D.R.S. v. D.L.S., (2013) 568 A.R. 153 (QB)

• Judge: Acton, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 19, 2013
• Citations: (2013), 568 A.R. 153 (QB);2013 ABQB 474

D.R.S. v. D.L.S. (2013), 568 A.R. 153 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AU.081

D.R.S. (plaintiff) v. D.L.S. (defendant)

(4803 134833; 2013 ABQB 474)

Indexed As: D.R.S. v. D.L.S.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Acton, J.

August 19, 2013.

Summary:

The parties, currently in their early 50's, were married in 1988, separated in 2004 and divorced in 2011. Their three sons (now 23, 21 and 17) lived with the mother. In 2001, the husband, then a financial planner and investment advisor, had been diagnosed as having a bipolar disorder. Since 2004, he received disability income. Interim orders were granted. The trial was heard to determine the outstanding financial matters.

The Alberta Court of Queen's Bench determined that: (a) the total matrimonial property amounted to approximately $1,060,344; (b) an unequal division in the wife's favour was appropriate, given the husband's dissipation of the family financial business; (c) the husband underpaid child support in the amount of $29,156, and $56,333 in s. 7 special expenses, to be paid in a lump sum from his share of the matrimonial property; and (d) the wife was entitled to $2,000 per month in ongoing spousal support, until the age of 65.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - The parties divorced in 2011 - The wife submitted that the husband's actions and lack of action cost the family over $300,000 by virtue of his failure to manage the transfer of the family business in a fiscally responsible manner - She asked the court to consider an unequal distribution of the matrimonial property under s. 8 of Alberta's Matrimonial Property Act (MPA) to take the dissipation of assets into account - The majority of assets owned by the parties were ones that fell under s. 7(4) of the MPA (property acquired during the marriage) - The Alberta Court of Queen's Bench found that it would be just and equitable that the matrimonial property, amounting to approximately $1,060,344, be divided unequally in favour of the wife - See paragraphs 29 to 141.

Family Law - Topic 880.22

Husband and wife - Marital property - Distribution orders - Compensation for dissipation of assets - [See Family Law - Topic 890.5 ].

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. - The parties were married in 1988, separated in 2004 and divorced in 2011 - The parties had purchased a disability policy in 1989 to secure the family income in the event the husband became disabled - Since 2004, the husband received disability income through the disability policy - The insurer also paid a future earnings protector rider of $1,000 per month held in a non-registered investment plan - As at February 28, 2013, there was $113,821.47 in that investment - The Alberta Court of Queen's Bench found that the future earnings protection investment accumulated during the marriage was matrimonial property and was divisible between the parties - Employment income earned and saved in a bank account during the course of a marriage was regarded as divisible matrimonial property - Given that the parties were divorced on June 17, 2011, and as the interest amount earned on the account over the years was not provided, the court found that the amount which was matrimonial property was $93,800 - See paragraph 56.

Family Law - Topic 880.50

Husband and wife - Marital property - Distribution orders - Particular property - Disability benefits - The parties were married in 1988, separated in 2004 and divorced in 2011 - Since 2004, the husband received disability income through a disability policy purchased in 1989 to secure the family income in the event the husband became disabled - The premiums were paid out of the parties' joint account - The husband received full disability benefits of $8,800 per month - An issue at trial was whether the proceeds should be characterized as property and, if so, whether they fell under s. 7(2)(e) of Alberta's Matrimonial Property Act as "compensation for a loss to both spouses" - The wife argued that the disability policy was matrimonial property - The husband maintained that the benefits were income replacement - The Alberta Court of Queen's Bench, having reviewed the case law, held that the ongoing disability benefits were a form of income replacement rather than matrimonial property - The benefits were taken into account in calculating child and spousal support - See paragraphs 31 to 55.

Family Law - Topic 890.5

Husband and wife - Marital property - Considerations in making distribution orders - Dissipation or disposal of assets - The parties were married in 1988, separated in 2004 and divorced in 2011 - They had a two-thirds interest in a financial business (SFI); the husband's brother had a one-third interest - In 2001, the husband was diagnosed as having a bipolar disorder - In 2005, he refused to accept offers for the sale of SFI - When he finally sold the SFI shares in 2009, he did so without his wife's knowledge - He ignored tax advice, with the result that a significant tax liability was incurred - The Alberta Court of Queen's Bench held that the husband's actions in 2009 amounted to dissipation, even though they might have been the result of his bipolar condition - "If not dissipation, it is a circumstance that is relevant and which justifies an unequal division of property" - By 2009, the husband's medical advisors were recommending he take medication, but he ignored their advice - There was no evidence that he was mentally incompetent leading up to the final sale - If the sale had been structured to minimize the tax consequences, $55,000 -$74,000 would have been saved - As a result, the husband dissipated $150,000 - In the alternative, his actions justified an unequal division of matrimonial property with the wife to receive an additional amount of $75,000 - See paragraphs 96 to 106.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - The parties separated in 2004 and divorced in 2011 - Their three children lived with the mother - The 2007 interim order of child support was based on inaccurate income information provided by the father - The mother had difficulty over the years in determining the father's income - She had to obtain court orders that the father disclose certain financial information - Eventually, she had to obtain an order allowing her to contact the father's financial institutions directly - Up until mid 2011, neither the court nor the mother were aware that the father's income was substantially more than what he acknowledged - The mother's counsel prepared a recalculation of child support based on the father's actual income since separation to the date of trial - The Alberta Court of Queen's Bench accepted the recalculation and found that the father underpaid child support in the amount of $29,156 - As a result, the children did not enjoy a lifestyle commensurate with their father's income - Given the father's failure to abide by previous support orders and his choice to make the mother garnishee in order to collect child and spousal support, the amount of $29,156 was payable as a lump sum, to be deducted from the father's share of the matrimonial property - See paragraphs 157 to 160.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - The parties separated in 2004 and divorced in 2011 - Their three children lived with the mother - Interim orders divided responsibility for s. 7 special expenses based on erroneous assumptions about the parties' incomes - At trial, the mother's counsel presented a recalculation of the parties' proportionate responsibilities - The father complained that some of the claimed s. 7 expenses reflected an elitist lifestyle - The Alberta Court of Queen's Bench held that the special expenses since separation, while significant, had been reasonable, given the children's best interests, the parties' incomes and their spending patterns prior to separation - The court accepted the recalculation, and found that up to the date of trial the father owed $56,333 in s. 7 arrears - Those arrears were to be paid in a lump sum, from the father's share of the matrimonial property - See paragraphs 162 to 168.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance and awards - Awards - Support guidelines (incl. non-divorce cases) - [See Family Law - Topic 4022 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - Awards - To wife - Considerations - The parties divorced in 2011 - They had been married for 23 years - Two of their three children were still entitled to child support - An interim order required the husband to pay $2,500 per month in spousal support - At trial, the husband submitted that it had been nine years since the parties separated and that he should not have to support the wife any longer - In 2012, the wife's income was $43,571, while the husband had an income of $130,570 - The Alberta Court of Queen's Bench directed that the husband pay monthly spousal support until the wife reached the age of 65 - The wife was entitled to ongoing spousal support on both a compensatory and non-compensatory basis - The husband would have substantial assets even after he made the matrimonial property equalization payment and paid the arrears of child and spousal support - His child support obligations would continue for only about four more years - The wife suffered economic disadvantage as a result of the marriage and its breakdown - She and the husband had agreed that she should be a stay-at-home parent - She gave up a fulfilling career path - She retrained to become a LPN, but did not have a full-time position - This was a long-term marriage where there was a presumptive claim to equal standards of living - The Spousal Support Advisory Guidelines suggested a range of $1,457 to $2,337 per month - See paragraphs 170 to 193.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 4022 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. non-divorce cases) - Special or extraordinary expenses - [See second Family Law - Topic 4011 ].

Family Law - Topic 4077.1

Divorce - Corollary relief - Interim maintenance - Adjustment of interim award at trial - [See both Family Law - Topic 4011 ].

Cases Noticed:

Hodgson v. Hodgson (2005), 361 A.R. 190; 339 W.A.C. 190; 2005 ABCA 13, refd to. [para. 27].

Pallister v. Pallister (1990), 29 R.F.L.(3d) 395 (Ont. Gen. Div.), consd. [para. 40].

Mead v. Mead (1990), 2 O.R.(3d) 49 (Gen. Div.), refd to. [para. 41].

Hughes v. Hughes (1998), 232 A.R. 224; 195 W.A.C. 224; 1998 ABCA 409, refd to. [para. 42].

Nuttall v. Rea (2005), 374 A.R. 1; 2005 ABQB 151, refd to. [paras. 42, 48].

Webb v. Webb (1985), 70 B.C.L.R. 15 (S.C.), consd. [para. 43].

Rohl v. Rohl (1993), 140 A.R. 229 (Q.B.), consd. [para. 44].

Inverarity v. Inverarity (1993), 146 A.R. 389 (Q.B.), consd. [para. 45].

Inverarity v. Inverarity (1996), 182 A.R. 1 (Q.B.), refd to. [para. 46].

Murray v. Murray (1994), 157 A.R. 224; 77 W.A.C. 224; 119 D.L.R.(4th) 46 (C.A.), consd. [para. 46].

Léger v. Léger (1993), 132 N.B.R.(2d) 238; 337 A.P.R. 238; 45 R.F.L.(3d) 142 (Fam. Div.), consd. [para. 47].

Hotton v. Hotton, [2006] A.R. Uned. 892; 2006 ABQB 10, consd. [para. 49].

Hamilton v. Hamilton, [2005] O.T.C. 626 (S.C.), consd. [para. 49].

Lowe v. Lowe (2006), 206 O.A.C. 293; 78 O.R.(3d) 760 (C.A.), consd. [para. 52].

Locke v. Locke, [2006] A.R. Uned. 358; 2006 ABQB 417, consd. [para. 53].

Grant v. Grant, [2010] A.R. Uned. 621; 89 R.F.L.(6th) 366; 2010 ABQB 553, consd. [para. 54].

Hauck v. Hauck (1991), 120 A.R. 120; 8 W.A.C. 120 (C.A.), appld. [paras. 98, 102].

Cox v. Cox (1998), 233 A.R. 258; 1998 ABQB 987, consd. [para. 100].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 154].

Durocher v. Klementovich (2013), 544 A.R. 151; 567 W.A.C. 151; 2013 ABCA 115, appld. [para. 156].

MacMinn v. MacMinn (1995), 174 A.R. 261; 102 W.A.C. 261 (C.A.), refd to. [para. 159].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 186].

Taylor v. Taylor (2009), 464 A.R. 245; 467 W.A.C. 245; 2009 ABCA 354, refd to. [para. 191].

Chutter v. Chutter et al. (2008), 263 B.C.A.C. 109; 443 W.A.C. 109; 60 R.F.L.(6th) 263; 2008 BCCA 507, leave to appeal denied [2009] 1 S.C.R. vi; 398 N.R. 390, refd to. [para. 192].

Rockall v. Rockall (2010), 490 A.R. 135; 497 W.A.C. 135; 2010 ABCA 278, refd to. [para. 194].

Lauderdale v. Lauderdale (1997), 200 A.R. 198; 146 W.A.C. 198 (C.A.), refd to. [para. 194].

Statutes Noticed:

Matrimonial Property Act, R.S.A. 2000, c. M-8, sect. 7, sect. 8 [para. 26].

Counsel:

Louise M. Ares, Q.C. (Ares Law), for the plaintiff;

D.S., defendant, on his own behalf.

This matter was heard on May 21-24 and 30-31, 2013, before Acton, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton. The Court delivered the following judgment and reasons for judgment, dated August 19, 2013.