Al-Erbawy v Al-Noami, 2024 ABKB 0037

Court of King’s Bench of Alberta Citation: Al-Erbawy v Al-Noami, 2024 ABKB 0037 Date: 20240119 Docket: 4813 00198 Registry: Ft. McMurray Between: Abaa Al-Erbawy Plaintiff - and - Muad Al-Noami Defendant _______________________________________________________ Reasons for Judgment of the Honourable Justice R.W. Armstrong _______________________________________________________ Background [ 1 ] The Plaintiff, Ms. Al-Erbawy, was born on April 28, 1984, in Iraq. [ 2 ] The Defendant, Mr. Al-Noami, was born on December 30, 1976, in Yemen. Mr.

Al-Noami studied engineering at university in Baghdad and he first came to Canada with his parents in August 2002. He returned to Baghdad to finish his university degree in 2003. Following completion of his degree, Mr. Al-Noami returned to Canada where he resided in Calgary.

[ 3 ] Ms. Al-Erbawy and Mr. Al-Noami were married in Baghdad in July 2006. They initially lived together in Yemen until December 2006 when Mr. Al-Noami returned to Canada to work in Fort McMurray. Mr. Al-Noami sponsored Ms. Al-Erbawy to come to Canada and she joined Mr. Al-Noami in Fort McMurray in 2008. [ 4 ] When Ms. Al-Erbawy moved to Fort McMurray in 2008, she did not speak English. She stayed home with the children while Mr. Al-Noami worked outside the home. Ms. Al-Erbawy used the time when the children were in school to study English.

She eventually became proficient in English and obtained a college level certificate in early childcare. She is employed as an educational assistant with the Fort McMurray Public School Board. [ 5 ] Ms. Al-Erbawy and Mr. Al-Noami have three children together: F.A. born May 11, 2007 N.A. born April 8, 2009 A.A. born June 26, 2020 [ 6 ] Ms. Al-Erbawy and Mr. Al-Noami separated on December 26, 2019. Mr. Al-Noami commenced an action for divorce in February 2020. That action was discontinued following a brief attempt at reconciliation. On April 28, 2021, Ms.

Al-Erbawy filed a Statement of Claim for divorce and division of matrimonial property. The parties seek a determination of parenting, child support, spousal support, and division of family property. Prior Orders [ 7 ] On June 14, 2021, an interim order was granted giving Ms. Al-Erbawy exclusive possession of the main floor of the family residence and Mr. Al-Noami exclusive possession of the basement suite of the family residence. A shared parenting regime was ordered based on Mr. Al-Noami’s 6 days on 6 days off, work schedule.

The older boys, F.A. and N.A., spent the days with their father on his days off but would return upstairs to sleep in their rooms at night. A.A. spent 8 hours per day with her father from 12:00 p.m. to 8:00 p.m. on his days off. [ 8 ] Pursuant to the June 14, 2021 order, Mr. Al-Noami was responsible for paying the household expenses including the mortgage, insurance, utilities, and property tax. He was also ordered to pay $2,000 per month to Ms. Al-Erbawy in uncharacterized support.

Section 7 expenses were to be shared proportionally, based on the parents’ respective incomes. [ 9 ] The shared parenting regime contemplated by the June 14, 2021 order has been varied to some extent by agreement of the parties. F.A. has been residing primarily with his father and N.A. and A.A. have been residing primarily with their mother. Parenting [ 10 ] The only consideration when making a parenting order is the best interests of the children.

The children’s physical, emotional, and psychological safety, security, and well-being are the primary concerns when determining what parenting arrangement will be in the best interests of the children: Divorce Act , RSC 1985 c 3, s. 16. [ 11 ] Section 16(3) of the Divorce Act sets out additional factors for consideration in determining the best interests of the children.

The relevant factors in this case are: • The children’s needs, given their age and stage of development, such as the need for stability. • The nature and strength of the children’s relationship with each parent, each of the children’s siblings and grandparents and any other person who plays an important role in the children’s lives. • Each parent’s willingness to support the development and maintenance of the children’s relationship with the other parent. • The history of care of the children. • The children’s views and preferences, to the extent that they can be ascertained, giving due weight to the children’s age and maturity. • The children’s cultural, linguistic, religious, and spiritual upbringing and heritage. • Any plans for the care of the children. • The ability and willingness of each parent to communicate and cooperate, with one another, on matters affecting the children. [ 12 ] Both F.A. and N.A. are teenagers.

They have a history of troublesome behaviour including being out very late without permission, fighting, and doing poorly in school. F.A. served a period of suspension from school and there has been police involvement due to the behaviour of the boys. To date, the parents have essentially allowed the boys to choose their own living arrangements. Structure, discipline, and supervision have been lacking. [ 13 ] Despite the trouble that the boys have been in, they are both very promising and talented young soccer players. Both parents actively support the boys’ interest in soccer.

[ 14 ] Historically, both boys have had a good relationship with both parents. More recently, F.A. has chosen not to see his mother and N.A. has chosen not to see his father. Neither parent has been particularly supportive of the development and maintenance of a relationship between the boys and the other parent. Having said that, at trial both parents indicated a willingness and desire to have shared parenting of the teenage boys. [ 15 ] Both parents have been engaged and caring parents to all the children. While Ms. Al-Erbawy argues that Mr.

Al-Noami has not been an attentive father and often abdicates his parenting responsibilities to others including his parents or brother, I do not find that to be the case. Mr.

Al-Noami attends his son’s soccer tournaments, and he has been involved in dealing with the authorities at his son’s school and with the police on occasions when his sons have been in trouble at school for fighting. [ 16 ] N.A. has been diagnosed with Type I diabetes and both parents have participated in medical appointments for N.A. and in the management of his diabetes. [ 17 ] Both parents are equally aligned on raising their children in accordance with their cultural, linguistic, and spiritual heritage. [ 18 ] While F.A. has expressed reluctance to spend time with his mother and N.A. has expressed reluctance to spend time with his father, as teenage boys their preferences, while important, are not determinative of the issue.

Neither F.A. nor N.A. have demonstrated a level of maturity that would give their preferences more weight. So long as they continue to get into trouble and do poorly in school, they require the guidance and input of both parents and that must take precedence over their stated preferences. [ 19 ] A shared parenting regime will provide the necessary structure and stability to ensure that both boys can develop and maintain good relationships with both parents.

It will give both parents the opportunity to be engaged in the day to day lives of their teenage boys, which both the boys need. [ 20 ] I have no doubt that many of the issues N.A. and F.A. are dealing with arise directly out of the high degree of conflict between their parents. A stable and predictable parenting arrangement with a minimal number of exchanges should help to reduce the conflict between the parents for the benefit of all the children. [ 21 ] In this case, there are also allegations of family violence.

A determination of whether family violence has in fact occurred is required and, if family violence has occurred, the impact of that violence on the best interests of the children must be assessed.

Section 16(4) of the Divorce Act sets out the following factors relating to family violence: • The nature, seriousness, and frequency of the family violence and when it occurred. • Whether there is a pattern of coercive and controlling behaviour in relation to a family member. • Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to family violence. • The physical, emotional, and psychological harm or risk of harm to the children. • Any compromise to the safety of the children or other family members. • Whether family violence causes the children or other family members to fear for their own safety or for that of another person. • Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the children. [ 22 ] Ms.

Al-Erbawy alleges that Mr. Al-Noami physically assaulted her. On January 13, 2020, Ms. Al-Erbawy applied for an Emergency Protection Order and her application was granted. The Emergency Protection Order was confirmed by the Court of Queen’s Bench on January 22, 2020. Ms. Al-Erbawy also alleges that Mr. Al-Noami had a physical altercation with his son, N.A., that led to the two of them becoming estranged. Mr. Al-Noami alleges that Ms.

Al-Erbawy has physically assaulted their son F.A. and caused injury to their daughter A.A. [ 23 ] Based on the evidence before me, including photographic evidence of injuries sustained by Ms. Al-Erbawy and the confirmation of the Emergency Protection Order, I am satisfied there was at least one instance of family violence perpetrated by Mr. Al- Noami against Ms. Al-Erbawy. The family violence consisted of a physical assault resulting in bruising to Ms. Al-Erbawy’s face. [ 24 ] While I have found that family violence was perpetrated by Mr. Al-Noami against Ms.

Al-Erbawy, the evidence before me does not establish any family violence perpetrated by either parent against the children. [ 25 ] A.A. suffered from a serious burn on her hand while in her mother’s care. Mr. Al-Noami intimated that this was a result of family violence and that A.A. was not safe in her mother’s care. Ms. Al-Erbawy did not deny that A.A. suffered a burn; however, she explained that it was an accident. Ms. Al-Erbawy was preparing a meal for the family and A.A. was seated nearby. During a moment of inattention, A.A. reached out and grabbed a hot pan that was on the stove.

I am satisfied that this incident was nothing more than an unfortunate accident and was not the result of any family violence or poor parenting on the part of Ms. Al-Erbawy. [ 26 ] Mr. Al-Noami also alleges that Ms. Al-Erbawy intentionally injured their son F.A. by throwing a bottle at his head. F.A. suffered an injury to his head that required stitches. According to Mr. Al-Noami, Ms. Al-Erbawy became frustrated with F.A. and threw the bottle at his head. Ms. Al-Erbawy explained that she was throwing the bottle in the garbage, and it accidentally struck F.A. in the head.

She denies she threw the bottle in frustration. [ 27 ] I do not accept Ms. Al-Erbawy's explanation that she was simply throwing the bottle in the garbage. The force needed to cause a cut in F.A.’s head that required stitches is not consistent with the force one would toss something into a garbage bin. That kind of force is more consistent with someone throwing an object in anger or frustration. Furthermore, it is difficult to understand how a bottle

thrown towards a garbage can could fly up and strike a teenage boy in the head. Having said that, I do accept that when Ms. Al-Erbawy threw the bottle, she did not intend to throw it at her son’s head and injure him. That was an accident. Again, I am not satisfied that this isolated incident that resulted in an accidental injury to F.A. amounts to family violence on the part of Ms. Al-Erbawy. In any event this was an isolated incident and I have no concerns going forward regarding any family violence affecting the children while in their mother’s care [ 28 ] The incident between Mr.

Al-Noami and N.A. occurred after F.A. and N.A. were involved in a very serious car accident. Mr. Al-Noami was speaking to N.A. and telling him that he had to concentrate on his studies and stop making mistakes and bad choices. N.A. was staring at the floor so Mr. Al-Noami took N.A.’s chin in his hand and raised his head so that N.A. had to look him in the eyes. N.A. yelled at his father not to touch him. I find that Mr. Al-Noami did not apply any unreasonable force or inflict any pain or injury on N.A.

The contact was appropriate and measured in the context of the discipline that was occurring. [ 29 ] To the extent that there was family violence perpetrated by Mr. Al-Noami against Ms. Al-Erbawy, that family violence does not preclude a shared parenting arrangement involving the two teenage boys.

While any form of violence between spouses is very serious, the most important consideration at this stage is the extent to which the family violence that has occurred affects the kind of parenting arrangement that is in the best interests of the children. [ 30 ] The physical assault that resulted in the granting of the emergency protection order occurred towards the end of the marriage, when the conflict between the parties was intense. Alcohol was a factor. The family violence did not involve the children.

With the parties now separated, the risk of any future family violence is very low and the interests of the children are still best served by a shared parenting arrangement. [ 31 ] Considering the relevant factors relating to the best interests of the children as set out above, none of the allegations of family violence detract from a shared parenting arrangement being in the best interests of F.A. and N.A. [ 32 ] Mr. Al-Noami works 6 days on, 6 days off. The shared parenting

schedule that applies to F.A. and N.A. shall be structured around that work schedule. Mr. Al-Noami will commence his parenting time on his first day off immediately after the boys finish school. If it is not a school day for any reason, then Mr. Al-Noami’s parenting time will commence at 4:30 p.m. on the first of his days off. He shall have parenting time for 6 consecutive days and his parenting time shall end when the boys get out of school on his final day off or, if it is not a school day for any reason, his parenting time shall end at 4:30 p.m. on his final day off. Ms.

Al-Erbawy shall have parenting time with the boys at all times when Mr. Al-Noami does not have parenting time. [ 33 ] Mr. Al-Noami shall be responsible for picking the boys up at the commencement of his parenting time and Ms. Al-Erbawy shall be responsible for picking the boys up at the commencement of her parenting time. All pickups shall occur in a public place or curbside. [ 34 ] Different considerations are at play with respect to the youngest child, A.A. To date she has been in the primary care of Ms. Al-Erbawy. While Mr.

Al-Noami does spend time with A.A. and engage in activities with her such as trips to the waterpark or the zoo, he has not been the primary parent for A.A. since her birth. Moving to a shared parenting regime where A.A. would be away from her mother for several days at a time is not in her best interests, given her stage of development and the history of her care. While it is important for A.A. to spend time with both parents, a move to a fully shared parenting arrangement should be undertaken gradually as A.A. gets older and more independent. [ 35 ] A.A. will remain in the primary care of her mother, Ms.

Al-Erbawy. Mr. Al-Noami shall have parenting time with A.A. for the first two and the last day of his 6 days off work. Parenting time will commence at 4:30 p.m. on the first day of Mr. Al-Noami’s 6 days off and shall run for two consecutive days to 4:30 p.m. on the third day of the 6 days off period. Mr. Al-Noami shall also have parenting time with A.A. on the 6 th day of his 6 days off period from 8:30 a.m. until 4:30 p.m.. Mr. Al-Noami shall pick up A.A. at the commencement of his parenting time on the 1 st and 6 th day of his days off and Ms. Al-Erbawy shall pick up A.A. at the end of Mr.

Al-Noami’s parenting time. Pick ups and drop offs shall occur in a public place or curbside. [ 36 ] To reduce conflict and facilitate the co-parenting of the children, the following parenting terms shall also apply: • The parents shall have joint decision making with respect to major decisions affecting the children including their education, health care and religious and spiritual upbringings.

Day to day decisions shall be made by the parent who is exercising parenting time. • Both parents shall have access to all of the children’s medical and educational records as well as any other records relating to the children maintained by any third-party service providers. • Ms. Al-Erbawy shall be entitled to apply for or renew the children’s passports without the consent of Mr. Al-Noami. Any requirement for Mr. Al-Noami’s consent or signature on a passport application for the children is hereby dispensed with. Ms. Al-Erbawy shall hold the children’s passports and shall provide them to Mr.

Al-Noami when he requires them to travel internationally with the children. Mr. Al-Noami shall return the children’s passports to Ms. Al-Erbawy immediately upon returning from any international travel with the children. • Either parent may travel with the children within Canada without the consent of the other parent so long as the travel does not interfere with the parenting time of the other parent.

The travelling parent must provide the other parent with an itinerary including flights, if applicable, and an address and contact information at the destination, at least 2 weeks prior to travel. • Either parent may travel internationally with the children with the consent of the other parent, such consent not to be unreasonably withheld, so long as the travel does not interfere with the other parent’s parenting time. The travelling parent must provide the other parent with an itinerary including flights, if applicable, and an address and contact information at the destination, at least 30 days prior to travel.

• Notwithstanding the above, Ms. Al-Erbawy may travel with the children to the 2024 Arctic Winter Games which are taking place March 10 -16 2024 in Alaska, USA, even if the travel interferes with Mr. Al-Noami’s parenting time. There shall be no make up for any parenting time missed because of the children travelling to the 2024 Arctic Winter Games. • Islamic holidays (Eid al Adha and Eid al Fitr) shall be shared between the parents. Parenting time for these holidays shall supersede the regular parenting schedule.

Commencing in 2024, in even numbered years the children shall spend Eid al Adha with their mother and Eid al Fitr with their father. On odd numbered years, the children shall spend Eid al Adha with their father and Eid al Fitr with their mother. Parenting time for these holidays will commence at 8:30 p.m. the night before the holiday and end at 8:30 a.m. the day after the holiday at which time the regular parenting

schedule resumes. • Any parenting time may be varied by the agreement of the parents. • Except in the case of emergency, the parents shall communicate solely in writing by text or email. All communications shall be focussed on the children and written in a polite and professional tone. Emails and texts shall be limited to not more than one per day. • Neither parent shall disparage or speak negatively about the other parent in the presence of the children. Neither parent shall speak to the children about the litigation or any conflict arising between the parents. Child Support [ 37 ] Mr.

Al-Noami’s guideline income for 2022 is $179,343. Ms. Al-Erbawy’s guideline income for 2022 is $43,051. The guideline incomes for 2023 shall be set as the same as for 2022. [ 38 ] Given that Mr.

Al-Noami earns more than $150,000 per year and given that two of the children are in a shared parenting arrangement, the determination of child support must involve a consideration of the increased costs of shared parenting time arrangements and the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought: Federal Child Support Guidelines , SOR/97-175 , s 9. [ 39 ] I am satisfied that the guideline child support amount is appropriate in this case. There is no evidence of any increased costs associated with the shared parenting of the two boys.

The costs of maintaining two households and the needs and circumstances of each spouse can be fully addressed by the payment of spousal support, for which one of the objectives is to apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage: Divorce Act , s 15.2(6)(b). [ 40 ] Based on the shared parenting regime that applies to two of the children and the fact that Ms.

Al-Erbawy has primary care of the third child, the guideline child support amounts payable are $3,254 per month payable by Mr. Al-Noami to Ms. Al-Erbawy and $624 per month payable by Ms. Al-Erbawy to Mr. Al-Noami. The offset amount or net payment amount is therefore $2,630 payable by Mr. Al-Noami to Ms. Al-Erbawy. Child support in accordance with this order shall commence on February 1, 2024. [ 41 ]

Section 7 expenses will be shared by the parties based on their proportionate income: 81% payable by Mr. Al-Noami and 19% payable by Ms. Al-Erbawy.

Section 7 expenses shall include the following: • Child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time. • The portion of medical and dental insurance premiums attributable to the children. • Health related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids and contact lenses as well as any equipment for the monitoring and management of N.A.’s diabetes. • Extraordinary expenses for primary or secondary school education or for any other educational programs that meet the children’s particular needs. • Expenses for post-secondary education. • Expenses associated with F.A.’s and N.A.’s soccer including equipment, registration fees and tournament travel. • Swimming lessons for A.A. • Extraordinary expenses for any other agreed upon extracurricular activities for the children.

For greater clarity, if the parents do not agree on the extracurricular activity, then the parent enrolling the child in the activity in the absence of agreement of the other parent shall be responsible for 100% of the cost of that extracurricular activity. [ 42 ] The amounts owing under this Order shall be paid to the Director of Maintenance Enforcement (“MEP”) at 7 th Floor, Brownlee Building, 10365 – 97 Street, Edmonton, Alberta, T5P 3W7, telephone (780) 422-5555 (website: www.justice.gov.ab.ca/mep ) and shall be enforced by MEP upon the creditor (recipient of support) or debtor (payor of support) registering with MEP.

Such enforcement shall continue until the party who registers gives MEP a notice in writing withdrawing the registration pursuant to

section 9 of the Maintenance Enforcement Act , RSA 2000, c M-1 . [ 43 ] Each party shall provide a complete copy of their Income Tax and Benefit Return and any Notices of Assessment and Notices of Reassessment issued by the Canada Revenue Agency on an annual basis to the other party on or before June 30 of each year. If a party

has not filed their income tax return for the previous year, that party shall provide the other party with copies of their T4, T4A and allother relevant tax slips, forms or statements disclosing all sources of income, including income from self-employment. [44] This Order may be recalculated by the Alberta Child Support Recalculation Program (“the Recalculation Program”) based onits anniversary date if eligible for recalculation and if the Recalculation Program determines recalculation is permissible and appropriate pursuant to the Family Law Act and regulations.

Either party may apply to register with the Recalculation Program at 8th floor, 10365 – 97th Street, Edmonton, Alberta T5J 3W7, telephone (780) 401-1111 (website: www.recalculation.alberta.ca). Should either party fail tocomply with the income disclosure requirements of the Recalculation Program, then the income of that party may be automaticallydeemed to have increased as set out in s 55.51 of the Family Law Act. Spousal Support [45] Ms. Al-Erbawy claims spousal support on the basis that, for most of the time the parties were in a relationship, Ms. Al-Erbawy stayed home to raise the children while Mr.

Al-Noami pursued his career and provided for the family financially. Mr. Al-Noamiconcedes that Ms.

Al-Erbawy is entitled to spousal support, although he asserts her entitlement should be at the lower end of theguideline range with respect to both quantum and duration. [46] When considering a claim for spousal support, the court is required to consider the condition, means, needs and othercircumstances of each spouse, including the length of cohabitation, the functions performed by each spouse during cohabitation and anyorder, agreement or arrangement relating to the support of either spouse: Divorce Act, s 15.2(4). [47] The objectives of a spousal support order are also set out in the Divorce Act.

Section 15.2(6) states: An order made under subsection (1), or an interim order made under subsection (2) that provides for the support of a spouse should: (

a) Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown. (

b) Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above anyobligation for the support of any child of the marriage. (

c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) As far as is practicable, promote the economic self-sufficiency of each spouse within a reasonable period. [48] The determination of spousal support is a highly fact specific exercise.

The Supreme Court of Canada further explained theobjectives of a spousal support order in its decision of Moge v Moge, (SCC), [1992] 3 SCR 813 at para 107: Considering the factors together, the judge’s task under s. 17(7) of the statute is to make an order which provides compensation formarital contributions and sacrifices, which takes into account financial consequences of looking after children of the marriage, whichrelieves against need induced by the separation, and, to the extent it may be “practicable”, promotes the economic self-sufficiency ofeach spouse.

Neither a “compensation model” nor a “self-sufficiency model” captures the full content of the section, though both may berelevant to the judge’s decision. The judge must base her decision on a number of factors: compensation; child-care; post-separationneed; and the goal, in so far as practicable, of promoting self-sufficiency. [49] In this case, the marriage lasted 13.5 years. During the marriage, the parties had three children together and Ms. Al-Erbawywas the primary caregiver for the children. Mr. Al-Noami worked outside the home and earned the income that supported the family. [50] When Ms.

Al-Erbawy came to Canada in 2008, she did not speak English. Her employment opportunities were thereforeseverely limited. Ms. Al-Erbawy did study English while she was home with the children, and she has become a proficient Englishspeaker. There was some discussion of her joining the workforce once the children were in school; however, it was not until late in themarriage, shortly before the parties separated, that Ms. Al-Erbawy obtained her college certificate in Early Childhood Development andsecured employment as a teacher’s assistant. Since the time of the separation, Ms. Al-Erbawy has worked full time.

Her earning potentialgiven her level of experience and education is not comparable to that of Mr. Al-Noami; however, she has diligently and successfullytaken the steps necessary for her to move towards economic self-sufficiency. [51] There are three grounds in law upon which an order for spousal support may be grounded: 1) compensatory; 2) contractual;and 3) non-compensatory: Bracklow v Bracklow, (SCC), [1999] 1 SCR 420 at para 15.

The relationship between thethree grounds was summarized at para 49 of the Bracklow decision: Marriage, as this Court held in Moge (at p. 870), is a “joint endeavour”, a socio-economic partnership. That is the starting position.Support agreements are important (although not necessarily decisive), and so is the idea that spouses should be compensated on marriagebreakdown for losses and hardships caused by the marriage. Indeed, a review of cases suggests that in most circumstances compensationnow serves as the main reason for support.

However, contracts and compensation are not the only sources of a support obligation. Theobligation may alternatively arise out of the marriage relationship itself. Where a spouse achieves economic self sufficiency on the basisof his or her own efforts, or on an award of compensatory support, the obligation founded on the marriage relationship itself liesdormant. But where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation mayplay a vital role.

Absent negating factors, it is available, in appropriate circumstances, to provide just support. [52] In this case there is no contractual basis for spousal support. Ms. Al-Erbawy’s entitlement to spousal support is based on thecompensatory and non-compensatory grounds. Ms. Al-Erbawy is entitled to spousal support on the compensatory grounds based on herrole as a stay-at-home mother for the duration of the marriage and for the support she provided to Mr. Al-Noami while he was in theworkforce earning the income to support the family. Her entitlement to spousal support on a non-compensatory basis arises from her on

going needs given the financial disparity that continues to exist between the parties notwithstanding that Ms. Al-Erbawy has obtained full time employment as an educational assistant. [ 53 ] Mr. Al-Noami submitted calculations for spousal support based on the guidelines for the scenario involving shared parenting of all three children and for the scenario of each boy residing with a different parent and the youngest child in a shared parenting arrangement. The guidelines range from a low of $1,272 to a high of $2,625 in the former scenario and from a low of $1,708 to a high of $2,810 for the latter scenario.

The scenario that has been ordered is a shared parenting regime for the two older boys and primary parenting of the youngest daughter with the mother. The guideline spousal support amounts applicable for that arrangement range from a low of $1,703 to a high of $2,769. [ 54 ] Considering all the circumstances and in particular the needs and means of both parties and the relative standards of living of the parties, the appropriate amount of spousal support is $1,700 per month, commencing February 1, 2024.

While this is at the low end of the guideline range, it fairly mitigates the disparity in the standard of living between the parties and helps to ameliorate the economic consequences of the dissolution of the marriage which have fallen disproportionately on Ms. Al-Erbawy. It also accounts for the fact that Mr. Al-Noami has assumed responsibility for 100% of the debt associated with the matrimonial home thereby relieving Ms.

Al-Erbawy from having to contribute to that in the form of an equalization payment. [ 55 ] Given the young age of A.A. and the fact that she has not yet started school, there remain many uncertainties going forward. For that reason, I am not prepared to set an end date for the payment of spousal support. The spousal support award shall be for an indefinite period, subject to review after 8 years from the date of separation (December 26, 2019). Notwithstanding that, if Ms. Al- Erbawy re-marries or enters into an adult interdependent relationship where she cohabitates with a partner, then Mr.

Al-Noami’s spousal obligations shall cease as of the date of her re-marriage or cohabitation in an adult interdependent relationship. Retroactive Child Support and Retroactive Spousal Support [ 56 ] Ms. Al-Erbawy seeks retroactive child and spousal support from March 2020. I decline to make such an award. There shall be no retroactive child support or spousal support amounts owing up to January 2024. [ 57 ] Following the separation and up to the time of trial, Mr. Al-Noami and Ms. Al-Erbawy continued to reside in the matrimonial home. Mr. Al-Noami moved in to the basement suite while Ms.

Al-Erbawy stayed on the main floor. The children would move between floors depending on who was exercising their parenting time. [ 58 ] During the post separation period of cohabitation, Mr. Al-Noami paid for all the household expenses, including the mortgage. According to Mr. Al-Noami's evidence, which is uncontradicted and which I accept, the household expenses totalled approximately $4,970 per month, including the mortgage payment of $3,560. [ 59 ] In addition to paying the household expenses, Mr. Al-Noami also paid $2000 per month in uncharacterized support to Ms.

Al- Erbawy pursuant to the June 14, 2021 Order. [ 60 ] Payment of the household expenses, half of which were for the benefit of Ms. Al-Erbawy who continued to live in the residence, and payment of the uncharacterized support pursuant to the interim support order satisfy Mr. Al-Noami's support obligations pending this final order. One half of the household expenses plus the uncharacterized support is roughly commensurate with the total child support and spousal support that would have been payable pursuant to the guidelines. Therefore, there shall be no retroactive child support or spousal support owing by Mr.

Al-Noami to Ms. Al-Erbawy. Similarly, there is no overpayment on the part of Mr. Al-Noami. [ 61 ] There are no retroactive child support (including s 7 extraordinary expenses) or spousal support amounts owing by either party as of January 2024. Division of Matrimonial Property [ 62 ] The division of assets and liabilities on the dissolution of marriage is governed by the Family Law Act , RSA 2000, c F-4.7 . The factors to be considered when distributing family property are set out in s 8 of the Family Law Act . The factors relevant in this matter are: (

a) In the case of spouses, the contribution made by each spouse to the marriage, to any relationship of interdependence with the other spouse immediately before the marriage and to the welfare of the family, including any contribution made as a homemaker or parent; (

b) The contribution, whether financial or in some other form, made directly or indirectly by or on behalf of a spouse to the acquisition, conservation, or improvement of the property. (

c) In the case of spouses, the income, earning capacity, liabilities, obligations, property, and other financial resources that each spouse had at the time of marriage and that each spouse had at the time of the trial. (

d) The duration of the marriage. (

e) Whether any family property was dissipated by one spouse to the detriment of the other. [ 63 ] There is very little matrimonial property to divide in this case. The debts of the parties exceed their assets. [ 64 ] The parties have no written agreements or oral agreements pertaining to the division of their family property.

[ 65 ] The most significant asset that the parties own is the matrimonial home located in Fort McMurray, Alberta. The value of the home is in dispute. Ms. Al-Erbawy obtained a comparative market analysis in September 2023. The market value of the home according to that comparative market analysis is between $450,000 and $465,000. Mr. Al-Noami obtained an appraisal of the home in September 2023 and that appraisal proposed a market value for the home of $425,000. The 2021 annual property assessment notice from the regional municipality of Wood Buffalo assesses the value of the home at $488,900.00.

The 2020 assessed value was $540,130.00. [ 66 ] I find the value of the home as of the time of the trial in September 2023 is $450,000.00. I prefer the comparative market analysis prepared by Fort McMurray realtor Fatima Mian to the appraisal report provided by Mr. Al-Noami. [ 67 ] The comparative market analysis was focused on determining a list price that would ensure the property was competitively positioned in the market and that would attract serious and qualified buyers resulting in a successful and timely sale.

The appraisal report was overly focused on issues of wear and tear in the home that could easily be remedied before the house was listed. Reviewing the reports leaves me with the impression that the comparative market report was focussed on identifying a competitive market listing price while the appraisal report was focussed on minimizing the value of the home.

I also note the comparative market analysis was more in line with the prior year’s municipal assessment, taking into account the declining real estate market in Fort McMurray over the years 2020 -2023. [ 68 ] According to the CIBC 2022 annual mortgage statement, the outstanding balance owing on the mortgage on the matrimonial home was $508,518.74 as of December 31, 2022. A subsequent mortgage statement establishes that the outstanding balance on the mortgage as of September 8, 2023, immediately prior to the trial, was $496,455.76. The mortgage on the home exceeds the value of the home. [ 69 ] Ms.

Al-Erbawy seeks possession of the matrimonial home. The evidence adduced at trial does not, however, satisfy me that she will be able to qualify for the mortgage on her own. Furthermore, her evidence at trial demonstrated a fundamental misunderstanding of the true costs of maintaining the home. She underestimated the costs of the mortgage and did not know how much the utilities and property taxes were. Her estimates were that the total costs of owning the home would be in the range of $3,000 to $4000 per month. The true cost is much closer to $5,000 per month.

Even if she was able to qualify to assume the mortgage on the home, Ms. Al-Erbawy’s monthly income, including child support and spousal support, is not sufficient to maintain the household. Given the economic realities of the situation I am unable to grant possession of the marital home to Ms. Al-Erbawy. [ 70 ] Another option available to me is to order that the home be sold. Under the circumstances, with the outstanding mortgage exceeding the value of the home by a significant margin, an order for sale would likely result in both parties having to contribute a significant sum of cash to retire the mortgage.

Based on the evidence before me, neither party can do that. A forced sale of the property at this time would create additional financial hardship on the parties, particularly on Ms. Al-Erbawy. I therefore decline to order the property sold. [ 71 ] Mr. Al-Noami also seeks possession of the matrimonial home. He has offered to assume all the debt associated with the mortgage in the event he is given possession of the home. Under the circumstances, I find this to be the most equitable and reasonable disposition of the matrimonial home.

Retaining the matrimonial home in the family will provide some stability and familiarity for the children. Avoiding a sale of the home will prevent Ms. Al-Erbawy and Mr. Al-Noami from having to make a significant payment to retire their mortgage. Accordingly, Mr. Al-Noami shall retain possession and title to the home, and he shall assume sole responsibility for the outstanding mortgage and be responsible for 100% of the debt associated with the mortgage. [ 72 ] To give effect to this order, Ms. Al-Erbawy shall vacate the marital home within 60 days of the date of this order.

She shall not be responsible for payment of any of the household expenses or for rent during the 60-day period to help ensure she has the necessary resources to relocate. [ 73 ] Since the date of separation, Ms. Al-Erbawy has been residing on the main floor of the matrimonial home and Mr. Al-Noami has been residing in the basement suite. With respect to the household furnishings, Ms. Al-Erbawy shall retain possession of the household furnishings (not including appliances) located on the main floor of the home where she was living. Mr.

Al-Noami shall retain possession of any household furnishings in the basement suite where he was living. [ 74 ] There are 2 vehicles at issue. Ms. Al-Erbawy currently drives a Toyota Rav4. It was purchased in November 2022, after the parties had separated and after the family car was involved in a serious accident when it was being driven by F.A.. Ms. Al-Erbawy received $14,000 from insurance which she put toward the purchase of the new car. The balance of purchase price was financed. The Toyota Rav4 has an appraised value of $21,550.00 pursuant to an appraisal conducted by a Toyota dealership.

There is an outstanding loan on the vehicle in the amount of $21,720.00. Given that the vehicle was purchased, and the debt was incurred after the date of separation, Ms. Al-Erbawy shall retain possession and title of the Toyota Rav-4 and she shall be solely responsible for all the debt associated with the Rav-4. Having said that, the insurance proceeds of $14,000 are properly considered a marital asset an Mr. Al-Noami is entitled to credit for ½ of the insurance proceeds, or $7,000.00. [ 75 ] Mr. Al-Noami drives a 2011 Toyota Camry.

He purchased the Camry in February 2021 after the Infinity he had been driving was sold. Mr. Al-Noami’s evidence is that the Infinity belonged to his brother, and he was just driving it. While Ms. Al-Erbawy asserts that Mr. Al-Noami had purchased the Infinity and then sold it himself, there is no evidence before me upon which I can make such a finding. Mr. Al-Noami shall retain possession and title of the 2011 Toyota Camry. If there are any outstanding loans or debts associated with the Toyota Camry, those shall be the sole responsibility of Mr.

Al-Noami. [ 76 ] The debts of the marriage include student loans for Ms. Al-Erbawy’s college education. In her financial disclosure, Ms. Al- Erbawy claimed outstanding student loans in the amount of $39,000.00. At trial she resiled from that position and estimated her outstanding student loans at $29,000.00. The only documentary evidence available shows Canada student loans for account number 1- xxxx39 in the amount of $4,170.00 and Alberta Student Loans, for loan number 7-xxxx53 in the amount of $17,296.04.

The total student debt is therefore $21,466.04. [ 77 ] There is also a debt owing to CRA relating to an overpayment of the child tax credit in the amount of $14,217.54.

[ 78 ] Both the student loan debt and the debt to the CRA are properly shared equally by Mr. Al-Noami and Ms. Al-Erbawy. The student loans were accrued during the marriage and benefited both parties by improving Ms. Al-Erbawy’s employment prospects. As Mr. Al-Noami and Ms. Al-Erbawy share joint responsibility for the children, repayment of the child tax credit is also a joint responsibility. [ 79 ] As the student debt and CRA debt are in Ms. Al-Erbawy’s name, to facilitate the equal distribution of the debt, Mr. Al-Noami shall pay to Ms.

Al-Erbawy the sum of $17,841.79 to equalize the outstanding debts of the marriage. Upon payment of this amount, Mr. Al-Noami shall have no further responsibility for the student loan and CRA debts. [ 80 ] Each party has a bank account with RBC. Mr. Al-Naomi shall retain the balance in his account ending 8965 and Ms. Al- Erbawy shall retain the balance in her account ending 8635. There is insufficient evidence before me as to the balances in those accounts as at the date of separation and so no basis for me to order any equalization as between the two accounts. [ 81 ] Mr.

Al-Noami has a retirement account (account ending 6441) with the Syncrude Group Retirement Plan. Mr. Al-Noami withdrew $14,000 from that plan during the first half of 2021. In order to ensure the parties receive their fair allocation of that marital asset and that Ms. Al-Erbawy is not prejudiced by the withdrawal of funds in 2021, the account shall be valued as of December 26, 2019, and the value as at that date allocated to the parties on an equal basis. [ 82 ] The remaining assets consist of a RRSP (account ending 3235) and a RESP (account ending 1771).

The amounts held in these accounts shall be divided equally between the parties. However, in addition to dividing the balances in these account equally between the parties, there must also be an adjustment to account for amounts that Mr. Al-Noami withdrew from the accounts after the date of separation. Mr. Al-Noami withdrew $7,857.85 from the RRSP account to pay his expenses in 2022 when he was on a short-term medical leave from work. Additionally, Mr. Al-Noami withdrew $12,000 from the RESP account during the same time period.

To equalize the distribution of the RESP and RRSP assets and account for the amounts he withdrew from the accounts after separation, Mr. Al-Noami must repay ½ of the amounts withdrawn to Ms. Al-Erbawy. The equalization payment in respect of the RESP and RRSP accounts is therefore $9,928.93 payable by Mr. Al-Noami to Ms. Al-Erbawy. [ 83 ] The total amount payable by Mr. Al-Noami to Ms. Al-Erbawy in respect of the shared outstanding debt and repayment of amounts withdrawn from the RRSP and RESP accounts is $27,770.72. Mr.

Al-Noami is entitled to credit in the amount of $7,000 for his ½ of the insurance proceeds in relation to the family vehicle that was written off in the accident. The net equalization payment owing from Mr. Al-Noami to Ms. Al-Erbawy is therefore $20,770.072. If Mr. Al-Noami is unable to pay that amount within 30 days and if the parties are unable to agree on a payment plan, then the parties may write to me to seek a determination of a reasonable repayment plan. Conclusion [ 84 ] The parties are directed to prepare a form of order reflecting the decisions set out in these reasons within 1 week.

If the parties are unable to agree on the wording, they shall each submit their proposed form of order for my consideration. [ 85 ] If the parties are unable to agree on costs the following process shall apply: • Within 20 days of this decision, the plaintiff shall file and serve on the opposing party their written submissions on costs. • Within 30 days of this decision, the defendant shall file and serve on the opposing party their submissions on costs. • Each party’s costs submissions shall be a maximum of three pages and shall provide: (

a) their position with respect to the factors set out in Rule 10.33; (

b) any formal offers or other offers of settlement they wish me to consider; (

c) a draft proposed bill of costs pursuant to

Schedule C; and (

d) a

summary of the reasonable and proper costs that the party incurred in respect of the action. The three- page limit does not apply to items (

c) and (d). The proposed bill of costs and the statement of reasonable and proper costs incurred shall not count towards the three-page maximum. [ 86 ] If the parties do not agree on costs and if no submissions are received pursuant to this direction, there shall be no order as to costs. Heard on the 6 th day of September 2023. Dated at the City of Ft. McMurray, Alberta this 19 th day of January 2024. R.W. Armstrong J.C.K.B.A. Appearances:

Allan Vinni Allan Vinni Law Office for the Plaintiff, Mother Janan Jarrah eLaw Alliance for the Defendant, Father