s or M’s doctors as it was not necessary. The focus in the report was not determining her or M’s well being other than as it related to capacity to parent, and she believed she had sufficient information to

determine capacity to parent. The difficulty I have is that most of the medical information Dr. Martfeld relied on was not exhibited or attached to the report. Accordingly, I cannot determine whether the information supports Dr. Martfeld’s opinions that JS’s home is a less pathological approach to managing problems. Accordingly, I do not accept her conclusion that there is a healthier, less pathological approach to managing problems in JS’s home.

While she may be right, I do not have the evidence necessary to assess this conclusion. [ 33 ] JD testified that during the marriage, most of the conflict was between JS and M or between her and JS arguing about how to parent. After JS moved out, the conflict in the home greatly declined. [ 34 ] I do not accept JD’s evidence on this. Her evidence is inconsistent with Exhibit 43, an email she wrote in 2016, describing her challenges with M. The evidence of JS and his parents, supported by Exhibit 43, which I accept, is that during the marriage M was a very challenging child.

She created a great deal of conflict in the home. M continues to live with JD. She is now on AISH. There is no evidence that M’s condition has significantly changed. JS testified about a text M sent LS threatening to punch JS and how this upset LS. I agree with Dr. Martfeld that the conflict in JD’s home is a factor to consider in determining what

schedule is in LS’s interest. The evidence at trial supports this conclusion by Dr. Martfeld. [ 35 ] Dr. Martfeld indicates in her report that another factor to consider is that JD has some limitations to parenting due to her physical and mental health. JD testified that she suffers significantly from migraines and fibromyalgia. I am satisfied from the evidence of both parties that her health limits what she is able to do. During the trial, there were days where she was not able to sit a full day due to migraines.

JD argues that her migraines and other issues were aggravated by the stress of the trial and that her migraines have significantly decreased since then. While I recognize that trials are very stressful and stress can impact migraines, the evidence of both parties is that her migraines and need for rest have existed for years, both during the marriage and after separation. [ 36 ] I will first address the proposed

schedule JD advocated for at trial. I will then address the proposal in her written submissions. [ 37 ] At trial JD sought a one week on one week off arrangement. She argued this is in LS’s best interest because the

schedule Dr. Martfeld recommended is confusing, LS needs more time to settle during transition days before school and LS confides in her and not JS. While I am persuaded that a week on week off

schedule is what JD wants, I am not persuaded that it is in LS’s best interests for the following reasons: • While the

schedule may have been confusing in the beginning, it has been in place now since October 2021. Apart from JD’s viva voce testimony, that I do not accept, there is no evidence that it is confusing now. • JD’s proposal does not address the conflict in her home caused by M. • JD’s proposal does not address her health limitations. • JD’s proposal was that when JS is working nights on his week on, his parents or his girlfriend can sleep at JS’s house. Both JS’s mother and father testified at the trial. JD did not ask them whether they were able and willing to do this.

I heard no evidence about JS’s girl friend and whether she is willing and able to do this. Most importantly, I heard no evidence about whether LS would be comfortable having his grandparents or JS’s girl friend staying over night with him. [ 38 ] In her written submissions JD resiles from the week on/week off proposal because she is no longer confident that JS will provide the appropriate care when he is working. She argues that he testified that he does not know where LS is when he’s working, and JS does not contact her when he works overtime.

Her written submissions ask that the parties return to the 4-4 schedule. [ 39 ] The evidence does not support JD’s concerns that JS will not provide appropriate care when he is working. JS’s evidence, supported by texts, is that he does communicate with LS when he is working. While JD attempted to prove that JS does not contact her when he has overtime, there is no evidence that since separation JS has worked any significant overtime. JD’s proposal also appears to assume that she will continue to stay home and not work. As I discuss below, she has an obligation to return to work. [ 40 ] Although JS relies on Dr.

Martfeld’s report, he also seeks a primary parenting order. He testified that under the current

schedule he calculates that LS is with him 63% of the time. He argues that the evidence at trial and Dr. Marteld’s evidence support a finding that it is in LS’s best interests for him to have primary care. I disagree. [ 41 ] The evidence of Dr. Martfeld in her report and viva voce is that she recommends shared parenting, though not 50/50. She recommended that the parties move from a 4-4 to a 4-3 schedule. She proposed a

schedule that worked around JS’s work shifts. If JS’s calculations are accurate that his parenting time is 63% of the time, the evidence satisfies me that this was an unintended consequence of Dr. Martfeld trying to work out a 4-3

schedule that worked around JS’s shift work. It was never Dr. Martfeld’s intention to recommend that JS have primary care. [ 42 ] The evidence of JS and his parents, which I accept is that LS is doing well under the current schedule. He is engaged in sporting and other activities with JS. He is doing well at school. I am satisfied that this

schedule works well for LS with one concern. JS argues that JD should be working. I agree. The current

schedule does not give JD a full day on the weekend. When she returns to work this will limit her time during the week. R and M were very much a part of LS’s family from his birth until the parties separated. While Dr. Martfeld recommended switching from a 4-4 to a 4-3

schedule in part because of the conflict in JD’s home, it is still important that LS maintain his relationship with his stepsisters. It is important to build into the

schedule some time on the weekend each month when R, M, and JD can plan something together as a family. Accordingly, I find that the current

schedule should be maintained except that every second subsequent week LS will transition to JS’s house on Sunday at 4 p.m. as opposed to Saturday at 4:00 p.m. This will provide JD some additional time on the weekend to assist LS in maintaining his relationship with R and M. [ 43 ] The parties did not address holiday parenting arrangements in evidence. In her written submissions JD sets out her proposal. JS did not address holiday time in his submissions. If the parties cannot agree on holiday parenting time, they may submit brief written submissions to me within 30 days of this decision.

4. Decision Making [ 44 ] The most contentious issue around decision making is with respect to LS’s health. [ 45 ] Dr. Martfeld raises concerns in her report regarding JD’s ability to make appropriate decisions regarding LS’s health care. Her concerns arise from how JD has dealt with her own and M’s health concerns. [ 46 ] Following the PN8 and the October 2021 Case Conference, Justice Fraser granted an Interim Parenting Order. The Order gives the parties joint decision-making authority except for medical decisions.

The Order is clear that JD will not take unilateral steps regarding health issues concerning LS without first informing JS and getting his consent. The Order provides JS with final decision- making power unless there is an emergency. [ 47 ] Each party argues that the other is not capable of medical decision making. JD argues that LS is not comfortable confiding in JS.

JS argues that JD is not capable based on how JD has handled M’s health and her own health. [ 48 ] JS seeks decision-making powers on all issues following consultation with JD. [ 49 ] At trial JD sought joint decision making with the final decision resting with the doctor if the parties can not agree. In her written submissions, JD argues that she is better able to handle medical issues and LS is comfortable confiding in her. LS should continue to have Dr. Trouli as his primary physician for issues brought to JD’s attention and Dr. Johnson can address male medical issues brought to JSs’ attention.

These two doctors work closely together. [ 50 ] No doctors testified at the trial about JD’s or M’s health.

Without hearing from the doctors as to their diagnosis and recommendations, I am not able to make any conclusions that JD is not capable of medical decision making based on the history of how she dealt with M’s health and her own health. [ 51 ] Notwithstanding, for different reasons, I conclude that JS should have sole decision making on all issues after consulting with JD. [ 52 ] Given the history of conflict since separation and the significant trust issues, I am not satisfied that the parties can work together to make decisions in the best interests of LS.

I am satisfied that joint decision making will only lead to further conflict. [ 53 ] The evidence satisfies me that in making decisions JS is more likely to consult with JD and to consider the wishes of LS. LS is 15 years old. He is at an age where he can make some decisions for himself, and he is entitled to have his views seriously considered when decisions are made. [ 54 ] JD testified that in February 2022 LS’s eczema was bad. JS had not addressed this. She was taking R to the doctor, so she took LS in for his hands. She did not consult JS. LS told the doctor that he had numbness in his legs.

The doctor wanted blood work done. She booked the blood work and did not tell JS. While LS was in her care, in the spring of 2022 the Dr. called her and said his muscle enzymes were at a high level and she should take him to the Stollery to get checked out. She called the Stollery, and they asked her when she could come, and she said right away. She did not call JS until she got to the Stollery. This was about 2 or 2:30 on an exchange day when LS was going into JS’s care at 4:00. JS came to the hospital but was not able to go in because only one parent was allowed in during Covid.

JD refused to come out so that JS could go in. LS was discharged after a few hours. It turned out that his enzyme levels were on the low end of normal because of physical activity at the water park the day before. [ 55 ] Although Justice Fraser’s Order was not yet pronounced, JD acknowledged that she was aware of Dr. Martfeld’s recommendations that she not take unilateral steps and she attended the Case Management Meeting where these recommendations were agreed to.

She testified that she took these steps because JS would not follow up and this was an emergency. [ 56 ] JS testified that he asked JD for a letter from the doctor stating it was an emergency and nothing was provided. He also testified that he does follow up and was waiting for LS’s medical chart so LS could see a male doctor as LS requested. JS entered text messages from LS demonstrating that he takes LS’s medical concerns seriously and that he is the only one LS trusts with medical issues.

These texts are hearsay and I place no weight on them. [ 57 ] I do not accept JD’s evidence that JS does not follow up and that this was an emergency. I prefer the evidence of JS. In the absence of a Dr.’s letter stating that this was an emergency, which JD did not provide, the only reasonable inference from all the facts is that this was not an emergency. There is no excuse for why JD repeatedly failed to inform and consult with JS.

Further, her lack of insight at trial that she should have consulted with JS leaves me with no confidence that she will do so in the future. [ 58 ] I also have concerns based on the evidence that JD will consider LS’s views, as opposed to what she wants, in making decisions. The evidence from all parties is that LS wants a male doctor. Her proposal that Dr. Trouli be his primary physician ignores what LS wants. Further, having LS go to Dr. Trouli, her doctor for issues she wants addressed, and Dr.

Johnson, the male doctor, for other issues, is not in LS’s best interests. [ 59 ] Another example is the incident at the school where another student, A, confided to LS thoughts of self harm. LS told a teacher. JD testified that the teacher told LS and JD that LS was the only one A would speak with, and that LS should go to counselling with A. [ 60 ] JS’s evidence about this is different. He testified that he did get a call from the school informing him that a student had confided in LS and that LS told the school.

The call from the school was just to inform JS about what happened and to indicate that LS did the right thing telling the school. There was no discussion about LS attending counselling with A. This whole event was understandably very upsetting to LS. [ 61 ] I find it highly improbable that a school would recommend that one student attend counselling with another student who was

expressing thoughts of self harm. I do not accept JD’s evidence on this. What is also concerning is the email JD wrote the school, exhibit 45, where she indicates she encouraged LS to go to counselling with A. [ 62 ] In

summary, a parent’s decision-making authority should not be lightly taken away. Where possible, joint decision-making is in the best interests of the child. The evidence in this case persuades me that joint decision making is not possible and will only lead to further conflict. I conclude that it is in LS’s best interest for JS to have sole decision making on all issues after consulting with JD. III. Should I Impute Income to JD? A. Parties’ Positions [ 63 ] JD worked prior to and during the marriage until LS was born. When the parties moved to Sylvan Lake, she returned to work.

She went on short term disability shortly before the move to BC in 2014. JD has not worked since 2014 claiming she is unable to work because of her health. [ 64 ] Relying on Nykolyshyn v Dalton , 2022 ABKB 860 , JS disputes that JD is unable to work. While acknowlodging that she does have medical issues, he disagrees that these medical issues prevent her from doing any work. He asks that income be imputed to her of $50,000.00 per year which is what she was earning in Sylvan Lake. B.

Legal Principles [ 65 ] Alberta law on imputing income for the purposes of child and spousal support has recently been modified by the Alberta Court of Appeal in Peters v Atchooay , 2022 ABCA 47 . The test of a deliberate attempt to evade child support obligations is replaced with a test of reasonableness.

Courts are now required to determine if the actions or decisions of a parent are reasonable having regard to all the circumstances. [ 66 ] Peters is clear that both parents have an obligation to pursue employment and earn income based on their age, education, experience, skills, health and all other relevant factors. The ultimate onus rests on the party opposing imputation to prove on a balance of probabilities that the unemployment was because of one of the listed exceptions in s 19(1)(

a) and, if not, that the unemployment is reasonable, having regard to all the circumstances. The analysis requires evidence that is as objective as possible. Bare assertions will not suffice. C. Analysis [ 67 ] JD admits the following: • Each of her ailments by themselves do not prevent her from working. • No Dr. has ever told her that she is unable to work because of her medical issues. • Following her short-term disability leave from her job in Sylvan Lake she applied for long term disability but was refused. She applied for CPP disability benefits and was refused.

Her appeals were not successful. • She has not applied for any jobs since 2014. While acknowledging that she was told by CPP that she needs to show she got a job and was ill and had to leave the job, she has not applied for jobs because she does not think that is fair to do to an employer. [ 68 ] JD provided no medical evidence indicating that her health precludes her from working.

Where unemployment is due to the payor’s health concerns, medical evidence will generally be required for the entire duration of time in question: Peters , para 67 . [ 69 ] While I accept that JD does suffer from migraines and low energy, I am not satisfied that her health issues prevent her from working in a sedentary administrative position. I conclude that it is appropriate to impute income to her for both spousal and child support.

While Peters deals with child support, there is no principled basis for using a different approach for imputing income for the purpose of spousal support: Dalton , at para 38 . [ 70 ] The next issue is what amount of income should be imputed. [ 71 ] The evidence persuades me that JD has the education and skills for employment as an administrative assistant in a sedentary job earning approximately $50,000.00 per year and that such jobs are available. [ 72 ] JD graduated with a paralegal diploma in 1998.

Before the parties married and during the marriage when the parties lived in Fort McMurray, she worked for the RCMP in an administrative position earning around $55,000,00 for about 4 years. Shortly after the parties moved to Sylvan Lake, in September 2010, she took a similar job as an administrative assistant to protective services that paid between $45,000.00 - $50,000.00. During questioning, she was shown several jobs with the RCMP in Sherwood Park that were like her previous jobs. Crystal Fifield, JD’s previous boss, testified.

Her evidence, which I accept, is that JD was an excellent worker and very respected by the team. [ 73 ] The more difficult issue is whether JD requires some accommodations, including flexible hours and remote work options due to her health limitations. Th e Dalton decision JS relies on is similar in several ways to this case. In Dalton , Justice Loparco found that the wife who suffered from fatigue, depression, inability to focus, migraines and bouts of pain was not incapable of working and that income should be imputed.

She concluded that the wife can work with appropriate accommodations, including flexible hours and remote work

options. She imputed an entry-level salary on a part time basis of $20,000.00. In Dalton , Justice Loparco had no expert medical evidence. While the wife’s family doctor testified, Justice Loparco found that he could only confirm what was already in his medical records. [ 74 ] While I have no expert evidence and JD’s medical records were not entered as evidence, I do have the parties’ testimony, Dr. Martfeld’s review of JD’s medical records and my observations of JD during the trial and her inability to sit full days at times. The evidence satisfies me that JD does suffer from migraines and low energy.

Her health concerns have been ongoing since 2014. JS does not dispute these health concerns. On the contrary, he relies on them to argue that her health limits her ability to parent. [ 75 ] The difficulty is that I have no evidence on what accommodations she requires in the work force to address these health concerns and for how long. I also have no evidence that the jobs with the RCMP in Sherwood Park provide some flexible work hours or remote work options.

I have no evidence on what administrative jobs are available with flexible work hours or remote work options and what they pay. [ 76 ] JD has been told that she should engage in an active rehabilitation program and obtain a psychiatric and/or psychological evaluation to assess her mental health. To date she has done neither.

She testified that she has booked an occupational assessment that she recently investigated and is waiting for a psychiatric referral from her general practitioner. [ 77 ] A reasonable inference based on all the evidence is that JD will require a period of flexible work hours or remote work options for a limited period as she works with an occupational therapist, an active rehabilitation program and a psychiatrist to transition back into the work force. [ 78 ] I conclude that it is reasonable to impute an income to JD of $25,000.00 per year for 18 months and $50,000.00 per year from July 2024 on. IV.

Ongoing Child Support [ 79 ] In 2022 JS earned $117,432.97. It is appropriate to set his guideline income at this amount beginning January 2023. [ 80 ] For JD, I impute income to her of $25,000.00 per year from January 2023 to June 2024 and $50,000.00 per year from July 2024 on. [ 81 ] I am granting an ongoing shared parenting arrangement. Using a set off approach, this results in s 3 payments as follows: A. From January 2023 to June 2024 JS is responsible for a child payment to JD of $826.00 per month ($1039 for him and $213.00 for her) B.

From July 2024 on JS is responsible for a child payment to JD of $627.00 per month ($1,039 for him and $412.00 for her). [ 82 ] In MacDonald v Brodoff , 2020 ABCA 246 , the Court of Appeal directs that in addition to calculating the set off, I must also ask the following questions to determine whether a simple set-off is fair and appropriate: A. Is there a significant income disparity between the parties? B. Is there an obvious difference in living standards between the parties? C. Is one party clearly bearing the majority of child expenses. [ 83 ] There is some income disparity between the parties.

Very little evidence was given on whether there is an obvious difference in living standards between the parties and whether one party is bearing the majority of child expenses. The only evidence presented is that JS bought a house whereas JD bought a condo.

I am not satisfied from the evidence that a simple set off is unfair or inappropriate. [ 84 ] On a go forward basis, from January 2023 the parties will each be responsible for s 7 expenses in proportion to their guideline incomes, actual and imputed. [ 85 ] JS claims JD’s proportionate share of $5,200.00 he paid, after insurance, for the costs of braces for LS. This expense was incurred and paid for well before the trial. During the trial, the parties each agreed to abandon their claims for retroactive child and spousal support. There was no exception mentioned for s 7 expenses or the braces.

The parties agreed that child support was only in issue for January 1, 2023 onwards. Accordingly, I conclude that JS is not entitled to be reimbursed for any s 7 expenses incurred prior to trial. V. Division of Matrimonial Property A. Matrimonial Home [ 86 ] The parties purchased a home together in Sherwood Park during the marriage. When the parties separated in April 2020, JS left the matrimonial home. JD stayed in the matrimonial home until the house was sold in June 2022.

Each party received $100,000.00 with the balance of the proceeds, $191,026.91 , deposited in trust. [ 87 ] JS claims an exemption for a $50,000.00 gift his father gave him and $45,000.00 from the sale of a condominium he owned with his brother prior to marriage. JD argues his exemption should be limited to around $19,000.00.

[ 88 ] JD claims an exemption of $59,000.00 because she did repairs that increased the sale price of the home. This argument is not an exemption argument, but an argument in favour of an unequal distribution of the money in trust. She is also seeking extra costs relating to the pets, moving expenses, and other home expenses. I will deal with these arguments when considering how the monies in trust should be distributed. B. Exemptions [ 89 ] Tracing exemptions is not a perfect science.

While tracing can be inferred, implied or presumed, there must be an evidentiary basis to support the exemption: MacFarlane v MacFarlane , 2016 ABCA 183 . [ 90 ] JS cannot maintain exemptions where the exempt assets are dissipated having been spent on living expenses and debts: Smith v Smith, (1997) 76 ACWS (3d) 343 . However, where otherwise exempt funds are used to pay off matrimonial debt, those funds may still be subject to an exemption if they can be traced into an existing identifiable asset: Brokopp v Brokopp , 1996 ABCA 4 .

The Court of Appeal in Brokopp specified that the tracing would have to be to “identifiable assets acquired directly or indirectly through the secured loans” (para 11). [ 91 ] JS’s father testified that he gave his son a cheque for $50,000.00 that was intended to be a gift to JS. He produced his cheque made out to JS for $50,000.00 on June 27, 2018. I am satisfied that JS’s parents gave him a gift of $50,000.00 during the marriage. He is entitled to an exemption if the money can be traced. [ 92 ] The evidence is that the cheque for $50,000.00 was placed in the parties’ joint bank account on June 27, 2018.

Exhibit 27, the joint bank account statement indicates that on July 5, 2018, $39,250.00 was transferred to the parties’ joint line of credit secured against the family home. JS concedes that upon depositing the cheque in the parties’ joint bank account, he lost ½ of the exemption. The other $25,000.00 he argues is traceable to the matrimonial home. [ 93 ] I am satisfied that JS has proved and is entitled to an exemption of $19,625.00. $39,250.00 was used to pay down the debt on the matrimonial home. The balance of $10,750.00 stayed in the joint bank account and is now gone and cannot be traced.

When the $39,250.00 was transferred to the joint line of credit, JS lost ½ the exemption. [ 94 ] The other exemption JS claims is for money he received from the sale of a condo he owned jointly with his brother. His evidence is that his brother bought his share of the condo for $45,000.00 just before the marriage. The money was deposited into a joint checking account with JD. Exhibit 23 indicates the money was used to pay her student loans, buy furniture and a mini van. [ 95 ] To prove an exemption, the party claiming the exemption has the onus of tracing the exemption into an existing asset.

There is no evidence that the furniture, vehicle, or any other asset the funds were put into exists today. I conclude that JS is not entitled to an exemption for the sale proceeds from the condo. The money is gone. It went to pay off debts and purchase other assets that are now gone. However, these contributions can be considered when determining how to divide the balance of the sale proceeds of the matrimonial home. C. How Should the Balance of Funds in Trust Be Distributed? [ 96 ] The parties each received an interim distribution of $100,000.00 from the sale of the matrimonial home.

There is $191,026.91 remaining in trust. [ 97 ] Under the Family Property Act there is a presumption that property acquired during the marriage should be divided equally. However, that is only a presumption. I must also consider the factors set out in s 8 in determining how to divide the funds remaining in trust from the sale of the matrimonial home. [ 98 ] Although framed in her written submissions as an exemption claim, in essence JD argues for an unequal division because of renovations to the home she paid for that increased the selling price by $59,000.00.

She also seeks reimbursement for 75% of the moving costs, cleaning the house, duct, and furnace cleaning, one invoice to Time Squared for documenting JSs’ tools, and $20,000.00 for past and future pet expenses. [ 99 ] JS disputes these claims arguing that the law and the facts do not support these claims. [ 100 ] JD provides no authority supporting her claim for pet expenses.

I find that she is not entitled to reimbursement and this expense should not be considered in dividing the funds remaining in trust. [ 101 ] I agree with JS that the expenses to clean the house, declutter, and clean the vents and furnace are costs associated with maintaining the property that JD is responsible for in accordance with Justice Feth’s Order. [ 102 ] With respect to moving costs, while JD argues that she had to move items belonging to JS, she provided no evidence as to what those items were and how much of the moving expenses related to those items, as opposed to her own items.

I am not persuaded that she is entitled to reimbursement for these costs, or that these costs should be considered in the division of the funds in trust. [ 103 ] JD is also claiming reimbursement for $2,212.00 from a company called Time Squared. She testified that this was to document JS’s tools and take pictures. It took the service 40 hours to do this. While the service prepared a list and pictures, despite giving an undertaking to produce these documents, she has not provided the documents. Her evidence is that Justice Kendell told her she did not have to answer this undertaking.

There is no evidence as to why it would take 40 hours to list JS’s tools. I do not accept that Justice Kendell told JD that she did not have to answer this undertaking. The evidence does not persuade me that Times Square provided any services that JD should be reimbursed for, or that should properly be considered in dividing the funds from the sale of the matrimonial home.

[ 104 ] The evidence satisfies me that JD incurred expenses to renovate the home in preparation for selling it: (1) the cost of replacing the carpet in the sum of $5,772.72; (2) the cost of repairing and painting walls, frames and baseboards in the sum of $2,257.50; (3) the cost of resodding in the sum of $2,782.50. These amounts total $10,812.72. While JS did not consent to these costs, the realtor did recommend doing this work.

I am satisfied that it increased the selling price by an amount significantly higher than the cost of doing these repairs. [ 105 ] JD argues that these repairs increased the price at which the house sold by about $59,000.00 and that she should receive this amount. I disagree. While the evidence from the realtor indicates these improvements increased the value of the home, it is not possible to determine from the evidence by how much. Further, JD did not do the work herself. She paid for the work to be done.

It is appropriate that both parties share in the increase in the selling price. [ 106 ] While JD is not entitled to a credit or unequal distribution for the increased value of the home, I am satisfied that she is entitled to be reimbursed the $10,812.72 she paid for the repairs. I see these costs as no different than other costs the parties incurred to sell the house, such as real estate and legal fees. These costs are properly payable from the sale proceeds. [ 107 ] JS argues that JD is not entitled to compensation for these expenses because he left money for her when he moved out as indicated in Exhibit 7.

I disagree with JS that the payments in Exhibit 7 is a proper consideration. While it is true that JS left some money and paid some expenses, this was before he started paying child or spousal support. [ 108 ]

Section 8 of the Family Property Act requires me to consider all relevant facts and circumstances including the contributions made by each party before and during the marriage, as well as the income, earning capacity, liabilities, obligations, property and other financial resources that each spouse had at the time of marriage and trial. I am of the view that there are no factors that indicate an equal distribution of the remaining funds is not appropriate.

While it is true that JS worked and contributed more financially and paid off JD’s student loans, the evidence from both parties is that when the parties met, JD had qualified for a Habitat for Humanity Home. The parties later sold that home and recovered an equity of about $90,000.00. I agree with JD that this was a significant financial contribution made by her. While she did not work after 2014, she did look after the children and the home. I do not view the parties’ respective contributions before and during the marriage or their current circumstances as justifying an unequal distribution. [ 109 ] In

summary, I conclude that out of the remaining funds in trust, JS should be paid $19,625.00. JD should be paid $10,812.72. The balance remaining should be divided equally. D. Pensions and RRSP and RESP [ 110 ] I heard little evidence about the pensions, RRSPs, and RESP. The parties agreed that all pensions and RRSPs will be evenly divided with the joint accrual period being from the date of marriage to December 31, 2021. JS has approximately 1.5 years of pension before marriage.

The parties may seek further direction if necessary to give effect to their agreement. [ 111 ] The parties’ have one RESP for LS, M and R. They are under JD’s name. JD wants to retain the RESP under her name rather than divide it. JS agrees with this providing he has joint administration rights whereby either party can contribute but neither can withdraw without the consent of the other. This is reasonable method of dealing with the RESP. VI. Spousal Support A. Parties’ Positions [ 112 ] JS does not dispute that JD is entitled to spousal support. He has paid spousal support since separation in 2020.

He provided SSAG indicating a duration of 6.25 – 12.5 years with a low of $856.00 per month, a mid of $998.00 per month, and a high of $1,141.00 per month based on a $50,000.00 imputation of income for JD and primary parenting with JS. He argues that she is entitled to a further 5 years of spousal support on a reducing scale of one year at the mid-range of the SSAG, one year at the low end, and then a reducing fraction of the low range for the balance of the 5 years.

He argues this is appropriate considering the distribution of property and reflects JD’s obligation to obtain employment. [ 113 ] JD provided no submissions on either the amount or duration of spousal support. B. Analysis [ 114 ] For the reasons that follow I find that JD is not entitled to spousal support on a compensatory basis but is entitled on a non- compensatory basis. [ 115 ] JD worked before marriage and during the marriage until 2014. She went on disability leave in 2014 when the stress of her job and caring for M became too much.

The parties then moved to B.C. so that JD could be closer to family to assist with M. The parties then moved back to Sherwood Park in August 2017. There was never any agreement between the parties that JD would stay home to look after the children. On the contrary, JS encouraged JD to return to work. While the parties did move around during the marriage, the reasons were not to further JS’s career. During the marriage, JS and his mother were actively involved in looking after the children when JD was focused on looking after M.

I am not persuaded that JD has been disadvantaged by her role in the marriage such that she is entitled to compensatory support. [ 116 ] Notwithstanding, spousal support can also be based on non-compensatory support. This support is intended to alleviate economic hardship arising from the breakdown of the marriage. This form of support is based on post-marital need. This approach aims to narrow the gap between the means and needs of the spouses and is based on the concept of marriage as an interdependent union. As

such, the burden for meeting the needs of a disadvantaged spouse should fall on the former partner, rather than the state. [ 117 ] Non-compensatory support responds to objectives under the Divorce Act reflected in 15.2(6)(c and

d) which relate to economic hardship and self-sufficiency. [ 118 ] The concept of need goes beyond the ability to satisfy basic needs. I must consider the standard of living the spouses enjoyed while married as well as the relative standards of living following separation. I must also take into consideration the ability of the spouses to support themselves, having regard for their income, reasonable expenses, assets, and liabilities. [ 119 ] A spousal support order should in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable time.

In deciding what is practicable, I must consider the totality of circumstances. One of the primary tools for promoting self-sufficiency is imputing income to recipient spouses who appear not to be making reasonable efforts towards self-sufficiency: Heimsoth v Heimsoth, 2009 ABCA 129 at para 27 . I have concluded that income should be imputed to JD.

I disagree with JS that in addition to imputing income, it is appropriate to further reduce an appropriate spousal support order to reflect her obligation to obtain employment. [ 120 ] The SAGG numbers imputing income to JD of $50,000.00 per year with a shared parenting arrangement indicate a duration of between 6.5 – 13 years with a low of $898.00 per month, a mid range of $1,051.00 per month, and a high range of $1,204.00 per month.

Imputing income at $25,000.00 with a shared parenting arrangement give a range of $1,475.00 per month at the low end, a mid range of $1,868.00 per month, and a high range of $2,260.00. [ 121 ] JD is now 43 years old. Her education was in 1998 and she has not worked since 2014. Her qualifications and skills are outdated. She also has health issues that must be considered in determining her ability to achieve self-sufficiency. [ 122 ] JS is younger, healthy, and working in a stable job making more money and benefits than JD is making now or is capable of making in the future without significant retraining.

JS purchased a house following the sale of the matrimonial home while JD lives in a condo. [ 123 ] JD’s budget is $6,139.43 per month. Both M and R live with JD. R is at school and M is on AISH. There is no evidence as to how much each contribute to expenses. [ 124 ] JD received $100,000.00 from the sale of the house and will receive a further payment of about $85,000.00 from the funds held in trust in addition to the division of the pensions and RRSP funds.

No evidence was given as to how much this would be. [ 125 ] JS did not provide a budget. [ 126 ] Under s 15.2 of the Divorce Act I must consider the condition, means, needs and other circumstances of each spouse. Considering the length of cohabitation, the ages, health, education, and earning potential of both spouses, I conclude that JS’s proposal for spousal support is not appropriate.

His proposal does not relieve JD’s economic hardship and promote self-sufficiency. [ 127 ] On the other hand, it is recognized that self-sufficiency may not always be possible. [ 128 ] The parties were married for almost 13 years. This is neither a short term nor long term relationship. The SAGG suggests a term of 6.5 to 13 years. I conclude that 10 years is reasonable and that considering all factors the mid-range of the SSAG should be used as the amount of ongoing spousal support payable. Accordingly, spousal support from January 1, 2023 to June 2024 will be paid at $1,870.00 per month.

Spousal support from July 2024 to March 2030 will be paid at $1,050.00 per month. VII. JS’s Financial Obligation to R and M [ 129 ] JD agreed to abandon her claim for retroactive and ongoing child support for R and M providing JS maintains R and M on his benefits plan for as long as the Plans allow. Her concern is that if there is no order declaring JS in loco parentis, the plans may not permit R and M from remaining on his plans. I share JD’s concern. [ 130 ] The evidence is clear that JS stood in loco parentis to R and M. JS acknowledged in his evidence that he considered himself a father to R and M.

Accordingly, to ensure that he can keep them on his benefits plan, I find that JS stood in loco parentis to R and M during the marriage. JS has no financial obligation, either retroactive or ongoing, to support M and R, other than retaining them on his benefit plans for so long as he is able to under the terms of his plans. VIII. Conclusions [ 131 ] For the foregoing reasons, judgment is to issue as follows: A. The parties shall share parenting in accordance with the

schedule set out in the May 16, 2022 Order except that every second subsequent week. LS will transition to JS’s house on Sunday at 4 p.m., as opposed to Saturday at 4:00 p.m. B. JS has sole decision making on all issues after consulting with JD. C. Income is imputed to JD of $25,000.00 per year from January 1, 2023 – June 2024 and $50,000.00 per year from July 2024 on. D. JS guideline income is set at $117,432.97 from January 1, 2023 on.

E. JS stands in loco parentis to R and M. He is obligated to keep R and M on any benefit plans he has for as long as the plans permit. He is not obligated to provide further financial assistance to R and M. F. JS shall pay child support for LS to JD, on the first of each month, of $826.00 per month from January 2023 to June 2024 and $627.00 per month from July 2024 until LS ceases to be a child of the marriage. G. The funds held in trust from the sale of the matrimonial home, approximately $191,000.00 shall be distributed as follows: 1. JS shall be paid the sum of $19,625.00 2.

JD shall be paid the sum of $10,812.72 3. The balance shall be distributed to the parties equally H. The parties’ pensions and RRSPs will be evenly divided with the joint accrual period being from the date of marriage to December 31, 2021. I. The RESP will remain under JD’s name. Both parties shall have joint administration rights whereby either party can contribute to the RESP but neither party can withdraw funds for any child without the consent of the other party. J. The parties shall each retain their vehicles and all other personal possessions. K.

JS shall pay spousal support to JD on the first of each month of $1,870.00 from January 2023 to June 2024 and $1,050.00 from July 2024 to March 2030. L. The parties have met the requirements for a divorce. A divorce Judgment is granted. [ 132 ] If the parties are not able to agree on costs, they may each provide written submissions of no more than 10 pages within 30 days of this decision. Heard on the 9 th day of January 2023 to the 20 th day of January 2023 Dated at the City of Edmonton, Alberta this 15th day of March 2023. Susan L. Bercov J.C.K.B.A.

Appearances: Jim Scott Scott Law for the Plaintiff JD Self-Represented Litigant For the Defendant