Hunt v. Smolis-Hunt, (1998) 224 A.R. 68 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 12, 1998
• Citations: (1998), 224 A.R. 68 (QB)

Hunt v. Smolis-Hunt (1998), 224 A.R. 68 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. MY.111

Terrance Stuart Allan Hunt (petitioner/respondent by counter-petition) v. Mary- Jean Christine Smolis-Hunt (respondent/petitioner by

counter-petition)

Mary-Jean Christine Smolis-Hunt (plaintiff) v. Terrance Stuart Allan Hunt (defendant)

(Action Nos. 4803 099920 and 9703 02353)

Indexed As: Hunt v. Smolis-Hunt

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

May 12, 1998.

Summary:

The parties married in 1981 and separated in 1994. The husband petitioned for divorce. The issues were the division of matrimonial property, child support and spousal support.

The Alberta Court of Queen's Bench de­termined the issues and ordered accordingly.

Family Law - Topic 868.4

Husband and wife - Marital property - Distribution orders - To satisfy child main­tenance order - [See Family Law - Topic 4001.1 ].

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - A wife's father gave her a rental property in 1980 valued at $60,000 prior to her marriage - In a divorce action, the parties agreed that the wife was entitled to an exemption of $60,000 - The husband sought an equal division of the increase in the value of the property - The Alberta Court of Queen's Bench held that a fair and equitable dis­tribution of the increase in the value was a 75/25 split in favour of the wife - The court considered the manner of the acqui­sition, the husband's nominal involvement in the rental property's management, the husband's dissipation of marital assets in order to establish a law practice and the wife's disportionate contribution to the care and nurturing of the family unit - See paragraphs 83 to 87.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - A wife's father gifted a duplex property jointly to the wife and husband in a holograph will -The husband as an articling student had advised the wife on how to assist her father with the will - An issue in their divorce action was the division of the increase in the value of the duplex after it was acquired - The Alberta Court of Queen's Bench ordered that the increase be split 75/25 in favour of the wife - The court considered the husband's limited involve­ment in the duplex's management, his dissipation of other marital assets in order to establish a law practice and his limited contribution to the family house­hold - It also considered the circumstances sur­rounding the testamentary disposition including the husband's conduct in placing himself in conflict by indirectly assisting in the preparation of the will - See para­graphs 88 to 95.

Family Law - Topic 880.3

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Gift or bequest - A wife's father had gifted a duplex property jointly to the wife and husband in a holograph will - The husband was an articling student at the time and had advised the wife on how to assist her father with the will - The wife argued in a divorce action that the husband should be disqualified from claiming an exemption of one-half of the original value of the prop­erty from division because he had failed to recommend that the father seek indepen­dent legal advice - The Alberta Court of Queen's Bench rejected the argument - Although the husband acted imprudently, he did not influence the father - The wife did - See paragraphs 88 to 94.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - A father petitioned for divorce - The mother argued, inter alia, that retroactive and future lump sum child support for their two children was warranted to satisfy the requirement for reasonable child support - The mother also argued that the only means to fund this payment was to transfer the marital assets available for distribution to her soley - The Alberta Court of Queen's Bench held that, by virtue of the father's lack of ap­preciation of his obligations to his children and his precarious financial situ­ation with no foreseeable improvement in the future, the only realistic means of meeting the needs of the children was a lump sum award retroactive to the date of separation and prospectively - The court found that the appropriate lump sum pay­ment was $129,376 which exceeded the husband's equity in the marital property and therefore extinguished it - See para­graphs 97 to 133.

Family Law - Topic 4011

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

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance and awards - Awards - To children and children defined - [See Family Law - Topic 4001.1 ].

Family Law - Topic 4045.1

Divorce - Corollary relief - Maintenance - Support guidelines - General (incl. inter­pretation) - [See second Family Law - Topic 4045.5 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation of income - A mother in a divorce action asked that income be imputed to the father pursuant to s. 19(1) of the Federal Child Support Guidelines - The Alberta Court of Queen's Bench held that the father by choosing to continue with his unsuccessful law practice with no reasonable prospect of future improvement, was undervaluing his earning capacity - The court imputed income of $55,000 per year, the same figure he earned in 1991 while working with Statis­tics Canada, and held that he had the capa­city to earn this amount from 1994 onward - The court agreed that $1,007/month should be attributed to the father as child support for the two children - See para­graphs 117 to 124.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation of income - The Alberta Court of Queen's Bench stated that "[i]f a payor stubbornly adheres to a career path that permits him to pay a level of support demonstrably inadequate to cover the needs of his children, when he has the ability and cap­acity to earn more, as history has demon­strated, then he falls within the definition prescribed by s. 19(1)(a) of being 'in­tentionally under-employed'... s. 19(1)(a) encompasses situ­ations where a payor recklessly disregards the needs of his children in furtherance of his own career aspirations." - See para­graph 123.

Cases Noticed:

Clark v. Kubek (1998), 214 A.R. 43 (Q.B.), refd to. [para. 3].

Mazurenko v. Mazurenko (1981), 30 A.R. 34; 15 Alta. L.R.(2d) 357; 23 R.F.L.(2d) 113; 124 D.L.R.(3d) 406 (C.A.), leave to appeal refused (1981), 32 A.R. 612; 39 N.R. 539 (S.C.C.), refd to. [para. 3].

MacMinn v. MacMinn (1995), 174 A.R. 261; 102 W.A.C. 261; 17 R.F.L.(4th) 88 (C.A.), refd to. [para. 4].

Brill v. Brill (1995), 162 A.R. 344; 83 W.A.C. 344; 10 R.F.L.(4th) 372 (C.A.), refd to. [para. 4].

Neate v. Neate (1997), 89 B.C.A.C. 263; 145 W.A.C. 263; 28 R.F.L.(4th) 116 (C.A.), refd to. [para. 4].

Markey v. Minister of National Revenue (1997), 197 A.R. 382; 47 Alta. L.R.(3d) 69; 26 R.F.L.(4th) 168; [1997] 3 W.W.R. 309; 7 R.P.R.(3d) 248 (Q.B.), affd. [1997] 9 W.W.R. 417; 53 Alta. L.R.(3d) 201; 209 A.R. 76; 160 W.A.C. 76; 31 R.F.L.(4th) 32 (C.A.), refd to. [para. 4].

Aleksiuk v. Aleksiuk (1991), 112 A.R. 298; 31 R.F.L.(3d) 330 (Q.B.), refd to. [para. 5].

Ferguson's Will, Re (1981), 40 N.S.R.(2d) 223; 73 A.P.R. 223 (Prob. Ct.), affd. (1981), 43 N.S.R.(2d) 89; 81 A.P.R. 89 (C.A.), refd to. [para. 5].

Harmes Estate, Re, [1943] 1 D.L.R. 65 (S.C.C.), refd to. [para. 5].

Macbeth v. Macbeth (1998), 214 A.R. 104 (Q.B.), refd to. [para. 5].

Graham v. Graham, [1998] B.C.T.C. Uned. 92, refd to. [para. 5].

Bar v. Bar (1990), 70 Man.R.(2d) 316; 28 R.F.L.(3d) 403 (Q.B. Fam. Div.), refd to. [para. 5].

LeBourdais v. LeBourdais, [1998] B.C.J. No. 217 (Q.L.), refd to. [para. 5].

Williams v. Williams, [1997] N.W.T.J. No. 49 (N.W.T.S.C.), refd to. [para. 5].

McCargar v. McCargar, [1997] A.R. Uned. 386 (Q.B.), refd to. [para. 5].

Scory v. Scory (1997), 161 Sask.R. 224 (Fam. Div.), refd to. [para. 5].

Petrick v. Petrick, [1997] B.C.T.C. Uned. 181 (S.C. Master), refd to. [para. 5].

Tougher v. Tougher, [1998] A.R. Uned. 181 (Q.B.), refd to. [para. 5].

Brown v. Lacombe (1997), 207 A.R. 271 (Q.B.), refd to. [para. 5].

Levesque v. Levesque (1994), 155 A.R. 26; 73 W.A.C. 26; 20 Alta. L.R.(3d) 429; 116 D.L.R.(4th) 314; [1994] 8 W.W.R. 589; 4 R.F.L.(4th) 375 (C.A.), refd to. [para. 5].

Statutes Noticed:

Alberta Evidence Act, R.S.A. 1980, c. A-21, sect. 12 [para. 91].

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 19(1)(a) [para. 117].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.), Federal Child Support Guidelines.

Marital Property Act, R.S.A. 1980, c. M-9, sect. 7, sect. 8 [para. 80]; sect. 35 [para. 138]; sect. 36(1) [para. 80].

Authors and Works Noticed:

Law Society of Alberta, Code of Profesional Conduct, rule 9 [para. 89].

Counsel:

Steven Andrew (Andrew, March & Oake), for the petitioner/respondent by counter-petition;

Leith Martin (McBean Becker), for the respondent/petitioner by counter-petition.

This matter was heard on March 25 and 26, 1998, before Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on May 12, 1998.