S.E.L. v. J.M.R., (2000) 258 A.R. 201 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 06, 2000
• Citations: (2000), 258 A.R. 201 (QB)

S.E.L. v. J.M.R. (2000), 258 A.R. 201 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. FE.120

S.E.L. (plaintiff/defendant by counterclaim) v. J.M.R. (defendant/plaintiff by counterclaim)

(Action No. 4803 110822)

Indexed As: S.E.L. v. J.M.R.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

February 1 and April 13, 2000.

Summary:

The parties, who were doctors, separated after a lengthy marriage. There were three children of the marriage. The wife sought a divorce on the basis of marriage breakdown as a result of the husband's adultery and cruelty. The husband sought a divorce on the basis of marriage breakdown because the parties lived separate and apart for one year. At issue, inter alia, was custody, access, child support, spousal support and matri­monial property division.

The Alberta Court of Queen's Bench made an order accordingly.

Family Law - Topic 868.3

Husband and wife - Marital property - Distribution orders - Equalization payments - The parties separated - The wife sought a divorce - The wife received an unequal distribution of marital property (55/45 split in her favour) - The wife had to make an equalization payment to the husband - The husband asserted that he should not be forced to take a portion of his equalization payment in the form of a transfer of a portion of the RRSPs and that he was entitled to the entire equalization payment in cash - The Alberta Court of Queen's Bench held that the RRSPs and the after tax assets should each be treated as two separate groups of assets and each group should be equalized - The RRSPs should be equalized on a 45/55 basis in keeping with the matrimonial property distribution by a tax free spousal rollover - See para­graphs 155 to 157.

Family Law - Topic 874

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - General - The parties separated after the husband advised the wife that the woman he was seeing had a boyfriend - The husband later told the wife that he had had five to ten affairs since they were married - The wife sought a divorce, asserting, inter alia, that an un­equal division of marital property was warranted given her husband's conduct during the marriage - The Alberta Court of Queen's Bench held that it would not consider the husband's marital misconduct in determining whether an equal distribution would be just and equitable because the wife did not present evidence that she suffered any economic detriment resulting from this conduct - The court considered the fault provisions of the Domestic Relations Act to be archaic - See paragraphs 102 to 111.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - [See Family Law - Topic 874 ].

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - The parties separated after the husband advised the wife that the woman he was seeing had a boyfriend - The wife sought a divorce, asserting, inter alia, that an unequal division of marital property was warranted given that she contributed more to the marriage in financial terms and as the primary caregiver of the children of the marriage - The Alberta Court of Queen's Bench made a 55% matrimonial property distribution of the s. 7(4) (Matrimonial Property Act) property in the wife's favour - The court considered the following: the wife's role as primary care­giver; her con­tribution to the marriage through her work; her support to her hus­band, which enabled him to pursue and develop his career in sports medicine; and her very sizeable in­heritance, which she brought into the matrimonial regime - See paragraphs 112 to 123.

Family Law - Topic 880.3

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Gift, trust, bequest or award - During the parties' marriage the wife received an inheritance - The parties separated after the husband advised the wife that the woman he was seeing had a boyfriend - The wife sought a divorce, asserting, inter alia, that her inheritance was exempt from marital property because of the husband's con­structive fraud and deceit - $60,000 of the inheritance was used to pay off their former matrimonial home's mortgage, which was remortgaged to pay out a line of credit that was used to finance buying a lot - The parties sold the lot, using the proceeds to pay down the matrimonial home's mortgage and to pay off a van loan - The Alberta Court of Queen's Bench held that only $30,000 was exempt from marital property - The court discussed the distribution of the exempt property's in­creased value - See paragraphs 87 to 101.

Family Law - Topic 880.3

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Gift, trust, bequest or award - During the parties' marriage the wife received an inheritance - The parties separated after the husband advised the wife that the woman he was seeing had a boyfriend - The wife sought a divorce, asserting, inter alia, that her inheritance was exempt from marital property because of the husband's con­structive fraud and deceit - The Alberta Court of Queen's Bench held that there was no fraud regarding the parties' assets -The legislature did not intend non-economic spousal misconduct to be taken into consideration under the Matrimonial Property Act - A remedy in equity based upon the husband's marital misconduct would be anachronistic and would defeat the legislature's move away from fault as a basis for the division of matrimonial property - Unjust enrichment should only be used in matrimonial property actions in extraordinary circumstances - See para­graph 101.

Family Law - Topic 882

Husband and wife - Marital property - Considerations in making distribution orders - Relevant considerations - [See Family Law - Topic 874 and second Family Law - Topic 880.3 ].

Family Law - Topic 886

Husband and wife - Marital property - Considerations in making distribution orders - Conduct - [See Family Law - Topic 874 and second Family Law - Topic 880.3 ].

Family Law - Topic 3550

Divorce - Grounds - Adultery - General principles - The parties, who were doctors, separated after a lengthy marriage - The husband came home in a state of emotional upset and advised the wife that he had just learned that the woman with whom he had been having an affair had a boyfriend - The wife claimed that the husband was insensitive to the impact this revelation had on her, given that she was unaware of the affair to that point - The husband moved out of the marital home - The husband advised the wife that he had had five to ten affairs since they were married - The husband continued seeing the other woman - The wife sought a divorce on the basis of marriage breakdown as a result of the husband's adultery and cruelty - The Al­berta Court of Queen's Bench granted a divorce based on the marriage breakdown resulting from adultery - See paragraphs 39 to 43.

Family Law - Topic 3650

Divorce - Grounds - Cruelty - What constitutes cruelty - General - The parties, who were doctors, separated after a lengthy marriage - The husband came home in a state of emotional upset and advised the wife that he had just learned that the woman with whom he had been having an affair had a boyfriend - The wife claimed that the husband was insensitive to the impact this revelation had on her, given that she was unaware of the affair to that point - The husband moved out of the marital home - The husband advised the wife that he had had five to ten affairs since they were married - The husband continued seeing the other woman - The wife sought a divorce on the basis of marriage breakdown as a result of the husband's adultery and cruelty - The Al­berta Court of Queen's Bench refused to grant the divorce on the basis of the mar­riage breakdown due to cruelty - See para­graphs 39 to 44.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - The parties, who were doctors, separated after a lengthy marriage - There were three children of the marriage - The parties employed a nanny for a number of years prior to their separation - The wife sought a divorce - The husband and wife made $124,639.96 and $84,000 in 1999 respec­tively - The husband paid the wife $1500 monthly child support since July, 1998, being the same month the statement of claim for divorce was filed - The wife sought retroactive child support - The husband asserted that the wife never asked for more - The Alberta Court of Queen's Bench ordered a lump sum payment of retroactive child support from July, 1998 to trial to be deducted from the equalization payment that the wife must pay the husband - See paragraphs 80 to 85.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - The parties, who were doctors, separated after a lengthy marriage - There were three children of the marriage - The wife sought a divorce - The husband paid the wife $1500 monthly child support since July, 1998, being the same month the statement of claim for divorce was filed - The hus­band paid $1,481.87 for the children's hockey and sports expenses since the parties' separation - The husband asserted, inter alia, that since he was not obligated to contribute to the children's s. 7 ex­penses, this sum should be set off against his retroactive child support obligation - The Alberta Court of Queen's Bench held that the $1,481.87 be set off against the husband's child support obligations - See paragraphs 143 to 148.

Family Law - Topic 4004

Divorce - Corollary relief - Maintenance and awards - Considerations - Income tax -[See first Family Law - Topic 4011 ].

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance and awards - Lump sum - The parties, who were doctors, separated after a lengthy marriage - There were three children of the marriage - The wife sought a divorce - The husband and wife made $124,639.96 and $84,000 in 1999 respectively - The wife sought $100,000 lump sum spousal support to offset her equalization payment to the husband - The Alberta Court of Queen's Bench ordered the husband to pay $1,000 for nine months to be set off against the wife's equalization payment, holding that the lump sum award was not taxable - See paragraphs 151 to 153.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance and awards - Lump sum - [See first Family Law - Topic 4022.1 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - To wife - Considerations - [See both Family Law - Topic 4022.1 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - To spouse - Extent of ob­ligation -The parties, who were doctors, separated after a lengthy marriage - There were three children of the marriage - The wife sought a divorce - The husband and wife made $124,639.96 and $84,000 in 1999 respectively - The wife sought $100,000 lump sum spousal support to offset her equalization payment to the husband - The Alberta Court of Queen's Bench ordered the husband to pay $1,000 for nine months to be set off against the wife's equalization payment - The wife had responsibility for the children for a greater proportion of the time - It was not unreasonable for the wife to work reduced hours while the youngest child remained in kindergarten - If the wife increased her hours, it would likely take time to build up her practice - The husband's economic prospects were extremely positive and he had significant assets from the marriage, but his expenses were high - See para­graphs 128 to 137.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - To spouse - Extent of ob­ligation -The parties, who were doctors, separated after the husband told his wife that the woman that he was having an affair had a boyfriend - The husband later advised the wife that he had had five to ten affairs since they were married - The wife sought a divorce - The wife sought $100,000 lump sum spousal support to offset her equalization payment to the husband, relying on s. 22 of the Domestic Relations Act (marital misconduct the basis for a spousal support claim) - The husband asserted that this provision was ana­chronistic and should not be relied upon - The Alberta Court of Queen's Bench de­clined to award the wife spousal support due to the husband's conduct - See para­graphs 138 to 139.

Family Law - Topic 4045.3

Divorce - Corollary relief - Maintenance - Support guidelines - Child care expenses - The parties, who were doctors, separated after a lengthy marriage - There were three children of the marriage - The parties employed a nanny for a number of years prior to their separation - The wife sought a divorce - The husband and wife made $124,639.96 and $84,000 in 1999 re­spectively - The husband asserted that the nanny expense should be discounted by $300 per month because she performed work which was unrelated to child care - The Alberta Court of Queen's Bench held that the nanny expense was reasonable given the parties' incomes and allowed the entire expense of the nanny as a child care expense - See paragraphs 65 to 79.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines - Special or extra­ordinary expenses - The parties, who were doctors, separated after a lengthy marriage - There were three children of the marriage - The wife sought a divorce - The husband and wife made $124,639.96 and $84,000 in 1999 respectively - At issue, inter alia, was whether the children's hockey expenses were extraordinary expenses - The Alberta Court of Queen's Bench held that hockey was not extraordinary expenses given the combined incomes of the parties and the nature and history of the hockey expenses - The husband's voluntary payments after separation for hockey and sports' expenses were set off against the husband's child support obligations - See paragraph 64 and 143 to 148.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation or at­tribution of income - The parties, who were doctors, separated after a lengthy marriage - There were three children of the marriage - The wife sought a divorce on the grounds of marriage breakdown re­sulting from adultery and cruelty - The wife sought, inter alia, child support - The parties sold their property at a loss - The husband bought a horse in partnership with another individual - The husband's income for 2000 was speculative - The Alberta Court of Queen's Bench calculated the husband's income for the purpose of child support by averaging his income over the last three years - The court added back to the husband's income the loss on the prop­erty transaction and the horse loss for the two applicable two years, but did not add back to his income the RRSP's the hus­band withdrew to purchase his present home - See paragraphs 59 to 61.

Cases Noticed:

Rebak v. Rebak (1998), 115 B.C.A.C. 100; 189 W.A.C. 100; 43 R.F.L.(4th) 124 (C.A.), refd to. [para. 1].

Reardon v. Smith (1999), 180 N.S.R.(2d) 339; 557 A.P.R. 339 (C.A.), refd to. [para. 1].

Murray v. Murray (1991), 123 A.R. 68; 35 R.F.L.(3d) 449 (Q.B.), affd. (1994), 157 A.R. 224; 77 W.A.C. 224; 10 R.F.L.(4th) 60 (C.A.), refd to. [para. 1].

Tooth v. Knott, [1998] A.R. Uned. 714 (Q.B.), refd to. [para. 1].

Yaremchuk v. Yaremchuk (1998), 218 A.R. 153; 38 R.F.L.(4th) 312 (Q.B.), refd to. [para. 1].

Hykawy v. Hykawy, [1998] A.R. Uned. 716 (Q.B.), refd to. [para. 1].

MacMinn v. MacMinn (1995), 174 A.R. 261; 102 W.A.C. 261; 17 R.F.L.(4th) 88 (C.A.), refd to. [para. 1].

Wilde v. Wilde (1998), 221 A.R. 140 (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].

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

Krolick v. Krolik (1996), 24 R.F.L.(4th) 205 (Alta. C.A.), refd to. [para. 1].

Harrower v. Harrower (1987), 97 A.R. 150; 11 R.F.L.(3d) 35 (Q.B.), revd. (1989), 97 A.R. 141; 21 R.F.L.(3d) 369; 68 Alta. L.R.(2d) 118 (C.A.), refd to. [paras. 1, 90].

Smith v. Smith, [1976] 6 W.W.R. 510 (Alta. S.C.), refd to. [para. 1].

Brokopp v. Brokopp (1996), 181 A.R. 91; 116 W.A.C. 91; 19 R.F.L.(4th) 1 (C.A.), refd to. [paras. 1, 3].

Lobo v. Lobo (1999), 240 A.R. 257; 45 R.F.L.(4th) 366 (Q.B.), refd to. [paras. 1, 3].

Welch v. Welch (1988), 84 A.R. 307 (Q.B.), refd to. [para. 1].

Katay v. Katay (1995), 168 A.R. 31 (Q.B.), refd to. [para. 1].

Timms v. Timms (1997), 203 A.R. 81 (Q.B.), refd to. [para. 1].

Sullivan v. Fletcher (1994), 150 A.R. 1; 1 R.F.L.(4th) 134 (Q.B.), leave to appeal refused (1995), 198 N.R. 320; 184 A.R. 320 (S.C.C.), refd to. [paras. 2, 3].

T.R.F. v. P.K.S. - see Sullivan v. Fletcher.

Hrycak v. Hrycak, [1998] A.R. Uned. 35 (Q.B.), refd to. [paras. 2, 3].

Olechowski v. Revington, [1999] O.T.C. Uned. 734 (S.C.), refd to. [para. 2].

Wanstall v. Walker, [1998] B.C.T.C. Uned. A72 (S.C.), refd to. [paras. 2, 3].

Nataros v. Nataros et al., [1998] B.C.T.C. Uned. 778; 40 R.F.L.(4th) 308 (S.C. Master), refd to. [paras. 2, 70].

Smart v. Smart (1998), 231 A.R. 142 (Q.B.), refd to. [para. 2].

Loewen v. Traill, [1998] B.C.T.C. Uned. 255; 36 R.F.L.(4th) 231 (S.C.), refd to. [para. 2].

Adolph v. Adolph (1964), 51 W.W.R.(N.S.) 42 (B.C.C.A.), refd to. [para. 3].

Stevens v. Stevens (1977), 17 N.B.R.(2d) 656; 23 A.P.R. 656 (Q.B.), refd to. [para. 3].

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; [1993] 8 W.W.R. 513; 108 D.L.R.(4th) 193; 84 B.C.L.R.(2d) 1; 18 C.R.R.(2d) 41; 49 R.F.L.(3d) 117, refd to. [para. 3].

Middleton v. MacPherson (1997), 204 A.R. 37; 51 Alta. L.R.(3d) 152 (Q.B.), refd to. [para. 3].

Sanders v. Sanders, [1998] A.R. Uned. 168; 42 R.F.L.(4th) 239 (C.A.), refd to. [para. 3].

Kolada v. Kolada, [1999] A.R. Uned. 307 (Q.B.), refd to. [para. 3].

C.M.P. v. P.E.P. (1999), 257 A.R. 36 (Q.B.), refd to. [para. 3].

Diehl v. Diehl (1998), 238 A.R. 362 (Q.B.), refd to. [para. 3].

Jackson v. Jackson (1987), 80 A.R. 81; 54 Alta. L.R.(2d) 143 (Q.B.), affd. (1989), 97 A.R. 153; 68 Alta. L.R.(2d) 118 (C.A.), refd to. [para. 3].

Rosin v. Rosin (1994), 157 A.R. 184; 77 W.A.C. 184; 8 R.F.L.(4th) 319 (C.A.), refd to. [para. 3].

Wolfe v. Wolfe (1995), 167 A.R. 353 (Q.B.), refd to. [para. 3].

Mazurenko v. Mazurenko (1981), 30 A.R. 34 (C.A.), refd to. [para. 3].

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

Ivey v. Ivey (1998), 203 N.B.R.(2d) 161; 518 A.P.R. 161 (Q.B.), affd. (1999), 213 N.B.R.(2d) 45; 545 A.P.R. 45 (C.A.), refd to. [para. 3].

Kamajian v. Kamajian (1995), 172 A.R. 321 (Q.B.), refd to. [para. 3].

Lepage v. Lepage (1999), 179 Sask.R. 34 (Q.B. Fam. Div.), refd to. [para. 3].

Patrick v. Patrick (1991), 35 R.F.L.(3d) 382 (B.C.S.C.), refd to. [para. 3].

Trajan v. Trajan (1999), 127 B.C.A.C. 231; 297 W.A.C. 231 (C.A.), refd to. [para. 3].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; [1993] 1 W.W.R. 481; 99 D.L.R.(4th) 456; 43 R.F.L.(3d) 345, refd to. [para. 3].

Randall v. Randall, [1995] N.B.J. No. 210 (Q.B.), refd to. [para. 145].

Brett v. Brett (1999), 119 O.A.C. 94; 44 O.R.(3d) 61 (C.A.), refd to. [para. 146].

Francis v. Baker (1997), 30 O.T.C. 369; 150 D.L.R.(4th) 547 (Gen. Div.) affd. (1998), 107 O.A.C. 161; 157 D.L.R.(4th) 1 (C.A.), affd. (1999), 246 N.R. 45; 125 O.A.C. 201; 177 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 146].

Statutes Noticed:

Domestic Relations Act, R.S.A. 1980, c. D-37, sect. 22 [para. 138].

Income Tax Act, Interpretation Bulletins, Interpretation Bulletin IT-118R3, para. 13 [para. 152].

Authors and Works Noticed:

Alberta, Institute of Law Research and Reform, Report for Discussion No. 18.2, Family Law Project: Spousal Support (1998), pp. 87, 88 [para. 139].

McLeod, James G., and Mamo, Alfred A., Matrimonial Property Law in Canada, generally [para. 2].

Payne, Julien D., Divorce (4th Ed. 1996), generally [para. 3]; pp. 48, 49 [para. 44].

Counsel:

Michael L. Pollock (Pollock Stothert- Kennedy), for the plaintiff;

Jean McBean, Q.C., (McBean Becker), for the defendant.

This action was heard on December 13 to 15, 1999, with written submissions on March 6, 2000, before Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on February 1, 2000, and supplementary reasons on April 13, 2000.