Cox v. Cox, (1998) 233 A.R. 258 (QB)

• Judge: Paperny, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 26, 1998
• Citations: (1998), 233 A.R. 258 (QB);1998 ABQB 987;233 AR 258;[1998] AJ No 1282 (QL)

Cox v. Cox (1998), 233 A.R. 258 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. DE.063

Arthur Brent Cox (plaintiff/defendant by counterclaim) v. Donna Mae Cox (defendant/plaintiff by counterclaim)

(Action No. 4803-105379)

Indexed As: Cox v. Cox

Alberta Court of Queen's Bench

Judicial District of Edmonton

Paperny, J.

November 26, 1998.

Summary:

A husband and wife separated in 1997 after a 23.5 year traditional marriage and five children (aged 13 to 24). The husband petitioned for a divorce. The wife sought an unequal division of marital property and spousal and child support.

The Alberta Court of Queen's Bench granted a divorce, unequally divided marital property in the wife's favour (56.2%), awarded $1,200 per month spousal support, $829 per month child support under the Federal Child Support Guidelines and ordered the husband to pay an additional $329 per month as his proportionate share of extraordinary expenses under s. 7 of the Guidelines.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - A husband and wife separated in 1997 after a 23.5 year traditional marriage - Between the date of separation and the date of trial the husband dissipated $64,200 in marital property (R.R.S.P. funds cashed in and used for gambling, travel, dining and consumer goods; interim child support and income tax liability paid with marital assets rather than available income) - The Alberta Court of Queen's Bench ordered an equal division of marital property on the condition that the husband compensate the wife for 50% of the $64,200 - In effect, the wife received 56.2% of marital assets and the husband received the balance - See paragraphs 32 to 71.

Family Law - Topic 880.7

Husband and wife - Marital property - Distribution orders - Exception acquisi­tions - Award or settlement of damages - Spouses separated in 1997 - In 1992, the wife received $8,100 in damages for a motor vehicle accident - The wife deposited the monies into the family account and purchased furniture with the proceeds - The wife claimed that the $8,100 was exempt from distribution - The Alberta Court of Queen's Bench held that the wife clearly intended to benefit the husband with a gift of 50% of the value of the award - Accordingly, only 50% of the original award was exempt from distribu­tion - See paragraphs 28 to 31.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - Spouses separated in January 1997 - The general rule was that marital assets were to be valued at the date of trial - The wife submitted that the husband's dissipation of assets between the date of separation and date of trial constituted exceptional cir­cumstances justifying valuation as of the date of separation - The Alberta Court of Queen's Bench held that dissipation of assets, which could be remedied in this case by an unequal division of marital property in the wife's favour, did not con­stitute exceptional circumstances justifying a departure from the general rule of valu­ation as of the date of trial - See para­graphs 14 to 17.

Family Law - Topic 890.5

Husband and wife - Marital property - Considerations in making distribution orders - Dissipation or disposal of assets -[See Family Law - Topic 875 ].

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance awards - Periodic payments - Spouses separated in 1997 after a 23.5 year tradi­tional marriage where the husband worked and the wife remained home raising their five children - Two children remained at home - The wife had a grade 12 education and limited work skills - The likelihood of her achieving self-sufficiency in the near future was remote - The husband earned $60,000 per year - The Alberta Court of Queen's Bench awarded the wife $1,200 per month spousal support - See para­graphs 87 to 94.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines - Special or extra­ordinary expenses - The Alberta Court of Queen's Bench discussed the factors to be considered in determining whether a claimed expense constituted an extraordi­nary expense under s. 7 of the Federal Child Support Guidelines - The court determined that a portion of a daughter's expense in travelling with her basketball team on a Florida tour was an extraordi­nary expense, as was the son's involved in a high level of hockey - See paragraphs 77 to 86.

Cases Noticed:

Bauerfind v. Bauerfind (1989), 94 A.R. 222 (Q.B.), refd to. [para. 14].

Manister v. Mollberg (1982), 46 A.R. 11 (Q.B.)1, refd to. [para. 15].

Mazurenko v. Mazurenko (1981), 30 A.R. 34 (C.A.), refd to. [para 15].

Wilson v. Wilson (1986), 2 R.F.L.(3d) 86 (Alta. C.A.), refd to. [para 16].

McAllister v. McAllister (1997), 201 A.R. 287 (Q.B.), refd to. [para. 16].

Harrower v. Harrower (1989), 97 A.R. 141 (C.A.), refd to. [para. 29].

Jackson v. Jackson (1989), 97 A.R. 153 (C.A.), refd to. [para. 29].

Brokopp v. Brokopp (1996), 181 A.R. 91; 116 W.A.C. 91 (C.A.), refd to. [para. 29].

International Association of Science and Technology for Development et al. v. Hamza (1997), 200 A.R. 342; 146 W.A.C. 342 (C.A.), refd to. [para. 33].

McWilliam v. McWilliam (1989), 100 A.R. 65 (Q.B.), refd to. [para 38].

McLeod v. McLeod, [1989] A.J. No. 1232 (Q.B.), refd to. [para. 39].

Hauck v. Hauck (1991), 120 A.R. 120; 8 W.A.C. 120 (C.A.), refd to. [para. 40].

LePage v. LePage (1992), 132 A.R. 277 (Q.B.), refd to. [para. 42].

Service v. Service, [1992] A.J. No. 1116 (Q.B.), refd to. [para. 42].

Bakken v. Bakken (1992), 132 A.R. 356 (Q.B.), refd to. [para. 43].

Reid v. Reid (1993), 99 D.L.R.(4th) 722 (Alta. Q.B.), refd to. [para. 44].

Edwards v. Edwards, [1995] A.J. No. 670 (Q.B.), refd to. [para. 45].

Raftus v. Raftus (1998), 166 N.S.R.(2d) 179; 498 A.P.R. 179; 159 D.L.R.(4th) 264 (C.A.), refd to. [para. 79].

Andries v. Andries (1998), 126 Man.R.(2d) 189; 167 W.A.C. 189; 159 D.L.R.(4th) 665 (C.A.), refd to. [para. 79].

Kofoed v. Fichter (1998), 168 Sask.R. 149; 173 W.A.C. 149; 161 D.L.R.(4th) 189 (C.A.), refd to. [para. 80].

Middleton v. McPherson (1997), 204 A.R. 37 (Q.B.), refd to. [para. 81].

Sanders v. Sanders, [1998] A.R. Uned. 168 (C.A.), refd to. [para. 81].

McLaughlin v. McLaughlin (1998), 113 B.C.A.C. 224; 184 W.A.C. 224 (C.A.), refd to. [para. 81].

Tougher v. Tougher, [1998] A.R. Uned. 181 (Q.B.), refd to. [para. 81].

Kinasewich v. Kinasewich, [1997] A.J. No. 1220 (Q.B.), refd to. [para. 81].

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. 88].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15(7) [para. 87].

Matrimonial Property Act, R.S.A. 1980, c. M-9, sect. 8(l) [para. 35].

Counsel:

Wayne R. Lovatt, for the plaintiff;

Brenda L. Stothert-Kennedy, for the de­fendant.

This case was heard before Paperny, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on November 26, 1998.