Choucair v. Choucair, 2012 ABQB 381

Court of Queen ’ s Bench of Alberta Citation: Choucair v. Choucair, 2012 ABQB 381 Date: 20120608 Docket: 4801 141027 Registry: Calgary Between: Samia Choucair Applicant/Plaintiff - and - Amer Choucair Respondent/Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice E.A. Hughes _______________________________________________________ [ 1 ] Mr. Choucair and Ms.

Choucair married in Lebanon in February, 1989; since their marriage, Canada has been their home. The parties have three boys born in 1997, 2000, and 2002.

[ 2 ] Mr. Choucair and Ms. Choucair separated in April 2008 and Mr. Choucair moved from the family home in February, 2009. Ms. Choucair commenced an action for divorce and division of matrimonial property in July, 2009. Only two orders have been granted prior to this hearing. They are as follows: i. January 18, 2011: setting this matter for a one day viva voce domestic special and ordering Mr. Choucair to pay to Ms. Choucair child support in the amount of $415.00 per month based on a Guideline income of $19,200.00 commencing January 15, 2011. ii. May 19, 2011: Mr.

Choucair was ordered to provide his financial disclosure to counsel for Ms. Choucair. [ 3 ] I heard the viva voce domestic special in October. The issues I was asked to decide are as follows: i. Custody and access; ii. Retroactive and ongoing child support; iii. Retroactive and ongoing spousal support; iv. Division of matrimonial property. [ 4 ] At the viva voce hearing, counsel for Ms. Choucair submitted that while this matter was not set down as a trial, I should make a final decision on all of the above issues because the parties do not have the funds nor the desire to proceed to trial. [ 5 ] Mr.

Choucair, who was not represented by counsel was not opposed to this submission. [ 6 ] In the spring of this year, Mr. Choucair filed a new application with respect to parenting and both parties filed affidavits. I advised the parties, both of whom are now not represented by counsel, that I would hear the application as part of the viva voce special. [ 7 ] When the parties appeared before me, I inferred from their affidavits and submissions that something had happened between the three boys and their father, in that the boys had stopped going to their father’s on weekends.

As a result, I made an order referring the children to CLERC.. I also learned from the submissions that Mr. Choucair had made an assignment in bankruptcy in 2011 and Ms. Choucair had made one this year. I asked the parties to provide me with their supporting documents, which they did. The documents were marked as Exhibits 7 and 8 in the viva voce special. [ 8 ] I also spoke to the parties about obtaining a divorce judgment. Ms. Choucair wishes a divorce judgment; Mr. Choucair is not opposed.

Therefore, I severed the divorce from the corollary relief so that we could deal with the divorce today by oral evidence. [ 9 ] Ms. Choucair testified to the necessary elements to establish the divorce. I therefore grant a judgment of divorce. [ 10 ] The evidence I have considered in coming to my decisions on the issues I have been asked to decide is as follows:

i. The viva voce evidence of the parties. ii. The exhibits filed on the viva voce hearing. iii. The affidavits filed by the parties in January and February, 2011 to augment their evidence on matters to which they did not testify to, and are not in dispute. [ 11 ] I will deal with the legal issues in this order: i. Division of matrimonial property. ii. Custody and access. iii. Retroactive and ongoing child support. iv. Retroactive and ongoing spousal support. [ 12 ] One observation I have with respect to the evidence of both parties is neither is a good historian.

Division of Matrimonial Property [ 13 ] When the parties separated, the matrimonial property included the matrimonial home at [...] Auburn Bay Heights S.E., two rental properties – 1) [...] Marbank Way N.E. and, 2) [...] Berkley Road N.W., RRSP’s and retirement account monies, and at least one motor vehicle. [ 14 ] Since then, the rental properties have been foreclosed upon and the matrimonial home is in the process of foreclosure. [ 15 ] Mr. Choucair cashed out some of the RRSP’s in the amount of $33,428.71 and Ms.

Choucair sold a Volvo motor vehicle for $8,500., a sum that may not have reflected its true market value because it was purchased four years earlier for the sum of $86,500.. [ 16 ] In early 2011, Mr. Choucair filed an assignment in bankruptcy and it appears he was discharged later in the year. In February, 2012, Ms. Choucair filed an assignment in bankruptcy as well. It appears she will be discharged in late 2012. [ 17 ] The sole remaining property acquired during the marriage are the RRSP’s and retirement account monies.

However, the difficulty I face with two self-represented parties is that I do not have the specific information about these monies. The only evidence before is this: i. Mr. Choucair cashed out RRSP’s totalling $33,428.71 in 2010. ii. Ms. Choucair swore in her assignment in bankruptcy dated February 14, 2012 that she had a Bank of Montreal RRSP totalling

$16,100.. Counsel for Ms. Choucair at the hearing in October did not lead this evidence. iii. Mr. Choucair agreed in cross examination in October that he held two RRSP accounts and one retirement account reflected at Tabs 19 through 21 of the materials counsel for Ms. Choucair filed in the viva voce hearing. These accounts, at least as of June 30th, 2010 and not June 30th, 2011 as submitted by counsel for Ms. Choucair in her written materials, were:

a) BMO Nesbitt Burns [...] Group Locked In Retirement account $22,607.21

b) BMO Nesbitt Burns [...] Group Registered Savings Plan $18,168.11

c) BMO Nesbitt Burns [...] Group Registered Retirement Savings Plan $3,707.96 [18] There is no evidence before me of any exemptions nor, any evidence that would suggest anything but an equal division of thematrimonial property. Therefore, to achieve an equal division I make the following orders: i. Mr. Choucair must roll over to Ms. Choucair RRSP monies equalling $16,714.00 to account for Ms. Choucair’s entitlement toone-half of the RRSP monies withdrawn by Mr. Choucair in 2010. ii. The balance of the RRSP and retirement account monies are to be divided equally between the parties.

To do this, the partiesmust exchange their June 30th, 2012 statements for all RRSP and retirement account monies by July 15th, 2012. The monies will bedivided equally based on these statements and must be completed by August 30th, 2012. Custody [19] Ms. Choucair seeks sole custody of the three boys. Mr. Choucair opposes full custody and suggests the parties should havejoint custody of their children. [20]

Section 16 of the Divorce Act is the provision that relates to custody and access. Two subsections are of particular importance:subsection 8 which requires a court to only take into consideration the best interests of the children “... as determined by reference to thecondition, means, needs and other circumstances ...” of the children; and subsection 10 which provides that a court will give effect to theprinciple that children should have as much contact with each parent as is consistent with the best interests of the children. [21] In Cavanaugh v.

Balkaron 2008 ABCA 423 the Court said at paras. 7 and 8: 7 In Young v. Young, (SCC), [1993] 4 S.C.R. 3, L’Heureux-Dubé, J. (dissenting on other issues) described howcourts in the late 1800's and early 1900's relied on certain assumptions as to parental suitability to determine child custody disputes. Forinstance, the understanding that mothers were naturally the better parent, particularly of infant children, gave rise to the tender yearsdoctrine, which dominated child custody decisions for decades.

Another assumption, that older children would be better off with parentsof the same sex, later yielded to the believe that all children would be better cared for by their mother.

8 These assumptions have since given way to the principle that the best interests of the child is the determining factor. Indeed, s. 16(8) of the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp.) requires that a court must consider this factor alone when making a custody order: In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. [emphasis added] [ 22 ] Ms.

Choucair described the parties’ marriage in her testimony as a “traditional marriage” in that her role in the family was as a mother and homemaker, and Mr. Choucair worked outside of the home and made all the decisions. Ms. Choucair testified she was and is the sole decision maker for the children because she was and is responsible for all decisions respecting the children’s schooling, their extracurricular activities and all health issues. For example, in Ms. Choucair’s affidavit filed January 18, 2011, she attested Mr. Choucair had never gone to the children’s school for a parent teacher interview. [ 23 ] Mr.

Choucair does not dispute Ms. Choucair has been the primary caregiver for the children. However, in his affidavit he attested he was involved with the children during their marriage in that Ms. Choucair began to work outside of the home beginning in 2002, usually in the evenings. Mr. Choucair stated he would parent the children in the evenings by doing homework and going to their soccer games. [ 24 ] In 2005, Ms. Choucair applied for a realtor’s licence. She was successful in obtaining her licence and described 2007 as “a really good year”. I infer from this that in at least 2007, Mr.

Choucair parented the children more than he had in the past. [ 25 ] Mr. Choucair and Ms. Choucair separated in 2008. Ms. Choucair testified Mr. Choucair initially parented the children every second weekend but after approximately April 2011, Mr. Choucair parented the children almost every weekend; Ms. Choucair described him as a “really good” parent. In addition, Mr. Choucair is the parent who both picks and drops off the children. [ 26 ] The parties both testified Mr. Choucair arranges his pick up times with the children by calling them directly. Ms.

Choucair testified her sons love their father and she wishes them to have more regular parenting time with him, suggesting every Friday from 6:00 p.m. - 7:00 p.m. to Sunday at 8:00 p.m.. Mr. Choucair was agreeable with the arrangement. [ 27 ] Ms. Choucair submits sole custody is appropriate because she is the primary caregiver and she and Mr. Choucair cannot communicate. An example in her testimony with respect to the parties not communicating included that Mr. Choucair contacts the children directly and not Ms. Choucair, to arrange the pick up time on Friday evenings. It also appeared from Mr.

Choucair’s testimony that he is not as well versed in his children’s education as their mother. [ 28 ] I conclude from the evidence of both parties that they have, at present, a limited ability to communicate with each other. [ 29 ] As I said earlier, this parenting arrangement ended in March or April, 2012. Until the children have spoken to counsel and counsel is in a position to make submissions on their behalf, I am not in a position to make a final decision. However, as an interim order I order the three children shall reside with Ms.

Choucair and she shall have all decision making authority regarding the children. Child Support [ 30 ] Ms. Choucair seeks both retroactive and ongoing child support. [ 31 ] The facts relative to the retroactive child support claim are that the parties separated in April 2008 but Mr. Choucair did not move from the matrimonial home until February, 2009. Ms. Choucair’s statement of claim seeks retroactive child support from March 1, 2009. However, in oral submissions, then counsel for Ms.

Choucair sought retroactive child support from April, 2008 forward although no application to amend the Statement of Claim was made.

[32] I note from Ms. Choucair’s affidavit sworn December 15, 2010 she states that Mr. Choucair refused to pay child support fromthe time he moved from the matrimonial home. Subsequently, the parties agreed, as is evidenced in Exhibit 2, that Mr. Choucair did infact pay child support in the amount of $800.00 per month from April, 2008 to October, 2009. Based on this evidence, as well as the factno application to amend was made by counsel and Mr.

Choucair and was not represented by counsel at the hearing, I will only considerthe claim for retroactive child support from March, 2009 forward. [33] The amount of child support to be paid is determined in accordance with the Federal Child Support Guidelines and isgenerally calculated based on the total income of the paying parent at line 150 of their income tax return. [34] The line 150 income of the parties is as follows: Year Mr. Choucair Ms. Choucair 2008 $87,518.

Gross $16,995. net $9,881. 2009 $81,474. $13,391. 2010 $120,667. $26,512. 2011 $29,678. - pre bankruptcy $69,085. - post bankruptcy $7,000. - Human Services In addition Ms. Choucair earned $35,267. in real estate commissions in 2011 on behalf of her company. However, the expenses arereported as $49,154.. See Exhibit 9. Some of those expenses can be added back into income. See Sec. s.18 of the Federal Child SupportGuidelines. [35] I will use Mr. Choucair’s income for 2008 to determine child support for 2009, his 2009 income to determine child supportfor 2010 and so on. [36] Mr.

Choucair’s 2010 income is made up of the following: Employment income - $83,384.36 EI benefits - $3,854.00 RRSP income - $33,428.71 [37] Ms. Choucair submits that Mr. Choucair’s 2010 income should include the RRSP monies. Mr. Choucair opposes thisposition. [38] The inclusion of monies withdrawn from an RRSP in the calculation of income is fact specific. The law in this area issummarized in Mask v. Mask, [2008] O.J. No. 423 as follows: 32 Courts have recognized that the inclusion or exclusion of all or a part of RRSP drawings in the calculation of income for child supportpurposes is fact dependent.

For instance, in Dillon v. Dillon, 2005 NSCA 166 , [2005] N.S.J. No. 548, the Nova Scotia Court ofAppeal had the following to say:

[23] The Guidelines do not say that “annual income” for child support purposes is necessarily the same as “Total Income” – (i.e. incomeat line 150 of the T1 General Form). The court is directed by s. 16, in calculating “annual income”, to sue the “sources of income” underthe Total Income heading on the T1 Return, which includes lines 101 to

Section 17 cautions the judge to use the “fairestdetermination” of the spouse’s income.

Schedule III provides for deductions from income of certain amounts, none of which are relevanthere (safe for 1(g) – dues as are agreed by the parties here to be a deduction.). 33 The Court went on at para. 28 to say: [28] The propriety of including an RRSP withdrawal as income for child support calculation purposes is fact dependent (see, forexample, Stevens v. Stevens, [1999] A.J. No. 1550 (Q.L.) (Alta.Q.B.)). Here, unlike the case in Francis, [2003] O.J. No. 1138, supra,and Stevens v. Boulerice, (ON SC), [1999] O.J. No. 1568, supra, there was no accumulation of RRSP contributions.... 34

Section 17 of the Federal Child Support Guidelines is also relevant. Subsection (1) reads as follows: If the court is of the opinion that the determination of a spouse’s annual income under

section 16 would not be the fairest determinationof that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair andreasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. 35 I note that the onus is on the payor-spouse to justify a deviation from the s. 16 method of determining income: (see Fung v. Lin (2001), (ON SC), 16 R.F.L. (5th) 83 (Ont. S.C.J.)).

In this case, the mother’s 2006 RRSP redemptions represent botha fluctuation of income and a receipt of non-recurring amount. [39] Power, J. in Mask also observed in that case: 41 As a result of s. 16 of the Guidelines I conclude that, prima facie, the mother’s incomes for 2005 and 2006 are as Ms. Kelly argues –i.e., $62,504 for 2005 and $101,350 for 2006. It is clear to me that, in the circumstances of this case, it would be unduly harsh andunreasonable to attribute an income of $101,350 to the mother for 2006 for the purposes of calculating child support.

She clearly did notwithdraw $43,500 simply to raise her lifestyle. 42 Had the mother been represented by legal counsel, I would have expected that he or she would have provided me with better evidenceof just how the RRSP funds were expended and I would undoubtedly have expected counsel to have made enquiries concerning thefather’s financial situation to assist me to consider the relative hardship issue. Undue hardship, surely, is a relative term.

From the limitedevidence before the Court I can conclude that the father is in receipt of a relatively good income and that no case has been made out toshow that the children are in any financial distress. On a motion such as this, the Court is frequently called upon, where there are self-represented litigants, to make decisions on factual materials that are lacking in relevant detail. However, the Court must do its best todispense justice and, in particular, to focus on the needs and the rights of the children. [40] The evidence before me was much the same as described above. Mr.

Choucair did not have legal counsel to assist him inexplaining his specific use of the RRSP funds although he did testify to being short of money that year because he was laid off for aperiod of time, as well as wishing to purchase some furniture for himself. [41] As the withdrawal of RRSP funds occurred one time only, I believe it is unreasonable to include these monies as income.Rather, I have considered the monies in the context of the division of matrimonial property. Therefore, I find Mr. Choucair’s 2010income for the purpose of determining child support to be $87,238. [42] In

summary, Mr. Choucair’s income for the purpose of child support from 2009 to date, and the Guideline amount payableper month is below:

Year Income Guideline amount per month 2008 $87,518. $1,644. 2009 $81,474. $1,536. 2010 $87,238. $1,639. 2011 $97,673. $1,825. [ 43 ] Exhibit 2 sets out what monies Mr. Choucair paid to Ms. Choucair for child support from March, 2009 until September, 2011. The amounts Mr. Choucair paid, as opposed to what he should have paid, are set out in the table below: Year Should have paid Paid 2009 (10 months) $16,440. $8,844. 2010 $18,432. $16,440. 2011 $14,751. (to Sept., 2011) $11,504. Total $49,623. $36,788. Based on this evidence Mr. Choucair owes to Ms.

Choucair arrears of child support up to September 30, 2011 in the amount of $12,835. [ 44 ] I also order that Mr. Choucair is to pay child support to Ms. Choucair in the amount of $1,825.00 per month commencing July 1, 2012. Spousal Support [ 45 ] Ms. Choucair claimed for spousal support in her Statement of Claim and seeks both retroactive spousal support from the date of filing of her Statement of Claim and ongoing spousal support. [ 46 ] The law recognizes three bases for entitlement to spousal support: i. Compensatory; ii. Contractual;

iii. Non compensatory. See Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420. [47] In determining entitlement, I must consider the four objectives of spousal support set out in s. 15.2(6) of the Divorce Act andthe factors listed in s. 15.2(4). No single objective or factor is paramount and marriage per se does not automatically entitle a spouse tosupport. Moge v. Moge, (SCC), [1992] 3 S.C.R. 813. [48] The court in Bracklow described two theories of marriage. At one end of the spectrum is the “basic social obligation” model.At the other end of the spectrum is the “independent” model of marriage.

However, the court said at para. 32: “It is not a question ofeither one model or the other. It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in theparticular case before the court.” [49] I also consider the following para. from Moge v. Moge: Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of livingenjoyed during the marriage, this standard is far from irrelevant to support entitlement ...

As marriage should be regarded as a jointendeavor, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim equal standards ofliving upon its disillusion... [50] It appears Ms. Choucair’s career as a realtor was successful until 2008 when the world financial situation affected real estate.Since 2007, Ms. Choucair has earned very modest amounts of monies. It appears she has suffered economic hardship arising from thebreakdown of the marriage. On this basis, I find she is entitled to spousal support.

I then turn to address the issue of quantum andduration of spousal support. [51] The position of Ms. Choucair is that Mr. Choucair should be paying approximately $1,300. per month spousal support. Mr.Choucair takes the position Ms. Choucair is perfectly able to work and therefore he should not have to pay any spousal support. [52] The relevant factors to consider in determining quantum and duration in this case include the following: i. The parties were married almost 19 years prior to separation. ii. Ms. Choucair is 40 years old this year, Mr. Choucair is 49 years old. iii.

The marriage until approximately 2005 was a traditional marriage in that Ms. Choucair remained in the home with their childrenand did some part time work outside of the home. iv. In 2005, Ms. Choucair obtained her real estate licence and testified she earned $125,000.00 in 2007. By 2008, the real estatemarket changed and since that time, Ms. Choucair has earned little income. v. It does not appear from Ms. Choucair’s evidence that she has attempted to find work in any other field. In addition, no evidencewas led respecting what attempts she had made to increase her real estate business. vi. Ms.

Choucair testified she does not have her high school diploma, has looked at upgrading, but cannot afford it. vii. Since this matter came back before me, Ms. Choucair advised she has had a lump removed from her right breast. She has notadvised when this occurred, the result of any biopsy, nor produced any medical documentation. She did advise she left Canada for two

weeks in March seeking a specialist overseas. Both her sisters have breast cancer and when she was not doing well, one of her sisters recommended this doctor overseas. viii. She also advised she receives social assistance. [ 53 ] In assessing the quantum of spousal support I note the following: i. Ms. Choucair was a successful realtor in 2007. ii. She led no evidence respecting her attempts, if any, to rebuild her real estate career. iii. Ms. Choucair worked outside of the home prior to 2005, including, it appears, for a family member.

Little to no evidence was led respecting this work history nor was any evidence led respecting what attempts, if any, Ms. Choucair had made to find employment outside of the real estate field since 2008 other than “she had looked into upgrading”. [ 54 ] Based on the above, I find Ms. Choucair is employable and therefore attribute an income to her in the amount of $24,000.00 per year. Taking this amount into consideration as well as Ms. Choucair’s age, and the Spousal Support Advisory Guidelines , I order Mr. Choucair to pay Ms.

Choucair spousal support in the amount of $400.00 per month for a period of three years. At that time, the spousal support will terminate unless otherwise ordered by this Court. With this duration of spousal support, I hope Ms. Choucair will be able to refocus her employment plans and become self sufficient as she would have been in 2007. I decline to order to retroactive spousal support in light of the assignment into bankruptcy made by Mr. Choucair, the sale of the car by Ms. Choucair, and the date the application for spousal support was filed.

Heard on the 26 th day of October, 2011 and the 25 th day of May, 2012. Dated at the City of Calgary, Alberta this 8 th day of June, 2012. E.A. Hughes J.C.Q.B.A. Appearances: Samia Choucair

Self-represented Applicant/Plaintiff Amer Choucair Self-represented Respondent/Defendant