COURT FILE NO.: FS-15-82912-00 DATE: 20170712 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
RUBA BOUSTANJI Applicant – and – SAJI BARAZI Respondent
Counsel: Lisa Evans, for the Applicant Self-Represented Respondent
HEARD: May 29, 30, 31, June 1 and 2, 2017
REASONS FOR JUDGMENT
VAN MELLE J.
[1] The parties were married on October 13, 1994. There is some dispute as to the date of separation, however, they have agreed to a valuation date of December 12, 2014. There are two children of the marriage, Abdulaziz Barazi, born April 5, 1997 and Juman Barazi, born October 23, 1998. The children reside with Ruba and are both attending university.
[2] At the conclusion of the evidence, I made an order divorcing the parties as I was satisfied that the grounds for divorce had been made out. The remaining issues are equalization, post-separation adjustments, child support and payment of a Maher from Saji to Ruba.
[3] Saji has also made claims for spousal support, freezing of assets/preservation order, an order that Ruba maintain benefits for the children, unequal division of net family property, damages, unjust enrichment and resulting/constructive trust.
[4] Saji’s claims for freezing of assets, preservation order, unequal division of net family property, damages, unjust enrichment and resulting/constructive trust were not pursued at trial. Saji led no evidence whatsoever to suggest that he would be entitled to any of this relief.
The Trial
[5] Saji attended at trial without counsel. Despite being told by various judges that he had to bring his own qualified interpreter, he showed up at the opening of trial with an interpreter who was not qualified in that he was not accredited. On the second day he showed up with an accredited interpreter, but as this interpreter was too expensive he was unable to continue with this interpreter. The balance of the trial he had a young woman, Saja Abu Thwabh interpreting for him. Ms. Abu Thwabh works with a resettlement agency and provides translation services in that capacity. There was no objection from the applicant who herself speaks Arabic, and indeed Ms. Abu Thwabh did an excellent job.
Background
[6] Ruba Boustanji was born February 6, 1968. Saji Barazi was born February 2nd, 1963. The parties were married by way of Certificate of Marriage on October 13, 1994. The Islamic ceremony took place on June 1, 1995 (although the parties have agreed that the appropriate date of marriage pursuant to the Family Law Act is the October date). The marriage contract between the parties included a Maher agreement. The Maher is currently valued at approximately £3000 (Syp), which today is $1,760 (Cdn).
[7] In 2004, the family immigrated to Canada from Abu Dhabi. Prior to immigrating, Ruba borrowed $50,000 from her father for two days so that she could demonstrate to the Canadian Government that the family had a bank account with the minimum requirement of $50,000 in it as at the date of the immigration application.
[8] Saji worked with the Arabian Construction Company in Abu Dhabi from 1991 to 2012 as a Civil Engineer. After the parties’ immigration, Saji continued to travel between Canada and Abu Dhabi for work purposes. On September 12, 2012, Saji was dismissed from his job in Abu Dhabi.
[9] During the time that Saji was working in Abu Dhabi he regularly deposited money to the parties’ joint account. The parties were able to meet their ongoing expenses from the joint account. After Saji lost his job, his financial situation deteriorated quickly. During this time Ruba separated from Saji.
[10] After the separation, Saji held minimum wage type jobs in Canada. He worked for a few security companies and he worked as an Uber driver.
[11] At the present time, Saji works for First Security Protection Services and infrequently with Uber. He earns $14.00 per hour for a work week of 30 to 32 hours. He testified that because of his poor English language skills, he is unable to work as a Civil Engineer. When he came to settle in Canada permanently in or around the 17th of April 2014, he tried to see if there was a possibility to work in his field of engineering. He went to Metro College. He was advised that there were several programs available but most would take approximately two years to complete and the tuition rates were high. As well, the certification would be a lesser certification than his engineering certification. He joined a newcomer institute and attempted to study there in project management related to engineering. He studied for approximately three months but found it very difficult because of his language skills. He did not pass the tests because he was unable to respond to the questions as quickly as required.
[12] Ruba has been employed by BMO Bank of Montreal, as a Financial Service Manager since 2013. In Abu Dhabi, Ruba worked for the National Bank of Abu Dhabi. Ruba arrived in Canada in July, 2012. Early in 2013, Ruba worked with Summit Energy on commission. She did this job for three months as it was outdoor sales. Then she hired a friend and they cleaned houses. In late July, 2013 she went to Abu Dhabi and when she came back she started the interview process with BMO and subsequently was offered and took a job there.
[13] The parties purchased a house in Mississauga. The house was subsequently sold and the closing took place on October 2, 2016. By August of 2016, both parties had left the matrimonial home and the home was rented for three to four months until the closing.
Equalization
[14] The figures that I accept for equalization purposes are set out in Appendix “A” – Net Family Property Statement.
[15] Both parties have inherited properties from their parents in Syria. It is hard to know what the value of these inheritances are, given that other family members have life interests in the respective properties and the properties are divided with siblings. As inheritances are excluded pursuant to the Family Law Act, and particularly as I am unable to determine what if any interest each party has in these properties, I have left them off Appendix “A”.
[16] Ruba provided her own comprehensive net family property statement. The main asset of the parties was the matrimonial home. The matrimonial home was sold for $630,000 with a mortgage in favour of Capital Financial Corporation in the amount of $466,474.93 against it.
[17] Exhibit 40, which is located at Volume 3, Tab FF, is described as a reporting letter regarding the sale of the property. However, the second page of the reporting letter and the attachments are not there and thus do not form part of the exhibit. Due to this, I am unable to factor in the other expenses that would have shown on a Statement of Adjustments, into the calculation. As those expenses would presumably apply equally to both parties, their absence will not affect the equalization payment. The mortgage to Capital Financial Corporation was paid off from the proceeds of sale and the sum of $61,816.71 is being held in trust from the sale of the home.
[18] The reporting letter is addressed solely to Ruba despite the property being held jointly by the parties. The funds in trust were reduced (on consent) by payment out of a Legal Aid lien placed on the property by Saji; a cost award payable by Saji to Ruba and one half of the school fees paid for Abdulaziz in 2015.
[19] In addition to furniture, household contents and vehicles, Ruba also had a chequing account with BMO, an RRSP with BMO and a TFSA with BMO. She also had shares in the National Bank of Abu Dhabi.
[20] By way of debts, Ruba had a Visa debt and leverage loan related to the shares in National Bank of Abu Dhabi. The leverage loan exceeded the value of the shares and does not appear to be in existence today. The shares no longer appear as a value on today’s date either. Ruba explained that when she had the share fund with the National Bank of Abu Dhabi, they were worth significantly more than they were worth on the valuation date. At that time, the leverage loan was far less than the value of the shares. However, according to Ruba, this changed with the economy and at the date of separation, the leverage loan was more than the value of the shares purchased with the leverage loan.
[21] Ruba testified that last year she went to the National Bank of Abu Dhabi and negotiated to pay a certain amount of money toward the leverage loan by way of monthly payments. She has now stopped making the payments and the amount is apparently in collection. However, she did not state how much she had paid, the amount that had been paid off, the amount remaining and what kind of collection steps are being taken against her. Ruba testified that she opened the account in 2006 with money that she received from Saji. The account was opened in her name because she received a preferential rate as she was an employee of the National Bank of Abu Dhabi. The only documentation corroborating Ruba’s testimony appears at exhibit 17 – Applicant’s Document Book, Volume 3, Tab O. An e-mail from Abeer Safi dated July 15, 2016 confirms shares in two funds. Apart from Ruba’s testimony, there is no evidence regarding the leverage loan. Documentation corroborating this information would have been available to Ruba. She would have had to instruct someone to attend at the National Bank of Abu Dhabi on her behalf, and this was not done. I am not satisfied that this loan has to be repaid and I am removing both the asset and the liability from Ruba’s Net Family Property statement.
[22] Ruba testified that Saji removed the most valuable household goods from the matrimonial house. While she personally did not view this, she was told by her neighbour and her daughter that Saji had arrived at the matrimonial home with a moving van and removed valuable items. She did not adduce evidence from either the neighbour or the daughter to support her testimony. She asks that I accept that Saji removed valuable items based solely on hearsay evidence and that values be assigned to the furniture based on photographs.
[23] Ruba acknowledged that she had jewellery on the valuation date in the amount of almost $12,000 which she says was offset against jewellery on the date of marriage in the amount of $7,380.
[24] It appears, from Saji’s financial statement sworn February 10, 2017, that other than his interest in the matrimonial home, he did not have much in the way of assets. He takes the position that Ruba ended up with most of the jewellery and gold belonging to both parties; that he did not remove the majority of the furniture in the home; and that Ruba had assets hidden away in her own name. He does say that he had a loan at the valuation date in the amount of 100,000 Dirham. Apparently Saji’s friend, Dr. Sayed loaned Saji money, just after Saji lost his job. Too coincidently, Saji paid back the loan just after he was served with the application in this matter on March 10, 2015. The loan does not appear on his February financial statement. I do not accept that this is an actual loan as at the separation date. There is no corroboration of this debt and indeed Saji testified that he paid Dr. Sayed despite not receiving a demand for payment.
[25] I have not put any values into Appendix “A” for jewellery or furniture, as I am not satisfied, on the evidence, that either party took more than their share. If Saji did receive more by way of furniture, then I believe Ruba, too, received more by way of jewellery. One is offset against the other.
[26] Ruba had a 1995 Dawoo on the date of marriage; she says the value of the Dawoo was $8,000. She seeks a deduction for this amount. She owned a 2008 Jeep Patriot jointly with Saji and says that the black book value at the valuation date was $7,000. The parties are agreed that Saji took over the vehicle at the valuation date and that the value as at valuation date should be attributed to him.
[27] At the very end of the trial, Saji produced a document that appears to show that Ruba owns a property in Damascus along with other members of Saji’s extended family. When asked about this document, Ruba denied any knowledge, proposing that perhaps this was the property that Saji inherited from his father. The document was not produced prior to trial and there is no way to test its authenticity. It seems odd that Ruba would have any interest in a property owned by Saji’s family. I am satisfied that the property referenced does not form part of Ruba’s net family property.
[28] I accept that Ruba had a 2014 GMC Terrain at the date of separation. I do not accept the value that she has attributed to the GMC Terrain. It should not be worth more than the loan relating to the vehicle at the valuation date. Ruba’s 2014 GMC Terrain is therefore removed from the net family property statement as is RBC loan number **** 281.
[29] Pursuant to Appendix “A”, the equalization payment owing from Saji to Ruba is $33,292.58.
Child Support
[30] Ruba asks me to impute income to Saji in the amount of $50,000.
[31] Saji earns less than minimum wage at the present time. Ruba argues that he is under employed. However, I accept his evidence that he is unable to find work as a civil engineer and indeed in any skilled job as a result of his language skills. I am hoping that this will improve. I accept that at the present time he earns approximately $25,000. He does not pay any tax thus grossed-up, the $25,000 equals approximately $30,000. While I am not prepared to impute income to him of $50,000, he should be capable of earning $40,000.
[32] Saji claims spousal support believing that Ruba earns $70,000 to $75,000 per year. There is absolutely no indication of this. Given the respective incomes and imputed incomes of the parties, neither party is capable of paying spousal support to the other.
[33] Saji shall pay child support for Abdulaziz and Juman in the amount of $579 per month for 22 months in the total amount of $12,738, based on the imputed income of $40,000 from August 1, 2015 to May 31, 2017.
[34] Commencing June 1, 2017, Saji shall pay child support for the two children in the amount of $579 per month based on an imputed annual income of $40,000.
Special Expenses
[35] Ruba is seeking a 50% contribution to the children’s post-secondary expenses incurred from 2016 to date. She seeks half of $19,546.67 in the amount of $9,773.34. Saji acknowledges that he should contribute based on his ability to pay. Juman is enrolled at the University of Toronto, Mississauga Campus, in a BA Architectural Studies program. Ruba testified that Juman had some part-time work, but does not earn very much.
[36] Abdulaziz is also at the University of Toronto, Mississauga, and is studying to obtain a Bachelor of Commerce degree. He is in a specialized program and the cost is accordingly higher than it would be for a regular Bachelor of Commerce degree.
[37] Both children reside with Ruba and Saji is paying table support for them.
[38] Despite a lack of receipts, I am assuming that the $19,546.67 represents the tuition costs for the two children for a one year period.
[39] Ruba submits that neither child should have to contribute to his or her educational costs and that she and Saji should cover the costs equally. Unfortunately in this case there is not enough money available to do this.
[40] Section 7(2) of the Child Support Guidelines provides that the guiding principle in determining the amount of an expense set out in section 7(1) is that the expense is shared by the parents in proportion to their respective incomes, after deducting from the expense the contribution, if any, from the child. Section 7(3) mandates the taking into account of any subsidies, benefits or income tax deductions or credits relating to the expense. Unfortunately here, although we have information as to loans and subsidies, no evidence was adduced as to the income tax deductions or credits available to Ruba or the children as a result of their post-secondary expenses. As well, it is not clear from the exhibits how much of the expenses claimed relate to actual tuition fees.
[41] Paragraph 40 of Aubert v. Cipriani, 2015 ONSC 6103 stands for the proposition that the extent to which a child will be expected to contribute to their post-secondary education costs depends on the particular facts and dynamics of a case.
[42] The Boustanji/Barazi family is of limited means. Even with imputed income, their joint income is approximately $87,000.00. Although they should contribute to the children’s university expenses, these are not people that financially are in a position to fund all of it. Ruba testified that she and Saji should share equally in the costs of post-secondary education without contribution from the children, other than subsidies or grants that they receive. In all the circumstances, and given that I have imputed income of $40,000 to Saji, I find Saji should pay 30% of the children’s tuition, net of tax and any subsidies available to them.
Post-Separation Expenses
[43] Ruba seeks repayment of half of the post-separation adjustments for the matrimonial home expenses in the amount of $8,752. She seeks half of what she paid for ceiling repair in the amount of $650. She seeks half of the matrimonial home cleaning bill of $85, although the total bill was $150, so half would be $75. She seeks the full cost paid to the cleaners for the mess left in the matrimonial home by Saji’s movers in the amount of $200. She seeks the full amount that she paid for Saji’s Visa bill and related fees in the amount of $1,962.52.
[44] She seeks half of what she paid to pay the overdraft on the joint BMO bank account in the amount of $360.30.
[45] She seeks half of the jewellery valuation which she paid but had been ordered to come out of the proceeds of sale of the matrimonial home in the amount of $288.15.
[46] She is entitled to half of the ceiling repair of $650; half of the matrimonial home cleaning bill of $75; the full cost for the cleaners for the mess left by Saji in the amount of $200; the amount she paid for Saji’s Visa bill in the amount of $1,962.52; the half for the overdraft of $360.30 and half of the jewellery valuation of $288.15. These total $3,535.97.
[47] Ruba seeks from Saji one half ($8,751.99) of the post-separation expenses (mortgage, car insurance, fire insurance, security system, utilities) that she paid for the matrimonial home. There were renters in the property who paid $1,000 per month. It is not clear how many months they paid for. I accept Ruba’s evidence that she used the rent that she received toward the mortgage payment. I accept as well that the money she claims does not include any amount for that part of the mortgage that was paid using the rent.
[48] I accept that Ruba made the payments toward the mortgage, car insurance, fire insurance, security system, and utilities and that there remains $17,503.97 to be divided equally between the parties. Therefore, Saji owes her $8,751.99 on account of post-separation payments.
Maher
[49] Ruba claims payment of the Maher that was agreed to as part of the marriage certificate. Saji says that pursuant to Sharia Law, Ruba is not entitled to claim the Maher as she was the one who decided to end the marriage. He says as well that she cannot claim under the Family Law Act and get the Maher at the same time. Other than his own testimony he did not adduce any support for this position at trial. The case law is clear that a Maher is a marriage contract which is legal pursuant to the Family Law Act.
[50] The Marriage Certificate entered into by Ruba and Saji was issued on October 15, 1994. It provided for an advanced dowry of one Syrian lira and a deferred dowry of three hundred thousand Syrian lira. It was signed by the parties and duly witnessed. It is a legal marriage contract pursuant to section 52 of the Family Law Act.
[51] The Court of Appeal for Ontario upheld Justice Backhouse’s decision in Khamis v. Noormohamed, 2011 ONCA 127, [2011] O.J. No. 667 which essentially stands for the proposition that the payment of a Maher is not incompatible with relief sought pursuant to the Family Law Act.
[52] Therefore, Saji owes Ruba $1,974.69 for the Maher.
Judgment
[53] Judgment will issue as follows:
Saji shall pay Ruba an equalization payment of $33,291.99;
Saji shall pay Ruba $1,974.69 for her Maher;
Saji shall pay Ruba post-separation expenses related to the matrimonial home in the amount of $8,751.99;
Saji shall pay retroactive child support for Abdulaziz Barazi, born April 5, 1997 and Juman Barazi, born October 23, 1998 in the amount of $12,738, which is $579 per month for 22 months, based on an imputed annual income of $40,000 from August 1, 2015 to May 31, 2017;
Commencing June 1, 2017, Saji shall pay child support for Abdulaziz and Juman in the amount of $579.00 per month based on an imputed annual income of $40,000;
Saji shall pay 30% of the children’s tuition costs incurred from 2016 to date in the amount of $5,564;
Saji shall pay 30% of the children’s future tuition costs net of tax and any bursaries;
The amounts remaining in trust are $61,142.02 for Ruba and $54,047.57 for Saji. Saji’s amount shall be transferred to Ruba in partial satisfaction of the amounts owing to her. He has one year to pay the remainder to her.
[54] I will entertain written submissions on costs, not to exceed three pages double spaced along with a Costs Outline. Ruba has 30 days to serve and file cost submissions. Saji has 30 days to reply to those submissions.
Van Melle J.
Released: July 12, 2017
Appendix A
Net Family Property Statement
| ITEM | APPLICANT | RESPONDENT |
|---|---|---|
| 1. Assets | ||
| Matrimonial Home | 315,000.00 | 315,000.00 |
| Jeep | 7,000.00 | |
| Bank accounts | 5,479.32 | 54,987.00 |
| TOTAL ASSETS | 320,479.32 | 376,987.00 |
| 2. Debts and Liabilities | ||
| Mortgage and legals | 233,874.00 | 233,874.00 |
| Credit cards, etc. | 3,763.17 | 1,686.87 |
| TOTAL 2. | 237,637.17 | 235,560.87 |
| 3. Date of Marriage Deduction | ||
| Dawoo | 8,000.00 | |
| TOTAL 3. | 8,000.00 | |
| 4. Net Family Property (Total 1 minus Totals 2 and 3) | 74,842.15 | 141,426.13 |
| 5. Equalization Payment from Respondent to the Applicant | 33,291.99 |
COURT FILE NO.: FS-15-82912 DATE: 20170712 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: RUBA BOUSTANJI Applicant – and – SAJI BARAZI Respondent REASONS FOR JUDGMENT Van Melle J. Released: July 12, 2017