Yassa v. Parker, 2012 ABQB 167

Court of Queen ’ s Bench of Alberta Citation: Yassa v. Parker, 2012 ABQB 167 Date: 20120309 Docket: 4803 142382 Registry: Edmonton Between: Amera Yassa Plaintiff - and - Warren Scott Parker Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice L.J. Smith _______________________________________________________

Summary [ 1 ] The only matter before the court is distribution of the parties’ matrimonial property. Both parties seek an unequal distribution in their favor. Facts [ 2 ] The parties were married February 5, 2000. They separated May 31, 2007. Corollary Relief was severed and they were divorced November 5, 2010. They have two children, aged eight and five.

[ 3 ] All of the issues between the parties have been in case management. The matrimonial property issues were directed to trial so that the Corollary Relief matters could be case managed to completion. This trial does not concern issues relating to custody, which is currently shared, or child support. Reference to matters involving the children is for background. [ 4 ] The witnesses who testified were Ms. Yassa for the plaintiff; Mr. Parker, both of his parents, John and Kathy Parker, Mr. Parker ’ s uncle, Sal Figliuzzi, his first exwife, Charlene Stupar, and his current wife, Ms. Honey.

The witnesses in addition to Mr. Parker were called as part of his case in relation to debts and one credit card. Kathy Parker was produced for cross examination only. [ 5 ] Ms. Yassa ’ s parents live in Australia. They provided letters pertaining to Ms. Yassa ’ s debt to them which are before the court. [ 6 ] Ms. Yassa is a computer engineer who lived in Australia prior to meeting Mr. Parker. She came to Canada to marry Mr. Parker after meeting him in Hawaii.

She was unemployed for a few months on arriving in Canada but since then has been well employed taking year long maternity leaves with each of the parties two children. [ 7 ] Mr. Parker immigrated with his parents to Canada from England in 1981. He was married before this marriage to Ms. Yassa. There is one child of that first marriage, to whom he enjoyed access and for whom he paid child support. After he and Ms. Yassa divorced he remarried. He is employed in the field in which he is trained as a mental health therapist working with youth in a hospital environment. [ 8 ] Ms.

Yassa ’ s earning capacity is about the same as Mr. Parker ’ s. Her incomes follow: 2006 $44,098 2007 $39,687 2008 $67,721 ($65,321 from employment) 2009 $70,647 ($68,747 from employment) 2010 $71,627 [ 9 ] Mr. Parker ’ s incomes follow: 2005 $60,705 2006 $63,872 plus $26,733 from RRSPs for a total of $90,606 2007 $65,555 plus $31,913 from RRSPs for a total of $97,468 2008 $69,945 2009 $74,498 plus $1,185 other income for a total of $75,683 2010 $77,114 [ 10 ] Mr. Parker admitted to filing his 2010 income tax return late.

There is, therefore, no Notice of Assessment to confirm his draft of the T1 General. [ 11 ] Ms. Yassa ’ s incomes in the 2006 and 2007 years were reduced due to her maternity leave for one year.

[ 12 ] The parties take a different view on whether spousal support was an issue around the time of the separation. Ms. Yassa alleges they agreed Mr. Parker would pay the matrimonial home mortgage in lieu of spousal support. At the time of the separation, Ms. Yassa ’ s income was diminished for a short time due to the completion of her maternity leave. Mr. Parker denies such an agreement. I am not aware if spousal support has been pleaded in the Corollory Relief proceedings. Given their conflict over money I doubt these parties were capable of such an agreement.

I infer no agreement regarding spousal support was made which ought to inform these proceedings. [ 13 ] I have noted that in Mr. Parker ’ s T1 General from 2006, he reported himself as separated. In late 2006, Ms. Yassa traveled with the children to Australia to visit her parents. Her visit was initially planned for three months. It was extended to six months. I accept that the relationship between the parties was deteriorating during that time.

However, there is no evidence before me that confirms that they were separated before May of 2007. [ 14 ] It is apparent that the parties disagreed on financial matters during late 2006 and up to the separation. Ms. Yassa points to large withdrawals from the bank accounts by Mr. Parker prior to their formal separation. Mr. Parker maintains this happened because he was paying for everything while she was in Australia. [ 15 ] When Ms. Yassa left for Australia, she left Mr. Parker some signed blank checks to cover her share of the monthly expenses (between $700 and $800 per month).

He negotiated one check for $2,820 in early January, 2007. Ms. Yassa issued a stop payment on that check. She asserts it is a forgery. Clearly it is not since it carries her signature. Mr. Parker maintains that it represented some months of expenses and some renovations. There was a subsequent check for $85 on March 1, 2007. Ms. Parker asserts this is a forgery as well although it is also signed by her. Mr. Parker has no memory of that check. Clearly the parties were in serious disagreement over money. [ 16 ] Neither party was cooperative with disclosure.

In the two and a half months prior to the trial, the case management justice ordered substantial disclosure by both parties, third party disclosure from banking and credit institutions and disclosure from the department of Motor Vehicles related to Mr. Parker ’ s cars. Much of the trial was in the nature of discovery emanating from this late disclosure. [ 17 ] Both parties resisted making disclosure. Ms. Yassa withheld until trial that the joint owners on two bank accounts in her name were her mother and father although the parents ’ letter speaks to this fact.

She obfuscated regarding an investment for $13,000 which the documentation seems to suggest was reinvested but she maintained was spent. Her cross examination on an affidavit on this topic disclosed motive to be, at best, unclear. Her cross examination evidence at trial disclosed efforts to control rather than to be clear. [ 18 ] Mr. Parker delayed filing his 2010 income tax return making the Notice of Assessment unavailable. His prior T1 Generals for 2006 and 2007, and his failure to report RRSP income in those years makes his 2010 T1 General suspect.

He failed to disclose assets on his sworn Statements of Property. He maintained non-disclosure until confronted with proof of ownership. He refused a request to appraise a car although the case management justice had required his cooperation. [ 19 ] The parties were also given leave to amend their pleadings which was done the week prior to trial.

The claims set out herein reflect the evidence led rather than the specific claims set out in the pleadings but the claims in the amended pleadings are broad enough to cover the claims advanced in the evidence and argument. [ 20 ] Both parties had difficulty reconstructing what has happened to their funds in their bank accounts over the five years of separation. Ms. Yassa maintained that the joint accounts with her parents reflected transactions which had nothing to do with her. She provided no explanation as to why her parents are doing their Australian banking transactions in Canadian funds.

She did maintain that her loan to her parents grew as she withdrew funds from one parent ’ s account from time to time. [ 21 ] Mr. Parker was unable to explain large cash transactions in his account. No doubt the passage of time hampered his memory. However, the transactions are far in excess of what one would expect of someone with his income. [ 22 ] Ms. Yassa was self-represented during the trial. She is a bright woman with a quick mind and a facility for financial detail. However, she was also defensive, unobjective and bitter. Her self-representation was cumbersome, at best.

She was unable to resist commenting from counsel table on Mr. Parker ’ s evidence although she was regularly asked to desist. Her comments telegraphed her

point of view but failed to deliver cogent evidence. Ms. Yassa believes Mr. Parker is a liar and forger, that he has secret undisclosed assets and that he has dissipated matrimonial assets for his own benefit. While there may be some truth to the last belief and claim, the court can act only to the extent that the evidence is clear and cogent. [ 23 ] Mr. Parker, unfortunately, gives Ms. Yassa some fuel for her mistrust. It is evident that he likes to spend money on himself as is shown by his borrowing from Ms. Honey of $40,000 in only 14 months of marriage. The current amount outstanding is $34,000.

More than half of the money has been used to purchase cars and motorcycles for Mr. Parker. [ 24 ] Mr. Parker has also accumulated $60,000 in debt to his parents and $10,000 in debt to his uncle and aunt since the parties separated. He has spent that money quickly while two matrimonial debts were minimally serviced. His parents also gave him $10,000 as a down payment for his new home so that he would have a proper place to house the children for their time with him. [ 25 ] Ms. Yassa suspects Mr.

Parker of having a source of funds additional to his income and that he has been hoarding funds in accounts other than those which he has disclosed. In my view, she has failed to prove her suspicion is true. Mr. Parker denies the allegation. In this litigation, he has admitted to receiving $120,000 from his family members. That extra cash injection could explain much of the extra cash he appeared to have on hand. Mr. Parker is not seeking adjustment against Ms. Yassa for his post-separation debt to his parents, aunt and uncle and wife. [ 26 ] Ms. Yassa has, however, shown that Mr.

Parker seems unable to restrict his spending impulse. Early in the separation, Mr. Parker ’ s financial documentation shows poor financial judgment on Mr. Parker ’ s behalf in that he chose to travel and spend as he did. However, the purpose of a matrimonial property trial is not to punish for poor financial management short of dissipation. It is to distribute matrimonial property equally unless there is reason to depart from the presumption. [ 27 ] A discussion of post-separation financial behavior would not be complete without comment upon Ms. Yassa ’ s debt accumulation. In August of 2010, Mr. and Mrs.

Yassa senior confirmed that Ms. Yassa owed them about $10,000, having repaid about $5,000. In December of 2011, they wrote another letter saying the debt had risen to $85,820. That letter also linked them to the joint accounts. Ms. Yassa produced a promissory note documenting the current outstanding amount of $90,820 as at February 8, 2012. Ms. Yassa seeks reimbursement of $5,000 of that amount saying that it was owed from early in the marriage. [ 28 ] The inevitable inference is that both parties have received substantial financial assistance from family members since the separation.

As a result, both parties have been able to purchase homes for themselves since the separation. Both homes were priced under $200,000 and are near to equal in value. Ms. Yassa ’ s home has more equity due to more of her parents ’ money being invested which is part of the reason for Ms. Yassa ’ s loan to them increasing. Child Support [ 29 ] It is my view that Ms. Yassa is a better financial manager than is Mr. Parker. It is obvious that part of their problems in the marriage stemmed from differences over how to handle money. However, I decline to accept the assertion that Mr.

Parker has been delinquent in his child support payments. [ 30 ] The original order for child support dated November 7, 2008 refers to arrears of child support in paragraph 3. This reference to arrears is in error. It ought to have been called retroactive child support. [ 31 ] Mr. Parker maintains he has paid all of his child support payments as required by the order but that the Department of Maintenance Enforcement (MEP) has created problems on two occasions leading to a characterization of arrears on the parties ’ account which was incorrect. Mr.

Parker testified that he has twice been forced to involve his MLA to have MEP correct its records. He says that finally, in the month of the trial, February of 2012, the latest problem had been sorted out. He maintains that a statement from MEP showing the lack of arrears will be coming.

[ 32 ] Ms. Yassa maintains that Mr. Parker has been further in arrears on S. 7 payments since the court directed they be shared and receipts be provided to MEP. Mr. Parker maintains that MEP failed to notice the change in the order and over charged him. [ 33 ] Ms. Yassa ’ s experience with MEP would have been subject to delays inherent with using that system. She attempts to interpret the documentation in her favor (that there were arrears and garnishees). MEP documentation is difficult to interpret. It does support that corrections were made. [ 34 ] I allow Mr.

Parker the opportunity to prove to the case management justice or other justice that he has in fact paid his child support as he says he has. I understand that the original delay in filing the order and registering with MEP would create systemic delays which should not alter the following inference. [ 35 ] I infer that Mr. Parker has not fallen into arrears beyond the arrears created by the delay in filing the order and registering it with MEP.

If the child support conclusion I have just made turns out to be untrue, nothing in this judgment is intended to prevent the case management justice or other trial justice from making appropriate adjustments to the award herein to ensure child support arrears are paid. Unequal Distribution, Generally [ 36 ] Given all of the circumstances and the state of the evidence, I am not willing to conclude that Mr. Parker has a secret source of income or undisclosed assets or is hiding or has dissipated matrimonial funds. Nor has Mr. Parker proven such against Ms. Yassa.

Neither party called cogent evidence to support a departure from the presumption of equal sharing, apart from what follows. [ 37 ] Therefore, both parties claims for unequal distribution for any reason claimed and not covered by what follows in this judgment are dismissed. Matrimonial Property Exemptions [ 38 ] The evidence is that both parties had more debt than assets at their marriage. Ms. Yassa ’ s property was about $6,000 in debt. Mr. Parker has left the amount of his debt open but he has made the admission in read-ins. I infer his debt was at least as much as Ms. Yassa ’ s and likely more.

Neither party has proven an exemption for original property. [ 39 ] Ms. Yassa claims an exemption for a damage award she received from a human rights complaint when she was let go from her job after an absence while on maternity leave. The correspondence refers to a damage award, not to loss of income. In such cases, injury to dignity can be compensable. In my view, she has proven her exemption if the asset still exists.

In other words, if the remaining $13,000 investment has not been spent as she asserts, and still remains as the documentation seems to suggest, then she may keep that asset without accounting to Mr. Parker. However, since she maintains she has spent the money, she is not entitled to any set off from other matrimonial property. Matrimonial Home Proceeds [ 40 ] The parties ’ matrimonial home was sold in the fall of 2010. The approximate sum of $135,645 plus interest is being held in a solicitor ’ s trust account.

From the total sum, the case management justice has directed that $50,000 be held to fund certain aspects of the custody litigation between the parties. Therefore, approximately $85,000 is available for distribution.

[ 41 ] Certain payments were made from the net sale proceeds. The parties seek readjustment of those payments. This will be dealt with following. Pensions [ 42 ] Both parties have a pension with their employer. Both started contributing after the marriage. Neither party demonstrated a sophisticated knowledge of how to read the pension evidence before the court or how to evaluate a pension entitlement.

Therefore, despite their relatively young ages, the parties ’ pensions shall be distributed at source. [ 43 ] The precise terms of the pension orders shall be set out in separate orders in accordance with the needs of the party ’ s plan. In the event there is a dispute over the terms of the separate orders, then the case management justice is free to determine those issues, unless she wishes the matter referred back to me. [ 44 ] There is no cogent evidence upon which to distribute the pensions other than equally for the period of time over which each was earned.

The end date for distribution of the parties ’ pensions at source shall be the date of their divorce. Reasons are set out following. Vehicles [ 45 ] At separation, each party had a Honda vehicle and Mr. Parker owned a Porsche. Both the Hondas were financed in some form. Since the separation, Mr. Parker has acquired a further six vehicles, the first of which, a Jaguar, was acquired by trading for his Honda. Four of the six were financed by Ms. Honey. Two were motorcycles. The two cars now owned by Mr. Parker are the 1998 Mercedes and a 2002 Acura.

He failed to disclose the Mercedes and refused to appraise the Acura. Together he says they are worth just under $20,000. [ 46 ] Ms. Yassa seeks transfer of the Mercedes to her as punishment for his failure to disclose it. I am not aware of any authority to transfer property as punishment for a failure to disclose it and I decline to grant such relief. [ 47 ] It is clear Mr. Parker has a weakness for vehicles. His poor financial management is due in part to this kind of acquiring.

At and after the time he was busy purchasing cars and motorcycles, he was not paying his debt to Revenue Canada or servicing matrimonial debt such as the original loan to his parents. His priorities were misplaced. [ 48 ] Even though it appears that Mr. Parker ’ s current vehicles are worth more than his vehicles at separation, I find it is most fair to distribute the vehicles at the date of separation.

The after-acquired vehicles are too connected to his debt to his family, which is unconnected to the marriage, to justify extending the distribution date beyond the separation date. [ 49 ] Neither party chose to value their motor vehicles owned at separation in their sworn statements of property. Both parties paid the debt on their own Honda vehicle after the separation and the quanta are before the court. The quanta are not greatly different. Both parties ’ payouts are linked to their family debt acquired after the separation.

In my view, on the state of the evidence, it is fair to value the Honda cars as roughly equal. I find the two Hondas ought to be set off against each other [ 50 ] As for the Porche, I find the value was $7,000 as Mr. Parker testified and Ms. Yassa read-in. He gave a good reason that the value was not as recorded on the government document ($10,500). I am satisfied that he used the proceeds from that sale to pay income taxes which arose from 2006 in the approximate amount of $5,500. I decline to adjust further but recognize a small advantage to Mr. Parker. RESP Fund

[ 51 ] Around the separation date, an RESP for the benefit of one of the children was valued at about $2,500. Since the separation, Ms. Yassa continued to make payments on the plan. It is now valued at about $7,500. Her payments were $120 per month. She ceased making the payments in about 2010. [ 52 ] Ms. Yassa shall continue to own this investment free of claim by Mr. Parker. The reason for this disposition is set out below in relation to the BMO Line of Credit.

Miscellaneous items [ 53 ] Both parties were persuaded to live with the distribution of furniture which occurred, in part, with the help of the case management justice. No adjustment is required. [ 54 ] Mr. Parker seeks some reimbursement for items belonging to his child from his first marriage which Ms. Yassa never returned. There is no reliable evidence before me on the value of those items except to conclude that beyond the emotional cost attached to the dispute, they were not worth much. There shall be no adjustment. [ 55 ] Mr. Parker seeks half of a small RRSP owned by Ms. Yassa.

She seeks an interest in his racing bicycle. The RRSP and the racing bicycle are of roughly equal value. The state of the evidence moves me to set them off against each other. Debts Legal Bill for Child Support [ 56 ] Ms. Yassa ’ s solicitor-client legal bill for obtaining child support was paid from the matrimonial home sale proceeds. This legal bill ought to have been her responsibility. Therefore, half of it ought to be reimbursed to Mr. Parker ($2,700). Debt to Mr. Parker ’ s Parents [ 57 ] Mr.

Parker ’ s parents testified that shortly after the parties married, they loaned $50,000 to the couple to allow them to purchase a home. The senior Parkers produced a second mortgage on their home to prove the loan. The evidence is that the young couple visited the senior Parkers together seeking help. [ 58 ] A home was purchased in Mr. Parker ’ s name, but Ms. Yassa ’ s name was on the purchase agreement. The parents ’ loan was extended a few months before the home was purchased. Mr. Parker maintained that the $50,000 loan was used to purchase and renovate the home.

Yet the cash put into the purchase was $1,500 and the renovations are estimated by him to be about $10,000. [ 59 ] Ms. Yassa maintains that the parents ’ money did not go into the home, that it was not a joint debt and that the money was used to pay Mr. Parker ’ s debts. She has no independent proof of this but Mr. Parker acknowledged some of the money went to pay debt. [ 60 ] On the sale of that first home just over $7,000 was earned. The matrimonial home was purchased in the parties ’ joint names with a deposit of around $10,000.

It appears that neither all nor even most of the parents ’ $50,000 found its way into the parties ’ home as the senior Parkers had intended. [ 61 ] In the month before the parties separation, Mr. Parker stopped making the payments on his parents ’ mortgage. Nor did Ms. Yassa make the payments but she was initially on maternity leave. The parents, as a result, had to make the payments on their mortgage. Since Mr. Parker stopped making the payments, his parents have paid about $21,009 in payments. As of February 24, 2012, the balance on their mortgage is $17, 937.48.

[ 62 ] Mr. Parker ’ s parents impressed me as honest, generous people. They do not have excess money. I am satisfied that while neither all nor even most of the money loaned found its way into the parties ’ homes, it was requested by and used by them jointly. While it may be true that some of the money went to pay Mr. Parker ’ s debt from before the marriage, although there is no proof before the court as to amount, I note that some of Ms. Yassa ’ s debt from before the marriage, (i.e. her student loans), was paid after the parties separated.

After the separation, her choice was to pay that debt rather than to pay the senior Parkers ’ mortgage or the matrimonial home mortgage. I find the debt to the senior Parkers is a joint debt which ought to be satisfied from the parties joint property. [ 63 ] Therefore, from the matrimonial home sale proceeds, the debt of the senior Parkers shall be paid in full with a payment directly to their bank to retire the mortgage together with any costs or penalties associated with retiring the mortgage early .

A further payment directly to the parents shall be made to reimburse them for the monthly payments made by them with the necessary adjustment to reflect monthly payments paid to the date of the payout at the bank. Ms. Yassa ’s Parents ’ Loan [ 64 ] Ms. Yassa maintains that $10,000 of the loan from her parents originated early in the marriage, that like much of the senior Parkers ’ money her parents money went to expenses and debt, and therefore the parties jointly benefitted from the loan.

She seeks reimbursement for one half the loan. [ 65 ] The evidence to support her testimony in this regard is a letter from her parents dated April of 2010 which asserts a loan of $15,000 and acknowledges payment of $5,000. Also, Mr. Parker acknowledged that she had $10,000 early in the marriage but not its source. [ 66 ] Ms. Yassa is disadvantaged in that her parents live far away and were not available to testify. However, I am inclined to accept that the parents ’ help was provided.

The amount is not agreed and there is the potential of mixing money loaned to help with marriage expenses with payment of original debt. That same risk applies to the use of the senior Parkers ’ money, but on the evidence it is impossible to ascertain any amounts. [ 67 ] Given the nature of the evidence, I decline to find the loan is proven to the level at which reimbursement from the matrimonial home proceeds is justified. However, I find it is just to accept that the money from the senior Yassas was an advantage received by the parties which Ms.

Yassa has to repay and therefore ought to be used as an adjustment factor on some matters which follow. Dell [ 68 ] The Dell debt relates to the purchase of a TV. The TV is currently in Mr. Parker ’ s possession but was in the matrimonial home until the home was sold. During that time, Ms. Yassa and the children were living in the home. Shared parenting had not begun. Mr. Parker has made the minimum payments on the Dell loan throughout. The payments started at about $60 per month but dropped over time to about $48 per month.

He is claiming one half of the payments he has made ($2,678.13) plus the amount still outstanding on the loan ($1,530.16). [ 69 ] In my view, Mr. Parker seeks to expand his matrimonial property claim with this sort of claim. The quantity of money that has passed through Mr. Parker’s hands over the separation and his failure to pay this small consumer loan make evident his wish to maximize matrimonial debt. A relevant consideration is the advantage received from Ms. Yassa’s parents’ money. [ 70 ] Mr. Parker has the TV. In my view, he ought to pay the Dell debt without adjustment. Revenue Canada

[ 71 ] In 2007, the parties agreed to cash in RRSPs held in Mr. Parker ’ s name. Ms. Yassa received her share by way of rollover and kept it invested (about $9,000). Mr. Parker received his share and collapsed it, receiving about $7,000 after withholding tax. [ 72 ] There was a loan against the RRSPs which was paid out from the collapsed RRSPs. Income tax became payable in excess of that withheld. Mr. Parker did not disclose the RRSP collapse on his 2007 T1 General.

Revenue Canada caught up to him in 2009. [ 73 ] The 2007 Notice of Reassessment from October of 2009 suggests that the extra income tax owing before penalties and interest is about $4,500. I decline to direct a sharing of penalties and interest. Ms. Yassa was not part of the failure to report. There is no evidence on the benefit of this investment that would have accrued to the parties during the marriage given that it was financed. Nevertheless, this investment was made during the marriage and the income tax ought to be shared on divorce. Further, Mr.

Parker still has a debt to Revenue Canada in excess of the 2007 amount. [ 74 ] Mr. Parker shall pay his debt to Revenue Canada. $4,500 is deemed to be the responsibility of both parties, with Ms. Yassa being responsible for half subject to overall adjustment. Daycare Subsidy Overpayment [ 75 ] Ms. Yassa has been assessed $2,630 in daycare subsidy overpayments from September 1, 2007 to May 31, 2008. This period of time is covered by the court order setting retroactive child support. That order of November 7, 2008 specifically references subsidized daycare.

I infer that the benefit of the subsidy was jointly shared and the overpayment ought to be also shared between the parties. [ 76 ] Ms. Yassa shall pay the subsidy overpayment. Mr. Parker is responsible for half subject to overall adjustment. Mortgage Payments, Occupation Rent [ 77 ] Mr. Parker made the mortgage payments on the matrimonial home from separation until June of 2009. Then the home went into foreclosure. The payments were $525.58 bimonthly. [ 78 ] The child support order of November 2008 gave Mr.

Parker credit against the retroactive child support assessed for $597 per month for what was defined as his share of the mortgage payment. [ 79 ] Commencing in November of 2008, Mr. Parker was ordered to pay the same S. 3 amount but the mortgage was not mentioned. His evidence is that he paid both the bimonthly mortgage payments until May of 2009 and one payment for June. That amounts to $7,883.70. Mr. Parker seeks half, $3,941.85, from Ms. Yassa plus occupation rent. [ 80 ] Mr. Parker asserts that he may have paid a double mortgage payment to prevent foreclosure. However, Ms.

Yassa asserts she made a few monthly payments also. Neither were sure about quantum. [ 81 ] The shared custody regime commenced in January of 2011. Therefore, for the time period Mr. Parker is seeking occupation rent the home was inhabited by Ms. Yassa and the two children of the marriage. For a small part of this time, Ms. Yassa was on maternity leave. Following that, she held down a full-time job while being the primary care giver for two small children. She was the person who was most involved in the home sale. Mr.

Parker ’ s living circumstances for some of the relevant time period were inexpensive or free although I accept not comfortable. In all of the circumstances, I am not persuaded that an award for occupation rent is just. [ 82 ] I am persuaded that on a matrimonial property basis alone it is fair for Ms. Yassa to share in the cost of the mortgage.

[ 83 ] Ms. Yassa has proven that she paid property taxes on the matrimonial home in 2008 and 2010 for a total amount of about $4,800. There was an adjustment for interest and penalties and property taxes on the sale of the home which has been and ought to be shared. [ 84 ] Mr. Parker ’ s court ordered credit exceeded his half of the mortgage payment by roughly $1,700. In my view, a just result is to set off the half of the mortgage payments sought by Mr. Parker less the over payment of his credit under the order against half of the property taxes Ms. Yassa paid. The amounts are slightly in Mr.

Parker ’ s favor and shall not be further adjusted due in part to the advantage he received from Ms. Yassa ’ s parents ’ money. Foreclosure Bill [ 85 ] Both parties were responsible to cover the matrimonial home mortgage. They ought to share responsibility for the foreclosure costs. The evidence is unclear as to who paid the bill for the foreclosure. It was either paid by Ms. Yassa or shared. The claim is for $901 but the evidence supports a lesser amount. While I am of the view that the cost ought to be shared, I am unwilling to assign an amount owing to Mr. Parker on the state of the evidence.

There shall, therefore, be no adjustment. Bill for Writ Removal [ 86 ] I decline to adjust for a legal bill of under $400 for removal of a writ relating to child support. I have chosen to accept Mr. Parker ’ s evidence that he has paid child support and the collection procedures were as a result of a mistake by MEP. No fault can be attributed to Ms. Yassa. Therefore, this cost shall remain as a shared cost. BMO Line of Credit [ 87 ] When the home was sold, $15,100.44 was paid to retire the BMO joint line of credit. Ms.

Yassa seeks reimbursement for it, saying that the line of credit represents expenditures made solely by Mr. Parker for his own benefit. (Half was paid by Mr. Parker since it was paid from the total of the home sale proceeds.) [ 88 ] It is proven that shortly after the separation, Mr. Parker took from the parties joint bank account the sum of $9,950 and placed it into a new bank account in his own name. Mr. Parker said he took the money to extend the account out to its maximum borrowing limit so that it could not be used by Ms. Yassa and so that he would have the money to pay matrimonial debt.

It is not possible to separate his self-interested purchases from these funds. Until the home was sold, Mr. Parker paid the interest only. [ 89 ] At the time of the parties separation, the balance on the line of credit was about $10,000. It had been increased over the time Ms. Yassa was in Australia by over $8,000. In my view, some adjustment in Ms. Yassa ’ s favor is called for to create a fair sharing of these circumstances. [ 90 ] I find that leaving the RESP with Ms. Yassa is a fair disposition.

The value of the RESP at separation was about half the difference between the amount owing on the BMO line at separation compared to the amount paid from the home sale proceeds. Other Debts [ 91 ] The parties had other debts at separation. Ms. Yassa seeks half of about $10,000 (Canadian Tire, CIBC). Mr. Parker ’ s evidence is unclear but he maintains he needed money to pay the matrimonial debt. The evidence is unclear on which party paid the debt listed by Ms. Yassa.

[ 92 ] Mr. Parker has current debts totaling about $36,100. These debts include his property taxes, Revenue Canada, credit cards and a line of credit. They exclude his retroactive child support, mortgage and the family debt for which he is not seeking reimbursement. [ 93 ] Ms. Yassa has current debt of about $23,500. These debts include condo fees, daycare, a line of credit and a credit card which has been paid by increasing her debt to her parents to the amount set out herein.

Excluded are her legal fees, mortgage, family debt and the subsidy overpayment. [ 94 ] The difference in the two debt positions has not been addressed in the evidence. Suggestions have been made of misuse of funds but solid proof is lacking. Both parties were exceedingly difficult over disclosure. Since separation, they have attempted to conduct their lives as independently as possible given the financial link between them. [ 95 ] In all of the circumstances, it is my view that a division of debt valued at trial date would be unjust. Therefore, I refuse to adjust in Mr.

Parker ’ s favor for the extra debt he now owes. [ 96 ] In the absence of cogent evidence as to what the matrimonial debt was at separation and who paid it, I decline to adjust for it also. Date of Valuation and Distribution [ 97 ] Generally, trial date is the effective date for valuation and distribution of matrimonial property. In this case, that date would be unjust given the positions of the parties over their debt to their families and how that debt has affected their lives since they parted.

Further, they made an effort to separate their financial affairs in the first few years of the separation with the separation of accounts, collapse of the RRSPs, sale of the matrimonial home. Accordingly, and in response to how they each presented their case, the just solution which emerged has been to consider separation date in conjunction with financial behaviour after the separation. [ 98 ] The pensions of the parties require a different kind of consideration.

The parties were financially linked over the separation by their children, the matrimonial home, income tax problems which arose from the non disclosure by Mr. Parker of the RRSP collapse, and such. In late 2008, the court ordered child support and the mortgage payment credit. In late 2010, the matrimonial home was sold. On November 4, 2010, they were divorced. In my view, on the date of their divorce the financial link between the parties had substantially come to an end.

At that date, but for the care of their children, the dispute between them could be resolved by reference to historical facts. [ 99 ] It is my view that the date of the divorce is the most just date upon which to distribute the pensions. Actual Distribution [ 100 ] The debt which is to be shared is the extra income tax from cashing in the RRSPs ($4,500) and the daycare overpayment ($2,630) for a total of $7,130. Each party ought to have paid $3,565 meaning that Ms. Yassa would owe Mr. Parker $935. [ 101 ] In addition, Ms.

Yassa ought to have paid her legal account for obtaining child support; meaning, she owes Mr. Parker half or $2,700. Ms. Yassa, therefore, would owe Mr. Parker the total of the two figures, $3,635. However, I decline to make this order. In my view, it is fair and just to forgive this amount in light of the advantage to the parties of the money from Ms. Yassa ’ s parents.

Summary of Distribution of Matrimonial Property The following is a

summary of the foregoing: Matrimonial Home Proceeds $135,645 (plus interest) Held pursuant to Order -$50,000 Debt to Mr. Parker ’ s parents -$40,000 approximately Net home sale proceeds for equal distribution $ 45,645 Pensions Divide at source to date of divorce Honda vehicles at separation No Adjustment Porsche No Adjustment - small advantage to Mr. Miscellaneous items: RESP No Adjustment - Ms. Yassa Furniture No Adjustment Items of the child of the first marriage No Adjustment RRSP/Racing Bike Set Off Legal Bill for Child Support(half) $2,700 from Ms. Yassa to Mr. Parker Debt to Mr.

Parker ’ s parents Dealt with above Ms. Yassa ’ s parents ’ loan ($10,000) Advantage to parties Dell No Adjustment - Mr. Parker to pay Revenue Canada $ 4,500 Mr. Parker to pay, to be shared Daycare overpayment of subsidy $ 2,630 Ms. Yassa to pay, to be shared Mortgage payments/occupation rent No Adjustment Foreclosure bill No Adjustment Bill for writ removal No Adjustment BMO line of credit No Adjustment Other debts No Adjustment Shared joint debt total $ 7,130 50% shared joint debt $ 3,565 Ms. Yassa owes Mr. Parker for shared joint debt $ 935

Plus half the legal bill $ 2,700 Total $ 3,635 to be forgiven due to advantage gained from Ms. Yassa ’ s parents. End result: Each party is entitled to half the home sale proceeds, approximately $22,822.50 Conclusion [ 102 ] Child support is inferred to be not in arrears. If that inference is incorrect, adjustment is left to a different justice. [ 103 ] Both parties claim for unequal distribution of matrimonial property arising from various claims and allegations other than specific requests for reimbursement dealt with herein.

Neither party has proven a basis upon which to depart from the presumption of equal sharing.

Both of their general claims are dismissed. [ 104 ] Neither party has proven an allowable exemption. [ 105 ] The proceeds from the sale of the matrimonial home shall first be reduced by the sum of $50,000 pursuant to the order of the case management justice for the purpose of funding certain aspects of the litigation over the children. [ 106 ] In the event the withheld funds are not fully utilized in the litigation over the children, then the unspent portion shall be distributed equally between the parties if the funds continue to be characterized as matrimonial property.

Nothing in this judgment is intended to limit another justice from making orders regarding support and using the fund as is just. [ 107 ] Next, Mr. and Mrs. Parker senior ’ s loan shall be paid in full. [ 108 ] Certain specific adjustments are allowed as set out above. [ 109 ] The remainder of the home sale proceeds shall be equally shared between the parties subject to further order regarding child support arrears, if any. [ 110 ] The parties pensions shall be distributed at source from the date contributions began until the date the parties were divorced.

Costs [ 111 ] Costs may be spoken to if the parties wish.

Heard on the 27 th day of February, 2012 to the 2 nd day of March, 2012. Dated at the City of Edmonton, Alberta this 9 th day of March, 2012. L.J. Smith J.C.Q.B.A. Appearances: Amera Yassa, on her own behalf Jeffrey Klassen, Klassen Law Office for the Defendant