Jean v. Jean, (2006) 410 A.R. 260 (QB)

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 22, 2006
• Citations: (2006), 410 A.R. 260 (QB);2006 ABQB 938

Jean v. Jean (2006), 410 A.R. 260 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JA.021

Peggy Lynn Jean (applicant/plaintiff) v. Andre Joseph Ernest Jean (respondent)

(Mr. Jean)

(4803 128214; 2006 ABQB 938)

Indexed As: Jean v. Jean

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

December 22, 2006.

Summary:

The parties began cohabiting in 1982, married in 1986 and separated in 2003. At issue on the wife's petition for divorce was the determination of the husband's income for child and spousal support purposes, arrears of child and spousal support, the amount and duration of future spousal support and the division of matrimonial property.

The Alberta Court of Queen's Bench granted a divorce and determined the issues accordingly.

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - [See Family Law - Topic 4045.11 ].

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - [See Family Law - Topic 4022.1 ].

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Leaving labour market for family responsibilities - [See Family Law - Topic 4022.1 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Extent of obligation - The parties began cohabiting in 1982, married in 1986 and separated in 2003 - Throughout the marriage, the wife was a homemaker with occasional periods of part-time employment - The husband was a consultant in the oil and gas industry - The wife petitioned for divorce - The husband conceded that she was entitled to spousal support - At issue was the amount and duration - The wife was 42 years old and on financial assistance - The husband was 43 and had not worked since June 2005 when his driver's licence was suspended due to maintenance enforcement proceedings - The Alberta Court of Queen's Bench held that the wife was entitled to spousal support of $2,000 per month for an indefinite duration - The court found that the husband was capable of earning at least $5,000 per month and imputed that income to him - The wife sacrificed her own career prospects entirely in caring for the family and was left to establish herself in middle age with only a high school education and no substantive work experience - While the husband was obliged to assist her to become self-sufficient, she was obliged to make a serious effort to do so - However, there was no certainty as to when that might occur and it was unlikely that she would ever recoup her lost advantage - See paragraphs 58 to 135.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) Calculation or attribution of income - At issue on a wife's petition for divorce was the determination of the husband's income for purposes of child support and arrears - At separation in April 2003, the husband was a consultant, contracting his services through a numbered company - In February 2005, he lost his contract - From March to June 2005, he earned a gross salary of $5,250 per month - He had not worked since June 2005 - The husband agreed that he was responsible for support until spring 2006 and that the amount should be based on his guidelines income for the period prior to June 2005 - The parties disagreed on the calculation - The husband sought to annualize his wages taken from the numbered company plus the March to June 2005 income, resulting in a deemed income of $120,000 - The wife, asserting that the numbered company's expenses were excessive, advocated annualizing all of the revenue received by the numbered company, omitting the March to June 2005 income on the basis that the husband was underemployed, resulting in a figure of $279,592 - The Alberta Court of Queen's Bench held that the proper approach was to annualize the total of the wages drawn from the numbered company together with the March to June 2005 income and add back 25% of expenses claimed by the numbered company - This resulted in an income of $214,966 - See paragraphs 34 to 47.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Children over the age of majority - At issue on a wife's petition for divorce was the husband's obligation to support the parties' two daughters while they were attending college and to support the son for a period when he was living with his mother but not yet working full-time - All three children were over the age of majority - The Alberta Court of Queen's Bench held that the husband was responsible for child support for the two daughters while they were attending college - Both were enrolled in full-time studies to better their career prospects and equip themselves to be self-supporting - These were reasonable and appropriate plans and both became economically dependent in order to pursue their educations - The wife provided both with a home and money while they attempted to secure their future - She should not have had to do so alone - The husband was also responsible for child support for the son from January 2006, when the son resumed living with his mother, to August 15, 2006, when he commenced full-time employment - The child was allowed a reasonable transition period between completing his education and commencing full-time employment - See paragraphs 48 to 57.

Cases Noticed:

Hunt v. Smolis-Hunt (2001), 286 A.R. 248; 253 W.A.C. 248; 2001 ABCA 229, refd to. [para. 33].

Whitton v. Whitton (1989), 34 O.A.C. 31; 21 R.F.L.(3d) 261 (C.A.), refd to. [para. 48].

Wahl v. Wahl (2000), 257 A.R. 212; 2000 ABQB 10, refd to. [para. 48].

P.T. v. R.B. et al. (2004), 361 A.R. 163; 339 W.A.C. 163; 2004 ABCA 244, refd to. [para. 49].

Olson v. Olson (2003), 320 A.R. 379; 288 W.A.C. 379; 2003 ABCA 56, refd to. [para. 49].

Farden v. Farden (1993), 48 R.F.L.(3d) 60 (B.C.S.C. Master), appld. [para. 49].

MacLennan v. MacLennan (2003), 212 N.S.R.(2d) 116; 665 A.P.R. 116; 2003 NSCA 9, refd to. [para. 51].

Renouf v. Bertol-Renouf (2004), 368 A.R. 106; 2004 ABQB 885, refd to. [para. 51].

Gamache v. Gamache (1999), 241 A.R. 388; 1999 ABQB 313, refd to. [para. 52].

Clattenburg v. Clattenburg, [2002] N.S.J. No. 357 (S.C. Fam. Div.), refd to. [para. 52].

Bates v. Bates (1995), 165 A.R. 71; 89 W.A.C. 71 (C.A.), refd to. [para. 53].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 75].

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. 78].

Ross v. Ross (1995), 168 N.B.R.(2d) 147; 430 A.P.R. 147; 16 R.F.L.(4th) 1 (C.A.), refd to. [para. 82].

Patrick v. Patrick (1994), 92 B.C.L.R.(2d) 50 (S.C.), refd to. [para. 91].

Van Gool v. Van Gool (1998), 113 B.C.A.C. 200; 184 W.A.C. 200; 166 D.L.R.(4th) 528 (C.A.), refd to. [para. 103].

Potter v. Graham, [2004] A.R. Uned. 526; 2004 ABQB 532, refd to. [para. 104].

Ellis v. Ellis, [2005] A.R. Uned. 791; 2005 ABQB 697, refd to. [para. 105].

Mollot v. Mollot, [2006] A.R. Uned. 395; 2006 ABQB 249, refd to. [para. 105].

Myers v. Hawco (2005), 252 Nfld. & P.E.I.R. 121; 756 A.P.R. 121; 262 D.L.R.(4th) 719 (N.L.C.A.), refd to. [para. 106].

Bullock v. Bullock, [2004] O.T.C. 227; 48 R.F.L.(5th) 253 (Sup. Ct.), refd to. [para. 107].

Goryjowski v. Goryjowska, [2005] O.T.C. Uned. 132; 2005 CarswellOnt 564 (Sup. Ct.), refd to. [para. 107].

Rilli v. Rilli, 2006 CarswellOnt 6335 (Sup. Ct.), refd to. [para. 107].

Corbeil v. Corbeil (2001), 286 A.R. 330; 253 W.A.C. 330; 2001 ABCA 220, refd to. [para. 110].

Bennett v. Bennett (2005), 57 Alta. L.R.(4th) 380; 2005 ABQB 984, refd to. [para. 112].

Counsel:

Norman W. Picard, for the applicant;

Kathy M. Briere, for the respondent.

This application was heard on November 20-28, 2006, by Greckol, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 22, 2006.