2001 SKQB 10 D.I.V. A.D. 1999 No. 595 J.C.S. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: ELIZABETH ANN PATTERSON PETITIONER (RESPONDENT BY COUNTER-PETITION) and ALEXANDER CAMPBELL PATTERSON RESPONDENT (PETITIONER BY COUNTER-PETITION) Cheryl A. Cuelenaere for Elizabeth Ann Patterson Gregory G. Walen for Alexander Campbell Patterson JUDGMENT KOCH J. January 8, 2001 [1] This is an action for divorce based on separation. In issue are custody, access, child support, spousal maintenance, possession and division of the matrimonial home and division of matrimonial property. The petitioner seeks costs. [2] To their credit, the parties have reached agreement on some of the issues and substantial agreement on others. [3] The marriage breakdown has been established. The parties have been living separate and apart since January 23, 1998. The divorce is granted. [4] There are two children of the marriage: Robert Scott Patterson, born May 8, 1985, now residing with the respondent, presently student in Grade X; Cynthia Lyn Patterson, born February 1, 1988, now residing with the petitioner, presently student in Grade VII. [5] The parties have agreed on joint custody of both children with Robert Scott Patterson to reside primarily with his father, the respondent, and Cynthia Lyn Patterson to reside primarily with her mother, the petitioner. It has been further agreed in principle that access should be essentially reciprocal on alternate weekends from Friday evening until Sunday evening, with the objective that the children be together with the same parent on most weekends. Clearly this is in the best interests of each of the children. When the weekend includes holiday on the Friday or the Monday, the access for that weekend is to be extended by one day accordingly. There will also be access on one evening each week as may be determined to be compatible with the children's respective activity schedules. The parties will equally share the children\'s time during school vacations. Either party who feels that more specificity with respect to access is required will have leave to apply. BACKGROUND FACTS [6] The contentious issues remaining to be resolved require consideration of the factual background. [7] The petitioner, Elizabeth Ann Patterson, now aged 45, married the respondent, Alexander Campbell Patterson, now aged 46, on May 16, 1981. Neither had been previously married and neither has had any children outside of the marriage. [8] The parties separated for several months in 1995 and finally on January 23, 1998. Neither wishes to reconcile. [9] The parties met in Vancouver in 1978. At that time the petitioner had taken some university classes and was employed in the banking and financial sector. The respondent had received his B.A. from the University of Saskatchewan in 1975 and thereafter studied architecture at the University of British Columbia. The respondent was receiving income while he pursued his education as child of deceased World War II veteran. He also had Canada Pension Plan income as the result of his father's death. In June, 1978 the parties moved to Saskatoon for short time and then to Guelph, Ontario where the respondent entered masters program at the University of Guelph to qualify as landscape architect. The petitioner was again employed at bank. The respondent completed his studies in 1981 at which time the parties married. During the time they lived in Guelph, approximately three years, the parties did not cohabit on full-time basis. [10] In 1981, shortly after their marriage, the parties moved to Japan where they lived for the next year and one-half. The respondent had scholarship to study Japanese gardens and from that and his other income sources was able to provide for their support. The petitioner worked as an English teacher; her income was expended for travel by the parties in Japan and elsewhere in Southeast Asia. [11] In June, 1983 the parties moved to Regina where the respondent was employed by an engineering firm and the petitioner was employed at secretarial and clerical work. Late in 1984 the respondent moved to Ottawa with the same employer. The petitioner moved there to join him early in 1985 prior to the birth of their son. While they lived in Ottawa the petitioner was employed at bank but shortly discontinued that employment in favour of running small daycare out of the home to accommodate more involvement in parenting the children. [12] In fall 1989 the parties moved to Saskatoon, the respondent still with the same employer for whom he continued to work until 1994 when he commenced work with the City of Saskatoon. He is now landscape development coordinator for the City, which he describes as middle-management position. [13] When they moved to Saskatoon the parties, who by then had two children, purchased their residence on 7th Street East because it was suitable, with some renovations and improvements, for the operation of daycare by the petitioner. The petitioner cared for up to six children at time, until late in 1999 when, after the separation, she decided that she would need more income than the daycare business could provide. [14] Early in 2000 the petitioner participated in workforce re-entry program as dietary services worker at City Hospital. This did not lead to full-time employment but she found similar part-time employment at retirement home and continues to be employed there. Shortly before the trial she started two-year dietary program at Kelsey Institute which she expects will qualify her to obtain full-time permanent employment in that field when she completes the course, hopefully in May, 2002. [15] Obviously the breakup of the marriage was an emotional experience for the petitioner and that circumstance, together with the fact that at the time of the separation she had not held employment outside of the home for many years, left her somewhat lacking in confidence as to her job skills and employability. She has, however, made reasonable efforts to upgrade her skills and to become occupationally established. [16] There is no evidence that either party has formed any relationship that involves, at least in the near term, the possibility of remarriage or cohabitation. [17] Commendably, both parties have tried hard to minimize the negative impact of the breakup of their marriage on their children. [18] There is no evidence of any significant health issues. CHILD SUPPORT [19] Both children are healthy and active. [20] For the time being the petitioner is not earning enough from her part-time employment to contribute other than nominally to the support of Robert Scott Patterson. Maintenance for Cynthia Lyn Patterson has to be determined in accordance with the Federal Child Support Guidelines (SOR/97-175 as am.). The respondent\'s gross salary is $59,700 per annum and, as invited by counsel for the petitioner, I am adding $1,500 to reflect the profit the respondent makes on the car allowance he is paid by his employer, to a total of $61,200. Therefore, the appropriate monthly support payment in accordance with the Guidelines is $485 per month subject to any additions pursuant to s. 7. Evidence was presented as to certain expenses for music lessons, band and extracurricular school activities but none of these, in my view, qualifies as a special or extraordinary expense in the context of the basic monthly support payment of $485. In that regard follow the case of Fisher v. Heron, [1997] P.E.I.J. No. 77 (QL); (1997), 157 Nfld. P.E.I.R. 42 (S.C.) cited on behalf of the respondent. [21] In accordance with s. 7, the respondent will have to contribute his proportionate share of the part of the orthodontic treatment expenses for Cynthia Lyn Patterson that is not covered by insurance. direct that he pay, promptly as incurred, his share of the shortfall. Counsel for the petitioner suggested that based on the part-time income of the petitioner of $7,658 the respondent should be paying proportionately 89 percent. As that compilation does not reflect the spousal maintenance hereinafter awarded, I find the appropriate ratio to be 73 percent. [22] The respondent, as he has agreed, is ordered to keep the children on his group insurance benefit plan so long as they are eligible and to designate the children as beneficiaries of his life insurance for such period of time as, in the case of each child, that child continues to be child of the marriage as defined in the Divorce Act, R.S.C. 1985, c. (2nd Supp.). SPOUSAL MAINTENANCE [23] The petitioner contends that in accordance with the provisions of ss. 15.2(4) and 15.2(6) of the Divorce Act, supra, she is entitled to spousal maintenance for an indefinite period. The petitioner\'s prospective job advancement was impeded as the result of the marriage, specifically by the frequent moves to accommodate the respondent\'s job transfers, and arising from her working out of the home for limited income to facilitate child rearing. To meet the needs based and compensation based objectives in accordance with s. 15.2(6) of the Divorce Act, supra, as interpreted by the leading authorities, and to fairly adjust and apportion the economic circumstances of the parties in recognition of their 19-year marriage she contends she is entitled to spousal support of $1,100 per month. [24] The respondent contends, however, that while recognizing the petitioner's needs and the validity of her compensatory claim, consideration must also be given to other factors including: The fact that once the matrimonial home is sold, the petitioner's cost of housing should be drastically reduced and, in keeping with the means of the parties, she should be expected to occupy relatively modest apartment such as the respondent has been doing; The respondent is almost fully supporting both children and that is likely to continue for at least several more years; From practical standpoint the interim spousal maintenance of $750 per month ordered in November, 1999, has proven burdensome to the respondent and caused him to incur debt, whereas the petitioner's cash position seems to have improved since November, 1999; The petitioner is bright, articulate, well motivated individual who can be expected to achieve economic self-sufficiency in the fairly immediate future (paragraph (iv) of s. 15.2(6)) and therefore time limited award for period of no more than three years would be appropriate, ending about one and one-half years after the petitioner is expected to have completed her present course of study and to have had reasonable opportunity to successfully re-enter the workforce. [25] The argument arising from the short-term financial distress of the respondent is somewhat confined to the interim circumstances. Once he receives his share of the proceeds from the sale of the residence he will no longer be carrying any substantial debt, at least not involuntarily. [26] I find the appropriate amount of spousal maintenance to be $900 per month, payable the first day of each and every month commencing as of January 1, 2001. The Divorce Act permits time limited orders, but the trend seems to be to avoid them in situations such as the present where the marriage has given rise to economic dependence (Russell v. Russell (1999), 1999 CanLII 12313 (SK CA), 180 Sask. R. 196 at 229 (C.A.)). The determination of fair and reasonable time period in this case would involve considerable speculation. am not therefore providing for any time limit. I am, however, stipulating that the issue of spousal maintenance be reviewable at the instance of either party at any time after December 31, 2003. It can be reviewed in the meantime on the ordinary ground of material change in circumstances, should such occur. MATRIMONIAL HOME [27] The parties have also agreed that the matrimonial home located at 501 - 7th Street East in Saskatoon, valued at approximately $150,000, subject to loans secured by two mortgages against the title totalling approximately $50,000, is to be sold at the earliest opportunity with the net proceeds, after realtor\'s commission and solicitor\'s fees and disbursements, to be equally divided, subject to matrimonial property adjustment calculations. The petitioner seeks adjustments for some maintenance and repair costs and insurance costs incurred after the date of the petition and with respect minimum monthly payments she made on the Canada Trust Powerline loan. am not prepared to allow such adjustments. Pending the sale the petitioner is entitled to occupy the property and will be obligated to pay the first mortgage payments and the minimum monthly Powerline payments as well as the insurance, utilities and other ordinary occupancy costs, with the cost of any major repairs to be split equally. MATRIMONIAL PROPERTY [28] Each party has claimed as exempt pursuant to s. 23(1) of The Matrimonial Property Act 1997, S.S. 1997, c. M-6-11, certain items of chattel property alleged to have been owned or acquired before the marriage. Understandably there was little evidence of the value of these items at the time of the marriage but as the property in question is not of substantial value and the exemptions claimed were not seriously disputed infer that their respective values at the date of the petition were the same as the value at the date of the marriage. find to be exempt the value of the following items claimed by the petitioner: Mahogany Writing Box Exhibit P-3 Item Communion Mug Exhibit P-3 Item Rocking Chair Exhibit P-3 Nightstand Exhibit P-3 Item 15 Oakwood Chest Exhibit P-3 Item 17 Deacon's Bench Exhibit P-3 Item 35 and the value of the following items claimed by the respondent: Tool Box and Tools Exhibit P-3 Item Leather Kit Suitcase Exhibit P-3 Item 12 Drawings and Paintings Exhibit P-3 Item 35 Antique Round Side Table Exhibit P-3 [29] The respondent also claims that television set included in the list of matrimonial property was acquired after the date of the petition and is therefore not shareable matrimonial property. uphold his contention. [30] During the course of the marriage, at various times, including after the separation, the petitioner received chattel property from her parents which she claims to be antiques and heirlooms, not household goods. She claims it would be unfair and inequitable to distribute that property in accordance with s. 21(2). These items appear to have present value in excess of $6,000. The respondent contends that the petitioner has not met the criteria applicable under s. 21 for the Court to refuse to order distribution. Notwithstanding that contention believe it would be inequitable to order an equal or any distribution of this property simply because the concept of value implies the option of sale or liquidation for value and there is compelling evidence that this property was neither given nor received in that context, but simply as property to be enjoyed and passed along to succeeding generations. [31] The petitioner also requests that an inheritance that she received from her aunt in Great Britain who died in January, 1999, almost year after the separation, be excluded from distribution. The inheritance amounted to $2,297.85 Canadian. The proceeds ultimately ended up in one of the petitioner's accounts at the Bank of Montreal in existence at the date of the petition. The aunt's will is effective at the date of her death. It is most unlikely the aunt would have intended to benefit the respondent nearly year after the final separation. The amount of the bequest should be excluded from distribution. [32] The remaining chattel property, including the motor vehicles, is to be divided as hereinafter set forth and valued as indicated. The motor vehicles are being divided in accordance with their value in October 2000 as the parties have agreed to that. In all other respects the matrimonial property and the debts and obligations will be valued as at the date of the petition. [33] The petitioner will deliver to the respondent promptly when called upon items to 17, inclusive, in the list of chattels set forth in Exhibit P-3 at Tab H. [34] I direct that the respective registered retirement savings plans of the parties at Canada Trust, in the case of the petitioner, accounts 518-3307597 and 518-09301455, and in the case of the respondent, accounts 518-3306519, 518-3302782, 518-04016232 and 518-13659865, be equalized as at October 15, 1999, by rollover from the respondent\'s account to the petitioner\'s account and that the parties promptly when called upon sign and deliver such documents as may be required to accomplish such rollover. [35] The respondent has pension with his employer, City of Saskatoon. The petitioner contends that the value for the purposes of distribution pursuant to The Matrimonial Property Act, 1997, supra, is the amount payable upon hypothetical termination compiled in accordance with the calculation technique adopted in the case of Hamel v. Hamel (2000), 2000 SKQB 263 (CanLII), R.F.L. (5th) 321 (Sask. Q.B.). The respondent does not disagree. In issue is whether the division should be made as at the date of the petition as contended by the petitioner, or at the date of separation, with an allowance for interest thereafter, as contended by the respondent. The test is whether division at the date of the petition would lead to an unfair and inequitable result so as to require compilation at different date, the effect of which would be unequal division. do not find such to be the case. The value of the termination benefit as of the date of the petition is $27,333.50, one-half of which is $13,666.75. The respondent is ordered to convey one-half of the commuted value as of the date of the petition (½ of $21,804.38 = $10,902.19) to a locked-in RRSP in the name of the petitioner. This is the maximum amount transferrable in accordance with The Pension Benefits Act, 1992, S.S. 1992, c. P-6.001. The difference of $2,764.56, subject to the deduction of estimated income tax of 30% results in an equalization adjustment in favour of the petitioner of $1,935.19, which with interest at 4.6% per annum to December 31, 2000 in the amount of $107.56 results in a total adjustment of $2,042.75. [36] At the date of the petition the parties had the following RRSP's: Petitioner Respondent Canada Trust (as at Sept. 30/99, Exhibit P-3, Tab G) $2,362.35 Canada Trust (as at Dec. 31/99, Exhibit P-3, Tab J) $47,818.76 Total: $50,181.11 am not prepared to accept the contention of the respondent that the portion contributed by him after the separation should be excluded. Equalization will require the transfer by the respondent to the petitioner of $22,728.20 plus interest for one year at 4.6%, $1,045.50, for total of $23,773.70. am limiting the interest to one year as the statement filed is dated December 31, 1999. If the parties are unable to agree as to which individual investment in the portfolio is to be transferred, such transfer shall include proportionate share of each investment. [37] At the date of the petition the parties had bank accounts as follows: Petitioner: Toronto Dominion Bank 38.70 Bank of Montreal 205.51 Bank of Montreal GIC 9,500.00 Bank of Montreal Money Market Fund (net of October, November and December interest) 5,563.53 Royal Bank 848.39 Total: $16,156.13 Respondent: Canada Trust 640.16 [38] The petitioner's bank accounts presumably included the inheritance she received from her aunt of $2,297.85, dealt with separately, and retroactive child tax benefit of $4,604.57 received in September, 1999 which is included in the matrimonial property available for distribution, as find it should be. [39] At the date of the petition the financial obligations of the parties, in addition to the loans from Canada Trust secured against the title to the matrimonial home, were as follows:Canada Trust RRSP loan $ 729.08Canada Trust line of credit loan $1,292.00CIBC Visa $ 966.82Each of these three items of indebtedness has been assumed by the respondent. [40] In the result, the final adjustment upon the sale of the matrimonial home will be compiled as follows: Respondent 1995 Plymouth Voyager 9,000 1993 Mercury Topaz 400 Household goods and other chattel property in accordance with Exhibit P-3, Tab (not including items 5, 15, 17 and 35 3,856 Household goods and other chattel property in accordance with Exhibit P-3, Tab (not including items 7, 12, 29, 35, 36 and 37 3,468 Respondent's pension net after assignment 2,043 Bank accounts 640 Adjustment for petitioner's inheritance (2,298) Loans and obligations assumed by respondent (2,988) Net adjustment of proceeds of sale of matrimonial home from petitioner's share to respondent [41] If there are any discrepancies in the above calculations, counsel are invited to bring them to my attention. [42] No costs are awarded.
The divorce action was based on separation for more than a year.  In issue were custody and access, child support, spousal maintenance, possession and division of matrimonial property. HELD: 1)Divorce was granted. The parties, married 19 years, had been living separate and apart since January 1998. 2)They agreed to joint custody of both children. The son was to reside primarily with his father. The daughter resided with her mother. Access was essentially reciprocal on alternative weekends. The children were to be together most weekends. School vacations would be shared. 3)The father was to pay monthly child support of $485 based on his gross salary of $61,200 which included a $1500 car allowance. Expenses for music lessons, band and extracurricular school activities did not qualify as a special or extraordinary expense. The father was to contribute his proportionate share (73% to reflect spousal maintenance) of orthodontic expenses not covered by insurance. 4)Spousal maintenance of $900 was to be reviewable after December 31, 2003. The mother's job advancement was impeded as a result of the marriage, specifically by frequent moves to accommodate her husband's job transfers. She had worked out of the home for limited income to facilitate child rearing. 5)The parties agreed the matrimonial home would be sold and proceeds divided equally after payment of expenses of the sale. Costs of any major repairs were to be split equally pending the sale. The petitioner was entitled to occupy the property and was to pay the mortgage, insurance, utilities and other usual costs.  6)It was inferred the value of the chattels was the same as that at the date of the marriage. It would be inequitable to order a distribution of chattel property given as antiques or heirlooms by her parents valued in excess of $6,000. The inheritance from her aunt who died almost a year after the separation was excluded. The motor vehicles were divided in accordance with their value as of October 2000. All other matrimonial property and debts and obligations were valued as of the date of the petition. RRSPs were to be equalized as of October 15, 1999 by rollover. 7)The respondent was to convey one-half of the commuted value of his pension at date of the petition to a locked in RRSP in the name of the petitioner. The balance in excess of the maximum amount transferable under the Pension Benefits Act resulted in an adjustment of $2,042.75. The respondent was to assume any debts.  8)No costs were awarded.