Q.B. 1994 NO. 01107 J.C. R. IN THE COURT OF QUEEN'S BENCH AT THE JUDICIAL CENTRE OF REGINA BETWEEN: BRENDA HILDAHL-TRAUTER, and CALVIN TRAUTER, RESPONDENT J. G. BRICK for the petitioner M. S. SCOTT for the respondent JUDGMENT MacLEAN, J. February 12, 1996 The petitioner, Brenda Hildahl-Trauter ("Brenda"),petitions the Court for a divorce, custody of the children,spousal and child support and an unequal division ofmatrimonial property. The respondent, Calvin Trauter("Calvin") counter-petitions for similar relief, including adivorce, joint custody of their children and an equal divisionof matrimonial property. I. The parties married on September 24, 1983, after having cohabited for about one year. They separated on October 18, 1994. They have two children, Dillon, 10, and Levi, 6. When they married, Brenda was employed in an office at Weyburn, Saskatchewan, and on her father's farm. She owned fully furnished home in Weyburn, new car, and had $17,000.00 in R.R.S.P.s. When they met, Calvin was employed in Weyburn by the Provincial Government. He owned few pieces of furniture, some tools and yard equipment, motorcycle and truck encumbered by chattel mortgage. Soon after they married, Calvin was transferred to Saskatoon. Brenda sold her home and applied the proceeds of $49,381.93 toward the purchase of their home there. They had only lived in Saskatoon for about one year when Calvin was transferred again, this time, to Regina. The home in Saskatoon was sold and the proceeds, along with Brenda's R.R.S.P.s and further $3,250.00 which she had, were used to help purchase their home in Regina. They borrowed $32,000.00 on mortgage which was later paid with funds received from Calvin's parents. The title to the matrimonial home is now debt free. The parties lived in this home until they separated. They disagree on its value. On the evidence, find it is worth $121,000.00. Soon after the separation, Brenda was granted exclusive possession of the matrimonial home and interim custody of the children. Calvin was ordered to pay monthly spousal and child support of $1,400.00. In general terms, the order provided Calvin with access on alternate weekends and one evening visit every two weeks. Disagreement arose over access, resulting in another order specifying the terms of access with precision. In May, 1995, Calvin applied for an order listing the home for sale and for pre-trial conference. The application for sale was dismissed. On July 7, 1995, further order for access was made so that Calvin could have the children with him for two weeks during summer holidays. Finally, on November 22, 1995, Calvin obtained an order varying the interim order for spousal and child support from $1,400.00 per month to $400.00 to be paid prior to the trial, which was then scheduled to proceed late in January, 1996. The basis for this application was that on September 1, 1995, Calvin took leave of absence from his employment with the Provincial Government and his income is much reduced. II. There are several issues which must be resolved. The first two involve custody of and support for the children. Brenda contends she should have sole custody, while Calvin believes it would be best for them if there is an order for joint custody and, for the present, that they reside with their mother. The boys each has problem which makes parenting more difficult. Brenda believes Dillon suffers from dyslexia, Calvin does not agree. In any event, Dillon does have problem with his vision with the result he has had difficulty in school. He has been placed temporarily in special program at another school where he seems to be progressing. It is hoped he will soon be reintegrated into his regular school. Both parents expressed willingness to help him at home. Levi is doing well in school. He may have minor problem articulating sounds, but there is little cause for concern. What is of concern is that he is asthmatic. Brenda has seen to it that his babysitter and his teacher are aware of the problem and of the need to be alert. He is allergic to tobacco smoke. Calvin smokes, but says there is ventilated room in his home where he will smoke so as not to bother the boy. The matrimonial home is located near the school which Levi attends and reasonably close to Dillon's. When the remedial program is completed, Dillon and Levi will again attend the same school. Brenda pointed out the boys know no other home. Their friends live in the neighborhood, and the babysitter lives few doors away. At this time, the only non-school activity they have entered is Beavers and Cubs. With her present means, Brenda cannot afford to enroll the boys in other activities. The parties had traditional marriage. Brenda did not work outside the home. Her life centered around her home and family. Calvin was the breadwinner. His salary as civil servant enabled the family to maintain comfortable standard of living. Brenda impressed me as thoughtful, caring parent, who has consistently put the children's welfare ahead of her own. Calvin is intelligent and articulate and, am certain, loves his sons; however, he has not made their welfare his first priority. It was very obvious when they testified that there is good deal of hostility between them. Their relationship was particularly acrimonious during the first months following separation. Brenda was out of the workforce from the time she and Calvin married. Only recently has she obtained full-time employment which pays modest monthly salary of $1,302.00. The order for interim support required payments to begin September 1, 1994. At that time, Brenda's monthly salary from part-time employment was $600.00. Thereafter, for six months, she worked full-time when she replaced an employee on maternity leave. The maternity leave ended in September, 1995, when Brenda again reverted to part-time employment. At the same time that Brenda's temporary full-time employment ceased, Calvin took one-year leave of absence from his employment. He is now employed as sign painter by friend in Saskatoon. His monthly income has dropped from over $4,200.00 to under $1,000.00, and he says he cannot support his wife and children. He stated there were several factors for him taking leave of absence, but in his evidence, he mentioned only one. Since he is the Assistant Director for his Unit, it falls to him when cutbacks occur to inform employees their employment is terminated. This caused him, as he says, lot of strife. Calvin's own employment is not in jeopardy. It is assured if he returns following his leave of absence. Likely, Calvin would not have applied for leave of absence without giving the matter considerable thought. It is instructive of his attitude that at about the time he applied for an order to sell the matrimonial home, he was contemplating applying for the leave of absence. Indeed, lessthan three weeks after his application for sale of the homewas rejected, he applied for the leave of absence. am not persuaded these are the actions of father intent upon doing what is best for his children. It is not unreasonable toinfer that he made up his mind to avoid complying with theorder for interim support. Apart from funds set aside for the children's education, there are no savings to tide them over, nor is there any property which could be liquidated for this purpose. Calvin seems oblivious to the needs of his children. reject his suggestion that Brenda has been improvident. Apart from one or two small items, her living expenses disclosed in her financial statement appear reasonable. Calvin, rather glibly, suggested the boys do not have the amenities they used to have, but that they have the essentials. Two factors militate against making an order forjoint custody. The first is the obvious acrimony whichexists. As my brother, Dickson, J., stated in Rilkoff v. Rilkoff (an unreported decision rendered in 1991) and quoted with approval by Carter, J. in Kreuger v. Kreuger (1993) 104 Sask. R. 95, at p. 101: For such orders to succeed, the parents must have one another's respect; they must share child rearing philosophy; each must be convinced that the other is beneficial presence in the child's life; they must trust one another to do what they would have done and they must cooperate to achieve common goals. Sadly, none of these prerequisites exist in this case. Indeed, few divorced parents have this sort of relationship. Without it, joint custody relationship is doomed, as it is in this case. The children are confused and upset by the pushing and pulling of their parents and by their inability to make their joint custody agreement work. The best interest of the children can only be served by replacing the uncertainty of the agreement with certainty of custody order. The second factor is Calvin's reluctance to supporthis children. Brenda was out of the workforce for many years and no reasonable person could expect her to fill the void left by Calvin's wilful failure to maintain his income at reasonable level. It appears he is attempting to punish Brenda by putting himself in position of being unable to contribute to the children's support in meaningful way. I am satisfied that the children's interests arebest served by awarding sole custody to their mother, withaccess to their father on the same terms as contained in theinterim order. do this keeping in mind Calvin's assurance that he will allow the boys some freedom to choose whether they must travel to Saskatoon every other weekend to be with III. Spousal and child support are issues. Temporarily, at least, Calvin has put himself in position of being unable to contribute to the support of his family. Brenda has re-entered the workforce after many years' absence. Clearly, she has suffered an economicdisadvantage from the marriage and its breakdown. She has employment which she believes will within few years enable her to become financially self-sufficient. It is Calvin's responsibility to assist her in achieving this goal. He also, of course, has responsibility to adequately support his children. somewhat analogous situation occurred in Delleman v. Delleman (1994), 1993 CanLII 6727 (SK QB), 118 Sask. R. 79, where the husband quit his job and enrolled in university and sought to have his support obligations reduced. At p. 80, Dickson, J. had this to say: The father voluntarily quit job that enabled him to pay an extremely modest support obligation. He quit his job so he could enrol in training course that he thought would advance him in the workplace. He is entitled to do that but he is not entitled to pass on to his former wife and children (or to the public purse as it happens in this case) the economic consequence of his decision. If he is going to make such career move he must first organize his situation in such manner that he can keep up his obligation to his children. Calvin's deliberate act of taking leave of absence cannot relieve him of his responsibilities. He cannot claim he does not have the means to adequately contribute to the support of his wife and children. have concluded that spousal support is required for period of three years to enable Brenda to become economically independent. order that beginning March 1, 1996, and continuing until February 28, 1999, Calvin pay monthly spousal support of $500.00. further order Calvin to pay child support of $1,000.00 per month commencing March 1, 1996. Such payments are to continue so long as the children are children within the meaning of The Divorce Act. IV. There are several issues involving matrimonial property. Title to the matrimonial home is not encumbered. The parties have bank loan of approximately $13,000.00. Brenda has been paying the loan installments of $240.00 month since September, 1995, when Calvin began his leave of absence. It is conceded that the car which Brenda owned whenshe married is exempt property. Prior to marriage, Calvin owned a motorcycle. Brenda submits it has appreciated in value, Calvin says it has not. There is considerable divergence in their appraisals. On the evidence, I cannot find there has been a significantincrease in its value during the marriage; and I will,therefore, disregard it. Sergio Coppola was asked to appraise the motor vehicles which the parties own. He stated that he valued them on the assumption they were mechanically sound. find it hard to believe that prospective purchaser would buy vehicle without knowing its mechanical condition. Mr. Coppola is of the opinion that Calvin's 1988 Ford half-ton truck is worth $9,500.00 even though he was unable to enter the cab to check the odometer. Calvin says he paid $9,500.00 for the truck in 1992. He suggests, and find, that it is worth in the neighborhood of $8,000.00. Mr. Coppola valued Brenda's vehicle at $3,800.00, and this value was not questioned. No evidence was presented to enable me to determinethe fair market value of the household goods, tools andequipment. Calvin prepared a list of items he wishes toreceive from the matrimonial home (Ex. D-4). He will accept these items in full as his share of the contents of the matrimonial home. This seems reasonable. I order he receivethese items. Apart from their home and contents, Calvin's pension and the children's education funds, the matrimonial property consists of: Calvin's truck: $8,000.00 Canada Savings Bond (which Calvin cashed): 1,000.00 Brenda's vehicle: 3,800.00 Total: $12,800.00 Brenda's one-half share: $6,400.00 LESS: Her vehicle: 3,800.00 Balance: $2,600.00 Brenda will have judgment for $2,600.00. I furtherorder that Calvin must assume and pay one-half of the bankloan. Calvin has pension funds with the ProvincialGovernment. They consist of his contributions and interest and have value of $51,993.78. It is agreed these funds areto be shared equally and I so order. leave it with Counsel to arrange for the actual division with leave to apply to me for directions if required. Brenda submits that her financial contributions to the matrimonial home are exempt from distribution pursuant to Section 23 of the Act since they were assets brought into the marriage. Alternatively, she claims there are extraordinary circumstances within the meaning of Section 22 which would make an equal division of the matrimonial home unfair or inequitable. In the further alternative, she claims that as the custodial parent, an equal division of the home would be unfair or inequitable to her. The opening words of Section 23 specifically exclude the matrimonial home and household goods from the operation of the Section. I, therefore, must reject Brenda's first submission that she is entitled to pre-marital exemption. Section 22(1) of the Act reads as follows: Where matrimonial home is subject of an application for an order under subsection 21(1), the court shall, having regard to any tax liability, encumbrance or other debt or liability pertaining to the matrimonial home, distribute the matrimonial home or its value equally between the spouses except where the court is satisfied that it would be: (a)unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (b)unfair and inequitable to the spouse who has custody of the children; and in that case the court may: (c)refuse to order any distribution; (d)order that the entire matrimonial home or its value be vested in one spouse; or (e)order any distribution that it considers fair and equitable. What constitutes an extraordinary circumstance has been considered in number of decisions. As Halvorson, J. stated in Sheridan v. Sheridan (1981), 1981 CanLII 2212 (SK QB), 10 Sask. R. 255, each case must be decided on its own particular facts. Counsel referred me to several cases in which extraordinary circumstances were found to exist. In Harasymuk v. Harasymuk (1992), 1991 CanLII 7715 (SK QB), 98 Sask. R. 252, Carter, J. considered number of these decisions and concluded that the circumstances in the case before her were extraordinary. common thread running through the Harasymuk decision and others is that marriage of short duration has frequently been considered an extraordinary circumstance mandating an unequal division of the matrimonial home. Unlike these cases, the present case involves an eleven-year marriage. In my view, it is not extraordinary for one spouse to bring substantial assets to the marriage which are used to purchase family home. The single unusual circumstance in this case is the extent of Brenda's assets, considering that she was only 24 years old when she married. This does not constitute an extraordinary circumstance within the meaning of Section 22(1)(a). In my opinion, in the circumstances, it would beunfair and inequitable to Brenda as custodial parent to orderan equal division of the matrimonial home. see no reason why Calvin's share of the home should not be charged with spousal and child support. As I have said, Calvin cannotavoid his responsibility of providing an adequate level ofsupport by turning his back on well-paid employment. Upon theassumption that he will resume his employment with theProvincial Government when his leave of absence expires, Iorder that spousal and child support be deducted from hisshare of the matrimonial home. also charge his share of the matrimonial home with the arrears of spousal and child support of $4,471.48 and $2,600.00 due Brenda as her share of matrimonial property. Similarly, if Brenda is required to pay more than $6,500.00 upon the bank loan, all amounts paid by her in excess of $6,500.00 will be debt due her and payable from Calvin's share of the matrimonial home. Calvin's leave of absence will expire August 31, 1996. The several deductions from his share of the matrimonial home effective that date will be as follows: 1. Spousal and child support (March to August 31) $1,500.00: $9,000.00 2. Arrears of support: 4,471.48 3. Brenda's share of matrimonial property: 2,600.00 Total: $1,071.48 The foregoing will leave Calvin an equity in the matrimonial home of $44,428.52 on September 1, 1996. If he does not return to his employment with the Provincial Government on that date, his equity in the matrimonial home will vest in Brenda as lump sum award for the support of herself and the children. make this order having in mind the decision of Halvorson, J. in R.W. v. J.M. (1994), 1993 CanLII 9018 (SK QB), 111 Sask. R. 303, where at p. 306, he said: There are situations, however, where lump sum support is appropriate. Several immediately come to mind: (1) where there is money available, say from property division, and risk future support payments will not be made; (2) where the failure to pay past support has resulted directly in debt accumulation by the custodial parent; and (3) where the noncustodial parent has deliberately avoided attempts to enforce payments resulting in an accumulated support obligation. An illustration of this last example is found in the case of Ambrose v. Ambrose (1990), 24 R.F.L. (3d) (Man. C.A.). All three of these factors would appear applicable in the circumstances of this case. After February 28, 1999,Brenda is given leave to return to this Court so that childsupport may again be considered. The Matrimonial Property Act provides that the welfare of children should displace the other considerations enumerated in the Act. It is apparent that the children will benefit by living in the matrimonial home for the foreseeable future. I order that Brenda may maintain possession of thehome until Levi's eighteenth birthday, or until she shallvacate the property. During her occupancy, she shall adequately maintain the home and promptly pay taxes. When her possession ceases, failing an agreement, the home shall be sold and the proceeds divided in accordance with the foregoing reasons. decline to order costs with respect to Brenda's pre-trial motion which heard by telephone few days before the trial. do so because, from my perusal of the file, it appears no costs were ordered with respect to other motions such as Calvin's attempt to secure an order selling the matrimonial home. There will be judgment for divorce in accordance with the form provided in the Rules of Court. make no order with respect to the costs of these proceedings.
The petitioner sought a divorce, custody, spousal and child support and an unequal division of matrimonial property. The respondent counter-petitioned for similar relief, including divorce, joint custody and an equal division of the property. HELD: 1)Sole custody was awarded to the mother with access on the same terms as contained in the interim order. Two reasons for not awarding joint custody were the obvious acrimony between the parties and the respondent's reluctance to support his children. Three weeks after his application for sale of the home was rejected, he applied for a leave of absence from his job. It was inferred that he was trying to avoid complying with the order for interim support. 2)The mother re-entered the workforce after many years' absence. She suffered an economic disadvantage from the marriage and its breakdown. 3)The car owned by the petitioner when she married was exempt property. The motorcycle was disregarded as there had not been a significant increase in value. The list prepared by the respondent was used to divide household goods, tools and equipment. 4)The respondent was to assume one-half of the bank loan and it was agreed that the pension funds should be shared equally. 5)It would be unfair and inequitable to the custodial parent to order an equal division of the matrimonial property. The petitioner was granted possession of the matrimonial home until the younger child's 18th birthday or until she vacated the property. 6)The respondent cannot avoid his responsibility of providing an adequate level of support by turning his back on well-paid employment. Spousal and child support were deducted from his share of the matrimonial home. The petitioner was given leave to return to Court after February 28, 1999 for reconsideration of child support.