Hamani v Hamani, 2023 ABKB 360

Court of King’s Bench of Alberta Citation: Hamani v Hamani, 2023 ABKB 360 Date: 20230615 Docket: 4803 179931 Registry: Edmonton Between: Leandra Hamani Plaintiff - and - Djamel Hamani Defendant Corrected judgment: A corrigendum was issued on July 10, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice Susan L. Bercov _______________________________________________________ I. Introduction

[ 1 ] The

summary trial of this action has been ongoing since August 2021. [ 2 ] On June 29, 2022, I issued an interim written decision (Interim Decision) finding that I could not decide many of the issues without expert evidence: Hamani v Hamani , 2022 ABQB 441 . [ 3 ] The parties agreed to appoint Daryn Hobal as a court appointed expert to provide the necessary expert evidence. On April 6, 2023, Mr. Hobal swore an Affidavit attaching as Exhibits his expert reports. Neither party sought to examine Mr. Hobal and neither party called further expert evidence.

Both parties provided further written submissions after receiving Mr. Hobal’s Affidavit. [ 4 ] I now have sufficient evidence to decide the following issues: a. The division of matrimonial property. b. Mr. Hamani’s claim for occupation rent. c. A final decision on the parties’ Guideline incomes. d. A final decision on retroactive and ongoing child support. e. A final decision on retroactive and ongoing spousal support. II. Division of Matrimonial Property 1. Undisputed Facts [ 5 ] The following facts are not in dispute: • The parties were married on July 14, 2011.

The parties separated in June 2017. • Prior to marriage, Ms. Hamani owned no assets. She accumulated no assets during the marriage. • Prior to marriage, Mr. Hamani was the sole director and shareholder of two companies: Metropol Property Inc. (Metropol) and Plattform Berlin Immobilien GmbH (Plattform). At the date of trial, Mr. Hamani continues to be the sole shareholder and director of these two companies. • Prior to marriage, Mr. Hamani owned three properties located in Edmonton in his own name: 9807 90 Ave; 9747 90 Ave; 9841 90 Ave (Edmonton Properties). At the date of trial, Mr.

Hamani continues to own the Edmonton Properties. • In March 2021, after separation, Mr. Hamani purchased in his own name another rental property located in Edmonton: 10404 81 Street. 2. Value of Mr. Hamani’s Assets at the Date of Trial [ 6 ] The first step in dividing matrimonial property is to determine the value of all property owned at the date of trial. A. Value of Mr. Hamani’s Investment in Metropol and Plattform [ 7 ] On the issue of the trial date fair market value of Mr. Hamani’s investment in Metropol and Plattform, Mr.

Hobal opines as follows: • The value of the Metropol shareholder loan is $372,464.00. • The value of the Metropol shares is nil. • The value of the Plattform shares is $451,611.00. • The value of the Plattform shareholder loan is $695,513.00. [ 8 ] Mr. Hobal’s opinions are based on assumptions he makes that are set forth in his expert reports. Neither party argued that Mr. Hobal’s assumptions are inaccurate. For Plattform, Mr. Hobal performed a Calculation of Value Report as opposed to a Comprehensive Valuation Report because of the significant costs involved in preparing a more comprehensive report.

Neither party argued that Mr. Hobal’s conclusions do not fairly estimate the value of Mr. Hamani’s investment in Metropol and Plattform. I accept Mr. Hobal’s opinion evidence set out above. B. Value of Mr. Hamani’s Properties [ 9 ] One of the properties, 10404 81 Street, was purchased just before the trial. The Alberta Land Titles transfer instrument indicates the purchase price was $730,000.00. I am satisfied that this is the date of trial value of this property. [ 10 ] The Edmonton Properties were purchased before the marriage. Mr.

Hobal engaged the services of Knight & Company to provide date of trial appraisals on these three properties. The Knight & Company reports appraise all three properties at $340,000.00

each. I accept this evidence and find the value of each of the Edmonton Properties to be $340,000.00. C. Pension [ 11 ] Mr. Hamani worked for Air Canada prior to the marriage. He terminated his employment with Air Canada before the parties married. Both parties agree that his pension is exempt. Ms. Hamani did not include the pension in her Matrimonial Property Statement. Mr. Hamani included it in his Matrimonial Property Statement, but the value pre-marriage and after separation is the same. As there is no dispute that the full amount is exempt, I have not included Mr.

Hamani’s pension on the Matrimonial Property Statement prepared by this Court. D. Value of Mr. Hamani’s Investment in Ryoca [ 12 ] Ms. Hamani argues that I should include on this Court’s Matrimonial Property Statement the fair market value of Ryoca Enterprises Ltd. (Ryoca). After the parties separated, Mr. Hamani provided snow removal and landscaping services through Ryoca, a company he owns. Ms. Hamani argues that Mr. Hobal’s expert report quantifies the fair market value of Ryoca as $17,323.00. Mr. Hamani did not include Ryoca in his Matrimonial Property Statement. [ 13 ] I disagree with Ms.

Hamani that Ryoca should be listed on the Matrimonial Property Statement prepared by this Court. In the initial scope of work requested, Mr. Hobal was asked to provide an opinion on the fair market value of Mr. Hamani’s investment in Metropol and Plattform. He was not asked to provide an opinion on the fair market value of Mr. Hamani’s investment in Ryoca. Notwithstanding, during the course of his work, both parties at times requested additional opinions from Mr. Hobal, Ms. Hamani did not request Mr. Hobal to expand the scope of his work to provide opinion evidence on the fair market value of Mr.

Hamani’s investment in Ryoca. [ 14 ] As part of his work to quantify the assets removed or withdrawn from the companies, Mr. Hobal provides a balance sheet for Ryoca showing retained earnings of $17,323.00. This is not an opinion on the fair market value of Mr. Hamani’s investment in Ryoca. In the absence of opinion evidence that Mr. Hamani’s investment in Ryoca has any value and considering that Ryoca was used by Mr. Hamani only after separation to provide snow removal and landscaping services, I conclude that it is not appropriate to include Ryoca on the Matrimonial Property Statement. E. Value of Mr.

Hamani’s Investment in Totem [ 15 ] Ms. Hamani also argues that I should include $31,100.00 Canadian dollars representing Mr. Hamani’s interest in a project in France referred to as SCI Totem Immobilier (Totem). Ms. Hamani relies on paragraph 9 of Mr. Hamani’s July 15, 2021 Affidavit. Mr. Hamani did not include this investment in his Matrimonial Property Statement. [ 16 ] Based on Mr. Hamani’s evidence I conclude that his investment in Totem, valued at $31,100.00 at the date of trial, should be included. 3. Value of Ms. Hamani’s Assets at Date of Trial [ 17 ] Notwithstanding that Ms. Hamani owns no property, Mr.

Hamani argues that I should include as Ms. Hamani’s property $20,000.00 for property owned by Mr. Hamani before the marriage that Ms. Hamani wrongfully refuses to return. He also argues that $5,000.00 should be included as Ms. Hamani’s property on account of money she took from the laundry facilities. For the reasons given in my Interim Decision, I have concluded that these amounts should not be included in the Matrimonial Property Statement. 4. Value of Mr. Hamani’s Debts at the Date of Trial [ 18 ] One of the disputed issues at trial was whether the property Mr.

Hamani purchased after separation, 10404 81 Street, was fully financed. Mr. Hamani’s evidence is that it was. In addition to a mortgage of $430,000.00, Mr. Hamani testified that the balance of the purchase price, adjustments and fees were paid for through a line of credit. Because Ms. Hamani disputed this evidence, Mr. Hobal was asked to review Mr. Hamani’s line of credit and to provide his opinion on the value of the line of credit associated with the purchase of this property. [ 19 ] Mr. Hobal’s opinion is that the value of the line of credit associated with the purchase of 10404 81 Street is $316,000.00.

I accept his evidence. As this amount, together with the mortgage of $430,000.00, exceeds the purchase price, I am satisfied that Mr. Hamani’s evidence that this property was fully financed is accurate. [ 20 ] Given this property was purchased several years after the parties separated, and Mr. Hamani did not use matrimonial assets to purchase the property, I have not included it in the calculation of Mr. Hamani’s net family property. [ 21 ] With respect to the Edmonton Properties owned by Mr. Hamani, the vacant lot is encumbrance free. Mr. Hamani provided mortgage statements for the remaining two properties.

I accept this evidence and find that the trial date debts on these properties are: a. 9747 90 Ave. - $183,623.00 b. 9841 90 Ave. - $179,780.00 [ 22 ] Mr. Hobal calculated the capital gains tax payable on Mr. Hamani’s Edmonton Properties if sold at $115,266.00. Both parties included this on their Matrimonial Property Statement as a proper debt. The parties also agreed that real estate commissions on the sale of Mr. Hamani’s Edmonton Properties should be included as a proper debt. Using the Alberta Real Estate Commission Calculator 2023,

if the Edmonton Properties were each sold for $340,000.00, the total real estate commission payable would $36,330.00, inclusive ofGST. [23] The evidence from Mr. Hamani, that I accept, is that he will need to sell some of his properties to pay for outstanding supportand any equalization payment. Accordingly, I conclude that these amounts are proper debts to include in the Matrimonial PropertyStatement. [24] However, because I have concluded that 10404 81 Street should not be included in the calculation of Mr.

Hamani’s net familyproperty, any contingent real estate commissions and capital gains tax attributable to this property should not be included. [25] Mr. Hamani argues that I should allow tax liability of $112,902.75 on the Plattform shares at a 25% tax rate and $30,000.00for real estate commissions for the sale of the properties owned by Metropol. I disagree that tax liability on the sale of the Plattformshares and real estate commissions for the sale of the Metropol properties should be included. While Mr.

Hamani testified that he willlikely need to sell some properties to pay for support and any equalization payment, there is no evidence that he intends to sell hisinvestment in either Plattform or Metropol. It is not inevitable that Mr. Hamani will incur an income tax liability in relation to Plattformor Metropol and it is not inevitable that he will incur real estate commissions in relation to the sale of properties owned by Metropol.Where the potential liability is speculative, it should not be included: Sparrow v Sparrow, 2006 ABCA 155; O’Neil v Yaskowich, 2018ABQB 599 [O’Neil]. 5. Exemptions [26] Mr.

Hamani claims that all of his assets are exempt property because they were all acquired before the marriage. [27] The evidence is clear that Mr. Hamani is entitled to an exemption for his shareholder investment in Metropol and Plattform atthe date of marriage and the value of the Edmonton Properties at marriage. [28] Mr. Hobal provided opinions on the value of Metropol and Plattform at the date of marriage. Both parties accept hisvaluations. Mr. Hamani provided evidence on the value of the Edmonton properties prior to marriage and the mortgages on thoseproperties prior to marriage.

I accept this evidence. [29] Based on the evidence I find: a. 2011 date of marriage fair market value of Mr. Hamani’s shareholder investment in Metropol was $442,572.00. It’s current marketvalue is $372,464.00. Because Mr. Hamani’s investment in Metropol at the date of marriage is greater than its date of trial value, Iconsider it just and equitable to set the exempt value at its current market value. See: TNS v JQW, 2012 ABCA 321 at para 18; Lovich vLovich, 2016 ABQB 736 at para 35.[1] b. 2011 date of marriage fair market value of Mr. Hamani’s shareholder investment in Plattform is $579,226.00.

He is entitled to anexemption in this amount. c. 2011 date of marriage fair market value of the vacant lot located at 9807 90 Ave is $270,000.00. Mr. Hamani is entitled to anexemption in this amount. d. 2011 date of marriage net market value of 9747 90 Avenue is $165,000.00 (market value of $445,000.00 minus mortgage of$280,000). The current net equity in this property is $156,377.00 ($340,000 minus the mortgage of $183,623.00). Because the value ofthe property has declined since 2011, I find Mr.

Hamani is entitled to an exemption of $156,377.00, being its current net equity. e. 2011 date of marriage net market value of 9841 90 Avenue is $146,139.00 (market value of $430,000.00 minus the mortgage of$283,861.00). I find Mr. Hamani is entitled to an exemption in this amount. [30] The parties do not agree on whether Mr. Hamani is entitled to an exemption for his interest in Totem and whether Mr.Hamani is entitled to an exemption of $75,000.00 for funds held in an account in France prior to the marriage. [31] I accept Mr.

Hamani’s evidence in paragraph 9 of his Affidavit that prior to the marriage, he performed work for the TotemProject for which he received a share in the project, and he also invested $37,000.00 into the project. His evidence persuades me that thevalue of his investment in Totem before marriage exceeds the trial date value of his investment. I find that he is entitled to an exemptionof $31,100.00, being the trial date value. [32] Mr. Hamani also claims an exemption of $75,000.00 for funds he held in France prior to the marriage. While Mr.

Hamaniprovided evidence that prior to marriage he held $75,030.46 in bank accounts in France, there is no evidence as to what happened tothese funds. Property that a party owned at the time of marriage will only be considered exempt from matrimonial property under s 7(2)(

c) of the Matrimonial Property Act, RSA 2000, c M-8 if the exempt property is “still owned or traceable into other still ownedproperty” at the time of trial: Jackson v Jackson (1989), 1989 ABCA 197 , 97 AR 153 at para 11, 68 Alta LR (2d) 118 (AltaCA) [Jackson]. The onus rests with the party asserting the continued existence of the exempt property, or its substitute: DGM v KMM,2004 ABCA 257 at para 13 and Beaudry v Beaudry, 2010 ABQB 119 at para 96. Mr. Hamani has not met this onus. Accordingly, Iconclude that he is not entitled to an exemption for these funds. 6. Did Mr.

Hamani lose ½ of his Exemptions? [33] In an earlier written submission, Ms. Hamani argued, relying on Jackson and McCulloch v McCulloch, 2003 ABQB 432, thathalf the value of Mr. Hamani’s exempt assets have been gifted to the marriage because Mr. Hamani used those assets to fund hisunemployment during the marriage.

[ 34 ] There is no dispute that, except for very brief periods, neither party worked during the marriage. Mr. Hamani used the assets he accumulated prior to marriage and income generated by those assets to pay their living expenses. The parties did not accumulate any new assets during the marriage. Mr. Hamani did not transfer ownership of any of the assets to Ms. Hamani at any time nor did he transfer title into the parties’ joint names. Throughout the marriage Mr. Hamani kept his pre-marital assets separate. [ 35 ] I agree with Mr. Hamani that the cases relied on by Ms. Hamani are distinguishable.

In this case I find on the facts that there was never any intention by Mr. Hamani to gift a one-half interest of his exempt property to Ms. Hamani. Ms. Hamani provides no cases supporting her assertion that Mr. Hamani loses one-half of his exempt assets because his use of exempt assets during the marriage financially benefitted the family unit. 7. What is a Fair and Just Distribution of Property? [ 36 ] The attached Matrimonial Property Statement indicates Mr. Hamani’s net family property has a value of $593,119.00.

This is the amount I must distribute in a manner that is just and equitable considering the factors in s 8 of the Matrimonial Property Act . [ 37 ] Except for the property located at 10404 81 Street, which Mr. Hamani purchased after separation, that is 100% financed, Mr. Hamani’s assets were all acquired before the marriage. There is no presumption of equal distribution of the increase in value of exempt property.

I must consider all relevant factors including those specifically set out in s 8 in determining how to distribute the increase in value of the exempt property in a manner that is just and equitable. [ 38 ] Ms. Hamani argues that a just and equitable distribution of exempt property is 60% in favour of Mr. Hamani and 40% to Ms. Hamani. While Ms. Hamani acknowledges that Mr. Hamani’s contribution to the acquisition of this property is a factor in his favour, she argues that his decision to earn passive income should also be considered.

Further, she argues that I should consider that there are tracing issues with the exempt property brought about by the flurry of intercorporate transfers and the depletion of exempt assets to fund living expenses over the course of the marriage that constitutes dissipation. Specifically, Ms. Hamani argues I should add to Mr. Hamani’s assets $324,000.00 for GICs that were cashed in after separation, $621,015.00 that was transferred out of Plattform as a shareholder loan repayment, and $130,000.00 for legal fees Mr. Hamani paid from his assets. [ 39 ] Mr.

Hamani’s position is that a just and equitable distribution is 90% in his favour and 10% to Ms. Hamani’s favour. Mr. Hamani argues that this is a short-term marriage where Mr. Hamani entered the marriage with significant assets. Ms. Hamani had no assets. In this case, the contributions of the parties to the maintenance and preservation of the financial wellbeing of this family are extremely asymmetrical and call out for a just and equitable distribution that is reflective of these asymmetrical contributions. Mr. Hamani goes further by arguing that Ms. Hamani’s refusal to work is a form of dissipation.

Her failure to return his personal possessions, the damage she caused to the apartment door, and her taking the laundry money is bad faith conduct that should be considered in the ultimate distribution of property. While Mr. Hamani acknowledges that $100,000.00 should properly be added back for legal fees he paid, he disagrees that the $324,000.00 and the $621,015.00 were dissipated and should be added back. [ 40 ] I will now consider the relevant s 8 factors.

Contributions of the Parties During the Marriage and After Separation – 8 (a), (b), and (c) [ 41 ] The parties gave differing accounts of the contributions of each other during the marriage and after separation. [ 42 ] Where the evidence of the parties differs, in the absence of other clear evidence supporting one version of events over the other, I prefer the evidence of Mr. Hamani. I conclude that Ms. Hamani is not a credible witness because, as set out in my Interim Decision, I found Ms. Hamani’s evidence on several issues to be implausible or inconsistent with documented exhibits. [ 43 ] I do not accept Ms.

Hamani’s evidence that during the marriage she performed all housekeeping and parental duties, that Mr. Hamani was abusive and would not allow her to work. I accept Mr. Hamani’s evidence that he encouraged Ms. Hamani to seek employment both in France and in Canada and that he was significantly involved in household and parental duties. [ 44 ] The parties do not dispute that Mr. Hamani did not involve Ms. Hamani in his business investments and that she did not know that he owned the apartment complex where the parties lived when they came to Canada until they separated. [ 45 ] I do not accept Ms.

Hamani’s evidence that once she learned that Mr. Hamani owned the apartment complex she contributed to the cleaning and maintenance of the property. I accept Mr. Hamani’s evidence that before and after separation Ms. Hamani did not contribute financially or otherwise to the acquisition or maintenance of any of the assets. [ 46 ] Mr. Hamani is critical of Ms. Hamani’s contributions during the marriage. In particular, her failure to work outside the home. I do not share his views of Ms. Hamani’s contributions during the marriage. The parties married when they learned that Ms. Hamani was pregnant with twins. Ms.

Hamani lived in Brazil. Shortly after marriage, the parties moved to France because Mr. Hamani had citizenship and was able to access health care supports. Ms. Hamani did not speak English. With two young twins and no ability to speak French, it is understandable that Ms. Hamani did not work. [ 47 ] The parties moved to Edmonton in 2015 because Mr. Hamani wanted to be closer to his properties. Ms. Hamani agreed to move notwithstanding she had no friends, no family, and no supports in Edmonton. She did not speak English. It is understandable that Ms.

Hamani wanted to focus on English language courses after she arrived in Canada. [ 48 ] In

summary, during the marriage neither party worked at paid employment. While Mr. Hamani speaks French and English and worked in Canada before meeting Ms. Hamani, he provided no explanation for why he did not seek paid employment during their marriage. I infer the parties were content to live off Mr. Hamani’s investments. [ 49 ] When the parties separated in 2017, living off Mr. Hamani’s investments was no longer possible. The expenses were too high.

Mr. Hamani, who was then 50 years old, began offering snow removal and landscaping services to help meet expenses. Ms. Hamani who was 38 years old at the time, did not attempt to find employment. Despite being told by myself and other Justices that she has a responsibility to contribute to the financial welfare of the family, in the almost six years following separation, she has made no efforts to find employment. Her evidence is that since moving to Canada she has focused on learning English. For the reasons set out in my Interim Decision, I do not accept her evidence. Ms.

Hamani has a marketing degree from a Brazil University. From the trial testimony, I am satisfied that she speaks English well enough to obtain employment. There is no evidence that she is not capable of working. The only reasonable inference is that she simply refuses to fulfill her responsibility to contribute to the financial welfare of the family. [ 50 ] Ms. Hamani’s refusal to obtain employment and to contribute financially has negatively impacted the financial wellbeing of this family. Ms. Hamani lives rent free in the apartment that was the matrimonial home. Mr.

Hamani has been asking her to pay rent for years. Mr. Hamani pays child and spousal support. He also pays all the expenses of the matrimonial home. Ms. Hamani’s position for years is that she cannot pay anything. Mr. Hamani has used his corporate assets to keep the family afloat in addition to working at his snow removal and landscaping business. I am satisfied that this has reduced the value of his assets. [ 51 ] While I do not share Mr. Hamani’s criticisms of Ms. Hamani’s contributions during the marriage, I do share his criticisms of her contributions after the parties separated. Relying upon O’Neil , Mr.

Hamani argues that Ms. Hamani’s decision to live off Mr. Hamani’s assets, rather than work, is a form of dissipation that should be borne by the person making that decision. While I appreciate Mr. Hamani’s point, I am not convinced that Ms. Hamani’s refusal to work is a form of dissipation. The circumstances in O’Neil were slightly different. In O’Neil , the spouse who chose not to work was the spouse who liquidated matrimonial property to live rather than work. [ 52 ] Regardless, of whether Ms.

Hamani’s refusal to work is a form of dissipation, I am convinced that her refusal to work, which has resulted in the depreciation of Mr. Hamani’s property, is a factor I may consider in determining a just and equitable distribution: Kazmierczak v Kazmierczak , 2003 ABCA 277 . [ 53 ] In

summary, I agree with Mr. Hamani that the contributions of the parties to the maintenance and preservation of the financial wellbeing of this family are asymmetrical. This is a significant factor in determining what is a fair and just distribution. The only assets the parties have are the assets Mr. Hamani brought into the marriage from his hard work before the parties married. The increase in value of Mr. Hamani’s exempt assets is due to market forces or his work in increasing his investments. Ms. Hamani made no contributions during the marriage which contributed to the increase in value of the assets.

While her lack of contribution to the financial wellbeing of the family during the marriage is understandable given the parties circumstances, it is not understandable after separation. [ 54 ] I also agree with Ms. Hamani that I must consider Mr. Hamani’s decision during the marriage to live off his investments. Notwithstanding that Mr. Hamani worked prior to marriage, he did not work at paid employment during the marriage. He devoted his work hours to managing and growing his exempt assets. In particular, the evidence is that the Berlin Condo was largely developed during the marriage.

He did not use any income from his investments to purchase matrimonial property. As a result, there is no s 7(4) property to divide. Mr. Hamani’s argument that I should distribute the property 10% to Ms. Hamani would be more persuasive if Mr. Hamani had worked during the marriage and accumulated s 7(4) property that would be presumptively divided evenly. Income, Earning Capacity, Liabilities, Obligation, Property and Other Financial Resources of Each Party at time of Marriage and Trial – 8(d) [ 55 ] Mr. Hamani is earning a modest income. The parties’ assets are all owned by him.

He has demonstrated an ability to generate income through his assets. [ 56 ] Ms. Hamani’s earning capacity is unknown because she has not attempted to find employment. However, she is younger than Mr. Hamani, and from her degree in marketing, together with her knowledge of several languages, I infer that she does have skills and abilities which could enable her to earn an income. [ 57 ] Mr. Hamani urges me to draw an adverse inference that in the six years post-separation Ms. Hamani has in fact stored considerable financial resources that she has failed to disclose.

He asks me to do so on the basis of my credibility findings, some lavish expenses on her credit card and the fact that she indicated she could cover $3,500.00 of the appraisal costs on the Berlin Condo after indicating she was impecunious. [ 58 ] Ms. Hamani’s financial situation is not clear on the evidence. However, I am not persuaded that the evidence is sufficient to draw the adverse inference Mr. Hamani argues I should make. Duration of the Marriage – 8(e) [ 59 ] This is a short-term marriage. The parties were married for almost six years.

Whether Property was Acquired When the Spouses were Living Separate and Apart – 8(f) [ 60 ] The only property that was acquired while the spouses were living separate and apart is the property located at 10404- 81 Street. Given it was acquired several years post-separation, no matrimonial assets were used to purchase the property, and there is no equity in the property as it is fully encumbered, I have concluded that it should not be including in the Matrimonial Property prepared by this Court. Dissipation – 8(l) [ 61 ] Ms. Hamani included in her Matrimonial Property Statement $324,095.52 for GICs Mr.

Hamani cashed in after separation, $621,015.00 from repayment of a shareholder loan from Mr. Hamani to Plattform, and $130,000.00 for legal fees paid by Mr. Hamani

from his assets. [ 62 ] It is not in dispute that Mr. Hamani cashed in GICs for $324,095.52 after separation and received $621,015.00 as repayment of his shareholder loan to Plattform. What is in dispute is whether these amounts should be included in Mr. Hamani’s assets. Ms. Hamani argues that cashing the GICs and the repayment of the shareholder loan are forms of dissipation. It is also not in dispute that the legal fees Mr. Hamani paid from his assets should be added back. What is in dispute is the amount. Mr. Hamani argues the proper amount is $100,000.00. Ms.

Hamani argues the amount is $130,000.00. [ 63 ] The law is clear that it is not dissipation to use assets for reasonable expenditures on behalf of the family or to maintain existing matrimonial assets. The Court will look to see if the spouse could have paid the expenses out of income rather that reducing assets. However, personal expenses that do not benefit the other party that are paid out of matrimonial property may be considered dissipation: O’Neil . a GIC’s Totalling $324,095.52 [ 64 ] Mr. Hamani’s evidence is that between June 2017 and July 2021 he cashed in GICs held by Metropol totalling $324,095.52.

He used these funds to pay for shortfalls in Metropol and various living expenses including Ms. Hamani’s rent, his own rent and expenses, support payments, and litigation costs. I accept Mr. Hamani’s evidence. I am satisfied that except for funds used to pay legal fees relating to this action, discussed below, the funds from the GICs were used for reasonable expenditures on behalf of the family. b Repayment of the Shareholder Loan [ 65 ] As part of the scope of Mr. Hobal’s work, he was asked to quantify the assets removed or withdrawn from Mr. Hamani’s companies from 2017 – 2020.

This work was requested because Ms. Hamani argued that assets were improperly withdrawn from the companies. [ 66 ] Mr. Hobal notes that in 2019 Plattform reported that it repaid $621,015.00 of its shareholder loan. [ 67 ] Mr. Hamani testified that while Plattform reported the repayment of the shareholder loan in 2019, these funds were actually repaid to Mr. Hamani in 2014 and 2015 and were lent to Metropol. These funds were used in part to fund living expenses while the Hamanis were living in France and not working. [ 68 ] I accept Mr. Hamani’s evidence that the shareholder loan was repaid to Mr.

Hamani in 2014 and 2015 and that the funds were lent to Metropol. Mr. Hamani’s evidence on this issue is supported by the financial records of Metropol. These records show an increase in Metropol’s Due to Shareholder account from $2.00 in 2013 to $649,517.00 in 2015. In the absence of any evidence that Mr.

Hamani had access to any other funds to lend to Metropol, a reasonable inference is that the Plattform shareholder loan repayment was made in 2014 and was repatriated back to Metropol but not documented in the Plattform Financial Statements until 2019. c Legal Fees [ 69 ] The parties do not dispute that any legal fees paid from matrimonial assets should be added back. The parties disagree on the amount Mr. Hamani paid for legal fees from matrimonial assets. [ 70 ] The evidence Mr. Hamani provided is not clear.

In his Affidavit of July 2021, at paragraph 56, he deposes that the funds from the GICs were used to pay various expenses, including litigation costs, but provides no breakdown. At paragraph 90 he deposes that his legal fees were $105,000.00. At paragraph 97 of the same Affidavit, he deposes that his pre-trial legal fees were $130,000.00. While it is clear that some legal fees were paid from the GICs, it is not clear how much. The onus is on Mr. Hamani to demonstrate that post- separation debt was used for the family and not solely for his own purposes: Stuve v Stuve , 2019 ABCA 142 .

Accordingly, I conclude that $130,000.00 was used to pay legal fees. [ 71 ] Ms. Hamani acknowledges that any legal fees paid by Mr. Hamani’s companies that are added back to Mr. Hamani’s income for Guideline purposes should be deducted from the $130,000.00. In determining Mr. Hamani’s Guideline income below, the sum of $37,264.00 is added back as legal fees, broken down over the years 2017-2020. This amount should be deducted from the $130,000.00, resulting in an amount of $92,736.00 that should be added back to the calculation of Mr. Hamani’s net matrimonial property.

Any Fact or Circumstance that is Relevant – 8(m) [ 72 ] I have not considered factors listed in s 8 that are either not applicable to this case or factors such as tax liability that have already been considered above. [ 73 ] Mr. Hamani argues that one additional factor I should consider is the global financial downturn since December 2020. As a result, the trial date values are likely inflated. It is unfortunate that there is a significant length of time between the trial date and this decision because of the need to adjourn for expert evidence.

I do not have any specific evidence as to how the financial downturn has impacted Mr. Hamani’s investments. Accordingly, I decline to place any weight on this factor. [ 74 ] Mr. Hamani also argues that Ms. Hamani’s bad faith conduct during this proceeding should be factored into the distribution of property. Mr. Hamani relies on the following instances of bad faith conduct: • Misrepresentations of her efforts to pursue English language courses. • Conduct necessitating a restraining order to be issued against her for failing to comply with parenting orders and including the children in the adult conflict.

• Selling a painting that belonged to Mr. Hamani and failing to return other personal property belonging to Mr. Hamani. [ 75 ] While I agree with Mr. Hamani that Ms. Hamani has engaged in inappropriate conduct, I disagree that the appropriate response is to consider this conduct in the distribution of property. Conclusion [ 76 ] I agree with Mr. Hamani that the contributions of the parties to the maintenance and preservation of the financial wellbeing of this family are asymmetrical. This is particularly so after separation. This is a factor in Mr. Hamani’s favour. Ms.

Hamani’s position that the increase in value of the exempt property should be divided 40% in her favour does not in my view reflect the contributions of the parties. [ 77 ] Mr. Hamani’s position that Ms. Hamani should only receive 10% does not in my view properly address Mr. Hamani’s decision to not work during the marriage but instead to focus exclusively on building his exempt assets including developing the Berlin Condo. [ 78 ] Considering all the applicable s 8 factors, I conclude that it is just and equitable to distribute the s 7(3) gains in Mr. Hamani’s s 7(2) exempt property 70 percent to Mr.

Hamani and 30 percent to Ms. Hamani. This results in an equalization payment of $177,935.70. Mr. Hamani shall pay an equalization payment to Ms. Hamani in the amount of $177,935.70 by no later than December 31, 2023. III. Occupation Rent [ 79 ] On July 11, 2017, the parties entered into the Interim Consent Order, which provides Ms. Hamani with exclusive possession of the Matrimonial Home rent free, and directs Mr. Hamani to pay child support, spousal support, and the utilities, internet and insurance related to the Matrimonial Home. [ 80 ] Mr.

Hamani testified that he understood this was to be a temporary order, until all matters were resolved, which he expected would be shortly after the Interim Consent Order. Mr. Hamani filed an application on December 21, 2018, seeking an order directing Ms. Hamani to either pay rent or to move out of the Matrimonial Home by no later than June 30, 2019. Mr. Hamani has been trying since December 2018 to have this application heard. [ 81 ] Ms. Hamani continues to live in the Matrimonial Home. She pays no rent. She pays no utilities or other expenses associated with the Matrimonial Home.

The expenses associated with the 4-plex, including the Matrimonial Home, are paid for by Metropol. [ 82 ] Mr. Hamani claims occupation rent relying on Kazmierczak v Kazmierczak , 2001 ABQB 610 , affirmed on appeal, 2003 ABCA 227 . He seeks monthly rent of $1,450.00 per month from August 1, 2017, to January 31, 2022, plus interest at 12% to compensate him for interest on loans and credit card debt he incurred to cover the unpaid rent. Mr. Hamani argues that $1,450.00 per month is fair because this is the monthly amount he has paid to rent an apartment since separation.

In addition, he produced three leases for other tenants in the 4-plex. These leases establish that the rental rate for the units ranges from $1,275.00 to $1,450.00 in 2020 – 2021. His evidence is that the Matrimonial Home was bigger and nicer than the other units as he renovated it for the family when they moved to Canada. [ 83 ] Ms. Hamani opposes the claim for occupation rent arguing that this is an exceptional remedy, and that one spouse should not be able to bank a claim for occupation rent and present that claim in capitalized form years later as part of a matrimonial property action. I disagree with Ms.

Hamani that Mr. Hamani is banking a claim for occupation rent. Mr. Hamani filed an application in December 2018 seeking rent of $1,400.00. Ms. Hamani was aware since then that Mr. Hamani is claiming occupation rent. [ 84 ] While occupation rent is an exceptional remedy, courts have awarded occupation rent where one partner lives in the matrimonial home and the non-occupying partner pays all the expenses as well as support to the occupying spouse. However, there is one factor that distinguish this case from cases where occupation rent is awarded. [ 85 ] While Mr.

Hamani testified that he paid all the expenses on the Matrimonial Home and he paid rent of $1,450.00 per month for his own apartment, the evidence does not support this. The evidence is that Metropol, not Mr. Hamani, paid the expenses connected with the 4-plex, including the Matrimonial Home. Mr. Hamani’s evidence is that between June 2017 – July 2021 he used GICs totaling $324,095.52 held by Metropol, and cash from Plattform of $136,587.30 to pay for shortfalls in Metropol, Ms. Hamani’s rent and expenses, his own rent and expenses, litigation costs, and support payments.

While the evidence does not include a break down of how much was used for each category of expenses, the evidence is clear that after separation Mr. Hamani used his corporate assets to pay both parties’ living expenses.

This distinguishes this case from other cases where the non-occupying partner pays spousal support and all matrimonial home expenses from his or her employment income. [ 86 ] Where the parties have used property subject to distribution to pay both parties living expenses, thereby reducing the value of property available for distribution, in my view, it is not appropriate to award one party occupation rent. It is more appropriate to consider this factor in determining the quantum of spousal support payable. IV. Ms. Hamani’s Guideline Income [ 87 ] On July 11, 2017, the parties agreed to an Interim Consent Order.

The Interim Consent Order grants Ms. Hamani child support of $900.00 per month and spousal support of $625.00 per month. [ 88 ] In my Interim Decision, I reserved the final determination of child and spousal support. I varied the Interim Consent Order for

2022 and ongoing by ordering child support of $557.56 per month and spousal support of $225.00 per month. [ 89 ] Both parties argue that I should impute income to the other. Accordingly, before addressing retroactive and ongoing child and spousal support, I will determine the parties’ Guideline incomes for the years 2017 – 2022. [ 90 ] In my Interim Decision, I concluded that income should be imputed to Ms. Hamani for the year 2022 of $31,200.00 per year based on full-time employment in an entry level position in the service industry.

The facts I based my decision on, and my analysis is set out at paragraphs 63-70. I adopt those paragraphs of my Interim Decision. [ 91 ] At the time of issuing the Interim Decision the applicable test was the onerous test set out in Hunt v Smolis-Hunt , 2001 ABCA 229 . I concluded that for the year 2022, the evidence met this stringent test to impute income. [ 92 ] Since my Interim Decision, the Alberta Court of Appeal reconsidered the Smolis-Hunt test in Peters v Atchooay , 2022 ABCA 347 [ Peters ], replacing the deliberate evasion test with a test of reasonableness.

This change reinforces my decision to impute income to Ms. Hamani for 2022. The issue I must now decide is whether income should be imputed to Ms. Hamani for any years prior to 2022. [ 93 ] Peters is clear that both parents have an obligation to pursue employment and earn income based on their age, education, experience, skills, health and all other relevant factors. The ultimate onus rests on the party opposing imputation to prove on a balance of probabilities that the unemployment was as a result of one of the listed exceptions in s 19(1)(

a) of the Federal Child Support Guidelines and, if not, that the unemployment is reasonable, having regard to all the circumstances. The analysis requires evidence that is as objective as possible. Bare assertions will not suffice. [ 94 ] The parties moved to Canada in 2015. Ms. Hamani did not speak English. She started English language courses in the fall of 2015. Education is one of the listed exceptions in s 19(1)(

a) of the Guidelines . Ms. Hamani testified that her plan was to learn English so that she could attend NAIT and update her marketing degree. This was a reasonable plan considering the circumstances. However, as set out in my Interim Decision, Ms. Hamani did not provide objective evidence that she reasonably pursued this plan. While she provided some evidence that she was enrolled in English as a second language courses at some points of time after the parties separated, she provided no evidence, other than her bare assertions, that she passed courses and was progressing in her plan. [ 95 ] Mr.

Hamani argues that income should be imputed on a part-time basis beginning in 2019 at $24,000.00 per year and increased to a full-time basis of $32,000.00 from 2020 onwards. [ 96 ] While it was reasonable for Ms. Hamani to remain unemployed for a short period of time after separation in order to improve her English language skills and update her education, I conclude that by August 2019 it was no longer reasonable for Ms. Hamani to remain unemployed particularly given the parties moved into a shared parenting arrangement that month. It is appropriate to impute income to Ms.

Hamani on a part-time basis beginning August 2019. [ 97 ] I have no evidence as to what Ms. Hamani was capable of earning had she searched for employment. In the absence of this evidence, I conclude that it is reasonable to infer that had Ms. Hamani applied for jobs in August 2019 she could have obtained an entry level position in the service industry, at least part-time initially earning $24,000.00 per year from August 2019 – December 2019. By January 1, 2020, it is reasonable to infer that she was capable of working full-time earning $31,200.00 per year.

However, commencing in March 2020, the service industry was greatly affected by closures due to the COVID-19 pandemic. I will therefore maintain her imputed income at $24,000.00 in 2020 but increase it to $31,200.00 effective January 1, 2021. [ 98 ] In

summary, I conclude that Ms. Hamani’s Guideline income should be set as follows: • 2017- $0.00 • 2018- $0.00 • January to July 2019- $0.00 • August to December 2019 $24,000.00 • 2020- $24,000.00 • 2021- $31,200.00 • 2022 onwards- $31,200.00 V. Mr. Hamani’s Guideline Income [ 99 ] During the marriage Mr. Hamani worked at managing his investments. The parties lived off the income generated by his investments. After the parties separated, Mr. Hamani provided snow removal and landscaping services through his company Ryoca. [ 100 ] Mr. Hamani provided Income Tax Returns for the years 2018-2020.

As his line 15000 income for 2018-2020 is consistently around $51,000.00, I infer that this is his line 15000 income for 2017. Income Tax Returns were not provided after 2020. I set Mr. Hamani’s line 15000 income for the years 2021 and onwards at the same amount as his line 15000 income in 2020. [ 101 ] In

summary, I find that Mr. Hamani’s line 15000 income for the years 2017 onwards to be as follows: • 2017- $51,000.00

• 2018- $52,200.00 • 2019- $51,750.00 • 2020- $51,712.00 • 2021- $51,712,00 • 2022 onward- $51,712.00 [ 102 ] Since 2017, Mr. Hamani has operated three companies: Ryoca, Metropol and Plattform. Mr. Hamani acknowledged in his evidence that some of the expenses listed in the Financial Statements of Metropol and Ryoca are personal in nature. His evidence, which I accept, is that there are no personal expenses included in Plattform’s expenses. [ 103 ] Determining what portion of Metropol’s and Ryoca’s business expenses are personal in nature is challenging for several reasons. Mr.

Hamani’s evidence on personal expenses is vague and general. While he acknowledges some expenses are personal, he did not provide specific details or calculations. His explanations for his expenses are also vague and at times difficult to understand. In addition, Mr. Hamani, and not his counsel, prepared sections of the written submissions. In dealing with the personal expenses, Mr. Hamani uses the written argument to provide evidence, in the guise of argument.

At times, the argument is inconsistent with the evidence. [ 104 ] In determining what expenses are personal in nature and should be added back, I will make reasonable inferences based on the evidence as a whole and what makes sense in these circumstances. As the last Financial Statements in evidence are Statements for the 2020-year end, I will use these Statements for the purpose of determining Mr. Haman’s Guideline income in 2020 and ongoing. 1. Ryoca [ 105 ] After separation, in 2017, Mr. Hamani started providing snow removal and landscaping services. He provides this work through Ryoca.

He has one client, Absolute Snow Removal. He does not hire the employees; he looks after the logistics. The net income from Ryoca is transferred to Metropol and then transferred to him through Metropol. A. Travel Expenses [ 106 ] In the written argument, Mr. Hamani states that he estimates on average he receives $250.00 per year in personal travel benefits from Ryoca. This is contrary to his evidence at trial. At trial he testified that maybe 20% of the travel expenses are for personal use. 20% of his 2020 travel expenses ($4,053.00) is $810.00.

While he did not indicate which year he was speaking of, I infer that for all years in question, 20% of the travel expenses are personal in nature and should be added back into his income. B. Professional Fees [ 107 ] In his written submissions Mr. Hamani argues that professional fees are accounting and mechanic fees. There are no legal fees included in this expense. Again, this is contrary to his evidence at trial. At trial, Mr. Hamani testified that professional fees are accounting fees as well as legal fees. He did not indicate what the breakdown was.

However, in his evidence regarding fees for Metropol, he testified that accounting fees were around $1,500.00 - $2,000.00 per year. I conclude that for all years, professional fees in excess of $1,750.00 are for legal fees. Mr. Hamani gave no evidence that he retained a lawyer for any corporate legal services. As there is evidence that Mr. Hamani incurred significant legal fees for these matrimonial proceedings, in the absence of any evidence indicating what the legal fees were for, I conclude that they were personal in nature and should be added to his income. C. Meals and Entertainment [ 108 ] Mr.

Hamani’s evidence is that he purchased coffee and food for the crew. He argues in written submissions that the personal benefit is 15%. Considering the amount expensed under this category over the years, I accept Mr. Hamani’s argument that the personal benefit for all years is 15%. D. Supplies [ 109 ] I accept Mr. Hamani’s evidence that this expense if for business supplies and that there is no personal benefit. 2. Metropol A. Salary and Wages [ 110 ] I accept Mr. Hamani’s evidence that this category is for expenses paid to Olympia for medical and dental benefits for the family.

Metropol purchased a health spending account with Olympia. Metropol pays a yearly fee for the health spending account. Mr. Hamani personally pays for medical and dental services. Mr. Hamani then submits the expense to Olympia. Olympia reimburses Mr. Hamani for the expenses. Metropol then pays Olympia the amount of the reimbursement and expenses this amount. [ 111 ] Ms. Hamani argues that these expenses are personal in nature and should be added back to Mr. Hamani’s income. Mr. Hamani is claiming that Ms. Hamani should pay her proportionate share of these expenses. Ms. Hamani argues that as Mr.

Hamani has been reimbursed for these expenses, she should not have to pay her proportionate share as s 7 expenses.

[ 112 ] Considering that all parties benefit from the health spending account, I conclude that it is appropriate not to add these expenses back to Mr. Hamani’s income and that Ms. Hamani is not required to pay her proportionate share of these expenses. B. Travel Expenses [ 113 ] Mr. Hamani does not own a car. He rents a car monthly from Budget. Mr. Hamani testified that he uses the car for business to pick up rent and maintain the properties. He also acknowledged that he does use the car for personal transportation. He did not give evidence as to the breakdown. [ 114 ] Mr.

Hamani argues in written submissions that 50% of this expense is personal. Ms. Hamani argues that at least 50% should be added back. I conclude based on the limited evidence that 50% is a reasonable amount to add back for personal use for all years. C. Professional Fees [ 115 ] Mr. Hamani’s evidence at trial is that this category is for accounting and legal fees. His accounting fees are about $1,500.00- $2,000.00 per year. The balance of the fees for 2020 and 2019 relate to legal fees for the matrimonial litigation. [ 116 ] Mr.

Hamani argues in his written argument that 40% of these expenses relate to family law legal fees and should be added back to his income. This is inconsistent with his evidence at trial. I conclude that professional fees in excess of $1,750.00 per year for all years should be added back. D. Meals and Entertainment [ 117 ] Mr. Hamani testified that some of these expenses arise from taking tenants, accountants, brokers and other business contacts our for meals and some are gifts for tenants at Christmas. There is no evidence as to how much is related to personal expenses. [ 118 ] Mr.

Hamani argues that it is reasonable to add 50% back as personal expenses. Ms. Hamani argues that 75% should be added back. Considering the yearly amount that is expensed, I am satisfied that 50% is reasonable. 3.

Summary of Personal Expenses to Be Added Back into Mr. Hamani’s Income [ 119 ] I conclude that the following expenses for Ryoca are personal in nature and should be grossed up by 25% and then added back into Mr.

Hamani’s Guideline income: Expenses 2017 2018 2019 2020 Travel $5,995.00 $1,929.40 $1,240.00 $810.60 Professional Fees $2,464.00 $3,981.00 $2,380.00 $3,563.00 Meals & Entertainment $1,151.55 $1,443.15 $268.35 $97.65 Total expenses $9,610.55 $7,353.55 $3,888.35 $4,471.25 25% gross up $2,402.64 $1,838.39 $972.00 $1,118.00 Total sums added back to income $12,013.12 $9,192.00 $4,860.00 $5,589.25 [ 120 ] I conclude that the following expenses for Metropol are personal in nature and should be grossed up by 25% and added back into Mr.

Hamani’s Guideline income: Expense 2017 2018 2019 2020 Travel $3,988.00 $3,635.50 $4,032.50 $3,249.50 Professional fees $6,713.00 $6,684.00 $5,265.00 $6,214.00 Meals & Entertainment $2,756.00 $2,105.00 $1,465.00 $1,538.50 Total Expenses $13,457.00 12,424.50 $10,762.50 $11,002.00 25% gross up $3,364.25 $3,106.12 $2691.00 $2,750.50 Total sums added back to income $16,821.25 $15,531.00 $13,453.12 $13,770.50 [ 121 ] The above sums should be added back into Mr. Hamani’s line 15000 income for the years 2017 – 2020. I calculate Mr.

Hamani’s revised Guideline income as follows: 2017 2018 2019 2020 Line 15000 income $51,000.00 $52,200.00 $51,750.00 $51,712.50 Ryco expenses added back $12,013.12 $9,192.00 $4,860.00 $5,589.25 Metropol expenses added back $16,821.25 $15,531.00 $13,453.12 $13,770.50 Revised Guideline income $79,834.37 $76,923.00 $70,063.12 $71,072.25 [ 122 ] I set Mr. Hamani’s Guideline income for the years 2021 onwards at the same amount set for 2020.

[ 122 ] I set Mr. Hamani’s Guideline income for the years 2021 onwards at the same amount set for 2020. VI. Child Support [ 123 ] From July 2017 when the parties separated until August 2019 Ms. Hamani had primary care of the children. In August 2019, the parties moved to shared parenting. [ 124 ] The amount of child support payable by Mr. Hamani from the separation until August 2019 is the Table amount based on his Guideline income during this period. [ 125 ] For the period from August 2019 when the parties moved to shared parenting, the formula is: (

a) Table amount; (

b) increased costs of shared parenting; and (

c) conditions, means, needs and other circumstances of each spouse and any child. [ 126 ] The Court of Appeal in MacDonald v Brodoff , 2020 ABCA 246 is clear that it is wrong to default to an automatic set-off.

The key questions I must ask to determine whether a straight set-off is fair and appropriate are: • Is there a significant income disparity between the parties? • Is there an obvious difference in living standards between the parties? • Is one party clearly bearing the majority of child expenses such as school fees, clothing and extra-curricular activities that fall outside s 7? [ 127 ] In this case, while there is some income disparity between the parties, the evidence is that there is no obvious difference in living standards between the parties and there is no evidence that one party is bearing the majority of child expenses.

Accordingly, based on the limited evidence the parties provided, I conclude that a set-off approach is appropriate for the period from August 2019 and ongoing. [ 128 ] In

summary, I find that the parties’ responsibilities for child support are as follows: a. For the period July 2017 – December 31, 2017, s 3 payable by Mr. Hamani is $1,167.00 per month. b. For the period January 1, 2018 – December 31, 2018, s 3 payable by Mr. Hamani is $1,123.00 per month. c. For the period January 1, 2019 – July 31, 2019, s 3 payable by Mr. Hamani is $1,020.00 per month. d. For the period August 1, 2019 to December 31, 2019, s 9 payable by Mr. Hamani is $642.00 per month ($1,020.00 - $378.00). e. For the period January 1, 2020 to December 31, 2020, s 9 payable by Mr.

Hamani is $657.00 per month ($1,035.00 - $378.00). f. For the period January 1, 2021 – December 31, 2021, s 9 payable by Mr. Hamani is $558.00. per month ($1,035.00 – $477.00). g. For the period from January 1, 2022 and ongoing, s 3 payable by Mr. Hamani is $558.00 per month ($1,035.00 – $477.00). VII. Spousal Support [ 129 ] The parties do not dispute that Ms. Hamani is entitled to spousal support on both a compensatory and non-compensatory basis. I agree. The parties do dispute the length and amount of entitlement. [ 130 ] Ms. Hamani was born October 13, 1977.

She has a 4-year marketing degree from a University in Brazil. She met Mr. Hamani in the fall of 2009. Before she met Mr. Hamani she worked for Olympus Cameras and as a car salesperson for Volkswagen. She was laid off shortly after she met Mr. Hamani. The parties learned she was pregnant with twins in the spring of 2011. The parties were married in the summer of 2011. The twins were born in December 2011. The family moved to France to access affordable health care. Ms. Hamani did not speak French. While in France she looked after the twins and learned French. In 2015 the parties moved to Canada to allow Mr.

Hamani to be close to his investments in Edmonton. Ms. Hamani did not speak English. Until the parties separated in 2017, Ms. Hamani looked after the twins and learned English. [ 131 ] When the parties separated in the summer of 2017, Ms. Hamani had been out of the workforce for approximately 7 years. During that time her efforts were devoted to raising the twins and learning French and English as the parties relocated. At the time of separation, Ms. Hamani had no assets and no supports in Canada. [ 132 ] On July 11, 2017, the parties entered into an Interim Consent Order that gives Ms.

Hamani exclusive possession of the Matrimonial Home, expense free, and spousal support of $625.00 per month. On August 6, 2021, I varied the Interim Consent Order to reduce spousal support to $225.00 per month staying arrears as long as ongoing support is paid. [ 133 ] Ms. Hamani argues that her compensatory claim is strong enough to warrant a longer time-limited award. She seeks the continuation of spousal support until January 2024. She does not seek a retroactive variation unless occupation rent is awarded.

She argues that spousal support and property are inextricably linked and urges me to ensure that any equalization payment is provided to her before terminating spousal support. [ 134 ] Mr. Hamani fairly acknowledges Ms. Hamani’s compensatory claim. He agrees that she is entitled to support that recognizes the disadvantages to her arising from the marriage. He also recognizes her entitlement to non-compensatory support based on the “means and needs’ approach. However, Mr. Hamani notes that the caselaw and SSAGs recognize that in a short-term marriage with shared

parenting of school age children, entitlement should not be in the high end of the range but should aim to support the recipient to obtain self-sufficiency in a timely manner. Mr. Hamani argues that since separation, Ms. Hamani has failed to pursue self-sufficiency. Mr. Hamani believes it is reasonable to infer that Ms. Hamani has work that she is not disclosing and has been accumulating thousands of dollars in savings since the parties separated. Mr. Hamani seeks an order terminating spousal support effective June 2022. [ 135 ] I agree with Ms.

Hamani that although this was a short-term marriage, the circumstances of this case warrant a longer time- limited award. When the parties married, Ms. Hamani was not working. She had not worked for a little over one year. She did not give up a job or career to get married and have children. However, when the twins were born and the parties moved to France, given her childcare responsibilities and inability to speak French, it would have been very challenging for her to establish a career or enter the work force. Likewise, when the parties moved to Canada to allow Mr.

Hamani to be closer to his investments, with childcare responsibilities and no ability to speak English, returning to the work force would have also been challenging. She was disadvantaged by the marriage. Having been out of the workforce for over six years, and given English is not her first language, she is entitled to a longer duration of spousal support to compensate her for these disadvantages. [ 136 ] I also agree with Mr. Hamani that Ms. Hamani has failed to pursue self-sufficiency.

While she claims that she has been studying to improve her English with the goal of upgrading her marketing degree, her evidence at trial, summarized in my Interim Decision, falls short of proving that she is working on improving her English and that she has any real plan to upgrade her education or skills. I am persuaded that she is using this as an excuse not to work. [ 137 ] The difficult question this raises is how a court should address this situation. Mr. Hamani argues I should infer that Ms. Hamani has been working and accumulating savings for years but not disclosing this. I have concerns regarding Ms.

Hamani’s true financial situation. It is difficult to understand why, notwithstanding directions from myself and the case management justice that she obtains employment, Ms. Hamani has not applied for a single job. While she claims she is impecunious, her credit card statements she was cross- examined on indicate she purchased trips to Brazil, jewellery, a purchase from Saks Fifth Avenue, and other purchases. While she maintained she was unable to pay any of Mr. Hobal’s retainer up front, when she wanted to expand the scope of the retainer, she was able to suddenly come up with several thousands of dollars.

These examples raise questions about her true financial situation. [ 138 ] In my view, Ms. Hamani’s refusal to work towards self sufficiency is best addressed by imputing income to her: Heimsoth v Heimsoth , 2009 ABCA 129 . I have imputed income from August 2019 to date. As there is no evidence as to what jobs she could get if she applied, I have assumed an entry level minimum wage position in the service industry. [ 139 ] In determining the quantum of spousal support, I must consider the condition, needs, and other circumstances of each party. I agree with Ms.

Hamani that spousal support, property, and occupation rent are inextricably linked. The condition, needs, and other circumstances of the parties must be considered together with the issues of support, property, and occupation rent. [ 140 ] In assessing the needs and circumstances of the parties, I must consider the lifestyle of the parties during the marriage. Self- sufficiency is a relative concept that goes beyond the ability to meet basic needs. Self-sufficiency must be assessed in relation to their standard of living during the marriage. [ 141 ] The evidence of both parties is that during their marriage, Mr.

Hamani was extremely frugal and careful with spending. The parties lived in an apartment in France. When the parties came to Canada, they moved into an apartment in the complex Mr. Hamani owned. It is in an older building. Ms. Hamani has continued to live there since separation. The parties did not buy expensive cars. Ms. Hamani did not drive until recently. Mr. Hamani rents a car. The parties did not take expensive vacations or spend money extravagantly. During the marriage, the parties had a very modest lifestyle. [ 142 ] While I have not allowed Mr. Hamani’s claim for occupation rent, the fact that Ms.

Hamani has lived in the Matrimonial Home, expense free, since separation should be considered in determining the quantum of spousal support payable. From July 2017 to August 2019, it was reasonable for Ms. Hamani to focus on improving her English. Her needs during this time were greater. While Mr. Hamani agreed in 2017 to an order giving her exclusive possession, expense free, and $625.00 in spousal support, I am satisfied that this was intended to provide her with a limited amount of time to return to the labour force. It was not intended to extend for six years. [ 143 ] Ms.

Hamani does not seek a retroactive variation unless occupation rent is awarded. I did not order occupation rent. [ 144 ] However, based upon the income I have inputted to Ms. Hamani commencing August 2019, I conclude that Mr. Hamani overpaid spousal support for the period August 1, 2019 to July 31, 2021. (On August 6, 2021, I varied the Interim Consent Order to reduce spousal support to $225.00 per month.) [ 145 ] I make the following spousal support awards during this period: a. For the period August 1, 2019 to December 31, 2019, I award Ms. Hamani spousal support of $365.00 which is the low end of the range. b.

For the period January 1, 2020 to December 31, 2020, I award Ms. Hamani spousal support of $350.00 which is the low end of the range. c. For the period January 1, 2021 – July 31, 2021, I award Ms. Hamani spousal support of $225.00 per month. [ 146 ] The amount of spousal support paid by Mr. Hamani for the period July 2017 to July 2019 falls below the range suggested by the SSAGs. However, the SSAGs assume that a spouse is not living rent free. Considering that her rent and all utilities were paid for by Mr.

Hamani’s company, I conclude that an amount of spousal support below the SSAGs suggested range was appropriate. [ 147 ] I remain satisfied that my previous award of spousal support of $225.00 per month commencing January 1, 2022 is appropriate. [ 148 ] For the year 2023 and ongoing, based upon the incomes I have ascribed to the parties for the years 2020 onwards, the SSAGs

suggest a spousal support award of $31.00 at the low end of the range, $375.00 at the mid end and $687.00 at the high end. With her household expenses paid for, an additional $225.00 per month should allow Ms. Hamani to continue her pre-separation lifestyle. I therefore set spousal support for the year 2023 and ongoing at $225.00 per month. [ 149 ] Ms. Hamani will receive an equalization payment of $177,935.70. This payment will allow her to purchase a home similar to the Matrimonial Home.

I am satisfied that once she receives this payment, with the income she is capable of earning, she will be able to achieve self-sufficiency. I am also satisfied that the supports she has received since separation compensate her for the disadvantages of the marriage. Accordingly, I direct that spousal support shall terminate when Ms. Hamani receives the equalization payment or effective January 31, 2024, which ever occurs first. [ 150 ] Within 30 days of receiving the equalization payment, Ms. Hamani will either vacate the Matrimonial Home or negotiate a lease acceptable to Mr. Hamani.

In the interim, the exclusive possession order will continue, and Mr. Hamani will pay ongoing spousal support of $225.00 per month. [ 151 ] If the equalization payment has not been paid by January 31, 2024, spousal support shall terminate effective that date. VIII. Conclusion [ 152 ] The parties have met the requirements for a divorce. A Divorce Judgment is granted. [ 153 ] Mr. Hamani shall pay an equalization payment to Ms. Hamani of $177,935.70 by no later than December 31, 2023 [ 154 ] Mr. Hamani shall pay ongoing set-off child support of $558.00 per month. [ 155 ] Mr.

Hamani shall pay ongoing spousal support of $225.00 per month until Ms. Hamani has received her equalization payment in full or until January 31, 2024, whichever occurs first. [ 156 ] While this decision directs the amounts payable for child and spousal support, both retroactive and ongoing, as I do not have up to date information on what has been paid, I leave it to the parties to determine the amount of any arrears.

If the parties are not able to agree, they may contact me within 30 days of this decision. [ 157 ] The parties may also contact me within 30 days of this decision if they are not able to agree on costs or the appropriate terms of an Order to implement my decisions. Heard on the 4 th to 6 th day of August, 2021 and the 13 th and 14 th day of January 2022. Dated at the City of Edmonton, Alberta this 15 th day of June, 2023. Susan L. Bercov J.C.Q.B.A. Appearances: Emilie-Claire Draper for the Plaintiff Paul Govenlock for the Defendant

_______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Madam Justice Susan L. Bercov _______________________________________________________ [ 158 ] Change on first page to reflect Court of King’s Bench instead of Court of Queen’s Bench. Appendix A

Appendix B

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Section 7 of the Matrimonial Property Act, RSA 2000, c M-8 provides for an exemption to the extent of the market value of propertyheld on the date of the parties’ marriage and for the distribution of the difference between the exempted value of the original propertyand its market value at the time of the trial. Stevenson J.A. for the Court in Harrower v Harrower (1989), (AB CA),21 RFL (3d) 369 at para 16 (Alta CA) held that if there is a decrease in value, the exempted property remains exempt but the deficit doesnot represent a liability that is to be distributed.

Therefore, the amount of the exemption is lost or reduced as the property is consumed upor depreciated. See: Lovich v Lovich, 2016 ABQB 736 at paras 35, 38 and 46 [Lovich]. Moreover, s 7(3)(

a) allows the Court discretionas to what it considers “just and equitable” in the division of the difference in value of exempt property at the time of trial compared to

the time of its acquisition/marriage: TNS v JQW , 2012 ABCA 321 at para 21 [ TNS ] . Essentially, as the value of an exempt property decreases , so too does the value of the exemption: Boelman v Boelman , 2023 ABKB 159 at para 229 ; Grant v Grant , 2016 ABQB 198 at para 83 ; Vestby v Galloway , 2020 ABQB 361 at para 192 . As the shareholder loan would not be considered “depreciable exempt property” I have not used the pro rata reduction approach used by some Alberta courts. See for example: TNS at paras 17-22 ; Lovich at paras 29-49 and SLB v MDB , 2006 ABQB 557 at paras 15 -16 .