IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Falkenham v. Falkenham, 2005 NSSC 262
Date: 20050930
Docket: SFHMCA 028192
Registry: Halifax
Between:
Michelle Jean Falkenham
Applicant
v.
Carter Gilbert Falkenham
Respondent
Judge: The Honourable Justice Moira C. Legere-Sers
Heard: September 12, 13 & 14, 2005, in Halifax, Nova Scotia
Counsel: Myra L. Jerome, for the Applicant
Shelley L. Hounsell, for the Respondent
By the Court:
Legal History:
[1] On October 28, 2003, Ms. Falkenham sought emergency relief by way of an Interim Order for custody, child support and extracurricular expenses. Mr. Falkenham was served on November 6, 2003 and appeared before the court on November 10th. He was unrepresented.
[2] The parties married on May 16, 1992. There are two children: Alissa, born December 6, 1992 and Jason, born June 17, 1996. They separated September 3, 2003.
[3] Ms. Falkenham made representations through her counsel that Mr. Falkenham's income was $41,050. The running file did not disclose that a hearing was conducted. Based on the representations of counsel, an interim child support award of $554 per month was ordered to commence on December 1, 2003, payable through Maintenance Enforcement. All matters were set over for hearing.
Access
[4] The matter came before the court on January 13, 2004. A supervised access order was granted by agreement, supervision to be at the home of Ms. Falkenham's parents or such other location as agreed upon in writing. Mr. Falkenham could obtain a review of the supervision order providing he obtained a report or letter from a counsellor. He agreed that there would be no consumption of alcohol or non prescription drugs within 48 hours prior to the visit and there would be no firearms present during the visit.
[5] The Applicant testified that there is a long history of alcohol abuse affecting the Respondent’s global health. He admits the long history of alcohol abuse. During the separation, the Respondent was charged and convicted of uttering threats against the Applicant. His firearms remain confiscated. He alleges the marriage breakdown occurred as a result of the Applicant’s relationship with another man. In his probation report he admitted to the Probation Officer that this is his third marriage and his own infidelity and alcohol abuse were a contributing factor to the breakdown of the marriage.
[6] The Interim Access Order dated January 13, 2004 requires the father to provide evidence of successful therapeutic involvement in order to consider alternate unsupervised access arrangements. The Respondent has not produced any evidence of therapeutic involvement.
[7] The Applicant has offered to consider other supervisors. The Respondent has not offered alternate names other than in this proceeding he suggests his common- law partner supervise. There is some history of domestic abuse between him and his common-law partner resulting in two convictions of assault, one in February, 2004 and one in the summer of 2004. The Respondent admits that maintaining sobriety is a constant struggle for him. He advises that he and his partner attend Project New Start regularly and the stress of these proceedings has caused him to resume drinking.
[8] I decline to vary the interim supervision order on access, absent evidence that was required at the interim hearing. The parties may agree on alternate supervisors not including the common-law partner.
Disclosure
[9] Mr. Falkenham was ordered to file a Statement of Financial Information and an Affidavit addressing his living circumstances, his expenses, his recent purchases as well as a Statement of Property within one week of the January 13, 2004 date.
[10] Ms. Jerome was to provide Ms. Scheuer with a list of assets by January 14th and Ms. Scheuer would respond with respect to their status. The issue of costs was deferred.
[11] The matter was set down before the court on February 24, 2004 and the parties agreed to convert the interim hearing to a settlement conference. The terms were read into the record by Ms. Scheuer and consented to by Ms. Jerome. Ms. Scheuer was to prepare the order.
[12] Difficulties arose with respect to the agreement at the settlement conference. With the input from the settlement court, it was decided that the matter would be set down for a four-day trial.
[13] On January 6, 2005, a telephone pre-trial conference call resulted in a direction to Ms. Scheuer to provide an updated Statement of Financial Information and Statement of Property from her client and his common-law spouse within two weeks of the January, 2005 date along with an accounting of the sale proceeds of the tow truck.
[14] Ms. Scheuer's client would undertake to notify Ms. Falkenham by handwritten note of any decision to sell assets in the future until the trial, the reasons for its sale, the intended use of the proceeds, and then to provide an accounting of those proceeds after the sale occurs. Finally, Ms. Scheuer was to attempt to offer an explanation as to why the business net income had dropped to as low as $3,000 by explaining why the revenue decreased and whether expenses had increased and why or a combination thereof.
[15] The matter was pre-trialed by myself on July 25, 2005. Disclosure requirements were set out in the pre-trial memorandum. Mr. Falkenham had retained new counsel, Ms. Hounsell.
[16] In the interim on August 22, 2005, Mr. Falkenham, through counsel, made an application to remove Ms. Jerome as counsel for Ms. Falkenham, due to an allegation of a conflict of interest. This application was dismissed.
[17] The matter comes before me under the Maintenance and Custody Act and the Matrimonial Property Act.
Relief Requested:
[18] Ms. Falkenham is seeking custody of the children, the continuation of supervised access, child support according to the guidelines with an imputed income and a sharing of s. 7 expenses. She seeks a division of matrimonial property, the return of her parents' $10,000 investment in the matrimonial home. This home was conveyed to Mr. Falkenham's parents in 1994. She seeks an equal division of the business assets.
[19] Mr. Falkenham seeks joint custody with primary care to the mother, a disclosure clause and seeks to have his annual income imputed at zero. He agrees to pay $200 per month child support and share the extracurricular expenses for the children. He seeks to exclude all business assets from the division of matrimonial property. He contests the payment of $10,000 to Ms. Falkenham and he contests the valuation of assets as proposed by Ms. Falkenham. He seeks a division of her pension.
[20] Timely and full disclosure has been an issue throughout the entire proceedings.
[21] The Pre-Trial Memorandum dated July 25, 2005 directed that the final aspects of disclosure were to be filed by August 17th. Counsel agreed to proceed to trial by way of affidavit evidence with some leeway on direct for principal witnesses only. Due to lack of timely reliable disclosure, there was significant, substantial direct examination of Mr. Falkenham. (I do not attribute fault to Ms. Hounsell.)
[22] The vive voce evidence of Mr. Falkenham, together with his Affidavit of August 2, 2005, accounted for the sale proceeds of the tow truck.
[23] Mr. Falkenham did in fact sell assets subsequent to the January, 2005 Pre-Trial Conference Memorandum and did not account for them to Ms. Falkenham.
Disclosure as per file entries:
[24] As of January 13, 2004, Mr. Falkenham, provided his 2000 and 2002 tax returns. As of January 13, 2004, his 2003 return was not completed. On January 21, 2004, Ms. Scheuer filed Mr. Falkenham's Affidavit, his Statement of Property and Statement of Financial Information.
[25] On February 18th, counsel filed an additional Affidavit on behalf of Mr. Falkenham.
[26] On July 28, 2005, Ms. Jerome filed sworn Statements of Financial Information and Property for Ms. Falkenham.
[27] By letter dated January 26, 2005, Ms. Jerome acknowledged receipt of the Statement of Financial Information and Statement of Property and the common-law partner, Kim Shinkar's Statement of Financial Information and Statement of Property.
[28] Ms. Jerome noted to counsel, however, that they did not receive the accounting as directed by the Honourable Justice Douglas C. Campbell.
[29] On August 24, 2005, Ms. Hounsell provided to the Court the Statement of Guideline Income for Mr. Falkenham, the updated Statement of Property and the Statement of Expenses.
[30] On August 29, 2005 Mr. Falkenham, through counsel, disclosed to the parties and the Court six volumes of additional disclosure. This disclosure was delivered to Ms. Falkenham's counsel on Wednesday, August 24, 2005. The six volumes were tendered for disclosure purposes. It was referred to only once in evidence.
Guideline Information
[31] -Ms. Falkenham is an LPN now earning approximately $31,200 a year.
[32] - Mr. Falkenham:
The income tax returns and assessment notices show the following:
2000 Gross income $19,562
2001 Gross $41,586 Net $ 6,471
2002 Gross $36,839 Net $ 7,545
2003 Gross $32,085 Net $ 3,788
2004 Gross $20,361 Net ($16,869)
[33] I have a statement of guideline income for 2005 depicting a monthly income of $434.34. There is proof of receipt of social assistance for the month of August, 2005. I also have a more current income (Exhibit 13) depicting a monthly income of $888.37 for an annual salary of $10,660. This would result in a table child support payment of $132 per month.
[34] Mr. Falkenham has offered to pay $200 per month plus one-half the extra curricular costs.
[35] I have at least three Statements of Guideline Expenses. Exhibit 35 dated February 10, 2005 included his spouse and shows expenses of $2,370. This bears no reasonable relation to his income. The second (Exhibit 37) dated January 21, 2004, expenses of $4,764. This appears to be a piece of fiction.
[36] The third filed lately (Exhibit 34) show expenses of $1,535.67. I accept this as an attempt to accurately indicate reasonable monthly expenses. This has him working with a deficit of $535 monthly.
[37] Both Mr. Falkenham and his partner qualify for a drug card with Social Assistance and have qualified to attend at the food bank for supplies.
[38] At the interim hearing in November, 2003 the Respondent was ordered to pay $554 a month without the benefit of evidence, based on the submissions of her counsel that his gross income was $41,050. He is in arrears as of August 10, 2005 in the amount of $1,048.20. His returns and GST are garnished and the contract he has with the Capital District Health Authority for the winter months is garnished. This contract is his most reliable source of income.
[39] While the representations of counsel reflected his gross income, they did not account for his net income as accepted by Revenue Canada and do not allow for reasonable business expenses. The nature of his business, the difficulty in finding a credible income figure, his cash jobs, et cetera and his own lack of clarity resulted in a payment in excess of his means. He was unrepresented at the time. Current arrears are forgiven.
[40] His major contract now is with the Capital District Health Authority for eight months of the year. He admits in his application for that contract in 2002 that he has owned and operated heavy equipment, backhoes, tractor trailers, log trucks, snow removal equipment and had, at that time, a towing and recovery business along with snow removal. Ms. Falkenham typed that resume.
[41] In submitting his bid, he listed his equipment as three plow trucks, two salt spreaders, one backhoe loader and one large loader. He calculated on the Capital Health District tender that for snow removal from October 31 to May 31 the cost would be $9,651 per year (eight months). The contract has been renewed to May 31, 2006. From October 1, 2002 to May 31, 2005 the purchase order was for $38,604.
[42] He has a contract he can renew this year for snow removal at the Twin Oaks Hospital, the ambulance bay and the HRM building.
[43] The Applicant asks that I impute income of approximately $40,000, having regard to the admission that the Respondent receives cash for some of his traditional services that includes car repair, selling automotive parts from his scrap collection of cars and trucks, his savaging and sale of scrap metal. He also admits to receiving cash for snow removal (before the Capital District snow removal contract he admits approximately 40 private residences and after to four or five), mowing lawns at private residences and unnumbered and unrecorded road assistance calls for local motorists.
[44] The Applicant has about a two-year history of knowledge of the business operations prior to separation, 2002, when she took care of the HST calculations. She received some calls for the business at home and ran small errands. Formerly, they operated a forestry business that pushed them into bankruptcy. He denies she completed his books after 2002 subject to a few bills to the government.
[45] The contract with the CDHA offers the most reliable source of income. It is from this source of money that the child support has been garnished. There has been no allowance for increased costs. The yearly eight-month yield appears to be $12,868.
[46] I have no current reliable account for the expenses of maintenance and gas to operate this business. For example, his total gross income for 2002 was $41,586 with business expenses as per his T2124 of $35,115.35. This included some household expenses, $24,626 in motor vehicle expenses including fuel costs of $10,488 which would relate to all employment income sources and personal expenses not differentiated by his bookkeeping (such as it was).
[47] His motor vehicle expenses in 2002 included fuel of $2,961.73 and repairs of $12,4098. If his fuel costs were less, it makes sense his income was less. He also had lease payments that year of $5,052. His net reported income for 2002 was $9,614.
[48] He lost his licence in 2003 for impaired driving and recovered it in July, 2005. While he has his partner driving for him, he admits to a considerable reduction in income.
[49] The Applicant suggests he could earn $250 a week for CAA. He painted a more favourable picture in his bid to sell the business to Mr. Osmond. He told Mr. Osmond, the buyer of his business, that the CAA contract could yield $500-$600 a week. With the sale, he gave away the option of earning that when he sold to Mr. Osmond. The loss of his licence also affected his ability to earn form this source. While he is able to do a limited list of road assistance calls, currently he and his common law partner have limited means of effecting this.
[50] He told Mr. Osmond he earned $1,000 per week from the towing business. Ms. Falkenham believes he earned approximately $3,650 per annum, although she amended her estimate to increase the cost of occasional towing jobs from $25 a tow to $60. Neither her estimate nor his, supply a reliable valuation.
[51] Before his contract with Capital District Health, he had 40 or more private snow removal jobs. He limits his snow plowing customers when he has the Capital District contract because that is high priority and he indicates private customers do not want to wait while he finishes with his major contract. That is reasonable. He has a few local jobs snow plowing, some lawn mowing and cash towing jobs. He lost the RCMP contract when he was caught on an impaired driving charge.
[52] This Capital District contract has assisted in sustaining the family when together and continues to provide essentials for Mr. Falkenham and his partner. They could not survive on his reported income without this source of income. Neither the Applicant nor the Respondent have been able to quantify this source of income with reasonable certainty.
[53] In his latest financial statements, Mr. Falkenham claims other monthly income of $400. The Applicant supplied an affidavit from Mr. Lloyd Osmond who agreed to purchased the business of “Cotter's Trucking and Recovery and Garage” from Mr. Falkenham. His evidence was not challenged. He stated that he was informed by Mr. Falkenham that the towing business produced $1,200 weekly; $500-600 weekly from the CAA contract. Mr. Falkenham transferred the CAA business to him getting rid of his leased truck and his snow plow. He received $6,000 cash and resigned his obligation for the lease payments.
[54] The buyer indicated that, despite the sale, Mr. Falkenham continued to operate with his old truck and his partner's truck. Mr. Falkenham admitted this, testified that other than his contract with the Health District he has little income from the remaining small operators and he appreciates that continuing to operate under his current name is not in accordance with the agreement as he no longer has the right to use the Cotter’s name.
[55] I conclude that he intended to sell the business and continues to operate on a much reduced level retaining the Capital District Health contract for snow removal and earning income as in the past on a much reduced level.
[56] In part, he claimed the separation threw him off track. In part, he admits that the loss of his driver's licence between November , 2003 and July, 2005 reduced his capacity to perform his job functions. His partner purchased a truck with her inheritance and drove for him during this period. He testified this allowed him to earn income but in a reduced capacity. He also has another driver to assist.
[57] If I review his 2004 income and reduce it by expense items that are not questionable, including lease payments, half the gas and repair costs, his income would be below the guideline table.
[58] Yet the Respondent promises to pay $200 a month plus one-half the cost of the children’s activities. That exceeds his declared income obligations. I accept his agreement to pay and so order. He clearly takes in some cash jobs, more than he admits to. Considering this the decline in his business, the lifestyle he and his partner live, his current need to obtain his medication from social assistance and the food bank donations, Mr. Falkenham does not live an enviable existence.
[59] He is however seriously underemployed and obviously handicapped by alcoholism. He must provide semi annually full records of his income from all sources and receipts verifying his personal and business expenses. These shall be provided on June 30 each year and December 31 each year. The costs of obtaining this disclosure should legal assistance be required, shall be borne by Mr. Falkenham.
[60] Finally, I have four affidavits from individuals who confirm that Mr. Falkenham and his partner are seen at the local Bingo Hall spending money to purchase cards. The obvious question is where does the money come from to pay Bingo? The average costs they suggest would be $30 per night with the occasional win. This evidence doesn’t move me close to a credible finding as to how much money is taken in the Falkenham home.
[61] I have insufficient proof of cash income to put with earned income to impute in excess of $13,000, which is the income that would produce a payment for two children of $200. The phone he used in June-July shows a total of 807 calls (27/day). That would indicate a higher volume of business than he admits to.
[62] I do note that his current common law partner, Ms. Shinkar, is 39 years old without children and declares no income. Without her, in the recent past, there would have been no income in the family from towing. Her 2003 earnings were supplemented by social assistance. Her 2003 income was reassessed. Revenue Canada did not accept her declared income. The reassessment in July 19, 2004 reflected an income of $15,641. She owns one truck valued at $15,000 registered in her name. There is also a 1986 truck with plow gear valued at $4,000. She owns a 1991 car dolly used in the towing business. She advises that Mr. Falkenham pays all household expenses and she receives no income.
Division of Property:
The Matrimonial Residence
[63] The home they lived in was purchased by the paternal grandparents in 1994. The payments were in arrears and they were at risk of losing the home. His parents obtained mortgage funds of $64,120.59 and her parents wired $10,000. The balance of funds required for closing was $11,586.76 for a total of $85,707. Two judgements against Mr. Falkenham were paid out.
[64] This leaves the parties with a leasehold interest, if anything. Thus under section 3(1) of the Matrimonial Property Act, since neither have a property interest in this home, it cannot be considered an asset subject to division.
[65] The paternal grandparents took over the mortgage, bought the home and agreed to allow the family to continue to stay there. Both admit that rent was not always paid. The evidence discloses that it was seldom paid. No rent is being paid now. Initially, they were supposed to pay $700 and now the Respondent indicates he is supposed to pay $500. His parents are receiving no rent.
[66] They both acknowledge that improvements were made to the property during their cohabitation. Some of the siding was replaced, painting and a new floor covering put in.
[67] The Respondent tendered a letter from his father dated January 27, 2004 demanding rent payments which were well past due. Mr. Gilbert Falkenham stated in the letter that if rent was not forthcoming he will be forced to sell the home.
[68] There is no written agreement or promise to pay back the maternal grandparents. Neither have an interest in the home.
Business Assets:
[69] Ms. Falkenham maintains she is entitled to a share of the business assets. Mr. Falkenham has continued to buy and sell various automotive parts and materials as in the past. He has not accounted for the cash received by way of receipts, names of the purchaser, et cetera, as directed by the court in the order dated January 6, 2005.
[70] Ms. Falkenham seeks a share of what she considers the family business “Cooter’s Towing and Recovery”. The company was registered with the Registry of Joint Stocks July 31, 2001; revoked for non payment September 1, 2002; reinstated November 21, 2002 and revoked September 6, 2003.
[71] Ms. Falkenham alleged that a year before separation someone offered to buy the business for $100,000. There is no credible evidence as to valuation other than the $6,000 received from Mr. Osmond and remaining assets and the cash received from the sale of the automotive parts and tools that went on consistently between separation and this hearing.
[72] The 2002 Chevrolet Truck was a leased business vehicle. When Mr. Falkenham sold the business he received $6,000 for it and the transfer of the business. The vehicle and lease payments have been absorbed by Mr. Osmond.
[73] Ms. Falkenham’ s name was not required on the transfer or registration. It was registered in Lloyd Osmond’s name March 22, 2005.
[74] Another truck sold for $1,000 (Exhibit 31).
[75] The ATV was sold. Mrs, Falkenham received $1,700 for her share of the ATV (September 3,2003). Mr. Falkenham acknowledges he is responsible for the $5,000 debt with HFC.
[76] Various other pieces of property were identified in the evidence. Using an aid marked Exhibit 40 prepared by counsel, Mr. Falkenham gave his estimation of the business assets in dispute and his ballpark estimate of their value. They include the following:
2002 Chev Tow Truck $ 6,000
1990 Chevrolet and plow $ 1,000
Parts $ 2,650
Customer’s motor home $ 400
Camping trailer $ 500
4 wheeler trailer $ 400
Cube Van $ 450
Wannabe $ 400
2 skidoos,
1 racing 4 wheel motorbike
3 wheeler $ 400 (Police Bill)
ATV $ 3,500 (Ms. Falkenham received $1,700)
(Mr. Falkenham owes HFC debt)
Salt spreader $ 100
Tools $ 1,500
[77] The Applicant valued the Respondent’s tools at $12,000. This is at best a guesstimate. The Respondent’s estimate of tools is intended to minimize what he has. Even if I were to assess the tools at $2,000 that would be a guess.
[78] The total assets in dispute at the Respondent’s estimate would be between $17,000 to $20,000. The Applicant's estimate well exceeds this amount and cannot be determined to be more accurate than the Respondent’s. The Respondent’s estimate as incomplete as it is subject to memory, without documentation, is more realistic simply because it is his business to know what salvage is worth.
[79] I have two exhibits of pictures of tools, multiple wrenches, compressors et cetera. The valuations of $12,000 is based on Ms. Falkenham’s discussions with individuals in the community knowledgeable of the industry who may have seen the tools and parts as they drove by the home. Many of the items appear to be in plain view of the public. There is no independent evidence of valuations other than this hearsay.
[80] The parties agree much of the personal and household assets were divided. They subsequently agreed or evidence was tendered on the following :
Camping trailer ($500 sold) (value disputed)
Lawn Mower (Ms. Falkenham's father)
Life Jackets (to be returned to the Applicant for the children)
2 Deep freezes (one to be given to the Applicant)
Dresser with mirror ($35)
2 Satellite Dishes
Firearms (to be sold) (½ to Applicant)
Washer and Dryer
Stove
Dishwasher
Entertainment Centre
Barbecue
Patio Furniture
Large Television
Pool Table
Desk Unit
Gardening Tools
Wheelbarrow
Shovels
Children’s items (Exhibit 31) to be returned to the children
Bedroom Suite (purchased in 1897 for $2,000
Mirror to be returned to the Applicant
Applicant’s Dodge Van (loan is $20,000 value $9,000)
[81] Needless to say, the values of these items whether sold or retained was disputed. The Applicant admits essentially the personal property has been divided and did not contest that she and the children received a good part of the personal possessions save for the disputed items.
Pension:
[82] The Applicant’s pension is described in a letter attached to her Statement of Property dated the 27th day of July 2005. It has been calculated for the period of the marriage May 16, 1992 to September 4, 2003. Based on eight years, two months pensionable service and her average salary of $32,304.84, the monthly benefits undivided would be $439.71.
Debts:
[83] The Respondent’s 2003 income tax return shows a debt to Revenue Canada of $795.70. This income relates to his business income earned. The parties separated in September, 2003. Normally this may be prorated. In this case, the Respondent shall bear responsibility for that debt.
[84] Both list a Star Choice debt. That was a joint debt and if not paid ought to be shared.
[85] The Respondent alleges that there are two matrimonial debts as a result of an oral agreement entered into by the Applicant when she operated a company MJ Forest Clearing and Timber Sales Limited. The judgements are in fact against him. I decline to consider these as matrimonial debts. It might be a business debt from a former business. Each went through bankruptcy after MJ Forestry. I do not have evidence of the bankruptcy.
[86] There is another debt owed by MJ Forestry Clearing and Timber Sales Limited in favour of Glenna Conrod. The debt is $8,000. There is no evidence this is a matrimonial debt. It may be a business debt from a former enterprise. If Ms. Conrad seeks to recover she will have to pursue recovery in another action.
[87] There are two debts owed by Cooter's: one from Cox Auto Parts for $1,915.09 and one for Covery’s Auto Recyclers. Those are not matrimonial debts.
[88] The Respondent continued to sell automotive parts and some matrimonial assets without accounting for the sale. He appeared to be living a meagre existence. He was in contravention of the court order. As a result, there cannot be a credible valuation of the number of matrimonial and business assets.
[89] Many of the assets were an accumulation of parts of automobiles and auto parts that he collected through his business. If the police required him to tow items until the owner accounted for the costs, the item remained with him. After a certain period of time, the item was sold and his business absorbed the cash. The sale of assets would include engine parts, car parts, truck parts, et cetera. There is no reliable way of knowing what was sold and what amount of money was received. Mr. Falkenham’s account is not accurate or necessarily reliable based on the lack of documentation and the fact that for many of the items he is going by memory. He admits this frailty.
[90] The Applicant seeks compensation under section 18 of the Matrimonial Property Act. Section 18 states:
“Where one spouse has contributed work, money or moneys worth in respect of the acquisition, management, maintenance, operation or improvement of a business asset of the other spouse, the contributing spouse may apply to the court and the court shall by order
a) direct the other spouse to pay an amount on such terms and conditions as the court orders to compensate the contributing spouse therefor; or
b) award a share of the interest of the other spouse in the business asset to the contributing spouse in accordance with the contribution,
and the court shall determine and assess the contribution without regard to the relationship of husband and wife or the fact that the acts constituting the contribution are those of a reasonable spouse of that sex in the circumstances.
[91] In this instance the wife did not perform any of the mowing, towing, plowing, electrical or mechanical work. She submitted the HST forms , performed some accounting and took some messages.
[92] Traditionally, the cash from the sale of these parts and mechanical work were used to maintain the household. Some of the tools were likely used to repair household effects. The bulk would have been used in the business.
[93] I do not have an appropriate valuation of the business. The only value I have is the contested value of the cash received on sale of some of the assets.
[94] The person with the best information available is Mr. Falkenham. He did not abide by the court order regarding an accounting. His testimony of this matter regarding the value of the sold assets is not reliable. It is likely understated.
[95] If I were to place a conservative value for 10-15 percent I would not be able to identify 10 percent of what.
[96] In summary, the wife retained her car she valued at $9,000; the husband, his work truck likely valued at less. The money injected by the wife’s parents ($10,000) is lost to her. The business assets may be worth something for salvage. They are also needed if the Respondent is to earn a living.
[97] Based on the evidence before me, the $100,000 is far from reliable. Mr. Osmond thought he bought the business for $6,000, the truck and plow and the referral of the contracts to him. It is the referrals that hold the most potential as income.
[98] Because of his alcohol related conviction and its effects on his life, he is underemployed and currently not supporting his children other than by garnishee.
[99] The personal property has been divided.
[100] If I look to section 13 of the Matrimonial Property Act, the Court may make an unequal division of matrimonial assets where the Court is satisfied that an equal division would be unfair or unconscionable, having regard to the enumerated factors.
[101] In this case I specifically find pursuant to (a), (b), (f), (g), (i) that an equal division of the Applicant’s pension would be unfair and unconscionable, having regard to the wasting of the matrimonial and business assets and earning potential. This Applicant has become the sole support of the children with minimal access to the Respondent. The only manner of obtaining income is by way of garnishee. The Respondent has sold the majority of his business assets thereby impairing his ability to earn an income and impairing the Court's ability to value and apportion an interest to Ms. Falkenham. He has not disclosed the cash he received from the sale. His struggle with alcoholism further impairs his ability to support his children.
[102] After three days of evidence I cannot pick a reliable number to value the business assets or matrimonial portion of tools.
[103] The tools that he has he needs to earn an income. The truck that remains is used in the business. It was not a matrimonial asset.
[104] The personal and household furnishings have been divided save only for those items to be returned to Ms. Falkenham including a usable freezer, the life jackets, the children’s belongings, the dresser with the mirror, and the rest of the children’s items to be returned, including the three sleds, Alissa’s desk, Jason’s toys and motorized jeep, fishing rods and other toys.
[105] The guns are currently for sale. Mr. Falkenham shall provide the name and phone number for the buyer. He shall pay to Ms. Falkenham one-half the proceeds of both firearms.
[106] The wife shall keep her 2002 Dodge Caravan automobile and the outstanding loan associated with this auto. The husband will retain any business trucks that remain in his possession and he shall be fully responsible for any indebtedness associated with these business assets. He shall indemnify the Applicant should she be called upon to pay out any such indebtedness.
[107] The Applicant shall keep her pension without division.
[108] The Respondent shall indemnify the Applicant from the joint indebtedness with GMAC, listed in her Statement of Property in the amount of $1,000 with approximately $800 remaining.
[109] The parties shall exchange income tax returns by June 1st each year. The costs of obtaining this disclosure shall be borne by the party failing to provide.
[110] The Respondent will provide an accounting of his total income and expenses with receipts half yearly (June and December). The costs of obtaining this information shall be his.
[111] It is the Respondent’s duty to keep the Applicant informed of his income and changes in his income to allow her to monitor the income in relation to the Child Support Guidelines.
[112] The Applicant shall provide the costs of extracurricular activities to the Respondent and he shall reimburse the Applicant one-half the costs forthwith. The parties should exchange information on the children’s activities at the commencement of the school year.
[113] The order shall contain a provision to all third party service providers to allow them permission to disclose to both parties details concerning any services provided to the two children they have in their care.
[114] The mother shall have sole custody with access supervised as per the preceding court order.
[115] The mother shall keep the father informed of all major decisions respecting the children.
[116] Counsel for the Applicant shall draft the order.
[117] The parties may wish to make representations as to costs. The success of this application has been divided.
J.