Hamani v Hamani, 2023 ABKB 507

Court of King’s Bench of Alberta Citation: Hamani v Hamani, 2023 ABKB 507 Date: 20230906 Docket: 4803 179931 Registry: Edmonton Between: Leandra Hamani Plaintiff - and - Djamel Hamani Defendant _______________________________________________________ Endorsement on Costs of the Honourable Justice Susan L. Bercov _______________________________________________________ I. Introduction [ 1 ] On June 15, 2023 , I rendered my written Decision following a trial of this matter: Hamani v Hamani , 2023 ABKB 360 . The parties do not agree on costs.

The parties provided written submissions on costs. [ 2 ] Both parties seek costs arguing that while there was mixed success, they were the more successful party. Both parties seek costs above

Schedule C because the other party’s conduct was unreasonable, wasted court time, and the party engaged in improper

conduct. II. Legal Principles [ 3 ] The legal principles that I must apply are not in dispute.

They are: • Rule 10.29 of the Alberta Rules of Court sets out the general rule that the successful party is presumptively entitled to costs. • The general rule applies in family matters, including parenting matters, in the same manner as in other civil matters: AE v TE, 2017 ABQB 674 . • “Success in family matters means substantial success, not absolute success”: DBF v BF , 2018 ABCA 108 . • “In assessing substantial success, the court looks at overall results, based on what the litigant was initially claiming”: SLT v AKT , 2008 ABB 450. • “A finding of success may be based on a finding that a party was successful on the most important issue litigated”: AE v TE . • Enhanced costs may be awarded where there has been misconduct in the litigation: King v MacDonald , 2022 ABKB 849 . • While costs are discretionary, the discretion must be exercised in a principled way: Blaze Energy Ltd. v Imperial Oil Resources , 2014 ABQB 5098 . • The non-exhaustive list of factors enumerated in Rule 10.33 help guide the discretion.

III. Analysis [ 4 ] Numerous issues were raised by the parties for determination including: an unjust enrichment claim by Ms. Hamani; an occupation rent claim by Mr. Hamani; spousal support, retroactive and ongoing, income imputation; exemptions; the value of Mr. Hamani’s assets; proper division of matrimonial property; return of property; and damages for property Ms. Hamani damaged or failed to return. [ 5 ] Looking at the overall results of the trial, based on what each party was claiming, for the reasons that follow, I disagree that either party achieved substantial success. [ 6 ] Ms.

Hamani brought a claim for unjust enrichment. After the evidence was heard, she abandoned this claim. [ 7 ] Mr. Hamani brought a significant claim for occupation rent. I denied this claim. [ 8 ] Mr. Hamani sought to impute income to Ms. Hamani. Ms. Hamani argued against imputing income. I determined that income should be imputed. [ 9 ] Income was added back to Mr. Hamani’s guideline income over several years to account for personal expenses Mr. Hamani received from his companies. [ 10 ] After resolving the parties’ guideline incomes, Ms.

Hamani recovered less retroactive and ongoing spousal support than she was seeking. Mr. Hamani was required to pay more than his position. [ 11 ] Mr. Hamani argued that his assets were largely exempt, and that Ms. Hamani was entitled to only 10% of divisible assets. I allowed some of the claimed exemptions at different amounts than Mr. Hamani’s initial claim and disallowed other exemptions Mr. Hamani claimed. Ms. Hamani was awarded 40% of the assets equaling $177,935.70. This was significantly more than Mr. Hamani’s position. [ 12 ] Ms. Hamani argued that ½ of Mr. Hamani’s exemptions were lost.

I did not accept this argument. Ms. Hamani also argued that there were large amounts dissipated that should be added back to the value of Mr. Hamani’s assets. I did not accept this argument. In the end, Ms. Hamani was awarded considerably less than any of her positions before or during the trial. [ 13 ] The division of matrimonial property consumed a very significant amount of trial time. The division of property significantly extended the action because neither party brought forward the necessary evidence to value Mr. Hamani’s companies.

This resulted in an adjournment of the trial to retain a court appointed expert to value Mr. Hamani’s companies. There were a significant number of issues to resolve in order to determine the value of the assets and the exemptions. Some issues were decided in favour of Ms. Hamani, while others were decided in favour of Mr. Hamani. The award of $177,935.70 was considerably more than Mr. Hamani’s position, yet considerably less than Ms. Hamani’s position. [ 14 ] Both parties also argue that issues that were addressed in my decision justify a significant cost award. For example, Ms. Hamani argues that Mr.

Hamani was able to expense legal fees through his companies when she was not. However, Mr. Hamani’s legal fees were determined and added back to his guideline income. Mr. Harmani argues that Ms. Hamani’s failure to work justifies a cost award. However, Ms. Hamani’s failure to work was addressed through imputation of income. [ 15 ] Both parties alleged misconduct by the other party. In an interim decision, I directed Ms. Hamani to return two paintings belonging to Mr. Hamani within five days, failing which she must pay Mr. Hamani the purchase price of the painting. Rather than return the paintings Ms.

Hamani paid the purchase price. Ms. Hamani’s conduct was contrary to the intent of my decision that she return Mr.

Hamani’s personal property. However, Mr. Hamani also engaged in misconduct in trying to circumvent the case management justice on the issue of spousal support. IV. Conclusion [ 16 ] The trial of this action took considerably more time than necessary. Both parties incurred significantly more fees than necessary. Both parties played a role in the length and expense of the action. At times both parties advanced unreasonable positions considering the law and the facts. Neither party conceded issues that should have been conceded.

Both parties spent considerable time and expense litigating issues that should have been resolved by agreement. Neither party was substantially successful. In these circumstances it is not appropriate to award costs to either party. Date at Edmonton, Alberta this 6 th day of September 2023. Susan L. Bercov J.C.K.B.A. Appearances: Emilie-Claire Draper for the Plaintiff Paul Govenlock for the Defendant