Hoffmann v Saito, 2021 ABQB 336

Court of Queen’s Bench of Alberta Citation: Hoffmann v Saito, 2021 ABQB 336 Date: 20210428 Docket: 4801 185644 Registry: Calgary Between: Ray Palau Hoffmann also known as Ramon Ignacio Sagaceta Kauffmann Applicant - and - Luna Celeste Saito also known as Demetria Alexia Turk Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice B.E. Romaine _______________________________________________________ I. Introduction [ 1 ] This difficult application for support and for sale of the matrimonial home is complicated by the respondent's immigration status, and by the apparent lack of equity in the home.

II. Facts [ 2 ] The parties have filed many affidavits, and give conflicting evidence on a number of issues. However, the following facts are not in issue, unless noted otherwise, or have been established by documentation. [ 3 ] The parties began cohabiting in January, 2012 in California, and were married on May 20, 2013. They resided in California until 2016. [ 4 ] In 2016, Mr. Hoffmann moved to Calgary. Mr. Hoffmann says that his counsel in a criminal trial recommended that he leave California before a verdict was rendered in the trial. When Ms. Saito, who is a U.S, citizen, joined him in March, 2016, Mr.

Hoffmann was unable to sponsor her because of his criminal charges and conviction in the U.S. However, he confirmed on questioning that it had been his intention to sponsor her. [ 5 ] Ms. Saito currently has pending applications for an open work permit and for permanent residence in Canada based on humanitarian and compassionate grounds. The processing of her applications has been delayed because of the pandemic. Thus, she has been unable to work legally in Canada, at least for a period of time, and has no access to government financial assistance. [ 6 ] However, at the hearing, Ms.

Saito advised that she has been approved for a work permit and is now able to seek employment. [ 7 ] On their arrival in Canada, the parties lived with Mr. Hoffman's parents for a period of time. [ 8 ] They purchased the matrimonial home in Edmonton in November, 2017. As neither party qualified for a mortgage, the home was purchased in the names of Mr. Hoffmann and his mother. [ 9 ] Ms. Saito says a down payment of approximately $14,000 U.S. was funded from a payout from Volkswagen with respect to a vehicle she owned. Mr. Hoffmann disagrees with this. [ 10 ] The parties separated on July 10, 2019.

In March, 2020, Ms. Saito obtained an ex parte restraining order. They do not agree on the circumstances that led to that order. [ 11 ] There are no children of the marriage. [ 12 ] Mr. Hoffmann filed for divorce and division of matrimonial property in 2020, and Ms. Saito has counter-claimed for the same relief. [ 13 ] Ms. Saito has occupied the matrimonial home since the separation, and says that she has paid the insurance and kept the home in good condition. Mr. Hoffmann returned to Calgary in March, 2020, and lives alone in a house owned by his parents. [ 14 ] Mr.

Hoffmann has paid the monthly mortgage payments of $1,050 on the matrimonial home since the separation, although he obtained a deferral of payments between March and October of 2020. [ 15 ] Both parties worked while in California. Ms. Saito was employed as an executive assistant. She was, and appears to continue to be, a 50% owner of Saito & Rhodes LLC, a plumbing company, with her ex-husband. [ 16 ] The parties disagree about whether Ms. Saito receives financial support, either from the business or from her ex-husband directly.

On the record, I am unable to make a determination of that issue. [ 17 ] Both parties, at one time, and even now, appear to have had U.S. bank accounts or facilities, but it is unclear what, if anything, remains in those accounts. It appears that those accounts were drawn on to support the parties for a period of time when Mr. Hoffmann was in Canada training to obtain his licence as a security guard. [ 18 ] Mr. Hoffmann currently works as a security guard. He earned $39,557 in 2019. He anticipates that his 2020 income will be about $30,000. [ 19 ] Ms.

Saito appears not to have worked since she moved to Canada, although Mr. Hoffmann alleges that she had a work permit for a period of time. She says that she was unable to work, not only because of her lack of a work permit, but because of health issues, including severe issues with diabetes. Mr. Hoffmann says that these problems did not prevent her working in the U.S., but Ms. Saito says that Mr. Hoffmann received payment or credit as a non-medical care-giver for her between August, 2017, and March, 2018. Mr.

Hoffmann's tax returns indicate that he did claim an exemption for attendant care as a result of an eligible dependent spouse. [ 20 ] Ms. Saito says that she is surviving by relying on the generosity of friends and family. III. The Applications [ 21 ] Ms. Saito applies for:

a) exclusive possession of the matrimonial home until the property is sold; and

b) spousal support. [ 22 ] At the hearing, Ms. Saito agreed that the matrimonial home be listed for sale, but wants input into the choice of realtor and

the listing price. She submits that acceptance of any offers or presentation of counter-offers should be agreed to by the parties through their counsel. If the parties are unable to agree, they can seek the direction of the Court. [ 23 ] She submits that she should receive spousal support until the house is sold, reviewable when she obtains employment and/or after the house is sold. [ 24 ] Mr. Hoffmann applies for:

a) additional and specific disclosure;

b) exclusive possession of the matrimonial home;

c) an order permitting him to sell the home, including a direction that he is to choose the realtor, and that the property is to be listed at a sale price recommended by a realtor and sold based on acceptance of offers, counter-offers or refusal of offers as recommended by the realtor;

d) an order that the lis pendens currently registered against the property be discharged;

e) an order that all expenses to affect the transfer of clear title to the matrimonial home, including but not limited to one cleaning subsequent to Ms. Saito vacating the home should one be required, realtor commissions, conveyancing fees, and encumbrances on title be paid from the proceeds;

f) an order that upon the matrimonial home being sold, net sale proceeds, if any, be paid into the account of Mr. Hoffman's counsel to be held in trust pending further order of this Court or written agreement between the parties;

g) an order that the issue of whether any shortfall paid by or on behalf of Ms. Saito upon the sale of the matrimonial home be determined by further court order or agreement between the parties;

h) an order that Ms. Saito provide certain specific disclosure;

i) an order sealing the affidavit of exhibits to be filed by Ms. Saito, if deemed to be necessary pursuant to the Alberta Rules of Court ;

j) an order that Ms. Saito provide evidence that she has been paying the property insurance for the matrimonial home with Mr. Hoffmann and his mother/mortgage holder as the loss payee, and if not, that she immediately do so;

k) advice and direction from the Court as to how to affect the division of the matrimonial property and a final determination of the outstanding issues; and

l) occupancy rent with respect to the matrimonial home. IV. Analysis A. Matrimonial Home [ 25 ] The home was purchased for roughly $212,000. As of June, 2020, the amount outstanding on the mortgage was $199,882. Monthly mortgage payments are $1,054.37, and monthly taxes are $192.33. It does not appear that taxes have been paid for some time.

Before the pandemic affected real estate value, the City of Edmonton assessed the value of the property at $184,500 for tax purposes. [ 26 ] It is unlikely that there will be any equity in the house for the purpose of division of property, and there may well be a loss. [ 27 ] While both parties now agree that the property be listed, Ms. Saito wishes to remain in the house until it is sold. There is no reason to deny that relief.

While she may be able to obtain rented accommodation now that she is able to work, it is unlikely that she will be able to obtain employment that will do more than cover her basic expenses, including rent. Shifting possession of the home to Mr. Hoffmann at this point in time serves no useful purpose. There is no persuasive evidence that Ms. Saito will refuse to cooperate with the sale process. [ 28 ] Therefore, I direct that the property be listed for sale, with the parties, through counsel, cooperating on the choice of realtor, and the selling price, and on offers and counter-offers.

If the parties are unable to agree on the choice of realtor, each should submit two names to this Court, and I will make a direction on that matter. If they are unable to agree on an initial listing price, they may again seek direction from the Court. [ 29 ] Ms. Saito may remain in the home until it is sold. B. Spousal support [ 30 ] Given Mr. Hoffman's guideline income, the range of appropriate spousal support appears to be between $281 and $527 per month depending on his 2020 income. I find that Ms. Saito is entitled to support, both on the basis of Mr. Hoffman's agreement to sponsor Ms.

Saito, and on a non-compensatory basis: Aranes v Guanlao , 2017 ABQB 808 . [ 31 ] While the facts are not completed ad idem with Aranes , Ms. Saito finds herself in the same position as the claimant in that case. She has a present need for support by reason of current lack of employment. While Mr. Hoffmann has limited means, he is able to pay some support. The breakdown of this marriage has left Ms. Saito in a difficult financial state, although she may now seek

employment in order to improve the situation. [ 32 ] Given the length of the marriage, and the difficulties faced by Ms. Saito given her immigration status, which have been exacerbated by Mr. Hoffman's ineligibility to properly sponsor her, I find that it is reasonable for Mr. Hoffmann to pay $500 per month in spousal support to Ms. Saito, to continue until the later of the sale of the matrimonial home or Ms. Saito's employment for six months, subject to review at the end of this period. [ 33 ] Ms. Saito is to give Mr.

Hoffmann through counsel notice of her employment, including anticipated earnings and a pay stub within one month of obtaining it. Mr. Hoffmann is to provide Ms. Saito with his tax return for 2020 within one month of filing it. C. Other relief [ 34 ] Although Ms.

Saito denies deficiencies in her disclosure, I direct that she file amended disclosure within one month that specifically addresses JPMorgan Chase Bank Accounts #...1925 and #...59261, including whether they remain open, and what, if anything, remains in these bank accounts, her present status, if any, with Saito & Rhodes LLC, and the name of the payee on the matrimonial home insurance. The lis pendens will be lifted at the time of sale of the home.

If there are any net proceeds, they will be deposited in trust with the applicant's counsel, pending agreement or further order. [ 35 ] The remainder of the relief sought is premature, given the circumstances and the fact that the main, and perhaps only, asset the parties own is the matrimonial home. This is not a case where occupancy rent is appropriate, given that Mr. Hoffmann has not paid support to Ms. Saito, other than paying the mortgage, since the separation. [ 36 ] As there has been mixed success in this application, both parties shall bear their own costs.

The application to change venue is dismissed, as the parties are able to participate with their counsel remotely. Heard on the 15 th day of January, 2021. Dated at the City of Calgary, Alberta this 28 th day of April, 2021. B.E. Romaine J.C.Q.B.A. Appearances: Eryn B. Logie and Madison T. Dupuis for the Applicant Tarim Ansari for the Respondent