P.J.G. v. Z.I.G., (2010) 503 A.R. 197 (QB)

JudgeTilleman, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateNovember 16, 2010
Citations(2010), 503 A.R. 197 (QB);2010 ABQB 711

P.J.G. v. Z.I.G. (2010), 503 A.R. 197 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. NO.101

P.J.G. (plaintiff) v. Z.I.G. (defendant)

(4801 130413; 2010 ABQB 711)

Indexed As: P.J.G. v. Z.I.G.

Alberta Court of Queen's Bench

Judicial District of Calgary

Tilleman, J.

November 16, 2010.

Summary:

The parties married in 1999 and separated in 2006. The separation was "high conflict", with no less than 12 court orders issued. They now sought a divorce and determination of custody, access, child support, spousal support, and distribution of matrimonial property. They had two children, now 10 and 9 years old. Pursuant to previous orders, the parties were currently exercising a shared custody arrangement, and the matrimonial home had been sold and the proceeds placed in a trust account. Both parties were currently employed.

The Alberta Court of Queen's Bench granted the divorce. The court ordered joint custody and equal shared parenting. The parties' respective Child Support Guidelines table amounts were set-off. Mr. G. was required to pay spousal support of $1,000 per month until January 1, 2012. With respect to matrimonial property, Ms. G. was to receive the funds remaining in trust and Mr. G. was required to pay her $4,328.80 by February 1, 2011.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions - The parties requested distribution of matrimonial property, including the husband's pension - The Alberta Court of Queen's Bench held that equal distribution of pension rights accumulated during the marriage was appropriate in the circumstances - Since the husband still maintained his membership in the pension plan and had not yet attained pensionable age, his rights to the pension had not yet vested: ss. 31 and 32 of the Employment Pension Plans Act - The result was that the wife's entitlement was equal to one-half of the increase of the contributions and interest of the plan during the marriage - Normally, the court's approach was to order that both spouses receive payments from the source by the pension administrator - However, in the present case it was more appropriate to immediately credit the wife for the amount of the pension to which she was entitled - That approach allowed the parties to cut financial ties to each other, which was desirable given the acrimony and the availability of other assets to pay the wife's share - See paragraphs 66 and 67.

Family Law - Topic 1890

Custody and access - Considerations in awarding custody - Child's preference - [See Family Law - Topic 2082 ].

Family Law - Topic 2082

Custody and access - Shared parenting - Considerations (incl. best interests of the child) - A bilateral psychological assessment recommended joint custody and shared parenting of the parties' two children, 10 and 9 - The elder child had expressed a preference for an equal shared parenting regime - The report concluded that both parties were capable, had unique parenting skills, had a history of engagement in the children's lives, and that both sought to remain active parents - The mother disputed aspects of the report and requested joint custody with her as the primary caregiver - The Alberta Court of Queen's Bench ordered joint custody and equal shared parenting - There were no realistic concerns over the children's physical, psychological and emotional safety - The elder child's preference was a "very important consideration" - Allowing continued shared parenting provided needed stability in the children's lives and protected some of their other interests, including allowing them to continue attending their same school, where their father was employed - Maximum contact was consistent with the children's best interests - To avoid parental conflict as much as possible, the court ordered a detailed parenting schedule - See paragraphs 27 to 33.

Family Law - Topic 2144

Custody and access - Evidence - Hearsay evidence - A bilateral assessment conducted before a mental health professional recommended joint custody and shared parenting - The mother requested joint custody with her as the primary caregiver - She sought admission of a sealed letter written by R. a few months after shared parenting began - The Alberta Court of Queen's Bench did not find it necessary, given the evidence, that the court admit the letter - The letter unnecessarily brought a child into the litigation, as there was very good evidence of R.'s opinion contained in the bilateral assessment - Hearsay evidence was statutorily admissible in Alberta under s. 108(4) of the Child, Youth and Family Enhancement Act, "but as the law states, hearsay evidence is admissible if it is 'proper' to do so and no 'better' form of evidence is 'readily available'" - See paragraphs 23 to 26.

Family Law - Topic 2152

Custody and access - Evidence - Psychological assessment - [See Family Law - Topic 2082 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - Awards - To wife - Considerations - The parties had a traditional marriage where the wife was a stay-at-home mother - The husband previously consented to pay interim support at $2,000 per month commencing September 2007 - He requested that no further support be ordered - The wife argued that she was unable to earn an income similar to that of the husband's, owing to the fact that until recently she was not part of the workforce for some 21 years - Seven of those years were in respect to this marriage - The Alberta Court of Queen's Bench required the husband to pay spousal support of $1,000 per month until January 1, 2012 - That decision was influenced by the amount of spousal support that the husband had already paid, the relatively short duration of the marriage, and the time to attain self-sufficiency - See paragraphs 49 to 52.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - Awards - To spouse - Extent of obligation - [See Family Law - Topic 4022 ].

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - The Alberta Court of Queen's Bench ordered joint custody and equal shared parenting - The parties requested that the court award child support with reference to the Federal Child Support Guidelines - The court stated that, in situations of shared parenting, as defined by s. 9 of the Guidelines, a set-off approach was the starting point in a determination of child support - "The Court must then take into account the effect of the added cost of a shared custody arrangement with reference to the conditions, means, needs, and other circumstances of either spouse: s. 9(b) and (c)" - Though the court had requested a budget, neither party provided monthly expense budgets to suggest that a set-off approach would lower the standard of living of the children in either home - Accordingly, the court used the set-off approach - See paragraphs 35 and 36.

Cases Noticed:

Director of Child and Family Services (Man.) v. A.C. et al., [2009] 2 S.C.R. 181; 390 N.R. 1; 240 Man.R.(2d) 177; 456 W.A.C. 177; 2009 SCC 30, refd to. [para. 19].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 108 D.L.R.(4th) 193, refd to. [para. 20].

E.A.C. v. R.B. (2008), 446 A.R. 302; 442 W.A.C. 302; 2008 ABCA 423, refd to. [para. 21].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [para. 24].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 24].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 24].

Sparks v. Sparks (1994), 159 A.R. 187 (Q.B.), refd to. [para. 25].

Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217; 341 N.R. 1; 204 O.A.C. 311; 2005 SCC 63, refd to. [para. 35].

Corbeil v. Corbeil (2001), 286 A.R. 330; 253 W.A.C. 330; 2001 ABCA 220, refd to. [para. 43].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 99 D.L.R.(4th) 456, consd. [para. 44].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 169 D.L.R.(4th) 577, consd. [para. 44].

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201; 2003 SCC 24, consd. [para. 44].

Pelech v. Pelech, [1987] 1 S.C.R. 801; 76 N.R. 81, refd to. [para. 46].

Hodgson v. Hodgson (2005), 361 A.R. 190; 339 W.A.C. 190; 2005 ABCA 13, refd to. [para. 53].

Mazurenko v. Mazurenko (1981), 30 A.R. 34; 124 D.L.R.(3d) 406 (C.A.), refd to. [para. 53].

D.R.J. v. M.J. (2009), 464 A.R. 16; 467 W.A.C. 16; 2009 ABCA 272, refd to. [para. 54].

Nova Scotia (Attorney General) v. Walsh - see Walsh v. Bona.

Walsh v. Bona, [2002] 4 S.C.R. 325; 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273; 2002 SCC 83, refd to. [para. 62].

Harrower v. Harrower (1989), 97 A.R. 141; 68 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 64].

Herchuk v. Herchuk (1983), 48 A.R. 169; 150 D.L.R.(3d) 366 (C.A.), refd to. [para. 66].

Chaisson v. Chaisson (1994), 152 A.R. 141; 2 R.F.L.(4th) 81 (Q.B.), refd to. [para. 67].

Gardiner v. Gardiner (1996), 191 A.R. 139 (Q.B.), refd to. [para. 67].

Strachan v. Strachan (1992), 126 A.R. 317; 38 R.F.L.(3d) 131 (Q.B.), refd to. [para. 67].

Counsel:

P.J.G. was self-represented;

Z.I.G. was self-represented.

This trial was heard on October 12-14, 2010, before Tilleman, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who filed the following memorandum of decision, dated November 16, 2010.

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    • Irwin Books Canadian Family Law - Ninth edition
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    ...Steps” (2019) 38 Can Fam LQ at 5. See also Paftali v Paftali, 2020 ONSC 5325; Van Ruyven v Van Ruyven, 2021 ONSC 5963 at paras 30–43. 396 2010 ABQB 711 at paras 23–26, WA Tilleman 397 Hackett v Leung, 2010 ONSC 6412 (children given an opportunity to voice their views through the Office of t......
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    ...2020 ONSC 1674 citing Martha Shaffer, “Surreptitiously Obtained Electronic Evidence in Seven Simple Steps” (2019) 38 Can Fam LQ at 5. 336 2010 ABQB 711 at paras 23–26, WA Tilleman 337 Hackett v Leung, 2010 ONSC 6412 (children given an opportunity to voice their views through the Office of t......
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5 cases
  • IMD v RAD, 2019 ABQB 963
    • Canada
    • Alberta Court of Queen's Bench of Alberta (Canada)
    • December 16, 2019
    ...half-liability for certain payments (as determined in sub-paragraphs 1 to 6 below), ... [1] 2008 ABCA 423 [2] 2015 ABQB 551 [3] 2010 ABQB 711 [4] 2012 ABQB 520 at para 9 [5] 2004 ABQB 843 (custody assessment attached as appendix “A”) [6] 2014 ABQB 627 at para 15 [7] 2008 ABQB ......
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    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • July 21, 2020
    ...The initials in the citation and style of cause have changed from CAKS and NPAC to CAS and NPC. [1] 2017 ABQB 19 at para 18 [2] 2010 ABQB 711 (Tilleman J.) at para 29 [3] 2015 ABQB 551 (Veit J.) at para 33 [4] 2018 ABQB 1041 (Brooker J.) at para 20 [5] 2009 ABQB 556 (Veit J.) at para 37 [6]......
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    ...set out in s. 15.2, involve a balancing act, and that these objectives often pull in opposite directions. Tilleman J. in Gagné v. Gagné , 2010 ABQB 711 (at para. 44), noted that, while spousal support awards are "highly discretionary", there are three conceptual grounds for spousal support ......
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2 books & journal articles
  • Parenting Arrangements After Divorce
    • Canada
    • Irwin Books Canadian Family Law - Ninth edition
    • July 25, 2022
    ...Steps” (2019) 38 Can Fam LQ at 5. See also Paftali v Paftali, 2020 ONSC 5325; Van Ruyven v Van Ruyven, 2021 ONSC 5963 at paras 30–43. 396 2010 ABQB 711 at paras 23–26, WA Tilleman 397 Hackett v Leung, 2010 ONSC 6412 (children given an opportunity to voice their views through the Office of t......
  • Parenting Arrangements after Divorce
    • Canada
    • Irwin Books Archive Canadian Family Law. Eighth Edition
    • August 3, 2020
    ...2020 ONSC 1674 citing Martha Shaffer, “Surreptitiously Obtained Electronic Evidence in Seven Simple Steps” (2019) 38 Can Fam LQ at 5. 336 2010 ABQB 711 at paras 23–26, WA Tilleman 337 Hackett v Leung, 2010 ONSC 6412 (children given an opportunity to voice their views through the Office of t......

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