Hammoud v Hammoud, 2022 ABKB 730

Court of King’s Bench of Alberta Citation: Hammoud v Hammoud, 2022 ABKB 730 Date:20221104 Docket: 4801 141462 Registry: Calgary Between: Samir Hammoud Applicant - and - Simay Hammoud Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice M.H. Bourque _______________________________________________________ Introduction [ 1 ] Mr. Samir Mohamad Hammoud and Mrs. Simay Ahmed Hammoud married in 1978, in Calgary Alberta. They separated some 30 years later in 2008 and divorced in October 2012.

Following a domestic special held in spring 2013, Justice Hunt McDonald ordered Mr. Hammoud to pay Mrs. Hammoud $1,750 per month in spousal support. She also ordered Mr. Hammoud to pay retroactive spousal support. She set the parties’ incomes at $80,000 for Mr. Hammoud and $20,000 for Mrs. Hammoud. [ 2 ] Following an appearance in Family Docket Court in November 2020, Mr. Hammoud made application for an order terminating ongoing spousal support payments to Mrs. Hammoud.

On January 21, 2021, the Justice presiding in morning family Chambers ordered the matter to a domestic special, which was heard on June 24, 2021 by Justice Labrenz. At the time of making that application, Mr. Hammoud indicated that he wanted to retire and that he had received an advanced layoff notification. He further indicated that if the court terminated spousal support to Mrs. Hammoud, he would retire immediately. Although I was not provided with a transcript of Justice Labrenz’ oral decision, Mr. Hammoud’s counsel says in her Concise Letter that Justice Labrenz dismissed the application and advised Mr.

Hammoud to bring forward the application once he had actually retired.

[3] Following an appearance in Family Docket Court in January 2022, Mr. Hammoud filed an application seeking to terminateongoing spousal support payments to Mrs. Hammoud, returnable in morning Family Chambers on March 2, 2022. At that appearance,Justice Jones did not grant the application, instead indicated that Mr. Hammoud needed to provide further evidence of his retirement. Following an appearance in Family Docket Court in May 2022, Justice Nation ordered Mr.

Hammoud’s application to be heard in a half-day special and set deadlines for the filing of supplemental and response affidavits as well as concise letters. [4] I heard the special application on September 12, 2022. Issues [5] The issues is whether there has been a material change in circumstances and, if so, whether Mr. Hammoud’s spousal supportobligation should be terminated. That said, I note that Mr. Hammoud’s application does not request any alternative relief, such as areduction in the amount of his spousal support application. He only seeks termination. Discussion [6]

Section 17 of the Divorce Act, RSC 1985, c 3 (2nd Supp) sets out the requirement that an applicant seeking to vary a supportorder establish a material change in circumstances. In the context of an application for a change to a support order, the relevantprovisions read as follows: 17

(1) A court of competent jurisdictionmay make an order varying, rescinding orsuspending, retroactively orprospectively, (

a) a support order or any provision ofone, on application by either or bothformer spouses; …

(4.1) Before the court makes a variationorder in respect of a spousal supportorder, the court shall satisfy itself that achange in the condition, means, needs orother circumstances of either formerspouse has occurred since the making ofthe spousal support order or the lastvariation order made in respect of thatorder, and, in making the variation order,the court shall take that change intoconsideration. 17

(1) Le tribunal compétent peut rendreune ordonnance qui modifie, annule oususpend, rétroactivement ou pourl’avenir :

a) une ordonnance alimentaire ou telle deses dispositions, sur demande des ex-époux ou de l’un d’eux; …

(4.1) Avant de rendre une ordonnancemodificative de l’ordonnance alimentaireau profit d’un époux, le tribunal s’assurequ’il est survenu un changement dans lesressources, les besoins ou, d’une façongénérale, la situation de l’un ou l’autredes ex-époux depuis que cetteordonnance ou la dernière ordonnancemodificative de celle-ci a été rendue ettient compte du changement en rendantl’ordonnance modificative. [7] In JLB v WMB, 2019 ABQB 323, Justice Labrenz provides a

summary of the law explaining what is meant by a materialchange in circumstances: [21] In LMP v LS, 2011 SCC 64 at para 30, the majority of the Supreme Court of Canada instructed judges tasked with a variationapplication to approach the matter in the manner first established in Willick v Willick, (SCC), [1994] 3 SCR 670 andG(

L) v B(G), (SCC), [1995] 3 SCR 370. This approach directs me to consider the Original Order as having beencorrectly made, and to ask first whether the party seeking a variation had demonstrated that since the making of the Original Order, therehas been a material change in circumstances such that if the change had been known at the time of making the Original Order, theOriginal Order likely would have contained different terms: LMP at paras 47-48.

If the applicant has established a material change, thecourt must then determine what variation is necessary viewed through the lens of the objectives of spousal support listed in s.17(7) of theDivorce Act. [22] The Supreme Court of Canada further indicated in LMP at para 35, that a material change must generally have some degree ofcontinuity and must not be a temporary set of circumstances: LMP at para 35.

Further, when determining whether there has been amaterial change in circumstances, the court must examine the circumstances of the parties at the time of the Original Order.Significantly, in Willick at para 20, Sopinka J., speaking for the majority stated as follows: In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.This means a change, such that, if known at the time, would likely have resulted in different terms.

The corollary to this is that if thematter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation. [23] When the threshold for a variation has been met, a court must determine what variation must be made to the order because ofthe change in circumstances. The court should limit itself to only the variation justified by that change.

As Justice L’Heureux-Dubé, whoconcurred in Willick stated at para 70, “a variation under the Act is neither an appeal of the original order nor a de novo hearing”. [24] In other words, I am limited to making an appropriate variation to the Original Order occasioned by the material change.

Section 17 of the Divorce Act does not permit me to weigh the factors afresh, or to make a fresh order unrelated to the Original Order. [25] In

summary, the applicant on a variation application has the burden of establishing that since the date of the Original Order there has been a “material” change in circumstances, in the sense that had those circumstances been known at the time of the Original Order, the Original Order would have resulted in a different direction as to spousal support.

The material circumstances must not be simply temporary. [ 8 ] Therefore, I must first determine whether there has been a material change in circumstances in the sense that had those circumstances been known at the time of the Justice Hunt McDonald’s 2013 order, the original order would have resulted in a different direction as to spousal support. See: Salt v Salt , 2019 ABQB 595 at para 66 . [ 9 ] In this application, like in his application before Justice Labrenz in 2021, Mr. Hammoud argues that his retirement constitutes a material change in circumstances. [ 10 ] Mrs.

Hammoud argues that the evidence does not disclose any change since the domestic special before Justice Labrenz in June 2021. She further argues that Mr. Hammoud has not presented any evidence that he can’t afford the current level of spousal support or, or what other level of support that he could afford. She further notes that Mr. Hammoud’s evidence shows that his budgeted expenditures in 2022 have increased from those presented in his evidence for the 2021 domestic special. Moreover, Mrs. Hammoud submits that Mr.

Hammoud’s evidence does not disclose any information about his current partner’s income, her contribution to the household expenses, or how he will be able to afford to retire given the increased expenditures. [ 11 ] In Mr. Hammoud’s concise letter, he submits that he suffered a workplace injury and has found the nature of his job to be increasingly difficult, given his age and health problems. He says he has retired as of August 31, 2021. [ 12 ] In his affidavit sworn on February 14, 2022, Mr.

Hammoud deposes that after the application before Justice Labrenz was heard on June 24, 2021, he received, on July 8, 2021, an Advanced Permanent Layoff Notification from his employer, indicating that his employment would end on August 31, 2021. As a result, he says that he has decided to retire, given that he was then 67 years old, had worsening health conditions and has been permanently laid off.

He further deposes that due to the nature and physical demands of his work, he often worked in pain. [ 13 ] In his affidavit sworn May 19, 2022, which was made after his application was first heard in morning Chambers on March 2, 2022, Mr. Hammoud attached as an exhibit a letter from his family physician, Dr. Bertus Badenhorst, dated March 22, 2022, which, according to Mr. Hammoud, describes his ongoing health problems which affected his ability to work. I reproduce the two-paragraph letter here: Samir Hammoud is a known patient of mine for many years. He has multiple health concerns.

He is known with palpitations which cause significant dizziness. He has right rotator cuff syndrome and right lateral epicondylitis, which impact his ability to lift and he requires a brace to aide [ sic ] in pain relief. He has whiplash which causes significant neck pain. He has significant pain in his foot related to a fibroma, and MT dislocation. He is also known with hypertension and type II diabetes. Due to this extensive list of medical conditions and symptoms he experiences related to them, he is unable to work in any capacity. [ 14 ] Despite these health conditions, Mr.

Hammoud also indicates in his February 2022 affidavit that he was receiving Employment Insurance benefits and that his benefits would be ending by August 27, 2022. Exhibit D suggests that the commencement date of his employment insurance benefits was August 29, 2021. [ 15 ] During the hearing before me, I asked Mr. Hammoud’s Counsel if she knew of the conditions required to qualify for employment insurance benefits because, as I indicated at the hearing, it was my general understanding that a person could only claim employment insurance benefits if they were able to work.

Counsel did not know the answer, so I asked her to provide me with a response to my question in writing after the hearing. On September 15, 2022, she responded as follows: Further to the above appearance, you had requested that I provide you with some information on eligibility and circumstances surrounding an individual’s application for Employment Insurance benefits.

In reviewing the Government of Canada’s website on Employment Insurance benefits and eligibility, an individual needs to demonstrate that they: • were employed in insurable employment • lost their job through no fault of their own • have been without work and without pay for at least 7 consecutive days in the last 52 weeks • have worked for the required number of insurable employment hours in the last 52 weeks or since the start of their last EI claim, whichever is shorter • are ready, willing and capable of working each day • are actively looking for work (they must keep a written record of employers they contact, including when they contacted them) In order to prove eligibility and to receive EI payments, an individual is required to complete bi-weekly reports online or by telephone.

Failure to submit these reports can result in a loss of benefits. [ 16 ] In short, Mr. Hammoud’s counsel’s letter describing employment insurance eligibility conditions and requirements confirmed my general understanding. [ 17 ] In Salt , Justice Kirker confirms that the applicant has the burden to prove a material change in circumstances (at para 66). In

this case, Mr. Hammoud presents materially contradictory evidence regarding his ability to work. On the one hand, he deposes that his health is such that he is no longer able to work and that he has decided to retire. He attaches a brief letter from his doctor stating that he is “unable to work in any capacity”. On the other hand, he deposes to receiving employment insurance benefits since being laid off from his work.

As his counsel points out in her September 15, 2022 letter, the conditions for eligibility for employment insurance benefits include being “ready, willing and capable of working each day” and “actively looking for work” with the additional requirement of keeping a record of employers contacted and the time of contact. In essence, Mr. Hammoud is telling the Court in his affidavit that he is unable to work because of his health while at the same time representing to the Government of Canada the opposite. In these circumstances, Mr.

Hammoud has not met his burden of proving on a balance of probabilities that he has retired from the workforce. Disposition [ 18 ] As Mr. Hammoud has not proved on a balance of probabilities that he has retired from the workforce, he has not demonstrated a material change in his circumstances. Accordingly, his application is dismissed. Costs [ 19 ] If the parties are unable to agree on costs, they may each file submissions, not exceeding two pages. Heard on the 12 th day of September, 2022. Dated at the City of Calgary, Alberta this 4 th day of November, 2022. M.H. Bourque J.C.K.B.A. Appearances: Syra K.

Dhaliwal for the Applicant Darren Beattie for the Respondent