Peermohamed v Pirani, 2018 ABQB 968

Court of Queen’s Bench of Alberta Citation: Peermohamed v Pirani, 2018 ABQB 968 Date: 20181126 Docket: 4801 174610 Registry: Calgary Between: Nabeel Peermohamed Plaintiff - and - Fatima Pirani Defendant _______________________________________________________ Memorandum of Judgment of the Honourable Madam Justice S.L. Hunt McDonald _______________________________________________________ Introduction and Background [ 1 ] The parties were married on March 26, 2016 and separated on March 5, 2017. They were married according to Muslim tradition and culture in Calgary. [ 2 ] The Plaintiff Mr.

Peermohamed, is a lawyer in the city of Calgary, practicing in the area of insurance defence. The parties dated for approximately two years prior to their marriage of March 26, 2016. They purchased a condominium as their first matrimonial

home to live in once they were married. The purchase closed approximately three weeks prior to the marriage and the parties took occupancy immediately after their marriage. [ 3 ] Mr. Peermohamed alleges that only he paid the deposit, down payment, mortgage, utilities, insurance, condo fees and property taxes. As well he paid for most of the furniture and did most of the household chores including the cooking, cleaning and paid for the leasehold improvements. [ 4 ] Mr. Peermohamed’s family made a gift of various pieces of heirloom jewelry to Dr.

Pirani in the wedding events leading up to the marriage in a mosque in Calgary. He states that he inherited the heirloom jewelry from his family which was then given to Dr. Pirani for safekeeping at the festivities leading up to their marriage, but were to be held in trust for his eventual children. [ 5 ] In addition, it is his position that the Defendant, Dr. Pirani, should return her wedding and engagement ring back to him as she ended the marriage. [ 6 ] At the time of their separation, Dr. Pirani was in her first year of a residency program taking an internal medicine specialty.

She had approximately $115,000 in student loans on her line of credit which was well known to Mr. Peermohamed prior to their marriage. She expects to complete her Internal Medicine residency in August of 2020. She testified she will then look for a job or pursue further education. [ 7 ] After their marriage, Mr. Peermohamed kept insisting that her parents should pay off her student loans as his parents had done for him once he completed his law degree. Mr. Peermohamed’s relationship with Dr. Pirani’s parents became strained.

This contentious issue in their marriage eventually led to their separation eleven months after the marriage. The Parties’ Claims [ 8 ] The Plaintiff, by his then legal counsel, subsequently filed a divorce and matrimonial property action seeking unequal division of property in his favour. The Defendant filed a defence and counterclaim seeking equitable distribution of matrimonial property and spousal support. [ 9 ] Mr. Peermohamed was self-represented at trial. At the time of separation he was earning twice as much as Dr. Pirani. [ 10 ] At the commencement of trial, counsel for Dr.

Pirani confirmed that no claim would be advanced at the trial for spousal support, retroactive or otherwise. [ 11 ] As a result, the issues to be determined in this matter are related primarily to matrimonial property. In addition, there is a claim being advanced by Dr. Pirani for occupancy rent of the condominium purchased in early March 2016 as Mr. Peermohamed was in occupancy at the time of separation. It was the couple’s first matrimonial home. Mr. Peermohamed’s Claim [ 12 ] Mr. Peermohamed claims an unequal division of matrimonial property in his favour for the following reasons:

a) The length of the marriage was only 11 months. He clarified that the parties did not cohabit prior to the marriage;

b) The parties kept separate bank accounts prior to and during the marriage. Mr. Peermohamed alleges he solely contributed to the acquisition, mortgage and upkeep of the matrimonial home. He claims he paid the down payment to purchase the condominium, plus balloon payments, condominium fees, property taxes and the utilities during the marriage. Additionally, he alleges he purchased the majority of the household goods;

c) In addition, Mr. Peermohamed alleges he performed the majority of the household duties as well during the marriage as Dr. Pirani was in a medical residency program at the University of Calgary;

d) During their marriage, Dr. Pirani was able to pay off the substantial sum of $36,610 towards her line of credit for her student loan; and

e) He also alleges that at the time of this hearing, Dr. Pirani is just completing her third year of an internal medicine residency and accordingly, she stands to make a substantial salary as a specialized internal medicine doctor. He alleges this fact provides the basis for an unequal distribution. [ 13 ] After the Statement of Defence and Counterclaim was filed, Mr. Peermohamed filed a Statement of Defence to Dr. Pirani’s Counterclaim denying his treatment of Dr. Pirani with mental cruelty such as to render intolerable the continued cohabitation of the spouses and sets out his reasons therefor. Dr.

Pirani’s Claim [ 14 ] Dr. Pirani filed a Statement of Defence contesting Mr. Peermohamed’s request for an unequal division of all property acquired by the parties during their marriage. [ 15 ] She also filed a Counterclaim alleging that Mr. Peermohamed had, since the celebration of the marriage, treated her with

mental cruelty of such a kind as to render intolerable their continued cohabitation. [ 16 ] Dr.

Pirani requests an equal division of all the property acquired by the parties either jointly or separately, an order declaring certain property exempt from distribution and an order for the release of her jewelry which is presently being held under trust conditions in her counsel’s keeping pending a resolution of the matrimonial property matters. [ 17 ] Lastly, she seeks occupation rent with respect to the matrimonial property located at 1309, 402 Kincora Glen Rise NW, Calgary from the date of the separation when she vacated, on any terms and conditions ordered by the court.

Issues to be Determined [ 18 ] As noted above, the primary issues to be determined in this action relate to the division of matrimonial property, being the following items:

a) Whether the condominium which is jointly owned by the parties should be equally divided or whether Mr. Peermohamed is entitled to an unequal division;

b) The division of jewelry between the parties, including jewelry received from Mr. Peermohamed’s family and jewelry received from Dr. Pirani’s family;

c) Household goods and furniture which includes: a. Couch b. Kitchen appliances c. Other furniture.

d) Is Dr. Pirani entitled to occupancy rent relative to the condominium? The Matrimonial Home [ 19 ] Just after their engagement in 2015, the parties began searching for a residence. They ended up agreeing to take an assignment of a purchase agreement of a new condominium being built in northwest Calgary located at 1309, 402 Kincora Glen Rise NW, Calgary, which Mr. Peermohamed found listed for sale on Kijiji. [ 20 ] The parties bought the interest of a vendor who had previously agreed to purchase a condominium unit being constructed by the developer Cove Properties.

The parties took an assignment of the vendor’s interest, and then subsequently closed with the developer once the building of the condominium was complete. The closing was sometime in early March, 2016 just a few weeks prior to the parties’ wedding set for March 26, 2016. [ 21 ] When the parties were in attendance at the Cove Properties show suite at the time of negotiating the assignment from the vendor and reviewing the unit and finishing choices, the sales agent, Melanie Wood, asked how they wished to be described on title for the purpose of preparing sale documentation, Mr.

Peermohamed initially indicated the condominium was to be registered in his name only. He testified that after Dr. Pirani objected, he “caved in” and agreed it should be registered in both their names as joint tenants. He testified at trial that he never intended to gift Dr. Pirani an interest in the condominium, but that she forced him to by her behaviour in becoming angry and aggressive in the sales office and his wish to avoid a fight. [ 22 ] Dr. Pirani agreed that initially Mr. Peermohamed indicated at the show suite that title should be registered in his name solely.

However, she testified that after a discussion between them of their imminent planned marriage, they instructed Ms. Wood to put both of their names on title. She testified that Mr. Peermohamed was completely agreeable and didn’t state any hesitation. [ 23 ] Dr. Pirani denied becoming angry and aggressive at the show suite. She stated that they were in the show suite of Cove Properties with the vendor, the sales agent Melanie Wood and a salesman, Clayton Mah to negotiate the terms of their purchase.

They negotiated the sale price with the Vendor and signed documents arranging for the formal assignment of the vendor’s agreement. They negotiated some additional features such as installation of air conditioning and arranging to purchase an extra parking stall with the developer Cove Properties who took instructions for preparation of the sale documentation. The parties later re-attended the show suite to execute the formal documentation required to complete the assignment to proceed with the purchase.

Clayton Mah witnessed their signatures. [ 24 ] Both Melanie Wood and Clayton Mah were called as witnesses by Dr. Pirani at the trial. [ 25 ] Dr. Pirani called Melanie Wood, the Director of Sales for Cove Properties, as a witness. She described the condominium purchased by the parties as a luxury adult apartment style condominium. She took instructions from the parties as to what names should be registered on title to the condominium being prepared by the developer resulting from the assignment from the original purchaser who assigned her interest to the parties. Ms. Wood rebutted Mr.

Peermohamed’s assertion that Dr. Pirani became agitated when he first instructed Ms. Wood that the property was only to go into his name. She testified there was no argument. The parties had a discussion and then instructed her that the title should be registered in joint names and both names were included on the change orders relating air conditioning and purchasing a second parking stall. [ 26 ] Clayton Mah, a salesman at Cove Properties, was also called by Dr. Pirani to give evidence. He witnessed the parties’

signatures on the formal assignment of the contract between the original purchaser and the parties. He testified he does not rememberany debate between the parties as to both of their names to be registered on title when the parties attended at the show suite on July 25,2015 to sign the formal completion documentation prepared by the developer Cove Properties for the purchase of the condominium. [27] The purchase price of the Kincora Glen condominium was $228,053.

The parties took over the previous purchaser’s initialoffer by assignment, plus purchased air conditioning at a cost of $6,500 and arranged to purchase a second separately titled outsideparking stall for $9,500. The purchase price of the condominium included an inside parking stall which was registered on a separate landtitle. [28] The parties are registered as joint tenants in respect of units 329, 105 and 265 of the Kincora Glen condominium which is thematrimonial property to be divided in this proceeding. [29] One of the issues in this case is whether Mr. Peermohamed made a gift to Dr.

Pirani in instructing that the condominiumshould be registered in “joint tenancy” or whether Dr. Pirani should be held to be holding her interest in trust for Mr. Peermohamed. [30] Black’s Law Dictionary defines a gift as “a voluntary transfer of property to another without consideration.” It cited the caseof Stein v Van Eldik, (2005) 16 ETR (3d) 1 which provided, that the three elements of a perfectly constituted gift are: (

i) an intention todonate; (ii) an acceptance; and (iii) a sufficient act of delivery. [31] In discussing the presumption of a resulting trust in the case of Ruff v Strobel 1978 ALTASCAD 151 , [1978] AJNo. 969, Lieberman, JA in para 18 stated that in order to rebut the presumption the transferee must prove, in order to retain title, that agift was intended by the transferor. [32] Further, Lieberman JA at para 20 cited in the case of Duncan v Duncan, (No 1) (BC SC), [1950] 1 WWR545 (BC) that, “There is no question but that the nature of the transaction in question is to be determined as at the time it took place; it isnot changed by the subsequent change in the relationship of the partiers.” [33] Mr.

Peermohamed’s suggestion that Dr. Pirani became angry and aggressive at the show suite while discussing what name thetitle should be registered in was disproved by the testimony of Melanie Wood of Cove Properties. [34] In addition, Mr. Peermohamed presented a gift of the condominium keys together with a special key fob he had purchased forDr. Pirani on the first night they were together as a married couple at the hotel they stayed at after the wedding ceremony. Photos of Mr.Peermohamed’s hands passing the keys to Dr. Pirani’s hands with henna decorations were marked as an exhibit in the trial. Dr.

Piranitestified that Mr. Peermohamed made a ceremony of this special moment. Mr. Peermohamed said he did so “because now they weregoing to be living together”. I find this moment of him presenting the keys to the condominium to Dr. Pirani as evidence of Mr.Peermohamed’s intention of confirming her interest in the jointly held condominium notwithstanding his assertion at trial that he neverintended to gift Dr. Pirani an interest. [35] When they commenced occupancy of their condominium, their agreement was that Mr. Peermohamed would pay everythingtowards the condominium so that Dr.

Pirani could aggressively pay down her student loans. [36] This agreement was reached by the parties after Mr. Peermohamed expected that Dr. Pirani’s father would pay off her studentloans prior to their marriage as his parents had done for him. Mr. Peermohamed testified that prior to their marriage he asked Dr. Pirani’sfather to pay off the student loans. Dr. Pirani’s father indicated that perhaps he had some interest in paying off Dr. Pirani’s student loansonce his businesses in Edmonton sold. [37] After Dr. Pirani’s father’s businesses were sold in November, 2015, Mr.

Peermohamed gave evidence that no payment wasmade by Dr. Pirani’s father towards her student loans. This became a subject of great contention in their marriage as Mr. Peermohamedcontinued to bring the subject up with Dr. Pirani and her father. Dr. Pirani testified that Mr. Peermohamed’s obsession about payment ofher student loans caused his relationship to become strained with her parents, and drove a wedge between her and her parents. [38] After the marriage broke down, the parties agreed to attend a mediation program that was offered through their Mosque in anattempt to settle their issues.

The mediation broke down in the second session. At the second session, Dr. Pirani attended with her lawyeras she explained that in the first session, Mr. Peermohamed had discussed legal principles in making an aggressive offer of settlementwith imposed time deadlines. Dr. Pirani testified she was very uncomfortable receiving an offer of settlement at their first mediationmeeting as Mr. Peermohamed was the only lawyer present. The mediators had no legal training.

Accordingly, she felt on an unequalfooting and hired a lawyer to attend with her at the second meeting. [39] The second mediation session broke down immediately due to Mr. Peermohamed’s objection to Dr. Pirani’s lawyer’sattendance. Dr. Pirani testified that she suggested they attend marriage counselling, which Mr. Peermohamed refused. She then suggestedthat their issues be dealt with in a binding Judicial Dispute Resolution, which undoubtedly could have saved legal fees and court time.Mr. Peermohamed opposed the suggestion.

He agreed in cross-examination at trial that he wanted a record to preserve his right to appealshould he not be happy with any settlement imposed at such a meeting. [40] Each party presented an expert real estate appraisal report from a qualified agent to give a valuation of the condominium atthe time of separation and the date of this trial. Both were qualified as experts in the field of property appraisal. [41] Mr. Peermohamed presented Ms. Zang who prepared two written appraisals.

The first appraisal established a value of$191,000 at separation, and the second at a value of $193,000 at the date of trial. [42] Dr. Pirani presented Mr. Raymond who valued the property at $212,000 at separation and then subsequently a value of$210,000 at the date of trial. [43] The property has depreciated since their purchase in March 2016. The parties paid $228,053 for the condominium.

[44] I prefer Mr. Raymond’s appraisal to that of Ms. Zang. He assessed the separately titled outside parking stall in the sum of$10,000 whereas Ms. Zang valued the same at the sum of $5,000. The outdoor parking stalls are currently selling for $10,000 accordingto Melanie Wood who is the developer’s sales representative. The parties paid $9,500 for the outside stall at the purchase closing. Aswell, I accept Mr. Raymond’s testimony that the outside parking stall is marketable and something that an owner could sell separatelyfrom their condominium unit. [45] I found Ms.

Zang’s appraisal less persuasive as she didn’t choose any other properties in the same complex as comparables inher expert report. Mr. Raymond did. In my view, properties in the same complex are the closest properties for valuation purposesbecause of identical location and similar finishing. Although the comparable properties in the Kincora Glen condominium project maynot have had air conditioning or a second parking stall, Mr. Raymond made adjustments to account for such factors. [46] The condominium the parties purchased is an adults only complex. Ms.

Zang said the stipulation of “adults only” devaluedthe condominium. Mr. Raymond testified that because it is an adults only complex, the owners before legislative changes areimplemented are grandfathered to live in a complex that only allows adults as full time occupants. Mr.

Raymond stated that after theparties purchased their condominium, there is new provincial legislation that limits developers from stipulating that occupancy ofcondominiums be limited to “adults only.” [47] The leading case on the proper date for the valuation and division of matrimonial property under the Matrimonial PropertyAct is Hodgson v Hodgson, 2005 ABCA. The Alberta Court of Appeal in Hodgson held that the proper date for the valuation anddivision of matrimonial property is the date of trial. [48] I find no reason to deviate from the value on the date of trial.

I accordingly find the value of the condominium property atseparation to be $210,000 as stipulated in Mr. Raymond’s expert report as the value as at May 29, 2017. [49] Mr. Peermohamed referred the court to cases which he submits support his request for an unequal division of matrimonialproperty. I am not persuaded by the case law he relied upon. I have already found that Mr. Peermohamed’s actual intention was to gift ahalf interest in the condominium the parties purchased and registered in joint names. [50] The Kuzera v Kuzera,

(2005) OJ No 1514 case is distinguishable as it applies to a situation where the matrimonial home hadbeen purchased by the husband 9 years previous to the date of marriage and was registered in his name alone. The marriage lasted onlyten months. The issue was whether there should be an equal sharing of the wealth accumulated prior to the marriage. I find this caseinapplicable to Mr. Peermohamed and Dr. Pirani as there has not been an increase in value of the condominium they purchased in earlyMarch 2016. As well, the Family Law Act, RSO 1990 c.

F.3, as amended, applicable in Kuzera case has a specific provision relating torelationships having a period of cohabitation less than five years. Such a provision is not contained in the Matrimonial Property Act ofAlberta. [51] The case of Campbell v Campbell, 1998 ABQB 723 is also relied on by Mr. Peermohamed to support his claim for anunequal division of the matrimonial home. Justice Coutu found that there was no intention to gift an interest in the matrimonial home byMr. Campbell at the time the home was registered into joint names when they were co-habiting prior to marriage.

The parties cohabitedfor 3-1/2 years which was followed by 4 months of marriage. I have found that Mr. Peermohamed intended to gift half of the interest inthe condominium at the time the parties purchased the condominium and took possession. Each party carried out their agreed uponintention – he to pay all the condominium expenses and Dr. Pirani to aggressively pay down her student loans. [52] I do not find the Eisener v Baker, 2007 BCSC 83 relevant as the parties were never married. As well, the MatrimonialProperty Act of British Columbia is not similar legislation to Alberta’s and is therefore distinguishable.

The court found that Mr. Bakerdid not intend to benefit Ms. Eisener by placing her name on title. Unknown to Mr. Baker, she inserted her name on the interim purchaseagreement which was never witnessed. Although Mr. Baker acquiesced in not removing her name from title, it was found that he neverintended to give her a beneficial interest in the house. [53] Similarly, I find the Harasymuk v Harasymuk, from the Saskatchewan Queen’s Bench distinguishable.The only relevant similarity was the shortness of the marriage. The parties separated after seven months of marriage.

The wife’s namewas not registered on title to their matrimonial home. Although the justice stated that the shortness of the marriage is a circumstance outof the ordinary that justifies an unequal division of the matrimonial home, he still divided the increase of value in half as he found bothparties contributed to the marriage. [54] After the parties separated, Mr. Peermohamed continued to aggressively pay down the Royal Bank mortgage registered on thejointly held title to their condominium. [55] I accept the Reconciliation of Monies re: Kincora Glen Condominium as prepared by Mr.

Peermohamed setting out the sumshe paid to purchase the condominium which were backed up in the Tabs located in Exhibit 1 of the proceedings which Mr. Peermohamedpresented in

summary form in his argument, which are set out at the end of this judgment as

Schedule ‘A’. The figures contained in Mr.Peermohamed’s Reconciliation were not disputed by Dr. Pirani. [56] The Reconciliation shows he paid the sum of $14,179.79 as an initial deposit on the condominium, and subsequently paid onclosing the sum of $93,873.44. At trial, he claimed an exemption for these payments.

The balance of the purchase price was funded by aRoyal Bank mortgage of $120,000 which both parties applied and qualified for. [57] Based on a long line of cases clearly and succinctly set forth by the Alberta Court of Appeal in the decision of J v J, 2009ABCA 272 at paragraphs 19 to 21, which quoted Stevenson, JA [as he then was] in Mazurenko v Mazurenko, (1981) 1981 ABCA 104, 30 AR 34, the court emphasized that rebutting the presumption of equal distribution is an exception to the rule of equaldistribution.

Justice Stevenson stated at paragraph 20 of the Mazurenko decision: The court must, in my view, look at the relevant facts under s.8 (of the Matrimonial Property Act) and then ask itself if it would be unjustor inequitable to divide the property equally. That conclusion would not be lightly reached. There must be some real imbalance in the

contribution having regard to what was expected of each or attributable to the other facts in s.8. In establishing the presumption I takethe Legislature to have decided that in ordinary cases equality is the rule. … The legislation introduces a discretionary system with thepresumption of equal sharing, which is similar to a deferred sharing scheme with a power of adjustment.

The important point is that bothof these schemes recognize “… the principle that a husband and wife carry on their married life, including their economic functions, fortheir mutual benefit and account and according to arrangements accepted by both for that purpose. That principal, if accepted, requiresthat the law provide in some way for the sharing of their economic gains between the husband and wife”.... That is done by thelegislation and done with the presumption of equality[.] [58] And further as set forth by the Court of Appeal in J v J at paragraph 20: Mazurenko remains the law in Alberta.

The presumption of equal distribution is the rule and unequal distribution the exception. Thelegislation is designed to protect against inequities arising from dissolution of marriage and to recognize a social and economicpartnership. The respective contributions of the parties will rarely be identical or measure equally. Partners allocate expectations andresponsibilities in a manner satisfactory to them. Those responsibilities may change and evolve over time.

Put simply, it is not arequirement (nor is it a realistic view of marriage) that the contributions of each party be equal for there to be an equal division. See Coxv Cox, 1998 ABQB 987 , 1998 ABQA 987, 233 A.R. 258 (Alta. Q.B.); Hulleman v Hulleman, 1999 ABCA 366, 2 R.F.L. (5th)406 (Alta. C.A.) and Crosby v Crosby, 2007 ABQB 31m [2007] A.J. No. 49 (Alta.

Q.B.) [59] As the Court of Appeal reaffirmed at paragraph 21 of J v J “the Supreme Court of Canada made clear in LeBlanc v LeBlanc, (SCC), [1988] 1 S.C.R. 217, 47 D.L.R. (4th) 1 (S.C.C.), that the presumption of equal division in matrimonial propertylegislation should not be disturbed lightly.” The SCC specifically rejected an approach that analyzes whether the contribution of eachspouse is equal in order to apply the presumption of equal distribution. [60] The Court summarized the Matrimonial Property Act in J v J, at para 23 as follows: The MPA is premised on a presumption of equal distribution of non-exempt property acquired during the marriage.

The presumptionshould only be rebutted in the clearest of cases when, having regard to the s. 8 factors, it would be unjust and inequitable to make anequal division. When considering the s. 8 factors, courts should not embark upon the weighing of each party’s respective contributionand make divisions of property that are proportionate to the relative contributions of each spouse. Rarely if ever will the contribution ofeach spouse be the same. The purpose of the legislation is to avoid microscopic analysis of the respective roles each party played todetermine who did more.

It is only in cases where, having regard to the factors in s. 8, it would be unjust and inequitable to have an equaldivision that the court should depart from the principle of equality. [61] That being said, there is another line of cases in Alberta dealing with the treatment of exemptions.

As set forth in J v J atparagraphs 60 and 61 the court provides that the cases of Harrower v Harrower and Jackson v Jackson, being the seminal cases in thisarea of law, should always be referred to for guidance. [62] In J v J at para 60, the Court of Appeal stated as follows: In the circumstances of this case, we agree that the forgiveness of the debt of $455,000 was a gift to the husband from his parents whichhe shared with his wife. As a gift from a third party, the amount of the debt is exempt property under s.7(2)(

a) of the MPA. However,where one spouse has shared exempt property with the other spouse, the half that has been shared is treated as matrimonial propertysubject to the presumption of equal division under s.7(4) of the MPA: Harrower v Harrower (1989), (AB CA), 68Alta. L.R. (2d) 97, [1989] A.J. No. 629 (Alta. C.A.), (“Harrower”), and Jackson v Jackson (1989), 1989 ABCA 197 , 68 Alta.L.R. (2d) 118, [1989] A.J. No. 630 (Alta.

C.A.), (“Jackson”). [63] In J v J, the Court of Appeal further stated in the first sentence of paragraph 61: Applying Harrower and Jackson, the husband is entitled to 75% of that amount ($341,250) and the wife is entitled to 25% of thatamount ($113,750). [64] Applying these cases to the figures contained in the Reconciliation of Monies set out in

Schedule ‘A’ prepared by Mr.Peermohamed, he is entitled to 75% of the money paid as an initial deposit and to 75% of the money paid prior to the purchase closing asMr. Peermohamed solely provided the funds, but then registered the title in joint names. The money paid during the marriage while theparties were not separated should be split evenly. The balance amounts paid by Mr. Peermohamed after separation totalling $58,770.41shall be divided 75/25, with Mr. Peermohamed receiving 75% and Dr. Pirani receiving 25%. I consider such an apportionment just andequitable as Dr.

Pirani benefitted to her sole credit from the funds used to pay down her line of credit for her student loan in the amountof $36,611 comprised of $22,506 of matrimonial funds, Dr. Pirani’s Income Tax Refund of $6,672 and $7,433 from cash wedding giftsgiven to her. [65] Both parties used wedding gift funds they divided subsequent to their wedding to pay down towards the mortgage or to paydown towards the student loan debt. [66] Pursuant to s 8 of the Matrimonial Property Act, one of the factors to be taken into consideration in making a distribution thatis unequal set out in s 8(

f) is whether the property was acquired while the parties were living separate and apart. [67] Further, s 8(

m) allows me to consider whether any fact or circumstance is relevant to the distribution of the matrimonialproperty. As well, s 7(4) provides that a distribution can be effected on the basis of what I find to be just and equitable. [68] On all of those bases, I find that a 75/25 split is just and equitable for the distribution of condominium proceeds except whenthe parties were living together in the property during the marriage, which should be split evenly. [69] It is clear from the evidence that Mr. Peermohamed wanted Dr.

Pirani to pay down her student loans as her contributiontowards the marriage, and that he would pay down the condominium expenses as his contribution. This is often what happens in

marriage, and as Stevenson J said so clearly in Mazurenko “Put simply, it is not a requirement [nor is it a realistic view of marriage] thatthe contributions of each party be equal for there to be an equal division.” [70] There is a presumption equality in marriage and as Stevenson, JA in the Mazurenko decision stated in para 21: It would be extremely difficult, indeed impossible, to establish any formula for the application of the heads in s. 8 of the MatrimonialProperty Act. The legislation avoids formulation.

The court must, in my view, look at the relevant facts under s. 8 of and then ask itself ifit would be unjust or inequitable to divide the property equally. That conclusion would not be lightly reached. There must be some realimbalance in the contribution having regard to what was expected of each or attributable to the other factors in s. 8. In establishing thepresumption I take the legislature to have decided that in ordinary cases equality is the rule.

Division of Other Matrimonial Property Household Goods and Furniture [71] Both parties had some household goods and furniture prior to moving into the condominium together after their marriage. [72] Dr. Pirani has removed some of her items from the condominium which currently is unoccupied. I understand that there arestill some items that she did not have a chance to remove in the short period of time she was given by Mr. Peermohamed to collect herbelongings from the premises after separation. I believe the items left by Dr. Pirani in the premises include a TV, a TV stand and perhapssome other items. Dr.

Pirani testified that she doesn’t think these items are at issue and that she will come to pick up those items at thecompletion of these proceedings. Presumably, the parties can agree to the return to Dr. Pirani of such items still located in thecondominium. [73] Mr. Peermohamed also brought furniture into the condominium. In addition, he purchased most of the household electricalappliances and presented receipts in respect of the items during his testimony. Dr. Pirani indicated that she has no interest in any portionof the household items and Mr.

Peermohamed may retain same. [74] The one thing the parties bought together was a $3,000 couch and each paid $1,500 for their half portion. Dr. Pirani indicatedat trial that she is prepared to leave the couch with Mr. Peermohamed and not claim an interest in it. [75] In addition, Dr. Pirani testified she bought black-out blinds. They are attached to the windows and therefore form part of thecondominium. Accordingly, I will make no order in respect of the blinds. Occupancy Rent [76] In her Counterclaim, Dr. Pirani requests occupancy rent from Mr.

Peermohamed for the premises since she vacated on March5, 2017 while he was still occupying the condominium. [77] It became clear during these proceedings that Mr. Peermohamed departed the condominium and went back to live back withhis parents immediately after Dr. Pirani vacated the premises. The premises were never rented. Accordingly, no rent was received fromany third party for the period of time the condominium has remained unoccupied. [78] I rely on the case of Kazmierczak v Kazmierczak, 2001 ABQB 610 , 2001 AJ No 955 in which Justice Slatterdiscussed a claim for occupancy rent.

Although the circumstances are different in this case, in that neither party benefitted from living inthe condominium after separation due to their own circumstances, Mr. Peermohamed did pay the mortgage payments, insurance, taxesand upkeep while he lived with his parents during the separation period. In my view, Dr. Pirani cannot reasonably expect to have himcover all those costs and to pay her occupancy rent. Further, the condominium was never rented to a third party after the parties’separation, so Mr. Peermohamed never received any rent income to be divided with Dr. Pirani. [79] Further, Dr.

Pirani is receiving a 25% share of the equity accrued in the condominium after the parties separated and Dr.Pirani left the matrimonial home. It would not be fair for Dr. Pirani to receive occupation rent in addition to the equity in thecondominium she is receiving post separation. Vehicles [80] Neither party is making a claim to the other party’s vehicle and accordingly there will not be apportionment for value inrespect of vehicles. RRSP’s [81] Mr. Peermohamed has an RRSP plan that was commenced during his employment of his law firm. His employer matched hiscontributions.

It was exempt at the time of the marriage. Dr. Pirani is making no claim to any increase in the value of Mr.Peermohamed’s RRSP. Dr. Pirani stated at trial that Mr. Peermohamed should retain his RRSP’s. Accordingly, the RRSP’s do not formany part of the matrimonial property to be divided.

Jewelry [ 82 ] Jewelry belonging to both parties was placed under trust conditions with Dr. Pirani’s counsel as a result of an interim application before Justice Campbell in December 2017. Justice Campbell specified that the rights regarding the jewelry were to be determined at the trial dealing with this issue. [ 83 ] Dr. Pirani provided evidence of the appraised value of the jewelry in question. Mr. Stanley Wright was qualified as an expert in the appraisal of jewelry and gold items in these proceedings. He appraised the value of the jewelry and gold coins in question at $12,855.50.

The list describing the items was marked in the trial proceedings as Exhibit 3, Tab 5 titled “List of Jewelry and Other Gold Items. It lists items from the Pirani family and Peermohamed family and various gifts given directly to one of the parties, or from third parties to one of the parties. It is attached as

Schedule ‘B’ to this judgment. [ 84 ] Mr. Wright gave evidence that it is hard to sell secondary market jewelry. He stated that most of the value of the Indian gold market is based on the price of gold, but priced also on the basis that most is mass produced which affects its value. Presently, he testified that most of the value is in melting the gold. He testified the current value of melted gold is about $46.50 per gram. [ 85 ] Mr. Peermohamed confirmed that he was not contesting the values of the jewelry, just entitlement. [ 86 ] Pursuant to s 2(7)(ii)(

c) of the Matrimonial Property Act, jewelry given prior to a wedding is property acquired before the marriage. Therefore, such items do not form part of the matrimonial property to be divided and belong to the person to whom they were given. [ 87 ] The engagement ring valued by Mr. Wright at $2,500 was given as a gift to Dr. Pirani from Mr. Peermohamed prior to the wedding. Because the engagement ring was given prior to the marriage, it does not form part of the matrimonial property in accordance with the provisions of s 2 (7)(ii)(

c) of the Matrimonial Property Act. [ 88 ] Therefore, Mr. Peermohamed is not entitled to the return of the engagement ring. [ 89 ] It was clear from the testimony given by Mr. Peermohamed that the jewelry he inherited from his family which was presented to Dr. Pirani in the religious ceremonies that occurred in the days prior to the marriage ceremony hold great sentimental value to him. I think it only fair pursuant to s 7(3)(

d) of the Matrimonial Property Act that those items be returned to him. These items were appraised by Mr. Wright at a total sum of $5,027.00. They comprise the items listed as 5 to 13A and items 24A and 24B on the List of Jewellry and Other Gold Items prepared by Mr. Wright and marked as

Schedule ‘B’ to this judgment. [ 90 ] In addition, the items marked as 3, 15 and 18 from the same list should be returned to Mr. Peermohamed as they were gifts given to him prior to the marriage. The balance of the items listed on the

Schedule ‘B’ Appraisal should be returned to Dr. Pirani as they were gifts given to her prior to marriage. Conclusion [ 91 ] The chart contained in this paragraph sets out the portions I calculate as a division of proceeds of the condominium owing to the parties from the monetary amounts set out in the Reconciliation of Monies attached to this judgment as

Schedule ‘A’. Funds paid to Purchase the Kincora Glen Condominium Payment Mr. Peermohamed Dr. Pirani Initial Deposit paid by Mr. Peermohamed $14,179.79 75% $10,634.84 25% $3,544.95 Payment – Cash to Close $93,873.44 75% $70,405.08 25% $23,468.36 Paid Down on Mortgage During the Marriage $61,229.59 50% $30,614.80 50% $30,615.79 Paid Down on Mortgage After Separation $58,770.41 75% $44,077.81 25% $14,692.60 Total Paid $228,052.93 $155,732.53 $72,320.70 “Total Paid” adjusted for decreased fair market value of condominium at $210,000 $143,404.35 $66,595.71 Less: Advance of Costs paid to Dr.

Pirani $10,000 Total Amount of Condominium Proceeds to be Paid to the Parties $143,404.35 $56,595.71 [ 92 ] Accordingly, based on the fair market value of $210,000 on the date of trial, Mr. Peermohamed shall receive $143,404.29 and Dr. Pirani shall receive $66,595.71 from the condominium proceeds.

[ 93 ] From the amount owing to Dr. Pirani, $10,000 shall be deducted for the advance of costs she received prior to trial, leaving an amount of $56,595.71 payable to her. [ 94 ] As well, the jewelry on the List of Jewellry and Other Gold Items on

Schedule ‘B’ not allocated by this judgment to Mr. Peermohamed shall be returned to Dr. Pirani. [ 95 ] Extra costs were incurred by Dr. Pirani as Mr. Peermohamed was self-represented, and although a lawyer, by his own admission he had no experience in family law. [ 96 ] If Dr. Pirani has not been paid the sum of $56,595.71 by January 15 th , 2019, then the condominium should immediately be listed for sale with each party bearing half of the usual costs of sale including realtor commission, legal fees, property tax adjustments and any other disbursements. [ 97 ] Dr.

Pirani shall have her costs on Column 2, no limiting rule to apply. [ 98 ] The parties may provide me with their Divorce Judgment and Matrimonial Property Order for signature provided the documents are first reviewed by the Divorce

Section of the Court. Heard on the 15 th , 16 th and 17 th days of May, 2018. Dated at the City of Calgary, Alberta this 26 th day of November, 2018. S.L. Hunt McDonald J.C.Q.B.A. Appearances: Nabeel Peermohamed, Self-Represented for the Plaintiff William Aaron, Q.C. for the Defendant

Schedule “A”

Reconciliation of Monies Re: Kincora Glen Condominium Paid to Marie Lu (Pre-Marriage) $14,179.79 Paid to Law Firm (Pre-Marriage) $93,873.44 Paid While Cohabiting ($120,000.00 - $58,770.41) $61,229.59 Paid After Cohabitation Ceased $58,770.41 Total Paid (excluding interest) to property and mortgage $228,053.23

Schedule “B” List of Jewellery and Other Gold Items Item No. Description Who gave gift To whom was gift given? When was gift given before or after legal marriage ceremony?

Value by Stan Wright 1 Swarovski Pendant and Chain (not gold) Pirani Family Fatima Before No commercial value 2 35.7 grams, 22kt gold Pirani Family (Fatima’s Parents) Fatima Before $1,660.00 3 9 grams, 22kt gold Pirani Family (Fatima’s Parents) Nabeel After $418.50 4 5.7 grams, 22kt gold Gold Chain – Fatima’s Parents Pendant-Shaqeel Peermohamed (Nabeel’s Brother) Fatima Before $265.00 5 2.1 grams, 22kt gold Peermohamed Family Fatima After $98.00 6 2.4 grams, 22kt gold Peermohamed Family Fatima After $112.00 7 8.9 grams, 22kt gold Peermohamed Family Fatima Before $414.00 8 28.6 grams, 22kt gold Peermohamed Family Fatima After $1,330.00 9 Replica ¼ oz Sovereign 2.1 grams Peermohamed Family Fatima & Nabeel Before $98.00 10 20.1 grams, 21kt gold Peermohamed Family Fatima After $895.00 11 28.1 grams, 22kt gold Peermohamed Family Fatima Before $1,306.00 12 13.5 grams, 21kt Peermohamed Family Fatima Before $602.00 13A 3.8 grams, 10kt chain Nabeel Fatima After $79.00 13B 12.4 grams, 22kt Nabeel Fatima After $576.00 14 9.8 grams, 22kt Pirani Family – Fatima’s Parents Fatima Before $456.00 15 1/20 oz Gold Canada Maple Leaf Coin Pirani Family Fatima & Nabeel Before $90.00

16 2.9 grams, 22kt Fatima’s Uncle Fatima Before $135.00 17 ¼ oz Gold Bar Nabeel Fatima After $425.00 18 18kt band Fatima Nabeel During legal marriage ceremony $278.00 19 18kt Gold Tennis Bracelet with Small Stones Fatima’s Parents Fatima Before $400.00 20 18kt White Gold Bracelet, 14.6 grams Fatima’s Parents Fatima Before $525.00 21A Wedding Outfit Jewellery – 2 bags Fatima’s Parents Fatima Before No Commercial value 21B Costume Pearl Necklace and Earrings Fatima Fatima Before No commercial Value 22 Engagement Ring Nabeel Fatima Before Wedding $2,500.00 23 Wedding Band Nabeel Fatima During legal marriage ceremony $100.00 24A 1 gram band, 22kt gold Nabeel Fatima Before $46.50 24B 1 gram band, 22 kt gold Nabeel Fatima Before $46.50 Item No.

Description Who gave gift To whom was gift given? When was gift given before or after legal marriage ceremony? Value by Stan Wright Total Value $12,855.50