Brand v. Brand, (1996) 186 A.R. 205 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 06, 1996
• Citations: (1996), 186 A.R. 205 (QB)

Brand v. Brand (1996), 186 A.R. 205 (QB)

MLB headnote and full text

Laura Jean Brand (applicant/petitioner) v. Dale Russell Brand (respondent)

(Action No. 4803 98812)

Laura Jean Brand (plaintiff) v. Dale Russell Brand (defendant)

(Action No. 9503 06413)

Indexed As: Brand v. Brand

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

July 10, 1996.

Summary:

A wife applied for a divorce after 8.5 years of marriage which was proceeded by 8.5 years of cohabitation. The wife sought an equal division of the matrimonial home and other matrimonial assets. She also sought spousal support.

The Alberta Court of Queen's Bench granted the divorce on the ground of mental cruelty. The court ordered an equal division of matrimonial assets. The court ordered the husband to pay $4,000/month spousal sup­port.

Family Law - Topic 637

Husband and wife - Marital property - Constructive trusts - A couple began living together in 1973 and married in 1986 - The husband purchased a house using, inter alia, proceeds from pre-mar­riage acquisitions for the down payment and to reduce the mortgage - Future homes were purchased with proceeds from each preceding home - The homes were purchased in the couple's joint names - The wife provided the household ser­vices - The husband claimed that the matrimo­nial home was exempt from dis­tribution as it was purchased by proceeds from prop­erty acquired prior to the mar­riage - The Alberta Court of Queen's Bench held that the wife established a constructive trust that rebutted any pre­sumption of a result­ing trust in favour of the husband - The wife was entitled to an equal share in the matrimonial home - See paragraphs 69 to 90.

Family Law - Topic 638

Husband and wife - Marital property - Resulting trusts - Inferred or presumed intent - [See Family Law - Topic 637 ].

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - During his marriage, a husband invested in a limited partnership that provided capital funding for start-up companies - The husband claimed income tax deductions for the investment - His taxes were reassessed and he paid $44,000 by liquidating certain matrimonial property - In a divorce action the wife claimed that she should not be responsible for sharing the burden of the debt to Revenue Canada because the in­vestment was very speculative and was made without her involvement - The Alberta Court of Queen's Bench held that the Revenue Canada liability was a matri­monial debt - See paragraphs 107 to 110.

Family Law - Topic 880.1

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Pre-marriage acquisitions - [See Family Law - Topic 637 ].

Family Law - Topic 880.12

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Post-marital exchange of pre-marital exempt assets - [See Family Law - Topic 637 ].

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions - A couple began living together in 1973 and married in 1986 - The hus­band received pension benefits from his employer throughout the 17 years that they lived together - The Alberta Court of Queen's Bench held that the wife was entitled to an equal division of the pension benefits earned during the time they were married and the time they lived common law - See paragraphs 91 to 93.

Family Law - Topic 899

Husband and wife - Liability for spouse's debts - Debts incurred by spouse - [See Family Law - Topic 868.2 ].

Family Law - Topic 3650

Divorce - Grounds - Cruelty - What constitutes cruelty - A wife sought a divorce relying on mental cruelty (Divorce Act, s. 8(2)(b)(ii)) - The wife alleged that "the husband masturbated in newspapers and in his socks and left these around for her to pick up. Her husband blamed her for his behaviour and she felt an inordinate amount of guilt as a result." - He refused to stop - She began to suffer depression when he started to sleep on the couch every night - The Alberta Court of Queen's Bench granted the divorce, stating that since the marriage the husband treated the wife with mental cruelty of such a kind as to render intolerable the continued cohabitation of the parties - See paragraph 67.

Family Law - Topic 3653

Divorce - Grounds - Cruelty - Abnormal sexual acts - [See Family Law - Topic 3650 ].

Family Law - Topic 3997

Divorce - Corollary relief - Obligation to achieve financial independence - The Alberta Court of Queen's Bench agreed with the view that in long marriages the court should de-emphasize the obligation to become self-sufficient and "the earning capacity of the couple [should] be regarded as a current asset in which the economi­cally disadvantaged party, ... has the con­tingent proprietary interest in the earnings of the former partner" - The court opined that this view based on the assumption that the former spouse's income was a "type of matrimonial asset" was better than looking at support as being compensatory in nature - See paragraphs 167 to 169.

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance awards - Periodic payments - A couple began living together in 1973 and married in 1986 - The wife had quit school after grade 10 after becoming preg­nant with the husband's child (the child was placed for adoption) - The 40 year old husband was in a senior management position earning approximately $110,000/year - The wife, who was now 39 years old, had sporadic low paying employment but her primary duties were as homemaker - Her career decisions were secondary to the husband's - She suffered depression as a result of the marriage breakdown and was unable to work because of her health - She was totally dependant on the hus­band through­out their relationship - The Alberta Court of Queen's Bench awarded the wife spousal support of $4,000/month for an indefinite period but made the order reviewable after four years - See para­graphs 120 to 172.

Family Law - Topic 4021

Divorce - Corollary relief - Maintenance awards - Considerations - A couple began living together in 1973 and married in 1986 - In determining spousal support under the Divorce Act, the Alberta Court of Queen's Bench refused to differentiate between the period of common law rela­tionship and the period of marriage and treated the couple as having been married for over 17 years - The court stated that "[t]o arbitrarily divide the relationship into two distinct segments would ignore the reality of the relationship" - See para­graphs 124 and 158 to 159.

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance awards - Considerations - Leaving labour market for family responsibilities - [See Family Law - Topic 4010 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To wife - Extent of obligation - [See Family Law - Topic 3997 and Family Law - Topic 4010 ].

Cases Noticed:

Harrower v. Harrower (1989), 97 A.R. 141; 68 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 72].

Jackson v. Jackson (1989), 97 A.R. 153; 68 Alta. L.R.(2d) 118 (C.A.), refd to. [para. 72].

Dwelle v. Dwelle (1982), 46 A.R. 1; 31 R.F.L.(2d) 113 (C.A.), refd to. [para. 74].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81; 44 R.F.L.(3d) 329, refd to. [para. 75].

Sorochan v. Sorochan, [1986] 2 S.C.R. 38; 69 N.R. 81; 74 A.R. 67; [1986] 5 W.W.R. 289; 2 R.F.L.(3d) 225; 46 Alta. L.R.(2d) 97, refd to. [para. 75].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384; 19 R.F.L.(2d) 165; 117 D.L.R.(3d) 257; 8 E.T.R. 143, refd to. [para. 77].

Smith v. Varsanyi (1995), 166 A.R. 39; 26 Alta. L.R.(3d) 381 (Q.B.), refd to. [para. 80].

Rawluk v. Rawluk (1986), 3 R.F.L.(3d) 113 (Ont. H.C.), affd. (1987), 61 O.R.(2d) 637; 10 R.F.L.(3d) 113 (C.A.), affd. [1990] 1 S.C.R. 70; 103 N.R. 321; 38 O.A.C. 81, refd to. [para. 83].

Bauerfind v. Bauerfind (1989), 94 A.R. 222; 19 R.F.L.(3d) 375 (Q.B.), refd to. [para. 85].

McWilliam v. McWilliam (1990), 100 A.R. 65; 23 R.F.L.(3d) 265 (Q.B.), refd to. [para. 89].

Cassidy v. Cassidy (1996), 17 R.F.L.(4th) 403 (Ont. Gen. Div.), refd to. [para. 89].

McAlister v. McAlister (1982), 41 A.R. 277; 23 Alta. L.R.(2d) 141 (Q.B.), refd to. [para. 91].

Herchuk v. Herchuk (1983), 48 A.R. 169; 35 R.F.L.(2d) 327 (C.A.), refd to. [para. 91].

Moravcik v. Moravcik (1983), 50 A.R. 180; 37 R.F.L.(2d) 102 (C.A.), refd to. [para. 91].

Trenchie v. Trenchie (1987), 84 A.R. 188; 12 R.F.L.(3d) 357 (Q.B.), refd to. [para. 92].

Wilson v. Wilson (1986), 2 R.F.L.(3d) 86 (Alta. C.A.), refd to. [para. 96].

Taylor v. Taylor (1983), 34 R.F.L.(2d) 136 (Alta. Q.B.), refd to. [para. 97].

Zubiss v. Moulson (1987), 80 A.R. 105; 54 Alta. L.R.(2d) 167 (Q.B.), refd to. [para. 97].

Aleksiuk v. Aleksiuk (1991), 112 A.R. 298; 31 R.F.L.(3d) 330 (Q.B.), refd to. [para. 106].

Howard v. Howard (1983), 47 A.R. 76; 37 R.F.L.(2d) 33 (Q.B.), refd to. [para. 107].

Portigal v. Portigal (1987), 74 A.R. 100; 4 R.F.L.(3d) 328 (Q.B.), revd. in part (1987), 187 A.R. 17; 127 W.A.C. 17; 12 R.F.L.(3d) 45 (C.A.), refd to. [para. 108].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; [1993] 1 W.W.R. 481; 99 D.L.R.(4th) 456; 43 R.F.L.(3d) 345, refd to. [para. 112].

McKee v. McKee (1994), 153 A.R. 8 (Q.B.), refd to. [para. 126].

Row v. Row (1991), 123 A.R. 324; 35 R.F.L.(3d) 237 (Q.B.), refd to. [para. 142].

Messier v. Delage, [1983] 2 S.C.R. 401; 50 N.R. 16; 35 R.F.L.(2d) 337; 2 D.L.R.(4th) 1, refd to. [para. 145].

Harvey v. Harvey (1995), 60 B.C.A.C. 178; 99 W.A.C. 178; 14 R.F.L.(4th) 128 (C.A.), dist. [para. 149].

Kowalewski v. Kowalewski (1994), 7 R.F.L.(4th) 421 (B.C.S.C.), dist. [para. 150].

Yorston v. Yorston (1994), 144 N.B.R.(2d) 100; 368 A.P.R. 100 (Q.B.), refd to. [para. 152].

Messer v. Messer (1993), 108 Sask.R. 155; 47 R.F.L.(3d) 4 (Q.B.), refd to. [para. 153].

Chaytor v. Chaytor (1994), 133 N.S.R.(2d) 43; 380 A.P.R. 43; 6 R.F.L.(4th) 94 (S.C.), refd to. [para. 154].

Koberlein v. Barral (1994), 94 Man.R.(2d) 133; 5 R.F.L.(4th) 94 (Q.B. Fam. Div.), refd to. [para. 154].

Chadder v. Chadder (1986), 2 R.F.L.(3d) 433 (Ont. C.A.), refd to. [para. 155].

Lee v. Lee (1992), 42 R.F.L.(3d) 445 (Ont. Gen. Div.), refd to. [para. 156].

Anderson v. Anderson (1990), 66 Man.R.(2d) 248; 27 R.F.L.(3d) 358 (Q.B. Fam. Div.), refd to. [para. 157].

Heinemann v. Heinemann (1988), 86 N.S.R.(2d) 278; 218 A.P.R. 278 (T.D.), affd. (1989), 91 N.S.R.(2d) 136; 233 A.P.R. 136; 20 R.F.L.(3d) 236; 60 D.L.R.(4th) 648 (C.A.), refd to. [para. 162].

Waterman v. Waterman (1995), 133 Nfld. & P.E.I.R. 310; 413 A.P.R. 310 (Nfld. C.A.), refd to. [para. 167].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 8(2)(b)(ii) [para. 36]; sect. 15(2)(a), sect. 15(4), sect. 15(5), sect. 15(7)(a), sect. 15(7)(c), sect. 15(7)(d) [para. 120].

Family Law Act, S.O. 1986, c. 4, sect. 4(1) [para. 108].

Matrimonial Property Act, R.S.A. 1980, c. M-9, sect. 7(1), sect. 7(2), sect. 7(3), sect. 7(4), sect. 7(8) [para. 68]; sect. 8 [para. 97]; sect. 8(d), sect. 8(e) [para. 114]; sect. 36(1), sect. 36(2) [para. 68].

Authors and Works Noticed:

Abella, Rosalie S., Economic Adjustment on Marriage Breakdown: Support (1981), 4 Fam. L. Rev. 1, p. 5 [para. 163].

Canadian Red Book, generally [para. 100].

Carr, Robert, The Conduct of Family Law Proceedings, generally [para. 169].

Grassby, Miriam, Women in their Forties: The Extent of Their Rights to Alimen­tary Support (1991), 30 R.F.L.(3d) 369, p. 385 [para. 166].

Counsel:

Michele J. Reeves (Attia Reeves), for Laura Jean Brand;

Brenda L. Stothert-Kennedy (Witten Binder), for Dale Russell Brand.

This case was heard on June 6, 1996, by Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Edmon­ton, who delivered the following judgment on July 10, 1996.