Miller v. Miller, (2002) 310 A.R. 21 (QB)

• Judge: Bielby, J.
• Court: Court of Queen''s Bench of Alberta (Canada)
• Case Date: Friday March 01, 2002
• Citations: (2002), 310 A.R. 21 (QB);2002 ABQB 225

Miller v. Miller (2002), 310 A.R. 21 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. MR.011

Dennis Gordon Miller (plaintiff) v. Kelay Margaret Miller (defendant)

(Action No. 4803 114297; 2002 ABQB 225)

Indexed As: Miller v. Miller

Alberta Court of Queen's Bench

Judicial District of Edmonton

Bielby, J.

March 1, 2002.

Summary:

The parties married in 1988, separated in 1999, and divorced in 2000. The division of marital property and spousal support remained in issue.

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

Estoppel - Topic 1168

Estoppel in pais (by conduct) - Representation - By conduct - Failure to raise issue - In 1990, a wife sold a home that she owned before marriage - The net proceeds ($208,160) were placed in a joint bank account and $165,000 was applied to reduce the mortgage on a newly constructed matrimonial home - The balance was spent and not traceable - In May 1991, the husband granted the wife a promissory note and mortgage for $104,080 - The wife sought to enforce the agreement in the context of a matrimonial property division - The husband argued that he only intended the documents to protect the funds from his creditors, not for application to a matrimonial property claim - The Alberta Court of Queen's Bench held that the husband was estopped from raising any lack of intention on his part to create legal obligations of the scope that the wife intended because he did not make that limitation clear to her - See paragraphs 66 and 100 to 108.

Family Law - Topic 641

Husband and wife - Marital property - Transfer between spouses - Presumption of gift or advancement - In 1990, a wife sold a home that she owned before marriage - The net proceeds ($208,160) were placed in a joint bank account and $165,000 was applied to reduce the mortgage on a newly constructed matrimonial home - The balance was spent and could not be traced - In May 1991, the husband granted the wife a promissory note and mortgage for $104,080 - The mortgage was registered on title - The Alberta Court of Queen's Bench held that the documents rebutted the presumption of advancement that would otherwise attach to the $165,000 - See paragraphs 59 to 66.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - [See second Family Law - Topic 880.1 ].

Family Law - Topic 880.1

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - General, including pre-marriage acquisitions - The Alberta Court of Queen's Bench held that an initial and brief deposit of exempt funds into a joint bank account did not rob them of their exempt quality - The joint bank account could be viewed as a mere conduit for the application of the funds - See paragraphs 56 and 70.

Family Law - Topic 880.1

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - General, including pre-marriage acquisitions - In 1990, a wife sold a home that she owned before marriage - The net proceeds ($208,160) were placed in a joint bank account and $165,000 was applied to reduce the mortgage on a newly constructed matrimonial home - The balance was spent and was not traceable - In May 1991, the husband granted the wife a promissory note and mortgage for $104,080, half of the proceeds from the wife's pre-marriage home, with interest at 11% annually - The mortgage was registered on title - No payments were demanded or made prior to separation in 1999 - Under s. 8(g) of the Matrimonial Property Act, a court could consider the terms of any written or oral agreement between the parties when dividing matrimonial property - The husband argued that the debt was statute barred - The Alberta Court of Queen's Bench held that an otherwise legally unenforceable claim was an interest in property sufficient to trace an exemption under s. 8(g) - The wife was entitled to an exemption of $165,000 - See paragraphs 57 to 71 - Further, she was entitled to an unequal distribution in the amount of $21,580 (the difference between the face value of the mortgage and promissory note and half of the exemption), but not interest, under s. 8(g) - See paragraphs 100 to 110.

Family Law - Topic 880.2

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Increments - [See first Family Law - Topic 880.18 ].

Family Law - Topic 880.18

Husband and wife - Marital property - Distribution orders - Tracing - The parties divorced - Upon marriage, the husband owned shares in a company, valued at $476,000 - He claimed a marital property exemption of $476,000, and an unequal sharing of their increase in value during the marriage - The wife argued that any exemption was lost when the husband surrendered all his shares in 1993, followed by a three year period in which he owned no shares in the company - The Alberta Court of Queen's Bench disagreed - The husband owned a beneficial type of interest in the company's shares at all times during the marriage when he did not hold a legal interest in them - The shares did not lose their exempt quality simply because the nature of the exemption changed from a legal interest into a beneficial type of interest - However, there was no reason to divide any increase in value unequally - See paragraphs 23 to 45.

Family Law - Topic 880.18

Husband and wife - Marital property - Distribution orders - Tracing - The Alberta Court of Queen's Bench stated that "Tracing under the MPA [Matrimonial Property Act] is a less severe exercise than under the law of trusts. Previous decisions state that it is sufficient if exempt assets are found to be the source of property existing at the date of separation. Tracing can be inferred, implied or presumed in following matrimonial property exemptions. A clear, unbroken documentary history is not a mandatory prerequisite to claiming an exemption." - See paragraph 34.

Family Law - Topic 880.54

Husband and wife - Marital property - Distribution orders - Particular property - Employment bonus - A couple separated in 1999 and divorced in 2000 - The husband owned part of a company which was sold in 1999 - The sale was contingent on the husband continuing to work for the company - The Alberta Court of Queen's Bench rejected the wife's claim to an employment bonus that the husband would receive in April 2004 - The bonus was not a deferred partial payment for the company's shares - It was performance related and when the husband received his bonus it would be income and therefore not divisible under the Matrimonial Property Act - If the court had found otherwise, it would have equally divided the portion accrued between separation and judgment - See paragraphs 72 to 99.

Family Law - Topic 882

Husband and wife - Marital property - Considerations in making distribution orders - Relevant considerations - The Alberta Court of Queen's Bench held that the fact that a wife had an affair and left her husband to be with the other person was not a reason to deprive her of her otherwise appropriate share of the matrimonial property - See paragraph 42.

Family Law - Topic 882

Husband and wife - Marital property - Considerations in making distribution orders - Relevant considerations - Under s. 8(g) of the Matrimonial Property Act (MPA) a court could consider the terms of any written or oral agreement between the parties when dividing matrimonial property - The Alberta Court of Queen's Bench stated that "An agreement between parties which may otherwise be statute-barred by the time the parties separate may nonetheless be considered by a Court when construing a matrimonial property claim under s. 8 of the MPA. ... Because the MPA is designed to operate on dissolution of marriage, often at a time well beyond that specified in limitation legislation for the collection of debt, it cannot have been the intention of the Legislature to exclude from its operation agreements which create rights which, in another context, would be statute-barred." - See paragraphs 67 and 68.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation - A couple purchased a membership in a golf & country club for $17,500 - The couple separated - A membership now cost $23,500 - The couple could transfer the membership between themselves at nominal cost, but would receive only $500 if the share was surrendered - It could not be sold to a third party - The share was purchased for the wife to use to entertain clients - She golfed and the husband did not - The parties agreed that the wife should be given an option to purchase the share for either the $17,500 or $23,500 figure, within a set period of time - The Alberta Court of Queen's Bench set the value at $23,500 - See paragraphs 19 to 20.

Family Law - Topic 956

Husband and wife - Marital property - Distribution orders - Practice - Limitation of actions - [See second Family Law - Topic 882 ].

Family Law - Topic 4021

Divorce - Corollary relief - Maintenance awards - Considerations - General - A couple separated after ten years of marriage, then divorced - The wife sought spousal support - The Alberta Court of Queen's Bench denied the wife's claim - She did not require spousal support to maintain an adequate standard of living or a standard of living equivalent to the one she enjoyed prior to separation - The duration of the cohabitation did not alone create a presumption of need or sacrifice - The functions performed by the wife during marriage, including the bearing of and caring for the parties' two children did not deprive her of her ability to support herself - There was no order, agreement or arrangement respecting her support bearing on the decision - See paragraphs 128 to 141.

Family Law - Topic 4031

Divorce - Corollary relief - Maintenance awards - Effect of contribution, conduct or relationships of claimant's spouse - A couple separated - The wife began cohabiting with another man, with whom she was now engaged to be married - The Alberta Court of Queen's Bench held that the wife's fiancé's contributions to their household were relevant to the extent that they contributed to shared expenses, thereby reducing her expenses - See paragraph 137.

Limitation of Actions - Topic 2050

Actions in contract - Actions for debt - General - [See second Family Law - Topic 882 ].

Cases Noticed:

Hughes v. Hughes (1998), 232 A.R. 224; 195 W.A.C. 224 (C.A.), refd to. [para, 34].

Harrower v. Harrower (1989), 97 A.R. 141; 68 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 30].

Jackson v. Jackson (1989), 97 A.R. 153; 68 Alta. L.R.(2d) 118 (C.A.), refd to. [para. 30].

Roenisch v. Roenisch (1991), 115 A.R. 255 (C.A.), refd to. [para. 34].

Purich v. Purich (1998), 226 A.R. 351 (Q.B.), refd to. [para. 36].

Katay v. Katay (1995), 168 A.R. 31 (Q.B.), refd to. [para. 38].

Mazurenko v. Mazurenko (1981), 30 A.R. 34; 23 R.F.L.(2d) 113 (C.A.), refd to. [para. 38].

Dwelle v. Dwelle (1982), 46 A.R. 1 (C.A.), dist. [para. 43].

Pederson v. Pederson, [1987] A.J. No. 845 (Q.B.), dist. [para. 43].

Wolff v. Wolff (1985), 37 Sask.R. 19 (C.A.), dist. [para. 67].

Wagner v. Wagner, [1987] S.J. No. 346, dist. [para. 67].

Schroeder v. Schroeder (2000), 151 Man.R.(2d) 176 (Q.B. Master), dist. [para. 67].

Burke v. Burke (1987), 47 Man.R.(2d) 216 (Q.B. Fam. Div.), dist. [para. 67].

Russell v. Russell (1999), 180 Sask.R. 196; 205 W.A.C. 196 (C.A.), dist, [para. 67].

Rosen v. Rosen, [1994] A.J. No. 753 (C.A.), refd to. [para. 70].

Daniels v. Canadian Tire Corp. (1991), 39 C.C.E.L. 107 (Gen. Div.), refd to. [para. 87].

Gardiner v. Gardiner (1996), 191 A.R. 139 (Q.B.), refd to. [para. 88].

MacDonald v. MacDonald (1997), 209 A.R. 178; 160 W.A.C. 178 (C.A.), refd to. [para. 91].

Bracewell v. Bracewell (1994), 152 A.R. 379; 1994 Carswell Alta. 279 (Q.B.), refd to. [para. 111].

L.G. v. G.B., [1995] 3 S.C.R. 370; 186 N.R. 201; 15 R.F.L.(4th) 201, refd to. [para. 137].

Hubbard v. Hubbard (1997), 161 N.S.R.(2d) 64; 477 A.P.R. 64; 1997 CarswellNS 202 (Fam. Ct.), refd to. [para. 137].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 43 R.F.L.(3d) 345, refd to. [para. 139].

Statutes Noticed:

Matriomial Property Act, R.S.A. 2000, c. M-8, sect. 8(g) [para. 106].

Counsel:

Louise M. Ares, Q.C., for the plaintiff;

Renee R. Cochard, for the defendant.

This action was heard on December 17-21, 2001, and February 11 and 12, 2002, by Bielby, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on March 1, 2002.