Family law proceedings, particularly those involving divorce, child support, spousal support, and the division of matrimonial property, are fraught with emotional and financial complexities. The recent Alberta Court of Appeal decision in Al-Erbawy v. Al-Noami provides a compelling illustration of the intricacies involved in such cases. 

A Multifaceted, Adversarial Family Breakdown

The case centred on a couple whose marriage was initiated in Yemen in 2006 and ultimately dissolved after years of cohabitation and raising three children in Canada. Their separation, marked by a brief attempt at reconciliation, led to protracted legal battles over parenting, financial support, and property division. The initial trial judgment addressed these multifaceted issues, resulting in an equalization payment of $20,770.72 from the husband to the wife. However, the wife appealed several aspects of this decision, challenging the trial judge’s calculations and determinations.

Wife Contested Retroactive Support and Matrimonial Property Division

The wife’s appeal primarily focused on the trial judge’s handling of retroactive child and spousal support and the division of matrimonial property. She argued that the trial judge’s “rough” calculation of the husband’s payments, instead of precise calculations, led to an unfair outcome. Additionally, she claimed that the trial judge misapprehended crucial facts regarding her student loans, the husband’s investment accounts, their respective vehicle loans, and a loan the husband made to sponsor refugees. Furthermore, she contended the trial judge’s decision unjustly denied her the opportunity to assume the mortgage of the matrimonial home.

The husband countered that the wife’s appeal was essentially an attempt to re-litigate the case and redistribute the debt. He argued that the trial judge’s equalization payment was appropriate, given the significant debt exceeding the value of the matrimonial home, and that any reassessment would likely result in a lower amount owed to the wife. He also raised a procedural point, suggesting that the appeal should be dismissed due to the low financial stake involved, per the Alberta Rules of Court.

Deference and Discretion at the Court of Appeal

The Court of Appeal acknowledged the discretionary nature of family law determinations, particularly regarding support and property division. They emphasized the principle of deference to trial judges, who have the advantage of directly hearing the parties and assessing the evidence. However, they also recognized the appellate court’s role in intervening when there is a serious misapprehension of evidence, an error of law, or a clearly wrong decision.

Determining the Valuation Date for Pension Division

One of the central issues in the appeal was the valuation of the husband’s group retirement plan. The trial judge ordered an equal division of the plan, valuing it as of the date of separation, December 26, 2019, to protect the wife from the impact of the husband’s post-separation withdrawals. The wife argued that the valuation should have been based on the trial date, citing legal precedent.

The Court of Appeal acknowledged the general principle that matrimonial property, including pensions, is valued at the trial date. However, they also recognized the trial judge’s discretion to deviate from this principle in certain circumstances. In this case, the court found that the record lacked clarity regarding the specifics of the husband’s retirement accounts and whether the trial judge’s approach achieved its intended purpose. Consequently, they allowed the appeal on this issue and remitted it to the trial judge for further consideration, allowing for the introduction of additional evidence.

Retroactive Support: Balancing Fairness and Practicality

Another contentious issue was the trial judge’s decision not to award retroactive child and spousal support. The wife argued that the judge should have performed precise calculations rather than a “rough” assessment to determine the appropriate amount of retroactive support.

The Court of Appeal upheld the trial judge’s decision, emphasizing the discretionary nature of retroactive support awards. They noted that the trial judge had considered the parties’ cohabitation during separation, the husband’s payment of household expenses and uncharacterized support, and the absence of evidence indicating financial hardship for the children. Given these factors, the court found no palpable and overriding error in the trial judge’s conclusion that the payments made by the husband were roughly equivalent to the guideline support amounts.

Student Loans and Other Financial Discrepancies

The wife also challenged the trial judge’s calculation of her student loan debt, claiming that the amount used was inaccurate. The husband conceded that there might have been a miscalculation. The Court of Appeal agreed, varying the trial judge’s calculation to reflect the correct amount of the student loans, thus increasing the amount owed to the wife.

Regarding the husband’s chequing account and his alleged dissipation of funds, the Court of Appeal deferred to the trial judge’s finding that there was insufficient evidence to warrant a different division of these accounts. Similarly, they upheld the trial judge’s decision regarding the refugee sponsorship loan, finding no error in the judge’s assessment of the evidence.

Financial Viability to Keep the Matrimonial Home

The wife also contested the trial judge’s decision to award the matrimonial home to the husband, arguing that she should have been given the option to assume the mortgage. However, during oral arguments, she conceded that the matter was no longer an issue.

The trial judge’s decision to award the house to the husband was based on a financial assessment of the parties. The judge found that the wife did not have the financial means to keep the home and that the debt was more significant than the home’s value.

The Outcome: Mixed Results and the Importance of Detailed Evidence

Ultimately, the Court of Appeal partially allowed the appeal, remitting the pension division issue for further consideration and adjusting the student loan calculation. However, they upheld the trial judge’s decisions on retroactive support, the chequing account, and the refugee sponsorship loan. The court ordered each party to bear their own costs of appeal, reflecting the mixed outcome.

Al-Erbawy highlights the multifaceted challenges inherent in family law disputes. It underscores the critical importance of meticulous preparation, accurate financial documentation, and a thorough understanding of the legal principles governing support and property division. For individuals facing similar circumstances, this case emphasizes the necessity of seeking experienced legal counsel who can navigate the complexities of the system, ensuring that their rights are protected and a fair resolution is achieved.

Contact Getz Collins and Associates for Multifaceted Family Law Advice in Calgary and Strathmore

At Getz Collins and Associates, we understand that no two family law cases are identical. We provide personalized family law services tailored to each client’s unique needs. Our skilled family and divorce lawyers are committed to delivering practical, affordable legal solutions by blending compassionate service with forward-thinking strategies—even in the most complex situations. With offices in Calgary and Strathmore, we proudly support clients throughout Alberta, including Airdrie, Cochrane, Okotoks, Drumheller, Chestermere, Hussar, and nearby communities. To book a private consultation, please contact us online or call (587) 391-5600.