J. U.F.C. of A.D. 1994 926 J.C. S. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: NICOLE JEANNETTE GUSELLE and JOHN FREDERIK WORLEY GUSELLE RESPONDENT L. BURROWS for the petitioner B. MORGAN for the respondent JUDGMENT DICKSON J. DATE: NOVEMBER 3, 1995 The parties have been unable to resolve three issuesarising from the breakdown of their 4 1/2 year marriage:1. the date spousal support should terminate2. the value of property in British Columbia3. whether the wife's student loan is a matrimonial debt SPOUSAL SUPPORT The wife is 26 years of age and the husband is 30. They married February 23, 1990 and separated October 5, 1994. They have no children. At the time of separation the wife was unemployed and completely dependent upon the husband. On October 26, 1994 she was awarded interim spousal support of $1,500.00 per month. Unfortunately, one year later, she is still unemployed. She has no income and is still completely dependent upon the support paid by her husband. She has some health problems but no medical evidence was offered suggesting her health prevents her working. She has B.Sc. (biology) degree, which she completed during the marriage. Since graduating in May 1994, she has sent out 40 resumes to prospective employers across all of North America, but she has not been invited to one job interview. can only conclude that her chosen field offers little job opportunity. The wife's counsel contends that his client has been disadvantaged by the marriage breakdown. While that disadvantage has been redressed temporarily by the interim order for support, he argues that she needs more time to make the transition from state of dependency to one of self-sufficiency. He asks that support of $700.00 per month be ordered for another year. The husband takes the position that his obligation to support the wife should end. He says she is capable of supporting herself and should have found job by this time. Alternatively, if she is not capable of working, her inability is not attributable to the marriage or its breakdown. Consequently, he should not have to support her indefinitely. He claims she has not been disadvantaged economically by the marriage but, in fact, is in far better position now than she would have been had she not married. He concedes she was entitled to support for short term following separation but he contends that such term has passed. Furthermore, the trial of this action, commenced in March 1995, was adjourned at the request of counsel for the wife to afford him the opportunity of obtaining recently revealed medical evidence that would bear upon the wife's ability to work. When the trial did continue in September 1995, the wife's counsel offered no such evidence. The husband has been prejudiced by this unnecessary delay, his counsel argues, by having to continue paying support of $1,500.00 per month. He claims recovery of all payments made since April 1, total of $9,000.00 by way of credit to the amount he must pay the wife for her share of matrimonial property. Section 15(5) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) instructs me to take into consideration the condition, means, needs and other circumstances of each spouse when making support order. am to consider the length of time the spouses cohabited and the functions performed by the spouse claiming support. Section 15(7) instructs me to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown and to relieve any economic hardship suffered. Finally, am to promote the economic self- sufficiency of each spouse within reasonable period of time. Certainly the economic condition of the wife at the time of separation was one of dependency. She had no means to satisfy her basic needs and the husband had sufficient means to satisfy that need. Without doubt the wife suffered economic disadvantage when her husband left home. She was suddenly deprived of any source of support and it was necessary for the court to relieve her economic hardship by granting an interim order for support. However, am now being asked to make final order which should, in addition, promote economic self- sufficiency within reasonable time. How can support order promote economic self-sufficiency? have always been troubled by that question. Perhaps the only way is for the order to be not so generous in amount and/or length of time that the dependent person will be tempted to put forth less than maximum effort toward that goal. That would certainly promote self- sufficiency; it may even force it. In this case, think the wife can be expected to achieve self-sufficiency eventually. She is young. She has university degree, albeit one that doesn't attract any job offers. She may have to seek work outside her chosen field, but eventually she should get job if she puts forth diligent effort. What is reasonable time for her to do this? do not think it can be determined prospectively. Any attempt to do so suggests an ability to foretell the future. Instead it should be determined retrospectively; by looking at what has happened as opposed to what is likely to happen. So far she says she hasn't been able to find job. don't think it has been for lack of effort. She has sent out 40 resumes. But do believe she has been rather selective. There is no evidence that she has sought work outside her chosen field. She should have. It should be obvious to her that she is not going to find work in her field, having not one job interview in year and half. During that time she has taken class at university and has done volunteer lab work. She cannot wait indefinitely for an invitation from an employer who needs person with her training. She has had long enough to make the transition to economic independence. She suffered no economic disadvantage from her short-term marriage. She didn't divert her talent or use her time to develop family. In fact, she is better equipped to support herself now than she was when she entered the marriage. am not prepared to terminate the support order retroactively to April 1. Although no medical evidence was offered, there was sufficient testimony to suggest that her health was fragile. However, there is no evidence that such state of health continues. The husband's obligation should endon November 30, 1995, and there will be an order accordingly. VALUE OF BRITISH COLUMBIA PROPERTY Both parties hired appraisers to value plot of unimproved land located in British Columbia resort area. The wife's appraiser, Kevin Veitch, says the fair market value of the property is $64,000.00 on January 20, 1995, which is the date he made his appraisal. The husband's appraiser, Donald Johnson, says the fair market value is $49,000.00 on October 7, 1994, which is the date the action was commenced. The husband's counsel points out that Mr. Veitch assessed the value on date other than October 7, 1994, which should be selected as the date of valuation. Not much turns on that. There is nothing before me to suggest the value on October 7, 1994 was different than the value on January 20, 1995, some months later. Both appraisers used the comparable sales approach. Mr. Johnson's comparables are within miles of the property. Mr. Veitch's comparables are somewhat further away and are located in areas that, unlike the subject property, have experienced some commercial development. The main difference in the two opinions is the discount allowed for distance from the water. Mr. Veitch said only that it was within walking distance of the water. Mr. Johnson pointed out that that "walking distance" is 1/2 miles. For these reasons prefer the opinion of Mr. Johnson. The husband bought this land before the marriage for $37,000.00. He put $10,000.00 cash into the property and reduced the amount owing on the purchase price by $400.00 prior to the date of marriage. He is entitled to an exemption for this amountpursuant to section 23 of The Matrimonial Property Act, R.S.S.1981, c.M-6.1. I have found the value of the property to be$49,000.00 on the date the action was commenced. Therefore, $38,600.00 is the value to be divided between the parties. WIFE'S STUDENT LOAN month before the marriage the wife borrowed $3,570.00 under the Canada Student Loans Act, R.S.C. 1985, c.S- 23. The money was used to pay off her debts. When the parties separated there was $3,140.00 owing on the debt which the wife contends should be regarded as matrimonial debt. The husband takes the position that it is not debt of the marriage. Unlike matrimonial property, matrimonial debt is not defined in The Matrimonial Property Act (supra). The only reference to debt is made in section 21(2), which lists the equitable considerations that may justify other than equal distribution of matrimonial property. When dividing matrimonial property, the court takes the practical approach of simply subtracting the amount of debt assumed by party from the value of the property vested in him or her. Matrimonial property is defined as any property that is owned by one or both spouses at the time the application for division is made. To be consistent, it is logical to regard debts the same way; i.e., any debt owed by one or both spouses at the time of the application. The student loan owed by the wife should, therefore, be regarded as matrimonial debt. However, section 23 exempts from distribution matrimonial property owned by spouse before the marriage. To continue consistency, debt must be treated the same way. This debt should, therefore, beexcluded from the equation. Doing so produces fair result. The loan was used to pay debts incurred by the wife prior to themarriage. Those debts are not associated with the marriage. The husband realized no benefit from them and it is illogical and unfair that he should be required to share payment of them. DISTRIBUTION OF MATRIMONIAL PROPERTY Assets Assets In Wife's Possession Value In Husband's Possession Value Furniture 8000. Bank account withdrawal 100 Honda 7000. Volkswagen Van 500 Bank account withdrawal 200. Sale Proceeds (mat.home) 13785 R.R.S.P. "D.C. Plan" 15927 R.R.S.P. "Altamira Plan" 18905 B.C. Property 38600 Vacation pay 3218 $91035 Less utility bill paid by Wife 155. Less Income Tax Liability 2575 $88460 Total value for distribution $103,505. 1/2 share to each party 51,752. Less value in Wife's possession 15,200. Shortfall 36,552. Less Visa cash advance $3018. Interim Distribution $5000. 8,018. Amount owing to Wife by Husband 28,534. There will be judgment accordingly. There will be no order for costs. In addition, the 6 Cominco Limited shares in thehusband's possession are to be sold and the net proceeds dividedequally. The husband has suggested partial payment by spousal roll-over of R.R.S.P. funds and payment of the balance by monthly payments. The wife's counsel did not consent to such proposal so am unwilling to impose it upon her. Arrangement for payment must be left to the parties. If they require further directions they have leave to apply.
The parties applied to the Court to resolve the issues of spousal support and a division of the matrimonial property. The parties had been married 4 years. There were no children of the marriage. The Wife had a university education but was unemployed. She had already received interim support in the amount of $1,500.00 per month for 1 year. HELD: 1)The support order was terminated effective November 30, 1995. 2)The Court determined the value of a resort property owned by the Husband in BC and permitted an exemption for its value as at the date of marriage. 3)The Court refused to permit the Wife to subtract from the value of her assets, the amount owing on a student loan which pre-dated the marriage. 4)With the exception of those items already discussed, the Court divided the value of the matrimonial property equally.