Lobo v. Lobo, (1999) 240 A.R. 257 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 17, 1999
• Citations: (1999), 240 A.R. 257 (QB);1999 ABQB 107;240 AR 257;45 RFL (4th) 366;[1999] CarswellAlta 114;[1999] AJ No 113 (QL)

Lobo v. Lobo (1999), 240 A.R. 257 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. MR.004

Denzil Joseph Da Vitoria Lobo also referred to as Denzil Joseph Lobo (plaintiff) v. Freeda Collette Lobo (defendant)

(Action No. 4803 108467)

Indexed As: Lobo v. Lobo

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

February 17, 1999.

Summary:

A husband and wife separated. The hus­band petitioned for divorce. The wife sought child support for the children of the marriage and an unequal division of matrimonial property.

The Alberta Court of Queen's Bench imputed the husband's income and ordered that the husband pay retroactive lump sum child support and the matter be reviewed at a predetermined period. The court ordered an unequal division of marital property in favour of the wife.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - [See Family Law - Topic 883 ].

Family Law - Topic 882

Husband and wife - Marital property - Considerations in making distribution orders - Relevant considerations - [See Family Law - Topic 883 ].

Family Law - Topic 883

Husband and wife - Marital property - Considerations in making distribution orders - Contributions of parties (incl. unequal contributions) - A husband peti­tioned for divorce - The wife sought, inter alia, an unequal division of matrimonial property, claiming that: the husband never worked to his full potential; he did not seek alternative employment despite his low income; and he used her income to sustain his lifestyle - The Alberta Court of Queen's Bench ordered an unequal division of the marital property in the wife's favour - The wife made the major contribution to the family's welfare and their wealth - The wife worked to her full potential through­out the marriage, but the husband did not -The husband incurred a heavy debt because of investments - See paragraphs 46 to 96.

Family Law - Topic 890.5

Husband and wife - Marital property - Considerations in making distribution orders - Dissipation or disposal of assets - A husband petitioned for divorce - The wife sought, inter alia, an unequal division of matrimonial property - The Alberta Court of Queen's Bench ordered an unequal division of the marital property in the wife's favour - The parties purchased rental property at the husband's behest and the ensuing losses constituted a form of dissipation given that the husband stub­bornly retained these investments although they continued to suffer financial losses - This conduct had a detrimental effect on the parties' financial position - See para­graphs 81 to 88.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - After the parties separated, the wife applied for child support - The husband, a self-employed architect, petitioned for divorce - The wife sought, inter alia, retroactive child support - The husband argued that he should not have to pay retroactive child support given that: he has voluntarily paid child support; he paid all debts and real property taxes related to the marital home; the wife resided in the marital home after the sepa­ration; and the wife did not proceed expe­di­tiously with her claim for retroactive child support - The Alberta Court of Queen's Bench ordered the husband to pay retroac­tive child support - The wife's actions made it clear that she intended to pursue child support - The children benefitted from retroactive child support - See para­graphs 1 to 36.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - A husband, a self- employed architect, petitioned for divorce -The wife sought, inter alia, lump sum child support based on imputed income to the husband - The Alberta Court of Queen's Bench awarded lump sum child support based on the husband's imputed income - Considerations for a lump sum child sup­port award included: the hus­band's poor money management; his refusal to seek alternative employment; his demonstrated willingness to risk his fami­ly's security for the remote possibility of gain; his unwill­ingness to sell the real estate investments in the face of foreclos­ure action com­menced against the matri­monial home; the wife's prudent money management; the parties animosity; and the period of child support was limited (one year and five months to forecast child support payments) - See paragraphs 41 to 45.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines - Special or extraor­dinary expenses - A husband, a self-employed architect, petitioned for divorce -The wife sought, inter alia, child support - The wife argued that the extraordinary expenses should be calculated based on income imputed to the husband because of his unwillingness to seek more lucrative employment - The Alberta Court of Queen's Bench imputed income to the husband and determined the husband's proportionate share of the extraordinary expenses based on the husband's imputed income and the wife's income - See para­graphs 37 to 40.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation of income - A husband, a self-employed architect, petitioned for divorce - The wife sought, inter alia, child support - The wife argued that income should be imputed to the husband because of his unwillingness to seek more lucrative employment given his income was markedly lower than the aver­age income for an architect with his train­ing - The husband argued that his creative genius would be stifled if he was not self- employed - The Alberta Court of Queen's Bench imputed income to the husband - The husband did not make a reasonable effort to become employed in a manner that was reasonably commensurate with such relevant factors as his age, state of health, education, skills and work history - See paragraphs 1 to 32.

Cases Noticed:

Cox v. Cox (1998), 233 A.R. 258 (Q.B.), refd to. [para. 1].

Yaremchuk v. Yaremchuk (1998), 218 A.R. 153 (Q.B.), refd to. [para. 1].

Mazurenko v. Mazurenko (1981), 30 A.R. 34; 23 R.F.L.(2d) 113 (C.A.), refd to. [para. 1].

Eddy v. Eddy (1982), 29 R.F.L.(2d) 252 (Alta. Q.B.), refd to. [para. 1].

Hunt v. Smolis-Hunt (1998), 224 A.R. 68; 39 R.F.L.(4th) 143 (Q.B.), refd to. [para. 1].

Zahr v. Zahr (1994), 161 A.R. 42; 24 Alta. L.R.(3d) 274 (Q.B.), refd to. [para. 1].

Bhatthal v. Bhatthal (1990), 107 A.R. 70; 74 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 1].

Harrower v. Harrower (1989), 97 A.R. 141; 68 Alta. L.R.(2d) 97 (C.A.), appld. [para. 1].

Buksa v. Buksa, [1998] A.R. Uned. 423 (Q.B.), refd to. [para. 2].

Layden v. Layden, [1996] A.J. No. 489 (Q.B.), refd to. [para. 2].

Cordwell v. Cordwell, [1996] A.J. No. 1127 (Q.B.), refd to. [para. 2].

Bracewell v. Bracewell (1994), 152 A.R. 379; 4 R.F.L.(4th) 183 (Q.B.), refd to. [para. 2].

McAllister v. McAllister (1997), 201 A.R. 287 (Q.B.), refd to. [para. 2].

Werlin v. Werlin, [1997] A.R. Uned. 314 (Q.B.), refd to. [para. 2].

Macbeth v. Macbeth (1998), 214 A.R. 104 (Q.B.), consd. [para. 2].

MacMinn v. MacMinn (1995), 174 A.R. 261; 102 W.A.C. 261; 17 R.F.L.(4th) 88 (C.A.), refd to. [para. 2].

Clark v. Kubek (1998), 214 A.R. 43 (Q.B.), refd to. [para. 2].

Colangelo v. Colangelo, [1997] A.R. Uned. 107 (Q.B.), refd to. [para. 2].

Darlington v. Darlington (1997), 99 B.C.A.C. 134; 162 W.A.C. 134; 32 R.F.L.(4th) 406 (C.A.), refd to. [para. 2].

Graham v. Graham, [1998] B.C.J. No. 185 (S.C.), refd to. [para. 2].

Tougher v. Tougher, [1998] A.R. Uned. 181 (Q.B.), refd to. [para. 2].

Collins v. Collins (1998), 221 A.R. 111 (Q.B.) , refd to. [para. 2].

Bakken v. Bakken (1992), 132 A.R. 356 (Q.B.), refd to. [para. 2].

Bare v. Bare, [1995] A.J. No. 271 (C.A.), refd to. [para. 2].

Allen v. Allen, [1996] A.J. No. 794 (C.A.), refd to. [para. 2].

Quintal v. Quintal (1997), 38 O.T.C. 68 (Gen. Div.), refd to. [para. 3].

LeBourdais v. LeBourdais (1998), 36 R.F.L.(4th) 387 (B.C.S.C.), refd to. [para. 3].

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. 3].

Fonseca v. Fonseca, [1998] B.C.T.C. Uned. H77 (S.C.), consd. [para. 3].

Hewett-Carlson v. Minister of National Revenue (1988), 89 D.T.C. 4 (Tax C.C.), refd to. [para. 3].

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

Brokopp v. Brokopp (1996), 181 A.R. 91; 116 W.A.C. 91 (C.A.), appld. [apra. 3].

Sutton v. Sutton (1997), 207 A.R. 321 (Q.B.), refd to. [para. 3].

Counsel:

Sara Peacock (Peacock & Company), for the plaintiff;

Renee Cochard (McBean Becker), for the defendant.

This matter was heard on December 14 to 17, 1998, by Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on February 17, 1999.