In the Court of Appeal of Alberta

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					                        In the Court of Appeal of Alberta

Citation: Shields v. Shields, 2008 ABCA 213

                                                                           Date: 20080604
                                                                     Docket: 0701-0039-AC
                                                                         Registry: Calgary


Between:

                                 Kenneth Mark Shields

                                                                        Appellant (Plaintiff)

                                         - and -

                                  Jean Johanna Shields

                                                                    Respondent (Respondent)



             _______________________________________________________

The Court:
                       The Honourable Mr. Justice Peter Martin
                     The Honourable Mr. Justice Bryan Mahoney
                   The Honourable Madam Justice Elizabeth Hughes
             _______________________________________________________


                               Memorandum of Judgment

                                Appeal from the Order by
                         The Honourable Mr. Justice J.H. Langston
                           Dated the 26th day of November, 2006
                            Filed the 23rd day of January, 2007
                                  (Docket: 4808 007604)
               _______________________________________________________

                               Memorandum of Judgment
               _______________________________________________________

The Court:

[1]     This is an appeal from a November 26th, 2006 order of Langston J. which varied retroactive
and ongoing child support and ordered retroactive and ongoing spousal support. Counsel requested
and the court agreed to determine this appeal on the parties’ written submissions only. In allowing
part of the appeal, we find that the chambers judge erred in calculating the total retroactive child
support and erred in ordering spousal support of indefinite duration when a reasonable limitation
on the duration of the spousal support order was warranted.

[2]       It is not necessary that the matter be returned for a new hearing because there are no factual
disputes that would justify the delay and expense such a new hearing would incur. Accordingly, it
falls to this Court to assess the appropriate amount and duration of spousal support.

                                         Background facts

[3]     The parties were married in July 1983 and separated in January 1998.There are two children
now 23 and 21. The appellant father (“father”) and the respondent mother (“mother”) both turned
45 this year. When the order was made in November 2006, the parties had been separated for eight
years after a 15-year marriage.

[4]    In September 2000, the parties signed a Divorce and Matrimonial Property Agreement,
where they agreed that the father would have custody of the younger daughter and the mother would
have the older daughter. The father agreed to pay the mother $600.00 a month child support and
lump sum spousal support of $17,700.00, with the mother retaining the right to apply for ongoing
spousal support after September 2001. The father’s “guideline income” was agreed at $91,000.00
and the mother’s at $15,000.00.

[5]    The terms of the Divorce and Matrimonial Property Agreement were eventually included in
the October 5th, 2000 Divorce Judgment and Corollary Relief Order.

[6]     As for their occupations, the father declared personal bankruptcy in January 2002 after the
failure of his company. He then became a consultant in the oil industry and has since started a new
oilfield company. Before the marriage, the mother worked as a retail clerk at Woolco. She became
unemployed when her children were born and remained at home while the children were young. She
now works as a full time meat packager.

[7]     The older daughter, who resided with the mother, turned 18 and graduated high school in
2002. She worked for a year then commenced post-secondary schooling in September 2003 with
plans to complete her education by April 2007. The younger daughter changed parent residences a
number of times between 1998 and 2004, when she turned 18.
                                                                                              Page: 2



                                 Decision of the chambers judge

[8]    On July 30th, 2002 the mother filed a motion to vary custody, child and spousal support. She
then amended the motion in November 2003 to seek retroactive support for the daughter who was
pursuing post-secondary education.

[9]     A special family chambers application was first heard by Langston J. on June 29th, 2004 but
not finalized until a further hearing on November 30th, 2006.

[10] The chambers judge found that the father’s income from July 2002 to November 2006
averaged $132,000.00 per year. He found the mother’s income averaged $27,000.00 for the same
period. These amounts were not challenged in this appeal.

[11] The chambers judge found both children were children of the marriage. He ordered
retroactive support for the younger daughter from September 1st, 2003 up to and including March
1st, 2004 at $929.00 per month and for April 2004, $1,157.00. For the older daughter, he ordered
$1,157.00 per month from September 1st, 2004 to and including April 1st, 2005 for a total four years
or the normal duration of her post-secondary course as long as she was in full time attendance and
maintaining passing grades. He also ordered retroactive support from September 1st, 2003 to and
including March 1st, 2004.

[12] Regarding spousal support, the chambers judge ordered the father to pay $1,000.00 per
month indefinitely and also to pay that amount of retroactive support back to September 2001. He
ordered that the total arrears for support back to December 1st, 2006 was to be paid at $1,500.00 per
month commencing January 1st, 2007 which amount was in addition to the ongoing child and
spousal support that he awarded.

                                        Grounds of Appeal

[13]   The father’s grounds of appeal are that the chambers judge erred:

       1.      when he retroactively calculated child support not consistent with the
               Federal Child Support Guidelines and failed to take into account the de facto
               custody arrangements; and

       2.      in awarding excessive spousal support including support retroactive to
               September 2001.
                                         Analysis

Standard of Review

[14] The standard overview of a support order permits the appeal court to intervene where there
is a material error, serious misapprehension of the evidence, or an error in law. It is not entitled to
                                                                                           Page: 3



overturn a support order or re-try the case simply because it would have made a different decision
or balance the factors differently. Hickey v. Hickey, [1999] 2 S.C.R. 518, 240 N.R. 312.

                              Chambers Judge’s Findings of Fact

Child Support

[15] Regarding child support, the mother agrees that the pre-May 1996 Guidelines tables were
not followed by the chambers judge and that the post-1996 tables were incorrectly used. She agrees
that $5,008.00 should be subtracted from the total retroactive support, which is the amount of the
reduction sought by the father. Therefore, we allow that part of the appeal and order that the total
retroactive child support shall be reduced by $5,008.00 from $37,303.00 to $32,295.00.

Spousal Support

[16] The chambers judge stated that the mother did not have any particular employment skills at
the time of the marriage. He did however recognize her entitlement to some compensation because,
as a stay-at-home mother, her opportunities for economic advancement were restricted causing her
to suffer negative economic consequences arising from the marriage and divorce. Although he
added, at one point, that to conclude the mother “suffered a great economic loss is purely
speculation.”

[17] It was his view that $1000.00 per month for spousal support would roughly equate the
situations that each of the parties found themselves in at the time of the divorce. He reasoned also
that an ongoing monthly amount of $1000.00 would roughly compensate her for the economic
disadvantage and bring her to relative economic self sufficiency. The chambers judge also found that
the mother had not sacrificed employment opportunities and that her employment skills before the
marriage were “minimal”. He found that the mother now had full time employment as a meat
packager making $10.00 per hour. He stated that “she doesn’t have a need because she is certainly
not home with the children...”. He also determined that the parties had not lived a “grandiose
lifestyle” during the marriage.

The Law

[18] The statutory provisions found in the Divorce Act are the starting point in determining
spousal support. It is useful to review them:

       15.2    (4)     In making an order under subsection (1) or an interim order under subsection
                       (2), the court shall take into consideration the condition, means, needs and
                       other circumstances of each spouse, including

                       (a) the length of time the spouses cohabited;
                                                                                            Page: 4



                       (b) the functions performed by each spouse during cohabitation; and

                       (c) any order, agreement or arrangement relating to support of either spouse.

               (5)     In making an order under subsection (1) or an interim order under subsection
                       (2), the court shall not take into consideration any misconduct of a spouse in
                       relation to the marriage.

               (6)     An order made under subsection (1) or an interim order made under
                       subsection (2) that provides for the support of a spouse should

                       (a) recognize any economic advantages or disadvantages to the spouses
                       arising from the marriage or its breakdown;

                       (b) apportion between the spouses any financial consequences arising from
                       the care of any child of the marriage over and above any obligation for the
                       support of any child of the marriage;

                       (c) relieve any economic hardship of the spouses arising from the breakdown
                       of the marriage; and

                       (d) in so far as practicable, promote the economic self-sufficiency of each
                       spouse within a reasonable period of time.

[19] In Moge v. Moge, [1992] 3 S.C.R. 813 at para. 77, the Supreme Court of Canada recognized
the importance of the presiding judge’s discretion and the difficulty of setting down principles that
would guide every case:

       The four objectives set out in the Act can be viewed as an attempt to achieve an
       equitable sharing of the economic consequences of marriage or marriage breakdown.
       At the end of the day however, courts have an overriding discretion and the exercise
       of such discretion will depend on the particular facts of each case, having regard to
       the factors and objectives designated in the Act.

[20] In Moge, the court made three general observations: the distinction between “traditional” and
“modern” marriages is not very useful; the support provisions of the Divorce Act are intended to deal
with the economic consequences for both parties of the marriage or its breakdown; and what the
Divorce Act requires is a fair and equitable distribution of resources to alleviate the economic
consequences of marriage or marriage breakdown for both spouses.

[21] The crucial issue is to find the right balance and then exercise discretion in making an award.
As McLachlin J. (as she then was) said in Moge at para. 107:
                                                                                             Page: 5



               ...the judge’s task under...the statute is to make an order which
               provides compensation for marital contributions and sacrifices,
               which takes into account financial consequences of looking after
               children of the marriage, which relieves against need induced by the
               separation, and, to the extent it may be “practicable,” promotes the
               economic self-sufficiency of each spouse. Neither a “compensation
               model” nor a “self-sufficiency model” captures the full content of
               the section, though both may be relevant to the judge’s decision.
               The judge must base her decision on a number of factors:
               compensation, child care, post-separation need, and the goal,
               insofar as practicable, of promoting economic self-sufficiency.

[22] The father submits that the chambers judge erred when he failed to give appropriate
consideration to the principles in the Divorce Act which we referred to above, i.e., economic
disadvantages, the financial consequences of raising children, the economic hardships from the
marriage breakdown and the promotion of self sufficiency.

[23] He further argues that the mother did not suffer any economic hardship resulting from the
marriage breakdown, but if she did, it was relieved by the matrimonial property settlement that
favoured her and the spousal support that she received for three years by way of a lump sum amount.

[24] The father submits that the mother’s substantial delay in bringing her application should
factor against retroactive support. Their agreement reserved her right to bring a further application
for support after September 2001 and she has given no reason for the delay. He submits his conduct
was not found blameworthy and the retroactive support payments will cause hardship to him.

[25] The mother submits that the chambers judge did not err in his award of ongoing spousal
support or its quantum because her opportunities for economic advantage have been restricted. She
also submits that since separation she has been denied the benefits of the father’s larger income, she
has suffered a drop in her standard of living, and therefore, the chambers judge did not err in
ordering support without a specific end date.

[26] She argues that she did not delay in bringing her application as she filed a notice of motion
July 2002 less than a year after she was entitled to apply according to their agreement. She states
that the need for her to amend her application and ask for retroactive and ongoing child support was
the result of the changed circumstance when the younger child moved from the father’s to her
residence.

[27] The chambers judge found that the respondent did not sacrifice employment opportunities
as her employment prospects as an unskilled person were always minimal. Consequently, the
spousal support order appears to be based on a needs model designed to increase the respondent’s
standard of living above what she would have with just her employment income.
                                                                                             Page: 6




[28] Upon marriage breakdown it is often difficult to predict, with any certainty, the financial
futures of the parties, particularly that of a spouse who has been out of the work force and has
ongoing child care responsibilities. Where a spouse has been out of the workforce and has ongoing
childcare responsibilities, limited term spousal support order should not be the norm: Phinney v.
Phinney (2002), 33 R.F.L. (5th) 211 (N.S.C.A.) However, that is not the case here. At the time of
making the order under appeal, the parties had been separated for eight years, childcare was not
needed and the mother had full time employment as a meat packager earning an income consistent
with her basic work skills

[29] The chambers judge erred when he did not sufficiently consider the fact that the mother was
only 34 years old at the time of separation, that the matrimonial property had been divided equitably,
that the couple had a modest standard of living while together, that there was no longer a need for
child care and that the mother had achieved a degree of self sufficiency with full time employment
at a level consistent with her work skills.

[30] The Divorce Act dictates that the amount and duration of spousal support shall be determined
taking into consideration the condition, means, needs and other circumstances of each spouse. While
the recognition of any economic advantage or disadvantage arising from the marriage or its
breakdown remains an overall objective to be considered by the court, that objective cannot dictate
a result which guarantees that the payee spouse must support the other spouse ad infinitum. The
Divorce Act does not require that spouses’ incomes be equalized to alleviate economic disadvantage
arising out of the roles adopted by the parties in the marriage. Instead, the amount of support should
be determined by the factors set out in the Divorce Act and interpreted in Moge.

[31] According to Moge, a judge is required to consider the parties’ circumstances, including the
duration of the marriage, their ages, their incomes and prospective incomes, the effects of property
equalization, the stages of their careers, the marital standard of living, participation in household
responsibilities, childcare obligations, and the parties’ reasonable standard of living expectations.

[32] After a fifteen year marriage followed by an eight year separation, and taking into account
the appropriate factors, a spousal support order ought to provide the mother with a realistic time
frame to return to the workforce and acquire adequate income to achieve self sufficiency. At
$1000.00 per month, the eight years from the date of separation to the date when the chambers judge
heard this matter, in our view, was a realistic time frame for the mother to be compensated for the
economic disadvantage she sustained and to allow her to re-enter the job market in order to earn
income leading toward financial self sufficiency. Put another way, given the factors in this case, a
spousal support order of $1000.00 per month for an eight year duration complies with the spousal
support objective of recognizing the respondent’s economic disadvantage arising from the marriage
and its breakdown, while also encouraging the respondent to complete her transition to self
sufficiency by positioning her to earn an adequate income and adapt her lifestyle accordingly.
                                                                                         Page: 7



[33] We find no merit to the argument that the mother delayed in the bringing of the application
in July 2002, or that the father established undue hardship under the Guidelines.

                                          Conclusion

[34] In the result, we allow the appeal and vary the 30 November 2006 order of Langston J. as
follows:

       1.     the total retroactive child support is reduced by $5,008.00 from $37,303.00 to
              $32,295.00. We also vary the spousal support provisions.

       2.     The term of the order for ongoing spousal support is set aside and the father is
              ordered to pay the mother spousal support of $1,000.00 monthly for a period of five
              years from September 1st, 2001 up to and including September 1st, 2006. This is in
              addition to the three years of spousal support by way of a lump sum in lieu of
              monthly payments up to and including August 2001.


[35] With mixed results of the special application and on this appeal, each party will bear their
own costs at both levels.

Written submissions filed on January 9, 2008 and July 12, 2007.

Memorandum filed at Calgary, Alberta
this 4th day of June, 2008



                                                                                     Martin J.A.


                                                                                       Hughes J.


                                                                                     Mahoney J.
                           Page: 8



Appearances:

D.K. Colborne
      for the Appellant

K.E. Hannah
      for the Respondent