Fraser-Tabak v. Tabak, 2016 ABCA 79

• Judge: Berger, Veldhuis and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 09, 2016
• Citations: 2016 ABCA 79;(2016), 612 A.R. 354

Fraser-Tabak v. Tabak (2016), 612 A.R. 354; 662 W.A.C. 354 (CA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. MR.115

Janice Marie Fraser-Tabak (appellant)

(cross-respondent/plaintiff) v. Wilhelmus Maria Tabak (respondent)

(cross-appellant/defendant)

(1501-0112-AC)

Janice Marie Fraser-Tabak (appellant/plaintiff) v. Wilhelmus Maria Tabak (respondent/defendant)

(1501-0273-AC; 2016 ABCA 79)

Indexed As: Fraser-Tabak v. Tabak

Alberta Court of Appeal

Berger, Veldhuis and Wakeling, JJ.A.

March 22, 2016.

Summary:

A couple divorced. Issues of spousal support and the division of matrimonial property were determined at trial. The wife appealed and the husband cross-appealed. The wife alleged that: (1) the trial judge was biased; (2) the amount of spousal support awarded was inadequate because the judge erred in taking into account what she received from Community Living Alternative Services to care for a dependant adult when assessing her income for purposes of spousal support; and (3) the trial judge erred in setting off an amount covering expenditures she incurred to pay for the matrimonial home, mortgage, home insurance premiums and home maintenance after the couple separated against any occupational rent attributed to her account. The husband maintained that the wife was not entitled to any spousal support, and even if she was, the trial judge should not have ordered retroactive spousal support, given that the wife did not seek interim spousal support in the seven year period following the cessation of cohabitation. He also contested the legitimacy of the quantum. He claimed that the trial judge overestimated his income and underestimated the income the wife could earn. The wife also appealed the trial judge's determination that the parties bear their own trial costs.

The Alberta Court of Appeal dismissed the wife's appeals and the husband's cross-appeal. The trial judge was not biased against the wife. Nothing the presiding judge said or did during the trial or in her reasons for trial or costs judgments would cause an objective observer to hold any reservation about the ability of the trial judge to hear and decide the matters in dispute impartially. The trial judge made no reversible errors. The decision that the husband had an obligation to support the wife was not only reasonable but correct. All the other contested decisions were reasonable. There was no basis for interfering with the trial judge's discretionary ruling on costs.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - The Alberta Court of Appeal stated that "... a party who alleges that a judge is biased must establish on a balance of probabilities that the judge is biased or that a reasonable, right-minded and properly informed person adopting a realistic and practical perspective would conclude that the adjudicator was not impartial" - See paragraph 39.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - A couple divorced - Issues of spousal support and the division of matrimonial property were determined at trial - The wife appealed, alleging that the trial judge was biased - The Alberta Court of Appeal dismissed the appeal - The court reviewed the trial judge's comments and found that the judge was not biased against the wife - Her claim was unmeritorious - Nothing the presiding judge said or did during the trial or in her reasons for trial or costs judgments would cause an objective observer to hold any reservation about the ability of the trial judge to hear and decide the matters in dispute impartially - See paragraph 36.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See both Courts - Topic 686 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Family Law - Topic 4011 ].

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - A couple with three children divorced after a 20 year traditional marriage - The trial judge awarded spousal support, including a lump sum for the three previous years - The husband appealed, arguing that the trial judge should not have ordered retroactive spousal support, given that the wife did not seek interim spousal support in the seven year period following the cessation of cohabitation - The Alberta Court of Appeal dismissed the appeal - The trial judge could not be faulted for ordering a lump sum payment that was for a period of time that predated the spousal support order - See paragraphs 88 to 99.

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance awards - Considerations - Financial consequences of child care and household responsibilities - [See Family Law - Topic 4021.2 ].

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance awards - Considerations - Leaving labour market for family responsibilities - A couple with three children divorced after a 20 year traditional marriage - The trial judge awarded spousal support - The husband appealed - The Alberta Court of Appeal dismissed the appeal - The trial judge's decision was "patently reasonable and most certainly not clearly wrong" - The compensatory principle was engaged - Early in their marriage, the wife used her inheritance to pay for the husband's education, which helped him advance his career - In the meantime, she looked after the home and the children and did not enter the workforce, which allowed the husband to pursue his career and limited her ability to work outside the home - The court stated that this was a typical result if one spouse assumed a disproportionate share of home front responsibilities - It was now the husband's responsibility to use his income-earning power to assist his former spouse whose income-earning capacity diminished over time because she never worked outside the home - See paragraphs 68 to 70.

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance awards - Effect of income or potential income of claimant - [See Family Law - Topic 4045.5 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A couple with three children divorced after a 20 year traditional marriage - The trial judge awarded spousal support - The wife appealed, arguing that the amount of spousal support awarded was inadequate because the judge erred in taking into account what she received from Community Living Alternative Services to care for a dependant adult when assessing her income for purposes of spousal support - The Alberta Court of Appeal dismissed the appeal - The trial judge did not err - See paragraphs 71 to 87.

Counsel:

Janice Marie Fraser-Tabak, the appellant, in person;

E. Lenz, Q.C., for the respondent.

This appeal was heard on February 9, 2016, in Calgary, Alberta, before Berger, Veldhuis and Wakeling, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed by the court on March 22, 2016.