Beaudry v. Beaudry, 2010 ABQB 119

• Judge: Nielsen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 16, 2010
• Citations: 2010 ABQB 119;(2010), 489 A.R. 294 (QB)

Beaudry v. Beaudry (2010), 489 A.R. 294 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. FE.125

Barry Kent Beaudry (plaintiff/defendant by counterclaim) v. Sharon Arlene Beaudry (defendant/plaintiff by counterclaim)

(4803 138303; 2010 ABQB 119)

Indexed As: Beaudry v. Beaudry

Alberta Court of Queen's Bench

Judicial District of Edmonton

Nielsen, J.

February 16, 2010.

Summary:

Spouses commenced cohabitation in July 1996, married in July 1997 and separated in January 2006. Both parties commenced proceedings against each other to address the following issues: the request for a divorce judgment; the quantum of the parties' child support obligations with respect to the husband's son, B.B.; the appropriate division of matrimonial property; and the parties' reciprocal claims for spousal support.

The Alberta Court of Queen's Bench granted a divorce judgment and determined the corollary issues.

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - Spouses commenced cohabitation in July 1996, married in July 1997 and separated in January 2006 - Both parties commenced proceedings against each other to address, inter alia, the appropriate division of the matrimonial property - With respect to the matrimonial home, the husband claimed that the wife was responsible to pay occupation rent as she had resided in the matrimonial home since the date of separation - The Alberta Court of Queen's Bench dismissed the husband's claim for occupation rent - The wife had made no claim for the husband to meet any of the matrimonial home expenses beyond November 2006 - The wife had since maintained the matrimonial home and had serviced the interest payments on the line of credit - The husband's share in the value of the home as a result of it being maintained by the wife had been preserved and he had avoided the risk of any realization proceedings on the line of credit due to the fact that the wife had kept the interest payments current - It was not appropriate to require the wife to pay any occupation rent for the time that she had remained in the matrimonial home - See paragraphs 70 to 72.

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - Spouses commenced cohabitation in July 1996, married in July 1997 and separated in January 2006 - Both parties commenced proceedings against each other to address, inter alia, the appropriate division of the matrimonial property - The wife asserted that two liabilities, i.e., the credit card and bank debts of each of the parties and a debt owed by the wife to the Canada Revenue Agency (CRA) should be considered matrimonial liabilities - The Alberta Court of Queen's Bench rejected the assertion - The wife's total debts were approximately $43,000 - Most of her credit card debt was accumulated for her business venture as a self-employed real estate agent - With respect to her debt to the CRA, the evidence demonstrated that the debt was in relation to the wife's tax obligations arising since the date of separation - The husband's debt was approximately $8,700 - This debt had been accumulated since the date of separation - It was just and equitable to attribute such liabilities to the person who incurred same - See paragraphs 61 to 64.

Family Law - Topic 880.3

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Gift, trust, bequest or award - Spouses commenced cohabitation in July 1996, married in July 1997 and separated in January 2006 - Both parties commenced proceedings against each other to address, inter alia, the appropriate division of the matrimonial property - With respect to the matrimonial home, the husband claimed an exemption on the funds contributed by him to purchase the property - As sole beneficiary of his mother's estate, the husband inherited approximately $310,000 which was used to purchase the matrimonial home and to make renovations before the family moved in - He now sought an exemption in the sum of $155,000 in relation to the inherited funds - The Alberta Court of Queen's Bench granted the requested exemption - Under s. 7(2)(b) of the Matrimonial Property Act property acquired by a spouse by inheritance was exempt - In this case, the money which the husband inherited was placed into joint ownership with the wife in the matrimonial home - An exempt asset was reduced to one-half its value if it was placed in joint ownership with the other spouse - Given that the funds inherited were directly traceable to the purchase of the matrimonial home, and given that the property remained in the joint names of the parties, the husband was entitled to an exemption in the sum of $155,000 (one half of the inheritance) - See paragraphs 73 and 74.

Family Law - Topic 880.4

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Post-separation - Spouses commenced cohabitation in July 1996, married in July 1997 and separated in January 2006 - In March 2006, the husband purchased property on which he built a house - The funds were taken from a joint account the husband held with his son, S.B. - Ultimately, the property with the completed house was sold to a third party and net sale proceeds of $97,115 were realized - The funds were deposited in the joint account with his son - The wife submitted that notwithstanding the parties were separated at the time of commitment for the property and realization of the net sale proceeds, the property was acquired during the marriage and therefore should be distributed on an equal basis pursuant to s. 7(4) of the Matrimonial Property Act - The Alberta Court of Queen's Bench held that the fact that the property was acquired when the parties were living separate and apart was a specific consideration identified in s. 8 of the Act - Given this consideration and the circumstances surrounding the acquisition of the property, it would not be just and equitable to distribute any portion of the net sale proceeds from the sale of the property to the wife - See paragraphs 55 to 60.

Family Law - Topic 880.22

Husband and wife - Marital property - Distribution orders - Compensation for dissipation of assets - Spouses commenced cohabitation in July 1996, married in July 1997 and separated in January 2006 - Both parties commenced proceedings against each other to address, inter alia, the appropriate division of the matrimonial property - The husband was the owner of RRSPs at the date of trial - The wife claimed that the RRSPs were matrimonial property and sought a declaration distributing the funds equally to the parties - The husband had purchased RRSPs early on in his working career - The husband worked in sales for Quality Colour Press Inc. earning a base salary and commissions - The husband used his previously acquired RRSP funds to acquire shares in Quality - At the time of the marriage, the husband held 98,878 shares - The husband sold his shares in 2002 and received approximately $880,000 - As the shares were held by the husband in his self-directed RRSP, the husband was required to place the sale proceeds in his self-directed RRSP - The husband pursued investment endeavours that did not prove profitable and at the date of trial, the husband held $312,304 in his self-directed RRSPs - The wife asserted that the husband dissipated the RRSP funds to the extent of $330,000 being the funds the husband invested in a development project in the Bahamas - The Alberta Court of Queen's Bench rejected the assertion - The husband enjoyed considerable success in business as a salesman and had taken a risk when investing all of his RRSP funds in purchasing shares which ultimately paid handsomely - He sought investment vehicles for those proceeds, one of which was the Bahamian investment - The Bahamian investment was not out of character for him - This was nothing but an unfortunate investment decision - There was no evidence that the failure of the investment could have been anticipated by the husband - There was no evidence of bad faith, any attempt to deceive, or reckless or spiteful conduct - Obviously, the failure of the Bahamian investment would have been to the husband's detriment as well as to the detriment of any interest which the wife had in the investment - Although in retrospect the investment was a bad decision, it was not foolish - The husband did not dissipate the RRSP funds which he held in his name - See paragraphs 84 to 88.

Family Law - Topic 880.32

Husband and wife - Marital property - Distribution orders - Particular property - Registered Retirement Savings Plans, R.E.S.P.'s, Income Funds, unregistered investments, etc. - Spouses commenced cohabitation in July 1996, married in July 1997 and separated in January 2006 - Both parties commenced proceedings against each other to address, inter alia, the appropriate division of the matrimonial property - The husband was the owner of RRSPs at the date of trial - The wife claimed that the RRSPs were matrimonial property and sought a declaration distributing the funds equally to the parties - The husband had purchased RRSPs early on in his working career - The husband worked in sales for Quality Colour Press Inc. earning a base salary and commissions - The husband used his previously acquired RRSP funds to acquire shares in Quality - At the time of the marriage, the husband held 98,878 shares - The husband sold his shares in 2002 and received approximately $880,000 - As the shares were held by the husband in his self-directed RRSP, the husband was required to place the sale proceeds in his self-directed RRSP - The husband pursued investment endeavours that did not prove profitable and at the date of trial, the husband held $312,304 in his self-directed RRSPs - The husband claimed an exemption in the RRSP funds - The Alberta Court of Queen's Bench noted that s. 7 of the Matrimonial Property Act provided for an exemption to the extent of the market value of property held at the time of marriage and for the distribution of any increase in value as at the time of trial of such original property or replacement property - The problem in this case was that there was no evidence upon which the court could determine a value as at the time of marriage - Therefore it had no alternative but to consider the whole of the net value of the RRSPs as matrimonial property for distribution pursuant to s. 7 (3) of the Act - The court found that it made sense to treat the shares similarly to a pension - Both the husband and the wife made contributions to the ultimate value of the shares, which contributions were considerations pursuant to s. 8 of the Act - The husband made the initial contribution of funds to acquire the shares - The wife worked in the home and cared for the husband's children for approximately six years prior to the Quality shares being sold thereby enabling the husband to devote time and effort to the company during that period - The court exercised its discretion pursuant to ss. 7 and 8 of the Act and directed that the value of the shares net of tax in the sum of $234,000 be divided 35 percent to the wife and 65 percent to the husband - See paragraphs 75 to 83 and 89 to 105.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - Spouses commenced cohabitation in July 1996, married in July 1997 and separated in January 2006 - The husband's son, B.B., remained a child of the marriage and would be until June 2010 - There were three periods of separation prior to January 2006, each lasting for several months - These periods of separation commenced in April 2001, August 2001 and January 2003 - During the first period of separation commencing in April 2001, B.B. resided with the husband - During the periods of separation commencing in August 2001 and January 2003, B.B. resided with the wife - From January 2006 to August 2007, B.B. resided with the wife - Thereafter, B.B.  resided with the husband - The wife sought child support from the husband for the period of January 1, 2006 to August 31, 2007 and the husband sought child support from the wife for the period of August 1, 2007 to June 30, 2010 - The Alberta Court of Queen's Bench determined the spouses' respective incomes - Based on the incomes, the husband's child support obligations totalled $11,878 and the wife's child support obligations totalled $19,301 - There would be a set-off of the amounts owed by the parties to each other - Accordingly, the wife owed the husband $7,423 - See paragraphs 40 to 44.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Family Law - Topic 4022 and Family Law - Topic 4022.2 ].

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Awards - Lump sum - [See first Family Law - Topic 4001.1 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - Awards - To wife - Considerations - Spouses commenced cohabitation in July 1996, married in July 1997 and separated in January 2006 - The wife left a job to move in with the husband in 1996 - For the first few years of the marriage, she ran the household and cared for the children while the husband worked - She completed a management course in 2001 and a real estate agent course in 2002 - Since 2003, the wife carried on business as a self-employed real estate agent - The wife sought retroactive spousal support for two years commencing January 2006, asserting that she had been disadvantaged by the marriage and its breakdown - The Alberta Court of Queen's Bench held that the wife was not entitled to spousal support - While it was true that she was disadvantaged in the early years of the marriage in that she was at that time looking after both her children and the husband's children and was a full time homemaker, she was able to overcome that disadvantage in the later years that the parties were together - She took certain education courses and she had been relatively successful in establishing a real estate agent business - She was a capable person, and had good future prospects - The wife was 55 years old and there was no evidence to suggest that she would be unable to work for several more years - See paragraphs 114, 115 and 120.

Family Law - Topic 4022.2

Divorce - Corollary relief - Maintenance awards - Awards - To husband - Considerations - Spouses commenced cohabitation in July 1996, married in July 1997 and separated in January 2006 - During the marriage, the husband worked in sales for Quality Colour Press Inc. earning a base salary and commissions - Until 2006, he earned a significant employment income - However, due to economic conditions and health conditions, the husband's income was reduced significantly between 2006 and 2009 - The husband was not gainfully employed from the Spring of 2008 until September 2009 at which that time he obtained the position which he held at trial - He estimated that he would likely earn less than $24,000 of employment income in 2009 - The husband sought retroactive spousal support for three years, commencing January 2006, asserting that since the date of separation, his income had been significantly lower than the wife's - The Alberta Court of Queen's Bench held that the husband was not entitled to spousal support - He had, since the date of separation, had sufficient means to support himself - Over the three years sought by the husband, he did earn income - While the husband had suffered certain health conditions which had impacted on his ability to support himself, he remained economically self-sufficient - He testified that he was working and subject to his health conditions, should be able to earn a living for the next few years until he retired fully - See paragraphs 116 to 119.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - Spouses commenced cohabitation in July 1996, married in July 1997 and separated in January 2006 - The husband's son, B.B., remained a child of the marriage and would be until June 2010 - There were three periods of separation prior to January 2006, each lasting for several months - These periods of separation commenced in April 2001, August 2001 and January 2003 - During the first period of separation commencing in April 2001, B.B. resided with the husband - During the periods of separation commencing in August 2001 and January 2003, B.B. resided with the wife - From January 2006 to August 2007, B.B. resided with the wife - Thereafter, B.B.  resided with the husband - The husband sought child support from the wife for the period of August 2007 to June 2010 - The wife was self-employed as a real estate agent - The husband asserted that the wife's total income as indicated on her tax returns for 2007 and 2008 was not reflective of her income for the purposes of the Federal Child Support Guidelines - The husband argued that the court should impute income to the wife pursuant to s. 19(1)(g) of the Guidelines, because she had unreasonably deducted expenses from her income in relation to her business - For 2007, he argued that deductions in relation to, inter alia, private health services, salary, interest and insurance should be added to the wife's total income to arrive at her income for Guideline purposes - The Alberta Court of Queen's Bench found that these deductions were reasonable in the circumstances - See paragraph 28.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - Spouses commenced cohabitation in July 1996, married in July 1997 and separated in January 2006 - The husband's son, B.B., remained a child of the marriage and would be until June 2010 - There were three periods of separation prior to January 2006, each lasting for several months - These periods of separation commenced in April 2001, August 2001 and January 2003 - During the first period of separation commencing in April 2001, B.B. resided with the husband - During the periods of separation commencing in August 2001 and January 2003, B.B. resided with the wife - From January 2006 to August 2007, B.B. resided with the wife - Thereafter, B.B. resided with the husband - The husband sought child support from the wife for the period of August 2007 to June 2010 - The wife was self-employed as a real estate agent - The husband asserted that the wife's total income as indicated on her tax returns for 2007 and 2008 was not reflective of her income for the purposes of the Federal Child Support Guidelines - The husband argued that the court should impute income to the wife pursuant to s. 19(1)(g) of the Guidelines, because she had unreasonably deducted expenses from her income in relation to her business - For 2007, he argued that deductions in relation to, inter alia, capital cost allowance were unreasonable - The Alberta Court of Queen's Bench held that, based on the evidence, the deductions for cost capital allowance in both 2007 and 2008 by the wife were accounting entries only taken to reduce her income - While such deductions were completely proper under the Income Tax Act, these amounts should be added to the wife's income for 2007 and 2008 to determine her income for the purposes of the Guidelines - See paragraphs 29 and 30.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - Spouses commenced cohabitation in July 1996, married in July 1997 and separated in January 2006 - The husband's son, B.B., remained a child of the marriage and would be until June 2010 - There were three periods of separation prior to January 2006, each lasting for several months - These periods of separation commenced in April 2001, August 2001 and January 2003 - During the first period of separation commencing in April 2001, B.B. resided with the husband - During the periods of separation commencing in August 2001 and January 2003, B.B. resided with the wife - From January 2006 to August 2007, B.B. resided with the wife - Thereafter, B.B.  resided with the husband - The wife sought child support for the period of January 1, 2006, to August 31, 2007 - The husband worked in sales for Quality Colour Press Inc. earning a base salary and commissions - The wife asserted that there should be adjustments to the husband's income as disclosed on his income tax returns for both 2006 and 2007 - For 2006, the wife argued that $333,000, being the proceeds of a partial collapse of RRSPs held by the husband, should be included in his total income - The Alberta Court of Queen's Bench held that this amount should not be taken into account to determine the husband's income in 2006 for Guideline purposes - The husband partially collapsed his RRSPs to pursue an investment opportunity in the Bahamas - The transaction was strictly for the purposes of making the Bahamian investment - The funds were essentially not available to the husband as they were expended to either satisfy tax obligations as a result of the collapse of the RRSPs or were paid in furtherance of the investment opportunity - These funds did not constitute income as contemplated in the Guidelines - See paragraphs 33 and 34.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - Spouses commenced cohabitation in July 1996, married in July 1997 and separated in January 2006 - The husband's son, B.B., remained a child of the marriage and would  be until June 2010 - There were three periods of separation prior to January 2006, each lasting for several months - These periods of separation commenced in April 2001, August 2001 and January 2003 - During the first period of separation commencing in April 2001, B.B. resided with the husband - During the periods of separation commencing in August 2001 and January 2003, B.B. resided with the wife - From January 2006 to August 2007, B.B. resided with the wife - Thereafter, B.B. resided with the husband - The wife sought child support for the period of January 1, 2006, to August 31, 2007 - The husband worked in sales for Quality Colour Press Inc. earning a base salary and commissions - The wife asserted that there should be adjustments to the husband's income as disclosed on his income tax returns for both 2006 and 2007 - For 2007, the wife argued that the net sale proceeds on the sale of a property in the sum of $97,115 should be included in the husband's total income - The Alberta Court of Queen's Bench held that this amount should be taken into account when determining the husband's income for 2007 - These funds should be considered, under s. 26.1(2) of the Divorce Act, as funds relative to the husband's ability to contribute to his financial obligation to maintain B.B. - See paragraphs 35 to 37.

Cases Noticed:

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 18].

Hunt v. Smolis-Hunt (2001), 286 A.R. 248; 253 W.A.C. 248; 2001 ABCA 229, refd to. [para. 19].

Levesque v. Levesque (1994), 155 A.R. 26; 73 W.A.C. 26; 20 Alta. L.R.(3d) 429 (C.A.), refd to. [para. 23].

Elliott v. Elliott (1997), 201 A.R. 268 (Q.B.), refd to. [para. 24].

Balaban v. Balaban (2001), 287 A.R. 369; 2001 ABQB 323, refd to. [para. 29].

Jaasma v. Jaasma (1999), 249 A.R. 357; 1999 ABQB 764, refd to. [para. 29].

Kazmierczak v. Kazmierczak (2001), 292 A.R. 233; 2001 ABQB 610, affd. [2003] A.R. Uned. 297; 17 Alta. L.R.(4th) 205; 2003 ABCA 227, refd to. [para. 70].

Busenius v. Busenius, [2006] A.R. Uned. 272; 2006 ABQB 162, refd to. [para. 70].

Harrower v. Harrower (1989), 97 A.R. 141; 68 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 74].

Klinck v. Klinck, [2008] A.R. Uned. 567; 58 R.F.L.(6th) 135; 2008 ABQB 526, affd. [2009] A.R. Uned. 469; 2010 ABCA 5, refd to. [para. 74].

Metz v. Metz (2004), 368 A.R. 35 (Q.B.), refd to. [para. 86].

McAdam v. McAdam (2009), 470 A.R. 9; 2009 ABQB 109, refd to. [para. 86].

McWilliam v. McWilliam (1989), 100 A.R. 65 (Q.B.), refd to. [para. 86].

McLeod v. McLeod, [1989] A.J. No. 1232 (Q.B.), refd to. [para. 86].

Hauck v. Hauck (1991), 120 A.R. 120; 8 W.A.C. 120 (C.A.), refd to. [para. 86].

Service v. Service, [1992] A.J. No. 1116 (Q.B.), refd to. [para. 86].

Reid v. Reid (1993), 99 D.L.R.(4th) 722 (Alta. Q.B.), refd to. [para. 86].

Cox v. Cox (1998), 233 A.R. 258; 1998 ABQB 987, refd to. [para. 87].

Purich v. Purich (1998), 226 A.R. 351; 1998 ABQB 700, dist. [para. 87].

Nuttall v. Rea (2005), 374 A.R. 1; 2005 ABQB 151, refd to. [para. 87].

M.A.B. v. R.D.B., [2007] A.R. Uned. 790; 2007 ABQB 438, refd to. [para. 87].

Lovich v. Lovich, [2006] A.R. Uned. 631; 64 Alta. L.R.(4th) 231; 2006 ABQB 736, refd to. [para. 90].

Roenisch v. Roenisch (1991), 115 A.R. 255 (C.A.), refd to. [para. 96].

Miller v. Miller (2004), 354 A.R. 321; 329 W.A.C. 321; 2004 ABCA 257, refd to. [para. 96].

McAlister v. McAlister (1982), 41 A.R. 277 (Q.B.), refd to. [para. 101].

Gardiner v. Gardiner (1996), 191 A.R. 139 (Q.B.), refd to. [para. 102].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 169 D.L.R.(4th) 577, refd to. [para. 109].

Andrews v. Andrews, [2000] A.R. Uned. 287; 8 R.F.L.(5th) 1; 2000 ABQB 384, refd to. [para. 109].

Compton v. Compton, [2004] A.R. Uned. 367; 6 R.F.L.(6th) 84; 2004 ABQB 354, refd to. [para. 109].

Bennett v. Bennett (2005), 57 Alta. L.R.(4th) 380; 2005 ABQB 984, consd. [para. 109].

Counsel:

Harold Hinz, for the plaintiff;

K. Paul Wallace, for the defendant.

This case was heard on December 14 to 17, 2009, by Nielsen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on February 16, 2010.