CITATION: Khalid v. Jalil, 2022 ONSC 5611

DIVISIONAL COURT FILE NO.: 1211/19

DATE: 20221012

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, King and Nishikawa JJ

BETWEEN:

Sharif Ahmad Khalid

Appellant

– and –

Shazia Jalil

Respondent

Sharif Ahmad Khalid, in person

Kim Larsen, for the Respondent

HEARD: June 28, 2022 (by videoconference)

REASONS FOR DECISION

Nishikawa J.:

Overview

1The Appellant, Sharif Ahmad Khalid, appeals the decision of McGee J. dated December 2, 2019, on his application for divorce: Khalid v. Jalil, 2019 ONSC 6974.

2After a two-day trial, the trial judge granted custody of the parties’ child, A, to the Respondent, Shazia Jalil. Mr. Khalid was required to pay child and spousal support. The parties were to share s. 7 expenses equally. Mr. Khalid was also ordered to pay Ms. Jalil certain monies in accordance with the parties’ Nikah, a religious marriage contract. The trial judge ordered that the parties’ jointly owned house in Angus the (“Angus House”) be listed for sale with net proceeds to be divided equally and with Ms. Jalil to pay an amount to Mr. Khalid from her share of the proceeds.

3Mr. Khalid appeals on the basis that the trial judge erred in ordering spousal support, calculating his net family property (NFP) and in how she treated the parties’ agreements. Mr. Khalid further submits that the trial judge erred in ordering that the parties share the proceeds of the Angus House.

4For the reasons detailed below, the appeal is dismissed.

Issues

5In his materials, Mr. Khalid raised many arguments. The key issues on appeal can be summarized as follows:

(a) Did the trial judge err in ordering that Ms. Jalil receive one-half of the proceeds of the sale of the Angus House?

(b) Did the trial judge err in failing to consider Mr. Khalid’s claims for unequal division of NFP, constructive or resulting trust, and/or that the Angus house not be sold?

(c) Did the trial judge err in recognizing the Second Nikah as a binding domestic contract?

(d) Did the trial judge err in not including the Maher payment in NFP?

(e) Did the trial judge err in awarding Ms. Jalil spousal support, despite the First Nikah?

Factual Background

The Marriage and First Divorce Application

6The parties were married in Pakistan on February 14, 2004. Ms. Jalil then sponsored Mr. Khalid’s entry into Canada. He arrived in January 2005. The parties’ son, A, was born on June 7, 2010. Later, Mr. Khalid grew dissatisfied with the family financial situation. He became controlling of Ms. Jalil’s finances and activities and was occasionally violent. The parties separated on February 3, 2011, following an incident in which Mr. Khalid threatened to burn the parties’ apartment with Ms. Jalil inside. Mr. Khalid later pled guilty to the offense of intent to cause bodily harm. He received six months’ probation and was required to take anger management counselling.

7In February 2012, Ms. Jalil issued an Application for custody, incidents of custody, child support, spousal support, and equalization. Shortly thereafter, Mr. Khalid suggested that they reconcile. Ms. Jalil did not agree. The parties met with their Islamic community to resolve terms of the separation. A community mediation took place and certain terms were settled, including their Nikah, a formal, binding contract integral to a religiously valid Islamic marriage which outlines the rights and responsibilities of the parties. The parties signed a signed document, dated March 11, 2012, which provided for a $20,000 payment from Mr. Khalid to Ms. Jalil (the “First Nikah”). There was no release of any legal claims. The parties disagree as to what the $20,000 covered, but agree that Mr. Khalid owed Ms. Jalil significantly more than that. Nevertheless, Ms. Jalil told her community that she would be bound by the agreement.

8The parties then issued a Joint Application for a Divorce in the Toronto Superior Court. Ms. Jalil’s Affidavit for Divorce, sworn March 12, 2012, did not include a claim for division of property. The trial judge found that by consenting to the divorce and testifying that she would be bound to the community agreement, Ms. Jalil terminated any claims for equalization or the division of Mr. Khalid’s pension. The Order for Divorce was made on April 25, 2012, effective April 26, 2012.

The Parties’ Reconciliation and Purchase of the Angus House

9The parties subsequently decided to remarry, and Ms. Jalil withdrew her Application. On May 8, 2013, the parties executed a second Nikah (the “Second Nikah”), which provided for a Maher, or dower, of $10,000 to be paid to Ms. Jalil (the “Maher payment”). Ms. Jalil testified that this was the minimum amount. The parties remarried on July 27, 2013.

10The parties then sought to purchase a home. In January 2016, the parties jointly entered into an Agreement of Purchase and Sale (“APS”) for 83 Wagner Crescent, Angus, Ontario (the “Angus House”) for $434,990, with a deposit of $26,000. Also in January 2016, the parties entered into a joint mortgage commitment with First National. One of the terms of the loan was that the parties would sign as joint tenants.

11Mr. Khalid then lost interest in the family and moved out of their apartment in April 2016. He continued to live there part time for work-related conveniences. Mr. Khalid claims to have remained in the home on weekends to babysit to allow Ms. Jalil to work night shifts. He states that he began paying child support in May 2016. In July 2016, Mr. Khalid emailed and orally asked Ms. Jalil to remove her name from the APS for the Angus house. She refused.

12In mid-August 2016, Ms. Jalil asked Mr. Khalid to reconcile. Mr. Khalid states that he agreed because Ms. Jalil promised to contribute toward the down-payment on the Angus house. The reconciliation was short-lived and Mr. Khalid moved out on a final basis at the end of August 2016. Mr. Khalid claimed that the parties separated on May 1, 2016 and Ms. Jalil claimed that the parties separated on September 1, 2016. The trial judge found the date of separation to be September 1, 2016.

The Second Divorce

13On October 28, 2016, Mr. Khalid served an Application for Divorce asking for a divorce, custody of A, child support, equalization, and costs.

14On June 9, 2017, Mr. Khalid filed an Amended Application seeking expanded parenting terms and an Order that no spousal support be required. He again asked that Ms. Jalil’s name be removed from title of the Angus house. Mr. Khalid emailed this Amended Application to Ms. Jalil.

15Mr. Khalid served his motion to remove Ms. Jalil’s name from title and scheduled it for August 30, 2017. DiTomaso J. dismissed the motion for lack of any legal basis. He required Ms. Jalil to cooperate fully in the purchase of the Angus house by executing all necessary documents.

The fall closing date was postponed to March 22, 2018.

16A week prior to the closing date, Ms. Jalil, who does not speak, read, or write English, signed a number of papers. One of the documents was a Direction Re Title, which was wholly in English, with no translation (the “Direction”). The Direction provides that the transfer was to be engrossed as Joint Tenants, with Mr. Khalid having a 99% interest and Ms. Jalil having a 1% interest. The Direction was signed by the parties on March 20, 2018, without a witness. The Direction was never registered or acted upon. Rather, title was taken as joint tenants without any designated shares. The trial judge accepted that Ms. Jalil would never have intentionally signed a document with such consequences.

17On March 28, 2018, Mr. Khalid moved into the new home with his parents and sister. At the time of trial, he had made all the mortgage, utilities, and tax payments on the property. Ms. Jalil never moved into the property. As of the trial, she and her son resided with her sister.

The Decision

18In the Decision, the trial judge ordered the following relief:

• Sole custody of the parties’ child, A, to Ms. Jalil, with Mr. Khalid to have parenting time consistent with the schedule at the time of trial;

• Mr. Khalid pay child support commencing December 1, 2020 in the amount of $611 per month;

• Mr. Khalid pay spousal support commencing January 1, 2020 in the amount of $114 per month for an indefinite period;

• Section 7 expenses be divided equally so long as spousal support is paid;

• Mr. Khalid maintain A on any extended health care and benefits coverage available to him through his employment;

• Mr. Khalid designate A the irrevocable beneficiary of his life insurance;

• Ms. Jalil pay Mr. Khalid an equalization payment of $5,025.23

• The Angus home be listed and sold immediately, that the net sale proceeds be divided equally between the parties, and that $25,850.43 of Ms. Jalil’s share be paid to Mr. Khalid;

• Mr. Khalid make the Maher payment of $10,000 to Ms. Jalil forthwith; and

• Mr. Khalid deliver a copy of his income tax returns within certain time frames.

19In her costs decision dated January 29, 2020, the trial judge ordered that Mr. Khalid pay a total of $25,425, in legal fees, disbursements and HST to Ms. Jalil. Also on January 29, 2020, the trial judge issued a Corrigendum correcting two errors in the Decision.

20On February 28, 2022, Himel J. granted Ms. Jalil’s Rule14B motion to correct certain dates and to have the final order issued.

Analysis

Standard of Review

21On this appeal, a standard of correctness applies to pure questions of law. The standard of palpable and overriding error applies to questions of fact and to questions of mixed fact and law, unless there is an extricable question of law, in which case the correctness standard applies: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 36.

Did the Trial Judge Err in Ordering that Ms. Jalil Receive One-Half of the Proceeds of the Angus House?

22The main issue raised by Mr. Khalid is the trial judge’s treatment of the Angus House. Mr. Khalid submits that the Angus House should have been treated as excluded property or, in the alternative, that any increase in the value of the property should have been divided on an unequal basis. Mr. Khalid submits that the trial judge based her decision on the Angus House on incorrect presumptions and submissions that were not supported by facts.

23Mr. Khalid submits that Ms. Jalil was improperly given credit for being on the mortgage of the Angus House because it was purchased post-separation solely with Mr. Khalid’s funds. He takes the position that, based on the parties’ separation and his contributions toward the Angus House, he is entitled to over 80 percent of the increase in the value of the Angus House.

24The trial judge made no error in ordering the sale of the Angus House. The parties took title to the property as joint tenants. Ms. Jalil was entitled to relief in accordance with the Partition Act, R.S.O. 1990, c. P.4.

25The trial judge correctly found that Ms. Jalil never gave up her right to ownership of the Angus House, despite Mr. Khalid’s attempts to have her remove her name from the APS. The trial judge preferred Ms. Jalil’s evidence and found that she had contributed to the purchase of the Angus House by paying the household expenses. Ms. Jalil was equally liable for the mortgage payments, and was deprived of her borrowing ability. The trial judge found that this was a juristic reason for her participation in any market increase. Moreover, Mr. Khalid was compensated for his contributions to the property by the reimbursement of his payment of the mortgage, property tax, and house insurance. By ordering that Mr. Khalid be compensated for his contributions, the trial judge in effect granted an unequal division of assets.

Did the Trial Judge Fail to Consider Mr. Khalid’s Common Law Claims?

26Mr. Khalid submits that the trial judge erred in failing to consider his common law claims for constructive or resulting trust.

27In the Decision, the trial judge noted that Mr. Khalid had failed to plead any trust claim, despite having amended his application twice. She recognized that in family law proceedings, courts may excuse a deficiency in the pleading, especially where a child’s best interests are raised. Despite Mr. Khalid’s failure to plead a constructive or resulting trust, the trial judge nonetheless considered whether there was any basis for a proprietary trust claim over the Angus House. She found that there was none. The trial judge found that Mr. Khalid could not have purchased the property without Ms. Jalil’s commitment on the mortgage, which required that both sign as joint tenants. In addition, Ms. Jalil had agreed that Mr. Khalid be credited with certain payments, given that he had been paying the mortgage, insurance, and property taxes. The trial judge found that this was a fair proposal that would have satisfied a claim for constructive trust, had it been pleaded.

28In making her findings, the trial judge made no palpable and overriding error. The trial judge was not required to consider Mr. Khalid’s common law claims but did so nonetheless. Her finding that the claims lacked any basis is entitled to deference.

Did the Trial Judge Err in Enforcing the Second Nikah?

29Mr. Khalid submits that the trial judge erred in enforcing the Second Nikah as a valid and binding domestic contract under s. 55(1) of the Family Law Act, R.S.O. 1990, c. F.3.

30The trial judge made no error in law in finding that the Second Nikah was enforceable. The trial judge found that the Second Nikah met the three requirements under s. 55(1): it was made in writing, signed by both parties, and witnessed. The trial judge relied on Bakshi v. Hosseinzadeh, 2017 ONCA 838, in which the Court of Appeal held that the effect of the contract would depend on the objective intentions of the parties as ascertained through the wording of the contract when read as a whole and considered in light of its factual matrix. She accepted Ms. Jalil’s evidence that she would not have entered into the second marriage unless the contract was executed. The trial judge made no palpable and overriding error in so finding.

Did the Trial Judge Err in Excluding the Maher Payment from NFP?

31Mr. Khalid submits that the Maher payment under the Second Nikah should be included in NFP. He submits that in excluding the Maher payment from the NFP, the trial judge incorrectly applied s. 4(2)6 of the Family Law Act and did not follow the Court of Appeal’s decision in Bakhshi v. Hosseinzadeh.

32In Bakshi v. Hosseinzadeh, the Court of Appeal found that the trial judge erred in excluding the Maher payment from NFP because the parties’ agreement did not contain an express or implied term excluding the Maher payment from NFP, and thus did not meet the requirements of s. 4(2)6. In this respect, the agreement at issue differed from the agreement in Khanis v Noor Mohamed, 2009 27829 (ON SC), [2009] O.J. No. 2245, (S.C.), aff’d 2011 ONCA 127, where the parties were found to have excluded the Maher payment from NFP.

33The trial judge brought the parties’ attention to the Bakhshi v Hosseinzade case and directly referenced it in her endorsement. She found that the Nikah had no effect on equalization because the debt to Mr. Khalid was offset by a receivable to Ms. Jalil. Moreover, as Backhouse J. found in Khanis, at para. 74, the Maher payment would have no effect on NFP because it was a debt owing by Mr. Khalid on the date of marriage and at separation.

34In any event, Mr. Khalid’s position at trial was that the Second Nikah was unenforceable. He therefore did not advance the position that the Maher payment should be included in NFP and did not provide a NFP statement that included the Maher payment. The trial judge made no error of law or fact in excluding the Maher payment from NFP.

Should Ms. Jalil’s Claims have been Limited by the First Nikah?

35Mr. Khalid submits that Ms. Jalil improperly failed to honour her commitment to the First Nikah by bringing additional financial issues (equalization, spousal support) to court. Mr. Khalid’s position is that the First Nikah should be treated as a final settlement, including spousal support, and as limiting Ms. Jalil to pursuing only child support and custody in court. Mr. Khalid further submits that the Maher payment should be considered spousal support.

36The trial judge did not err in awarding spousal support. The trial judge observed that the First Nikah did not contain a release of any legal claims. However, the trial judge did not award spousal support from the end of the first marriage because she found that the First Nikah addressed that claim. Her order for spousal support was based on the relationship of approximately nine years, after the second marriage. Moreover, the trial judge did not order retroactive spousal support because Ms. Jalil would benefit from the increase in value of the Angus House. In addition, the trial judge’s order that the parties share s. 7 expenses on a 50/50 basis, was based on Ms. Jalil receiving spousal support.

37Mr. Khalid submits that spousal support should have been for a shorter duration than 12 years (when A turns 18 years of age), but has demonstrated no palpable and overriding error by the trial judge. In any event, it is open to Mr. Khalid to bring a motion to change if his or Ms. Jalil’s circumstances change such that spousal support is no longer necessary.

Other Matters Raised by the Appellant

38Mr. Khalid requests that this court vary the Order as it pertains to various other matters, such as the pension, life insurance policy and costs. An ambiguity regarding the pension was corrected in a subsequent order. Mr. Khalid has not provided any basis on which to find that the trial judge erred in respect of the order requiring that he designate the parties’ child as a beneficiary to his life insurance policy. The Order does not preclude Mr. Khalid from seeking to vary the term pertaining to life insurance once his child support obligations cease.

39Mr. Khalid submits that the trial judge did not consider assets and liabilities that would have decreased his NFP. He further submits that the trial judge placed too much weight on financial statements submitted by Ms. Jalil.

40In my view, the trial judge properly considered the available evidence relating to equalization. Mr. Khalid has failed to identify any palpable and overriding errors in the trial judge’s findings of fact. In essence, Mr. Khalid challenges the trial judge’s weighing of the evidence. The trial judge could only rely on the evidence before her. The onus was on Mr. Khalid to make his case at trial, and he failed to do so. The trial judge found that Mr. Khalid’s financial statements were unreliable. Mr. Khalid did not submit his own NFP statement. He failed to adduce evidence to support his date of marriage deductions. The trial judge was not required to search the record for financial statements or other documents not entered into evidence.

Conclusion

41Accordingly, the appeal is dismissed.

42The parties agree that the trial judge neglected to make an order granting a divorce, and request that this court make the order. It is not clear that this court can do so on appeal. Given that both parties consent, the divorce order may be obtained by way of a Rule 14B motion in writing before the Superior Court.

Costs

43Ms. Jalil seeks full indemnity costs of approximately $33,000. Mr. Khalid submits that the successful party should be entitled to $7,500 in costs. I find $7,500 to be a fair and reasonable amount for the appeal. Mr. Khalid shall pay Ms. Jalil’s costs of the appeal in the amount of $7,500 including disbursements and HST. This includes the costs of obtaining the divorce order.

“Nishikawa J.”

“Backhouse J.”

“King J.”

Date: October 12, 2022

CITATION: Khalid v. Jalil, 2022 ONSC 5611

DIVISIONAL COURT FILE NO.: 1211/19