Timms v. Timms, (1997) 203 A.R. 81 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 09, 1997
• Citations: (1997), 203 A.R. 81 (QB)

Timms v. Timms (1997), 203 A.R. 81 (QB)

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. MY.068

Keith Edward Timms (petitioner) v. Jean Timms (respondent)

(Action No. 4803-099616)

Keith Edward Timms (plaintiff) v. Jean Timms (defendant)

(Action No. 9603-22739)

Indexed As: Timms v. Timms

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

May 9, 1997.

Summary:

A 43 year old husband and 52 year old wife separated in 1994 after 13 years' mar­riage subsequent to 1.5 years' cohabitation. They had one child, now aged 15. The husband petitioned for a divorce and sought a division of marital property. Child support, custody and access were agreed to. At issue was the entitlement to, amount of and dur­ation of spousal support and division of marital property, particularly the unencum­bered matrimonial home.

The Alberta Court of Queen's Bench granted a divorce, awarded the wife $1,600 per month spousal support and equally divided marital property. The court granted the wife exclusive possession of the matri­monial home until September 1, 2000, when the child would graduate from high school. The court rejected the husband's claim for occupation rent by the wife.

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - A 43 year old husband and 52 year old wife separated in 1994 after 13 years' marriage subsequent to 1.5 years' cohabitation - The wife remained in the matrimonial home with their son - The husband lived in rented premises until he remarried and now lived in his new wife's home - The hus­band claimed occupation rent from the wife - The Alberta Court of Queen's Bench dismissed the claim - Occupation rent was discretionary and was linked inextricably to child and spousal support - Absent evidence by the husband as to the impact occupation rent would have on the maintenance order (claim not pleaded, only raised at trial), the court dismissed the claim - See paragraphs 56 to 57.

Family Law - Topic 631

Husband and wife - Marital property - Matrimonial home - Right to possession of - A 43 year old husband and 52 year old wife separated in 1994 after 13 years' marriage subsequent to 1.5 years' cohabi­tation - They had one child, now aged 15 - The wife sought exclusive possession of the unencumbered $105,000 matrimonial home until September 1, 2000, when their son would graduate from high school - The husband had remarried and lived in a home owned by his new wife - The Alberta Court of Queen's Bench awarded the wife exclusive possession - There was no other suitable and affordable housing that could adequately meet the needs of the wife and son - Further, given the husband's recent lack of interest in his son, exclusive pos­session was necessary to avoid a further emotionally damaging disruption to the son's lifestyle - Stability was needed - See paragraphs 40 to 54.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - A husband and wife separated in 1994 after 13 years' marriage - The unencum­bered matrimonial home was valued at $105,000 - The husband sought an ex­emp­tion for premarital property that could be traced to the purchase of the present matri­monial home ($34,526.65) - The claimed exemption related to premarital property first put into a joint bank account in Eng­land, then a joint account in Canada and then applied against the pur­chase price - The Alberta Court of Queen's Bench stated that the two bank accounts were merely conduits for the purchase of the matrimo­nial home - The husband lost only 1/4 of his exemption (i.e., husband lost 1/2 of 1/2 of the ex­emption by transferring ownership of the matrimonial home into both their names as joint tenants) - Accordingly, the husband was entitled to a $25,895 exemp­tion - See paragraphs 58 to 71.

Family Law - Topic 880.1

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - General (incl. premarital acquisitions) - [See Family Law - Topic 865 ].

Family Law - Topic 880.18

Husband and wife - Marital property - Distribution orders - Tracing - [See Fam­ily Law - Topic 865 ].

Family Law - Topic 880.32

Husband and wife - Marital property - Distribution orders - Registered Retire­ment Savings Plans, Income Funds, etc. - A 43 year old husband and 52 year old wife separated in 1994 after 13 years' marriage subsequent to 1.5 years' cohabi­tation - They had one child, now aged 15 - During the 13 year marriage, the spouses lived frugally and debt-free - Since sep­aration, the husband lived extravagantly - The Alberta Court of Queen's Bench ordered an equal division of the husband's $21,000 pension value and the wife's $100 pension value - See paragraphs 72 to 75.

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance awards - Periodic payments - A 52 year old wife and 43 year old husband separ­ated in 1994 after 13 years' marriage sub­sequent to 1.5 years' cohabitation - They had one child, aged 15 - It was a tradi­tional marriage - The wife gave up her career to move from England to Canada - The wife stayed at home from 1981 to 1986 and thereafter took part-time work to accommodate the needs of the husband and child - The wife's career was always sec­ondary - She accordingly lost oppor­tun­ities for advancement, increased salary and security - The wife currently worked two part-time jobs earning $3,502.03 per month (including $2,000 in child and spousal support) - The husband earned $93,091.74 in 1996 and had an ability to pay - Child support was agreed to at $1,000 per month - The wife's ability to become self-suffi­cient was hindered by her age, weak employment market and her limited em­ployable skills - The Alberta Court of Queen's Bench held that the wife had been economically disadvantaged - The court awarded $1,600 per month spousal main­tenance, with no time limit - See para­graphs 80 to 131.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To wife - Extent of obligation - [See Family Law - Topic 4010 ].

Cases Noticed:

Audley v. Audley (1993), 36 B.C.A.C. 127; 58 W.A.C. 127; 50 R.F.L.(3d) 274 (C.A.), refd to. [para. 2].

Wallberg v. Wallberg (1994), 50 B.C.A.C. 31; 82 W.A.C. 31; 8 R.F.L.(4th) 372 (C.A.), refd to. [para. 2].

Lasalle v. Lasalle (1994), 7 R.F.L.(4th) 100 (Alta. C.A.), refd to. [para. 2].

Fox v. Fox (1994), 154 N.B.R.(2d) 1; 392 A.P.R. 1; 8 R.F.L.(4th) 257 (C.A.), refd to. [para. 2].

Silk v. Silk (1995), 159 N.B.R.(2d) 268; 409 A.P.R. 268; 10 R.F.L.(4th) 407 (C.A.), refd to. [para. 2].

Row v. Row (1991), 123 A.R. 324; 35 R.F.L.(3d) 237 (Q.B.), refd to. [para. 2].

L.G. v. G.B., [1995] 3 S.C.R. 370; 186 N.R. 201; 15 R.F.L.(4th) 201, refd to. [para. 2].

McKee v. McKee (1996), 181 A.R. 98; 116 W.A.C. 98 (C.A.), varying (1994), 153 A.R. 9 (Q.B.), refd to. [para. 3].

Scott v. Scott (1996), 183 A.R. 103 (Q.B.), refd to. [para. 3].

Nowakowski v. Nowakowski (1996), 177 A.R. 370 (Q.B.), refd to. [para. 3].

Duncan v. Duncan (1992), 128 A.R. 57 (Q.B.), refd to. [para. 3].

Sicotte v. Sicotte, [1997] A.R. Uned. 050 (Q.B.), refd to. [para. 3].

St. Germaine v. St. Germaine, [1996] A.J. No. 163 (C.A.), additional reasons at [1996] A.J. No. 342 (C.A.), refd to. [para. 3].

Krolik v. Krolik, [1996] A.J. No. 875 (C.A.), refd to. [para. 3].

Sneddon v. Sneddon (1993), 139 A.R. 167; 46 R.F.L.(3d) 373 (Q.B.), refd to. [para. 4].

Morison v. Morison (1993), 139 A.R. 124; 47 R.F.L.(3d) 34 (Q.B.), refd to. [para. 4].

Greenlees v. Greenlees (1981), 23 R.F.L.(2d) 323 (B.C.C.A.), refd to. [para. 5].

McAlister v. McAlister (1982), 41 A.R. 277; 23 Alta. L.R.(2d) 141 (Q.B.), appld. [para. 32].

Verburg v. Verburg, [1995] 9 W.W.R. 522; 172 A.R. 380 (Q.B.), refd to. [para. 45].

Herchuk v. Herchuk, [1983] 2 W.W.R. 222; 44 A.R. 193; 31 R.F.L.(2d) 361 (Q.B.), refd to. [para. 50].

Portigal v. Portigal (1986), 56 Alta. L.R.(2d) 423 (C.A.), refd to. [para. 50].

Pacheco v. Pacheco (1989), 18 R.F.L.(3d) 275; 13 A.C.W.S.(3d) 31 (B.C.C.A.), refd to. [para. 50].

Sadler v. Sadler, [1985] W.D.F.L. 408; [1985] B.C.W.L.D. 497 (S.C.), refd to. [para. 50].

Boeckler v. Boeckler (1987), 9 R.F.L.(3d) 375; 15 B.C.L.R.(2d) 134 (C.A.), refd to. [para. 51].

MacDonald v. MacDonald (1993), 140 A.R. 364 (Q.B.), dist. [para. 52].

Scott v. Scott (1996), 183 A.R. 103 (Q.B.), dist. [para. 56].

Crane v. Crane (1997), 189 A.R. 81 (Q.B.), dist. [para. 56].

Dwelle v. Dwelle (1982), 46 A.R. 1; 31 R.F.L.(2d) 113 (C.A.), refd to. [para. 67].

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

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

Brokopp v. Brokopp (1996), 181 A.R. 91; 116 W.A.C. 91; 19 R.F.L.(4th) 1 (C.A.), refd to. [para. 68].

O'Brien v. O'Brien (1995), 166 A.R. 321 (Q.B.), dist. [para. 70].

Aleksiuk v. Aleksiuk (1991), 112 A.R. 298; 31 R.F.L.(3d) 330 (Q.B.), refd to. [para. 77].

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; 91 D.L.R.(4th) 456; [1993] 1 W.W.R. 481, refd to. [para. 77].

Fejes v. Fejes (1988), 51 Man.R.(2d) 132; 13 R.F.L.(3d) 267 (Q.B.), varied (1993), 83 Man.R.(2d) 273; 36 W.A.C. 273; 45 R.F.L.(3d) 13 (C.A.), refd to. [para. 95].

Baker v. Baker (1996), 182 A.R. 41; 22 R.F.L.(4th) 13 (Q.B.), refd to. [para. 107].

Brand v. Brand (1996), 186 A.R. 205 (Q.B.), refd to. [para. 109].

Chaytor v. Chaytor (1994), 133 N.S.R.(2d) 43; 380 A.P.R. 43; 6 R.F.L.(4th) 94 (S.C.), refd to. [para. 109].

Koberlein v. Barral (1994), 94 Man.R.(2d) 133; 5 R.F.L.(4th) 94 (Q.B. Fam. Div.), refd to. [para. 109].

Chadder v. Chadder (1986), 2 R.F.L.(3d) 433 (Ont. C.A.), refd to. [para. 109].

Heinemann v. Heinemann (1988), 86 N.S.R.(2d) 278; 218 A.P.R. 278 (T.D.), affd. (1989), 91 N.S.R.(2d) 136; 233 A.P.R. 136; 20 R.F.L.(3d) 236; 60 D.L.R.(4th) 648 (C.A.), refd to. [para. 119].

Waterman v. Waterman (1995), 133 Nfld. & P.E.I.R. 310; 413 A.P.R. 310; 16 R.F.L.(4th) 10 (Nfld. C.A.), refd to. [para. 123].

Rice v. Rice (1995), 13 B.C.L.R.(3d) 350 (S.C.), refd to. [para. 123].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15(2), sect. 15(4), sect. 15(5), sect. 15(7) [para. 80].

Matrimonial Property Act, R.S.A. 1980, c. M-9, sect. 7(4) [para. 77]; sect. 8(d), sect. 8(e) [para. 79]; sect. 8(l) [para. 74]; sect. 19, sect. 20 [para. 45]; sect. 36(2) [para. 69].

Authors and Works Noticed:

Abella, Rosalie S., Economic Adjustment on Marriage Breakdown Support (1981), 4 Fam. L. Rev. 1, p. 5 [para. 120].

Alberta, Law Reform Institute, The Matri­monial Home, Report for Discussion No. 14, March 1995, generally [para. 45].

Carr, Robert, The Conduct of Family Law Proceedings, Paper, generally [para. 126].

Grassby, Miriam, Spousal Support - Assumption and Myths versus Case Law (1995), 12 C.F.L.Q. 187, p. 187 [para. 2].

Grassby, Miriam, Women in Their Forties: The Extent of Their Rights to Alimen­tary Support (1991), 30 R.F.L.(3d) 369, p. 385 [para. 122].

MacLeod, James G., Annotation on Brokopp v. Brokopp (1996), 19 R.F.L.(4th) 3, p. 3 [para. 68].

Rogerson, Carol, Spousal Support After Moge (1996), National Family Law Program, vol. 1, pp. 23 to 24 [para. 128].

Counsel:

Constance I. Taylor, for the petition­er/plaintiff;

Renee M.R. Cochard, for the respon­dent/defendant.

This case was heard before Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on May 9, 1997.