Court File and Parties
COURT FILE NO.: 744-17 DATE: 2019-07-22 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Abir Alsaid-Ahmad Applicant – and – Majd Jibrini Respondent
Counsel: In Person (Applicant) In Person (Respondent)
HEARD: January 14, 15, 16, 17, 18, 28, 29, 30, 31, February 1, April 23, 24, and 25, 2019
Addendum to Reasons for Judgment Dated July 4, 2019
THE HONOURABLE JUSTICE L. SHEARD
Paragraph [140] of my Reasons for Judgment, released July 4, 2019, intended to provide a summary of the orders contained throughout the Reasons. That paragraph was included to assist the self-represented parties in the preparation of a judgment. Through oversight, paragraph [140] failed to refer to the order made at paragraph [47] of the Reasons for Judgment, awarding AA $897, to be paid to AA from MJ’s share of the net proceeds of the sale of the Home. Accordingly, Paragraph [140] 1. shall be therefore be amended to include the following additional paragraph:
(vi) as per para. [47], the sum of $897 representing 50% of the $1,794 that AA had paid for movers.
Reasons for Judgment
THE HONOURABLE JUSTICE L. SHEARD
Introduction
[1] The applicant, Abir Alsaid-Ahmad (“AA”), and the respondent, Majd Jibrini (“MJ”), were married in Syria in March 1995. They have 3 children: Ula Jibrini, born January 9, 1996 (“Ula”), Maher Jibrini, born May 13, 1997 (“Maher”) and Omar Jibrini, born July 21, 2000 (“Omar”).
[2] On January 3, 2015, the parties began to live separate and apart under the same roof in the matrimonial home at 107 San Felice Ct., Hamilton, ON (the “Home”). On September 14, 2017, AA and the three children moved out of the Home. MJ remained in the Home until just prior to the closing of its sale on February 2, 2018.
[3] The parties have resolved the issues of custody and access, with the children to live with AA. On consent, the divorce was severed from the corollary issues and a divorce order was made on August 30, 2018. The only remaining issues between the parties are financial.
[4] Throughout this trial, I have encouraged the parties to try to resolve the outstanding financial issues. They had some success.
(a) Equalization of disputed bank accounts
[5] AA and MJ each sought to exclude certain bank accounts from equalization. After the commencement of the trial, MJ consented to an order excluding the following eight Bank of Montreal accounts from the calculation of AA’s net family property (“NFP”):
(1) BMO Account #2919-8986686 $ 99.96; (2) BMO Account #2919-3986513 $ 102.96; (3) BMO Account #2919-89 79814 $ 205.37; (4) BMO Account #2919-479-3894 $ 48.39; (5) BMO Account #2919-398-7065 $ 369.60; (6) BMO Account #2919-3978441 $ 5,125.53; (7) BMO Account #2402-3105573 $ 2,462.80; and (8) BMO Account #2402-4503038 $ 6,890.45.
[6] MJ sought to exclude two U.S. banks accounts he has with the Bank of America, Nos. 4617459451 and 12167249 (collectively the “BOA accounts”). It is MJ’s position that the money in the BOA accounts belongs to his brother, Kifah Jebrini, who lives in Italy. AA maintains that the BOA accounts should be included in the calculation of MJ’s NFP. That remains an issue to be decided by me.
(b) Section 7 expenses
[7] On January 28, 2019, midway through day six of the trial, the parties advised that they had resolved the following claims respecting s. 7 and other expenses incurred made by AA and agreed to an order that MJ pay to AA the following:
(a) the sum of $4,375.35 towards arrears for orthodontic expenses for the children (paragraph 25 of AA’s order requested); (b) the sum of $527.16 toward arrears for the health and dental expenses for the children (paragraph 26 of AA’s order requested); (c) the sum of $2,242.02 toward arrears for the recreational and educational expenses for the children (paragraph 27 of AA’s order requested); (d) expenses incurred in respect of the Home from the date of separation to September 14, 2017: i. for 2015, the sum of $5,000; ii. for the period January 1, 2016 to September 14, 2017 the sum of $297.43; and (e) the sum of $951.45 in respect of the expenses incurred by AA for the appraisal fees for the Home and the Boston property, the PC bank statements, cheque images and FedEx charges.
[8] Unless already paid, the amounts set out in para. 7, above, are to be paid from MJ’s share of the net proceeds of sale of the Home.
Issues to be Resolved at Trial
[9] AA also asks this court for an order that MJ pay her the following:
(a) occupation rent on the Home from September 14, 2017 to February 2, 2018 [^1] in the amount of $15,000; (b) the sum of $27,450.48, to reimburse AA for one-half of the amount AA claims to have spent on family expenses while she and MJ were living separate and apart under the same roof; (c) retroactive child support from the date of separation to the present date, based on an imputed income of $45,000; (d) the sum of $2,500 for each month that AA had to rent accommodation for herself and the three children from February 2018 to the date of the release of these reasons for judgment; (e) the sum of $80,584.92, representing 600,000 Syrian Pounds payable by MJ pursuant to a Mehr entered into at the time of marriage converted to Canadian dollars; and (f) her costs, including wage loss suffered when AA had to take time off work to pursue financial disclosure from MJ.
[10] The parties agree that neither shall seek spousal support from the other.
Background
[11] The parties were born and raised in Syria. MJ graduated from medical school in 1989 and moved to Boston, Massachusetts, USA, for a five-year residency in pathology and laboratory medicine. In March 1995, MJ returned to Syria. On March 28, 1995, some 10 days after they were introduced, the parties married. AA was then 23 and MJ 29 years old.
[12] AA was also well-educated in Syria. At the time of the marriage she had completed a five-year university program in architectural engineering.
[13] Immediately after their marriage, AA returned with MJ to Boston, where he was completing his medical residency. They lived in Boston until 1998, when they moved to Saudi Arabia for one year, during which time MJ worked in the laboratory of a hospital. The family immigrated to Canada in 1999.
[14] Ula and Maher were born in Boston and Omar was born in Canada. While in Boston and after moving to Canada, AA did not work outside the home and had limited English. According to AA, in keeping with the parties’ custom and culture, she was expected to devote her full energies to caring for the home and family, and raising the parties’ children. MJ was expected to support the family. MJ controlled the family’s finances and, he alone, had access to bank accounts and financial records. AA depended upon MJ to provide her with funds to manage the household.
[15] Conflicts over money arose almost from the outset of their relationship: AA describes MJ as “strict with money” and, in large part, blames their marital breakdown upon MJ’s attitude toward money. For his part, MJ asserts that he is prudent financially. MJ states that when he managed the family’s finances, they were able to buy a nice home and avoid going into debt.
[16] After the birth of Omar, the family moved from Toronto to Hamilton, where MJ had secured a job as a pharmacy assistant. AA states that she knew nothing about the transactions in the couple’s joint accounts and did not see any bank statements until after she obtained disclosure in these proceedings.
[17] In her testimony, AA offered examples of MJ unreasonably withholding funds from AA and the parties’ children. I accept AA’s evidence that MJ did not meet her income expectations of him and that after she began to work full-time, MJ did not meet her expectations as to how the family and household responsibilities should be shared.
[18] In 2005 AA determined to gain some financial independence and qualified to be a part-time Arabic language instructor for the Hamilton-Wentworth District School Board (the “HWDSB”). AA also obtained employment as a supply caregiver at the Child Care Centre. In 2008, AA secured full-time employment with the Immigrant Women’s Centre. After funding was cut to this organization, AA found new full-time employment in 2011 with the YMCA as a settlement worker. AA also continued to work part-time with the HWDSB and with the Hamilton-Wentworth Catholic District School Board (the “HWCDSB”).
[19] AA stated that in addition to working one full-time and two part-time jobs, she continued to perform the majority of household chores: cooking, laundry, cleaning, caring for the children and helping them with their schoolwork. AA’s evidence was that MJ would come home from work and lie on the couch while she prepared dinner, claiming that he was too tired to do anything else. MJ asserted that he helped with the children and household but acknowledged that when he came home from work, he was exhausted, and needed the evening and a night’s sleep to recharge for the next work day.
[20] Throughout the trial, MJ repeated that he did not have AA’s energy and that it was all he could do to perform his day’s work. MJ claimed that he needed the domestic support of AA and the children, and when that was lost, he had to limit the work he took on.
[21] MJ was not happy working as a pharmacy assistant. From and after 2005, MJ volunteered as an Arabic language instructor with the HWDSB and the HWCDSB. From there, he shifted careers to become a certified cultural interpreter/health interpreter and a translator. MJ then obtained accreditation as a freelance court interpreter. At the time of separation, MJ was a highly-skilled Arabic/English translator and court interpreter.
The Separation
[22] Following an argument over money, the parties separated on January 3, 2015 and AA moved to a spare bedroom. The family remained in the Home and kept up a public façade of an intact family. While AA opened her own bank account in 2015, she continued to use most of her income on family expenses.
[23] I accept AA’s evidence that on and after separation she carried the lion’s share of the family’s financial and homemaking responsibilities.
[24] In October 2016, AA was diagnosed with breast cancer. She required surgery and chemotherapy. In late 2016, AA’s father and mother, aged 80 and 75 years respectively, came from Qatar to assist AA to care for the household.
[25] With the arrival of AA’s parents, and following AA’s surgery in January 2017, MJ agreed to move to a bedroom in the basement, so that AA could use the master bedroom. AA, the children, and AA’s parents, slept on and used the second floor of the Home. Everyone shared the main floor of the Home.
[26] Tensions in the Home escalated with AA’s illness. While she was actively receiving chemotherapy, AA had to take a leave of absence from her job. This reduced her income and her ability to contribute toward the financial and other support of the family. AA expressed her concern to MJ about the financial support for the children. According to AA, MJ told her to use her employment insurance and to ask her parents and brothers for help. MJ told AA that only when those sources were exhausted, would he be prepared to dip into the money he had set aside for emergencies. MJ states that his savings came from the sale of the parties’ home in Boston, a property he owned prior to marriage.
[27] In his testimony, MJ confirmed that he had money saved in a bank account for emergencies. Until some time after separation, AA’s paycheques were deposited into a Royal Bank account, held jointly with MJ (the “RBC account”). Most of the family’s bills were paid from this account. MJ deposited only a portion of his income into the RBC account and the rest was deposited into an account with PC Financial. MJ also used an iTrade account with the Bank of Nova Scotia. AA asserts that her entire income was used for family expenses, and that MJ used only a portion of his income on the family.
[28] MJ asserts that, despite once threatening to cut off his financial support to the family, he continued to contribute $1,000 per month toward the family’s bills and that he also paid family expenses from the bank account(s) he used.
[29] AA asserts that even after she opened her own bank account in 2015, she continued to use all her income to support the family household. AA states that on and after separation, MJ did not pay his fair share of the family expenses. AA claims reimbursement from MJ of 50% of the expenses she says she incurred on behalf of the family, including MJ, from and after the date of separation to September 14, 2017.
[30] MJ acknowledges that his contribution to the family expenses dropped after separation but asserts that his income also dropped, and that his contribution was proportionate to his income. MJ also says that, at AA’s request, he dipped into his savings to make a significant contribution toward renovations to the Home. He said he did so in reliance on AA’s promise that she would not ask him again for money.
Meeting of March 19, 2017
[31] AA states that MJ asked for a meeting among AA, her parents, and her brothers, to discuss the marriage. At that meeting, it became clear that the marriage was over. AA volunteered to retain a lawyer to draw a separation agreement. AA retained a lawyer in late March 2017. On April 10, 2017, AA’s lawyer sent AA’s financial statement to MJ and asked MJ for his financial disclosure. The April 10 letter also confirmed AA’s understanding that MJ planned to move out of the Home by May 1, 2017.
[32] AA claims that after this meeting, MJ told her he would deliberately reduce his work hours and income to reduce AA’s entitlement to claim child support. MJ denies saying that.
[33] For much of 2017, AA was off work due to her cancer treatment. She described feeling a great deal of stress and worry about her health and about finances. AA states that her long-term disability income was not enough to support the family. By the end of June 2017, AA had withdrawn approximately $23,235.70 [^2] from her RRSP to pay her lawyer and other expenses.
[34] AA states that on August 15, 2017, Mazza J. made an order freezing the parties’ assets, which prevented her from withdrawing anything more from her RRSP. As a result, she states that she had to borrow approximately $75,000 from her brother to cover rent, living expenses and to pay her lawyer.
Issue #1: Occupation Rent
[35] AA hoped and expected that MJ would move out of the Home. She seeks reimbursement of the rent she has paid for rental accommodation for her and the children from and after September 14, 2017. Alternatively, AA seeks an order that MJ pay occupation rent while he remained in the Home from September 14, 2017 to February 2, 2018.
Why AA Moved Out:
[36] AA described ongoing conflict with MJ in the Home following separation: there were little disagreements with MJ over what temperature to keep the Home and larger disagreements over the sharing of the Home. According to AA, MJ agreed that he would use the basement and that AA, the children, and AA’s parents, would use the second floor, and everyone would share the main floor and kitchen. Despite that, AA stated that she found MJ on the second floor at various times including late in the evening and, once, she awoke to find MJ watching her while she slept. AA was particularly upset on one occasion when MJ tried to enter the master bathroom while AA was showering. AA was coping with treatment-related hair loss and had posted their daughter at the bedroom door to guard AA’s privacy. According to AA, MJ confronted their daughter, demanding to enter the bathroom to look for his eyeglasses. MJ did not deny this event and in his cross-examination of AA, MJ sought to have AA agree that, until the parties were divorced, in the eyes of Islam, he remained her husband and had the right to enter her bathroom at any time.
[37] AA states that in June 2017, MJ told her and her parents a story about a Russian lady whose husband killed her when she asked him to move out. AA said on the advice of her lawyer she did not go to police but did advance a claim for exclusive possession of the Home. AA never again let herself be alone in the house with MJ and stated that after the “Russian lady” story, AA’s father stayed up all night to watch over her. AA’s father had a heart attack on August 5 and died on August 18, 2017. AA attributes the tension and stress in the household to the further decline in her father’s health and his death.
[38] In July 2017, MJ’s brother, the brother’s wife, and their three children arrived at the Home for an extended stay. AA expected the brother and his family to sleep in the basement, with MJ. That did not go over well with the visitors. In August 2017, while AA was at the hospital visiting her father following his heart attack, MJ’s brother and his wife confronted the Jibrini children to express dissatisfaction with their basement sleeping arrangements. This event and the added tensions created by the houseguests, added to the family conflict.
[39] AA states that the atmosphere in the Home had become “toxic” and that sharing the Home was affecting her physical health and the emotional health of her and the children. AA stated that, because of the stress in the Home, while she was receiving chemotherapy, her doctor directed her to extend the time between treatments from two weeks to three, as she needed the extra week to recover. [^3] AA says that the children were not eating properly and appeared sad and stressed.
[40] AA wanted MJ to move out of the Home and was prepared to pay him monthly occupation rent of $1,000, while she and the children remained in the Home.
[41] In his evidence and in his cross-examination of AA, MJ tried to suggest that the situation at Home was not so bad as to require AA to move out. MJ also suggested that AA was the difficult one and created conflict. Both parties testified about the high degree of conflict in the Home and I need not determine who was to blame for it. I accept AA’s evidence that the conflict was having a negative effect on everyone, including the parties’ children.
[42] While I accept MJ’s assertion that AA had a part in creating the alleged “toxic” atmosphere in the Home, it is difficult not to find fault with MJ who invited his brother and family for an extended stay, in the face of the parties’ marital situation and AA’s serious health concerns. There was evidence at trial of a number of conflicts caused by the presence of the visiting family, which are not detailed in these reasons for judgment.
[43] On August 15, 2017, the parties consented to an order requiring them to list the Home for sale and to co-operate in its listing, showing, and sale. Fearful about how long it would take to sell the Home in an uncertain real estate market, and when it became clear that MJ was not going to leave the Home prior to its sale and closing, AA proceeded to rent an apartment for herself and the children. They moved out on September 14, 2017.
Moving Costs
[44] AA asks that MJ reimburse her one-half of what she paid movers to assist her when she and the children moved out of the Home. AA stated that she needed to hire movers because her surgery and illness meant she was unable to lift heavy items.
[45] MJ agrees that he should pay some portion of the moving fees but asserts that the fees would have been lower if AA had accepted his help.
[46] Given the high conflict between the parties, the size of the move, and AA’s health, I find that she acted reasonably in hiring movers. I also note that there was evidence that MJ suffers from chronic back problems and, given his back problems and alleged lack of stamina, I am not persuaded that AA’s moving costs would have been lower if she had allowed MJ to help.
[47] I find that MJ should contribute equally in the costs of this move. Based on my understanding of AA’s evidence that she paid the movers $1,794, I order MJ to reimburse AA 50% of that amount, namely $897. That amount is to be paid from MJ’s share of the net proceeds of the sale of the Home.
Market Rent for the Home
[48] AA did not provide admissible opinion evidence as to the market rent for the Home, which had six bedrooms, three bathrooms, a finished basement, landscaped yard and garage. Based on her post-separation experience looking for and renting a house, AA submits that a fair market rent for the Home would be between $2,800 and $3,000 per month, plus utilities. AA submits that she pays $2,500 per month, plus utilities, for a four-bedroom house she has rented for herself and the children since September 2017, and that the Home is larger than and superior to her rental. Further evidence of market rents comes from MJ who pays $500 per month for one bedroom in a shared home.
[49] MJ opposes an order that he pay occupation rent. He states that he never had exclusive possession of the Home; no such order was made; and AA was never prevented from entering the Home. MJ did concede that he asked AA to give him notice when she wanted to enter the Home. AA stated that when she returned to the Home it was to ensure that it was clean and ready for a showing to potential buyers.
[50] MJ also said that AA moved out of the Home in September 2017 so as to avoid the disruption to the children that would be caused if they moved mid-school year. He also says that he was unwilling to leave the Home out of concern that if AA had possession, she would delay its sale.
Analysis
[51] An award of occupation rent was recently considered by McGee J. in Malik v. Malik, 2015 ONSC 2218. The court set out the applicable principles at paras. 154-155:
[154] An award of occupational rent is an equitable remedy that will only be awarded in exceptional cases; see Foffano v. Foffano, [1996] O.J. No. 3284, and Rezel v. Rezel, 2007 ONSC 12716, McColl v. McColl, 1995 ONSC 7343, 13 R.F.L. (4th) 449 and Higgins v. Higgins, 2001 ONSC 28223.
[155] The relevant factors as to an award are set out in Higgins v. Higgins. These factors include:
(a) The conduct of the non-occupying spouse including the failure to pay support; (b) The conduct of the occupying spouse including the failure to pay support; (c) Delay in making the claim; (d) The extent to which the non-occupying spouse was prevented from having access to his or her equity in the home; (e) Whether or not the non-occupying spouse moved for the sale of the home and, if not, why not; (f) Whether the occupying spouse paid the mortgage and other carrying charges of the Matrimonial Home; (g) Whether the children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support; and (h) Whether the occupying spouse increased the selling value of the property.
[52] I find this to be an exceptional case in which occupational rent should be awarded. In making that finding I have considered that:
- AA believed that MJ was going to move out of the Home as early as May 2017 and she claimed exclusive possession of the Home in her application;
- in his pleading, MJ sought occupation rent from AA, should she be granted exclusive possession of the Home;
- the parties had a high conflict relationship and continuing to live separate and apart under the same roof was negatively affecting AA’s health, and the emotional and physical health of the parties’ three children. By moving herself and the children out of the Home, AA acted in the best interests of the children;
- by August 2017, it was clear to MJ that living under the same roof was causing stress and misery to the whole family. MJ should have accepted that AA and the children would move out of the Home if he did not. It would have been much easier for MJ to have left the Home;
- the evidence is that MJ was able to secure alternate accommodation for $500 per month. By contrast, the cost of accommodation for AA and the three children was at least five times that amount;
- as at September 2017, MJ was not paying child support and AA was not yet able to return to work because of her illness. As a result, in part, AA supported herself and the children by collapsing her RRSP and borrowing from family; and
- MJ’s stated concern that, had he moved out, AA would have delayed the sale of the Home has no merit in the face of the order that required the sale of the Home.
Disposition of Issue #1: Occupation Rent
[53] Notwithstanding that there was no formal order, I find that for all intents and purposes, MJ had exclusive possession of the Home and that he should pay AA for his occupation of the Home, of which AA was an equal owner.
[54] Based on the evidence of both parties, I determine that market rent for the Home should be fixed at $3,000 per month and that MJ shall pay AA one-half of that amount: $1,500 per month, from September 15, 2017 to January 31, 2018 (the “Rental Period”), for a total of $6,750. MJ shall also be responsible for all utilities and property taxes on the Home during the Rental Period.
Issue #2: Imputation of Income for the Purposes of Child Support
[55] I turn now to the issue of imputation of income as the determination of this issue will inform the other relief sought.
[56] AA asks the court to impute an income to MJ of $45,000 for the years 2015 to the current date. AA’s claim is based on her assertion that MJ has overstated the deductions from his gross business income and that on and after 2017, MJ was deliberately underemployed.
[57] I accept AA’s evidence that MJ reduced his income in 2017. Indeed, MJ’s evidence corroborates AA’s position: he says that because of the separation and divorce, he reduced his workload, thereby reducing his income.
MJ’s Income
[58] MJ’s tax returns and notices of assessment record the following gross business income, employment income, and investment income for the years 2013 to 2017:
| Year | Gross Business Income | Employment* | Investment |
|---|---|---|---|
| 2013 | $47,685.80 | $2,644 | $352.26 |
| 2014 | $55,452.89 | $1,679.15 | $591.41 |
| 2015 | $38,047.37 | $1,484.39 | $143.41 |
| 2016 | $39,688.68 | $1,322 | $292.55 |
| 2017 | $26,528.06 |
*HWDSB, HWCDSB
[59] MJ’s deductions (rounded to the nearest dollar) for the same years are:
| mileage | meals | parking | supplies, phone, utilities | capital cost allowance (“CCA”) * | legal/ acct’g | total | |
|---|---|---|---|---|---|---|---|
| 2013 | $20,650 | $5,049 | $45 | $113 | $5,089 | $0 | $30,946 |
| 2014 | $19,447 | $5,117 | $602 | $158 | $4,186 | $0 | $29,690 |
| 2015 | $12,922 | $4,734 | $30 | $102 | $2,491 | $0 | $20,189 |
| 2016 | $8,191 | $5,330 | $20 | $0 | $1,752 | $200 | $15,493 |
| 2017 | $6,268 | $1,852 | $26 | $150 | $1,141 | $200 | $9,638 |
*At trial, MJ could not explain how he arrived at these amounts, however, his answers to undertakings and the tax forms suggest that these were CCA deductions claimed on vehicles owned/driven by one or more of MJ, AA or their daughter.
[60] MJ’s line 150 income in his Notices of Assessment for the same years is:
| Year | Line 150 Income |
|---|---|
| 2013 | $ 19,321 |
| 2014 | $ 22,059 |
| 2015 | $ 16,252 |
| 2016 | $ 22,199 |
| 2017 | $ 15,744 |
[61] AA disputes that the amounts deducted by MJ from his business income were accurate. MJ acknowledges that he calculated the mileage deduction and the meal deduction using the “quick method”, the mileage allowance prescribed by the Canada Revenue Agency (“CRA”). MJ did not produce a mileage log and provided no evidence to show what mileage he incurred.
[62] MJ stated that he also used the “quick method” to calculate the meal allowance. Again, MJ offered no evidence to show what he spent on meals.
[63] MJ also deducted certain Home expenses from his income, using the amount spent on the entire Home in property taxes, utilities, etc., multiplied by the percentage of the Home that he occupied/used for his business. It is not clear from the evidence which of MJ or AA paid the Home expenses that MJ claimed as a deduction. MJ explained his inability to explain his deductions on the software program he used, which he claimed not to understand.
[64] MJ conceded that for the purposes of determining his income for child support, the deductions he claimed should be reduced by between $9,000 and $10,000.
The Law
[65] A self-employed parent who seeks to reduce his or her gross income by deducting business expenses has the onus to show that those expenses are reasonable. That parent must also present evidence to justify the expenses claimed. The reasonableness of the expense deduction is not solely governed by whether the deduction has been permitted by the CRA. (Sawma v. Zeidan, 2018 ONSC 4319, at para. 29, citing Cunningham v. Seveny, 2017 ABCA 3; see also s. 19(2) Federal Child Support Guidelines (Ontario), SOR/97 – 175, as am., (“the Guidelines”)).
[66] S. 19(1) of the Guidelines states:
The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (b) the spouse is exempt from paying federal or provincial income tax; (c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; (e) the spouse’s property is not reasonably utilized to generate income; (f) the spouse has failed to provide income information when under a legal obligation to do so; (g) the spouse unreasonably deducts expenses from income; (h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and (i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
[67] As stated by Chappel J. in Roloson v. Clyde, 2017 ONSC 3642, income imputation provides a means by which the court can ensure that parents meet their joint and ongoing obligation to support their children (Drygala v. Pauli, 2002 ONCA 41868, [2002] O.J. No. 3731, 2002 CarswellOnt 3228 (C.A.), additional reasons Drygala v. Pauli, 2003 ONCA 48241, 2003 CarswellOnt 17 (C.A.); Tillmans v. Tillmans, 2014 ONSC 6773 (S.C.J.); B.(G.T.) v. B.(Z.B.), 2014 ONCJ 382 (O.C.J.), Morden v. Pippy, 2011 ONSC 6886 (S.C.J.)) (at para. 203).
[68] Chappel J. goes on to state that the imputation of income is a fact-driven exercise and that the amount of income to be imputed is a matter of the court’s discretion, based on the evidence presented. The onus is on the party asking that income be imputed to establish an evidentiary basis for that finding. [^4]
[69] A parent who seeks to deduct expenses from their income for child support purposes must explain:
...the reasons for the expenses and how they were calculated, and must provide documentary proof of significant expenses in an organized manner so that the court can make a proper determination as to the reasonableness of the expense…
If the party seeking to deduct expenses from income fails to provide meaningful supporting documentation or other evidence in respect of those deductions, an adverse inference may be drawn by the court in making the income determination (citations omitted) (Roloson v. Clyde, 2017 ONSC 3642 at para. 207).
[70] As stated by Sherr J. in Decker v. Fedorsen, 2011 ONCJ 850, at para. 10:
Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See Drygala v. Pauli, 2002 ONCA 41868, 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No. 3731, 2002 CarswellOnt 3228 (Ont. C.A.).
[71] In Rodrigues v. de Sousa, 2008 ONCJ 807, Sherr J. concluded that the parent who chose to continue a self-employed venture that provided him with minimal income was unreasonable.
[72] Sherr J.’s criticism above, applies here: MJ has an extensive medical education and is also a highly-skilled translator and interpreter. Even if I were to accept MJ’s submissions that his business expenses should be reduced by between $9,000 and $10,000, his income would not consistently reach $30,000, a relatively low amount given MJ’s education, training, skills and experience.
[73] AA submitted some evidence of salaries that can be earned by interpreters and translators in Canada. (Exhibit 6, Tab 13). This evidence comes from searches AA made on the Internet, both Google searches and searches of jobs in Canada. These sources suggest that Arabic interpreters are in demand and that a translator’s salary can range from $30,000-$80,000 with an average salary of $49,559. There is uncertainty about the reliability of this evidence and whether employment at those salaries is available to MJ. MJ offered little evidence of his own respecting employment options for someone of his skill and he did not strongly contest the accuracy of the hourly rates set out in AA’s searches. MJ’s own tax returns (gross income) are consistent with the salary information put forth by AA.
[74] MJ acknowledges that his earnings went down in and after 2017. He denies that he deliberately reduced his income but claims that the divorce had an emotional impact upon him, which reduced his ability to work.
[75] MJ had several other explanations for his reduced workload. These included:
(a) the time he had to spend on paperwork and other demands of the litigation; (b) that he had lost the support of his wife and his children and, as he now had to attend to his own personal care, he was unable to maintain his previous level of employment; and (c) that he had health reasons that required him to reduce his workload.
[76] MJ’s assertion that the demands of the litigation were such that he could not continue to work at his previous level are not supported by the court record. It is apparent from the numerous judicial endorsements that MJ failed to provide timely financial disclosure. When he did disclose some records, (when he was represented by counsel) MJ simply provided AA with document dumps: one of 400 pages and another of 700 pages. In other words, the documentary disclosure was not provided in an organized or timely way, which undermines MJ’s evidence that he invested significant time in responding to the litigation. It is noted that AA was still required to obtain the balance of MJ’s documents herself, using an authorization provided to her by MJ pursuant to court order.
[77] Consistent with his pre-trial disclosure, MJ provided precious few documents at trial: it was AA who provided the court with four volumes of documents, including MJ’s tax returns, bank statements, etc. It is therefore difficult to accept MJ’s assertion that the burdens of the litigation impaired MJ’s ability to work full-time.
[78] MJ asserted that with separation he lost the combined support of AA and his children. That evidence conflicts with AA’s evidence that, until she was receiving treatment for cancer, she continued to work her three jobs and to fulfill the bulk of the domestic duties. I have little doubt that these were difficult times for both parties. However, that does not excuse MJ’s deliberate underemployment.
[79] MJ also failed to provide any reliable medical evidence to support his assertion that he had a medical condition that required him to work less than full-time. The only medical evidence put forth by MJ is found at Tab 28E of the applicant’s trial record where there is a letter dated September 28, 2018 from Dr. Ali Ismeal of the Charlton Medical Centre that reads:
To Whom It May Concern;
This is to inform that Mr. Jibrini is a patient of Charlton medical clinic, and has medical reasons that prevent him being able to have a full time job.
[80] MJ stated that Dr. Ismeal is not his doctor, but practises in the same clinic as MJ’s family doctor. Dr. Ismeal’s letter provides no diagnosis, prognosis, or explanation of the “medical reasons” that prevent MJ from being able to have a full-time job. Accordingly, Dr. Ismeal’s letter falls short of showing that MJ is unable to work full-time by reason of a medical condition. Dr. Ismeal was not called to testify.
[81] MJ’s claim to be unable to work full-time in 2017 due to unexplained medical reasons is in contrast with his ability in April 2016 to carry on with his employment as a translator despite having developed Bell’s palsy, which left him with partial facial paralysis. AA’s evidence, which I accept, is that, over the course of their marriage, she saw MJ go to work when he was sick, with a paralyzed face, and with a sore back, and that it was not until they spoke of divorce that, in her words, MJ was “suddenly” unable to work.
[82] In Drygala v. Pauli, 2002 ONCA 41868 the Court of Appeal makes it clear that the onus is on MJ to prove that his intentional underemployment was due to either the reasonable needs of the children or his reasonable educational or medical needs. He has failed to do so and I conclude, therefore, that MJ was intentionally underemployed and that it is appropriate for me to impute to him an amount of income I consider appropriate.
[83] I also give effect to the grounds under s. 19(g) of the Guidelines. I find that MJ has unreasonably deducted expenses from his income. I base that finding on the fact that MJ has failed to provide a proper evidentiary basis upon which I could determine the appropriate amount of business expenses to be deducted from his income. Further, MJ’s submission that his claimed deductions should be reduced by between $9,000 and $10,000 does little to assist me in determining the correct amount of deductions. Rather, MJ’s admission tends to support a finding that, for the purpose of determining MJ’s income for child support, his deductions are grossly inflated and must be reduced.
Disposition of Issue #2: Imputation of Income for the Purposes of Child Support
[84] AA asked that income of $45,000 be imputed to MJ for the years 2015 and forward. [^5]
[85] Without evidence to show that the deductions from MJ’s income are reasonable, in determining MJ’s income for child support purposes from and after the date of separation, I do not allow any deduction from his gross business income. I find MJ’s income to be his gross business income, combined with his other, non-business income.
[86] I also find that MJ was deliberately underemployed as of 2017. In accordance with the applicable law and s. 17 of the Guidelines, I impute income to MJ and, in doing so, I consider the following:
(a) AA’s evidence that MJ did not deliberately reduce his hours until 2017; and (b) that MJ’s average income in the three years preceding 2017, is $46,233. I calculated MJ’s income for those years (2014, 2015, and 2016) by combining his gross business income, without deductions, with MJ’s other, non-business income.
[87] For the reasons set out above, I impute income of $45,000 to MJ for the years 2017, 2018 and 2019.
Retroactive Child Support Based on Imputed Income
[88] On February 22, 2018, Justice Lafrenière made an order requiring MJ to pay child support to AA in the amount of $577.65 per month commencing on January 1, 2018. Child support was calculated on MJ’s 2016 stated income of $27,825. Child support is now to be calculated based on MJ’s imputed income of $45,000, retroactive to September 15, 2017 and payable monthly thereafter.
[89] Based on the Guidelines, I calculate monthly child support payable by MJ from and after September 15, 2017 to September 1, 2018 to be $888. [^6] That results in monthly arrears of $444 for September 15-30, 2017, $888 from October 1, 2017 to December 1, 2018 and $310.35 from January 1, 2018 to September 1, 2018.
[90] At the outset of trial, the parties agreed that child support for Ula should terminate effective October 1, 2018. Accordingly, as of October 1, 2018, the monthly child support payable by MJ shall be reduced to $674 (support for two children based on MJ’s income of $45,000). That reduction reduces the monthly arrears accruing from and after October 1, 2018 to $96.35.
[91] The arrears that have accrued at the date of the release of these reasons are to be paid from MJ’s share of the net proceeds of the sale of the Home.
Issue #3: Living Expenses January 3, 2015 to September 14, 2017
[92] AA seeks payment from MJ of $27,450.55 which is one-half of the $54,901.09 AA says she spent to support the family while the parties were living separate and apart under the same roof. AA does not have receipts for the amounts claimed, but she did produce bank and credit card statements that showed amounts spent, without specifically identifying for whose benefit the money was spent.
[93] AA’s claim is difficult to address. While the parties were living separate and apart under the roof, they shared custody of the children and AA does not claim spousal support. Also, MJ claims that in this same timeframe, he spent $39,455.22 [^7] on family living expenses. MJ submits that if he is to contribute toward what AA spent, then AA ought to reimburse him 2/3 of the amount he spent, as AA’s income was higher than MJ’s. In the circumstances, I conclude that it is not appropriate to attempt to determine or to award set-off child support amounts.
[94] AA disputes that MJ spent the amount as claimed. Unlike AA, MJ provided virtually no documentation to support his figures. While I find AA’s evidence about what she spent on the family to be more credible than MJ’s evidence of what he spent, neither party produced receipts to support their claims.
[95] In her evidence, AA clearly expressed her view that she shouldered an unfairly large share of the family’s financial and domestic responsibilities. There is merit to that view. As set out above, I have found that MJ was intentionally underemployed. In addition, the evidence also leads me to conclude that MJ did not assume his fair share of the family responsibilities: AA worked more, earned more, and then was expected to come home and care for the family and household.
[96] MJ denies that there has been any unfairness to AA: he asserts that he does not have AA’s energy and that he and AA contributed to the family’s expenses in an amount proportionate to their respective incomes.
[97] The court does seek to redress unfairness and, particularly when it comes to the support of children, to ensure that the children benefit from the financial means of both spouses after separation. However, I find that neither party has provided sufficient evidence to support an order that they reimburse or contribute to the expenses incurred by the other, for the period January 3, 2015 to September 14, 2017.
Disposition of Issue #3: Living Expenses January 3, 2015 to September 14, 2017
[98] For the reasons set out above, I make no order against either party with respect to any claim for reimbursement of a portion of expenses either party incurred for the support of the family while they were living separate and apart under the same roof.
Issue #4: Enforcement of the Mehr/Marriage Deed
[99] In Syria, on the day of their marriage, March 28, 1995, the parties signed a Mehr. This document was written in Arabic. Both parties provided the court with English translations. MJ agrees that AA’s translation is accurate.
[100] The English translation describes this document as a “Marriage Deed”. AA testified that she understood that the Marriage Deed entitled her to payment of “Dower” or “Mehr”. The Marriage Deed was signed by both parties, witnessed, and is under seal and “ratified” by a Sharia court judge.
[101] The Marriage Deed reads, in part, as follows:
Down Payment 100,000 - One Hundred Thousand Syrian Lira, [^8] Not received, remain in husband’s responsibility.
Deferred 500,000 - Five Hundred Thousand Syrian Lira, Not received, remain in husband’s responsibility.
…this marriage contract has been made between them as per the dower and terms mentioned above and in accordance with the legal and Islamic principles, … (sic).
[102] AA’s evidence was that the wife usually receives the down payment before the marriage. The down payment is intended to assist the bride in preparing for her wedding. However, in this case, AA said her parents did not insist on payment of the down payment because they recognized that MJ was a medical resident and they did not want to unduly burden him.
[103] AA sought to introduce in evidence a letter prepared by a local Imam providing his opinion as to the traditional interpretation of when the unpaid portion of the Mehr is to be paid. The letter did not comply with the Family Law Rules respecting expert reports. MJ objected to its use. AA advised that the Imam was unable to testify at trial because he was on holidays. Without his testimony, the letter from the Imam was hearsay, and could not be considered by this court.
[104] AA testified that she believes that the unpaid portions of the Mehr are payable to her upon divorce. She also stated that the conversion rate that should be used for the Syrian Pound is the exchange rate that was in existence as at the date the Marriage Deed was signed.
[105] MJ disputes AA’s interpretation of the Marriage Deed. He says that if it is the wife who seeks to end the marriage by divorce, then under Islamic law, the husband has no obligation to pay any outstanding amounts and that the wife would have to return monies she had already received. MJ says that it is AA who sought the divorce and that she is thereby disentitled to any payments contemplated by the Marriage Deed. MJ did not provide any expert or independent evidence to support his testimony concerning the application of Islamic law on his obligations under the Marriage Deed.
The Law
[106] To be a valid domestic contract, the Marriage Deed must comply with the Family Law Act (the “FLA”). [^9] Under s. 55(1) of the FLA, a domestic contract is unenforceable unless (i) made in writing, (ii) signed by the parties, and (iii) witnessed. In addition, s. 56(4) contains a discretionary judicial oversight provision, which reads:
56(4) A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made; (b) if a party did not understand the nature or consequences of the domestic contract; or (c) otherwise in accordance with the law of contract.
[107] S. 58 of the FLA governs contracts made outside Ontario. S. 58(a) provides that a contract of which the proper law is that of a jurisdiction other than Ontario is also valid and enforceable in Ontario if entered into in accordance with Ontario’s internal law.
[108] Here, while there is no question that the marriage contract is in writing, signed by both parties and witnessed, the Marriage Deed does not specify, and the parties disagree on, when the amounts “that remain in the husband’s responsibility” are to be paid. Both parties alluded to information each obtained from outside sources with respect to this issue. However, neither party presented the court with any expert evidence on that point. Accordingly, I am left with the parties’ disagreement over what the Marriage Deed requires, a lack of clarity in the Marriage Deed itself and no expert evidence that might assist with the issue of whether and when MJ is to make payment to AA.
[109] As stated by Walters J. in Yar v. Yar, 2015 ONSC 151, before enforcing a marriage contract, “the court must be satisfied that the parties to the agreement were of a like mind, knew what they were agreeing to, and were agreeing to be bound by the terms of the contract.” The evidence here does not satisfy me that the parties were of a like mind.
[110] While it is not essential to my finding that the Marriage Deed is not enforceable pursuant to Ontario law, I note that the parties also do not agree on what currency should be used for the payment. The Marriage Deed says payment is to be made in Syrian Pounds. AA asks that payment be in Canadian dollars, using the exchange rate that existed on the date of marriage. AA submits that she is therefore entitled to $80,584.92. MJ disagrees.
[111] MJ firstly states that the Syrian Pound was not publicly traded as at the date of marriage and that there is no applicable exchange rate. MJ also submits that, if any amounts are payable under the Marriage Deed, payment should be in Syrian Pounds. If the exchange rate on the date of separation were to be used, the 600,000 Syrian Pounds would convert to $3,258.67 CAD.
Disposition of Issue #4: Enforcement of the Mehr/Marriage Deed
[112] For the reasons set out above, I order that the Marriage Deed be set aside and declare that it is not enforceable pursuant to Ontario law.
Issue #5: AA’s Claim for Rent while Litigation Ongoing
[113] Above, I dealt with AA’s claim for reimbursement of rent she paid during the Rental Period. AA also asks for an order that MJ reimburse her for the monthly rental expense she incurred after the Rental Period, i.e. from February 2018 to the current date.
[114] AA asserts that because of MJ’s delay in complying with his disclosure obligations, the trial was delayed, and AA was forced to live in rental accommodation while awaiting the judicial determination of her claims. AA says the delay of the trial also delayed the division of the net sale proceeds of the Home. Had that money been available to her, AA submits that she could have bought a home, rather than rented.
[115] MJ denies that he delayed in providing financial disclosure and asserts that AA caused delay by unreasonably refusing to accept MJ’s reasonable answers to AA’s questions respecting his bank accounts.
[116] The court record shows that the application was brought in May 2017 and that AA made financial disclosure by March 2018. The parties agreed to the sale of the Home in August 2017 and the Home was sold on February 2, 2018. At that point, the net proceeds of its sale were available to the parties, and all, or such other amount as they agreed upon, could have been released to the parties. They were unable to agree.
[117] Based on the record before me, which includes the endorsements of Justices Lafrenière and Pazaratz, I find as a fact that MJ did delay in providing full financial disclosure and that MJ’s financial disclosure was not complete until August 16, 2018. I also note that, in his endorsement of August 16, 2018, Pazaratz J. awarded costs against MJ to compensate AA for the legal fees she had to incur “chasing after” MJ to secure disclosure.
[118] However sympathetic the court may be to the financial hardship suffered by reason of the time it has taken for this matter to be brought to a hearing, on the facts, I cannot conclude that MJ’s delay in providing full disclosure entitles AA to reimbursement of the rent she incurred on and after February 2018, while waiting for her claim to be tried and decided.
[119] The Home generated net proceeds of sale of $672,513.69, which amount was deposited in a solicitor’s trust account on February 2, 2018. Pursuant to a direction signed by both parties, the net proceeds were not invested in an interest-bearing trust account. On August 20, 2018, payments of $4,525.32 and $7,300 were made to AA from MJ’s share of the net sale proceeds. On January 30, 2019, pursuant to the parties’ direction, the $660,688.37 still held in the solicitor’s trust account was deposited into a one-year cashable GIC at an interest rate of 1.5%.
[120] MJ asserts that he has always been willing to consent to at least a partial distribution of the net sale proceeds of the Home and that it was AA who would not consent. The net sale proceeds were well in excess of the amounts in issue at trial. Had they been able to agree or sought an order, there could have been an interim distribution from the sale proceeds while leaving enough in the lawyer’s trust account to satisfy the outstanding claims. An interim distribution might have assisted each party to purchase a home.
Disposition of Issue #5: Claim for Rent while Litigation Ongoing
[121] While MJ’s delay in making financial disclosure may have delayed when the case was ready for trial, for the reasons set out above, that is not a basis upon which to make an order that MJ pay AA’s rent from February 2018 to the date of the release of these reasons for judgment. Accordingly, AA’s request for an order that MJ reimburse her for the rent she has incurred from and after the date of separation and/or the closing of the Home is dismissed.
Issue #6: Interest on the Net Proceeds of the Sale of the Home
[122] Although not pleaded, at trial, MJ sought to advance a claim against AA for the interest not earned on the net proceeds of the sale of the Home. According to MJ, AA refused to deposit the sale proceeds in an interest-bearing trust account.
[123] In the late fall of 2018, MJ raised the issued of “lost” interest before Lafrenière J., but he did not move for an order that the money be placed in an interest-bearing account. The issue was raised on the first day of trial. AA advised that (a) until the late fall of 2018, she and MJ agreed on where to deposit the money; (b) AA signed the direction to their lawyer not to invest the net sale proceeds in an interest-bearing account only after MJ had signed it; (c) that earning interest was contrary to her faith; and (d) that she feared that investing the money would put it at risk. Despite the foregoing, after MJ raised the issue at trial, AA agreed to inform herself of the risks and speak to her Imam. Later in the first week of trial, AA advised the court that she had spoken to their lawyer and with her Imam and that she had advised their lawyer that he could place the proceeds in a GIC.
Disposition of Issue #6: Interest on the Net Proceeds of the Sale of the Home
[124] Given the circumstances at the time of the sale of the Home, including MJ’s prior agreement, I conclude that there is no factual or legal basis upon which to order AA to pay MJ an amount equal to interest that might have been earned on the sale proceeds and I decline to grant him that relief.
Issue #7: Equalization
[125] On April 23, 2019, AA filed an updated net family property statement (Exhibit 33). This statement excluded the BMO accounts, as per the consent of MJ. AA calculates her NFP to be $384,965.05. On that date, MJ also filed an updated NFP statement (Exhibit 34). MJ agreed with and used AA’s figure of $384,965.05 as AA’s NFP.
[126] As there is agreement respecting AA’s NFP, I need only decide MJ’s NFP. In his NFP statement, MJ calculates his NFP to be $369,143.61. In her NFP statement, AA determines MJ’s NFP to be $396,923.72. The difference is $27,780.11.
[127] The difference is explained by the parties as follows:
(a) AA allowed a deduction of $54,800 for MJ’s “La Grange” property. MJ claimed a deduction of $56,132, a difference of $1,332; and (b) MJ excluded the BOA accounts in his calculation of his NFP. At trial, the parties agreed on a Canadian conversion rate to be used for the BOA accounts and that they totalled $24,369.90. In AA’s updated NFP statement, she included the BOA accounts and, using a higher Canadian conversion rate, valued the BOA accounts at $26,448.12.
[128] On August 17, 2018, Lafrenière J. ordered that MJ was entitled to a deduction from his NFP property of $54,800 CAD for the La Grange property. That order has not been appealed and is binding upon this court. Accordingly, for the purposes of calculating MJ’s NFP, the amount of $54,800 shall be used as the value for the La Grange property.
[129] With respect to the BOA accounts, MJ submits that the money in the BOA accounts represents the net income generated on a condominium property in Boston, Massachusetts (the “Boston Property”). MJ stated that the Boston Property was originally bought by his parents, both of whom are long dead. Despite that, title to the Boston Property has not been changed.
[130] MJ claims that his brother, Kifah Jebrini, a dentist in Calabria, Italy, is the beneficial owner of the Boston Property. However, MJ provided no evidence of that. To the contrary, MJ’s documentary evidence as to ownership of the Boston Property only supports a conclusion that the Boston Property was owned by one or both of his parents. MJ did not provide any documentary evidence to support his claim that the Boston Property is beneficially owned by Kifah Jebrini. I do not accept MJ’s evidence on this point.
[131] I do accept MJ’s evidence that: (a) the BOA accounts are in his name; (b) MJ alone has access to them; (c) MJ alone arranges for the rental of the Boston Property and for the deposit of the rental income into one of the BOA accounts; (d) MJ alone ensures payment of expenses related to the Boston Property; and (e) no monies have been paid from the BOA accounts to Kifah Jebrini (or to MJ).
[132] MJ asserted that Kifah Jebrini would not have any understanding of Internet banking. I do not accept MJ’s uncorroborated evidence on this point.
[133] The objective evidence, as well as much of MJ’s testimony, supports AA’s claim that MJ owns the BOA accounts.
[134] Well in advance of trial, MJ understood that it was his obligation to lead evidence to show that he did not own the BOA accounts. Both prior and at trial, there was discussion about MJ’s brother giving evidence via Skype or similar Internet method. Ultimately, MJ did not call his brother to give evidence.
[135] MJ did attempt to put forth a document [^10] that he says was signed by Kifah Jebrini that reads:
My name is Kifah Jebrini I live in Calabria, Italy There is a Bank of America account 004617459451 that is under my brother’s name. This is my account that my brother’s holding in-trust for me.
Kifah Jebrini 8/11/2018
[136] The signature above the signing line is handwritten. However, this document is not an originally-signed document nor is there any witness to it that might confirm that the document was signed by Kifah Jebrini. I find this document to be hearsay and inadmissible as evidence.
[137] Based on the evidence that I do accept, I find that MJ is the owner of the BOA accounts and that their value of $24,369.90 should be included in MJ’s NFP.
Disposition of Issue #7: Equalization
[138] I find that AA’s NFP is $384,965.05 and that MJ’s NFP is $394,845.51 ($449,645.51 – $54,800). One-half the difference between the parties’ NFP is $4,940.23 ($9,880.46 ÷ 2). MJ shall make an equalization payment to AA in the amount of $4,940.23. As with all the other amounts ordered to be paid by MJ to AA, this equalization payment shall come from MJ’s share of the net proceeds of the sale of the Home.
[139] If the parties cannot agree on how to determine MJ’s share of the net proceeds of the sale of the Home, they may arrange a brief hearing before me through the trial co-ordinator.
The Order
[140] In summary, for the above reasons, this court orders that:
The following amounts shall be paid to AA from MJ’s share of the net sale proceeds of the Home: (i) as per para. [7] above: a) the sum of $4,375.35 towards arrears for orthodontic expenses for the children; b) the sum of $527.16 toward arrears for the health and dental expenses for the children; c) the sum of $2,242.02 toward arrears for the recreational and educational expenses for the children; d) expenses incurred in respect of the Home from the date of separation to September 14, 2017: i. for 2015, the sum of $5,000; ii. for the period January 1, 2016 to September 14, 2017 the sum of $297.43; and e) the sum of $951.45 in respect of the expenses incurred by AA for the appraisal fees for the Home and the Boston Property, the PC bank statements, cheque images and FedEx charges. (ii) as per para. [47], the sum of $897 representing 50% of the $1,794 that AA had paid for movers. (iii) as per para. [54], above, for occupation rent, the sum of $6,750; (iv) as per para. [89], above, based on MJ’s imputed annual income of $45,000, for arrears outstanding on account of child support for the three children of the marriage from September 15, 2017 to September 1, 2018, the sum of $11,100; (v) as per para. [90], above, based on MJ’s imputed annual income of $45,000, for arrears outstanding on account of child support from October 1, 2018 to July 1, 2019, for Maher and Omar, the two remaining children of the marriage, the sum of $963.50; and (vi) as per para. [138], above, an equalization payment in the amount of $4,940.23.
As per para. [90], above, commencing on August 1, 2018 and on the first day of each month thereafter, MJ shall pay to AA child support for Maher and Omar the sum of $674 based on an imputed income of $45,000.
Within 21 days of the release of these reasons for judgment, the parties shall exchange copies of their income tax returns as filed for 2018 and copies of their notices of assessment. Thereafter, for so long as there is a child support obligation, the parties shall exchange annually, no later than May 15, copies of their income tax returns, with schedules, as filed for the prior year and a copy of their notice of assessment within 10 days of receipt.
Unless the support order is withdrawn from the Office of the Director of the Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.
This order bears post-judgment interest at the rate of 2% per annum effective from the date of the order. Where there is default in payment, the payment in default shall bear interest on from the date of default.
Costs
[141] Given the divided success on this matter, I am not inclined to make a costs order. However, the parties have not had an opportunity to present their positions or argument. If the parties cannot agree on costs, either may contact the trial co-ordinator’s office within 21 days of today’s date to arrange a hearing date for costs submissions. In that event, whomever seeks costs shall serve, and file with the court office, a Bill of Costs, together with copies of any disbursements claimed. In addition, either party who seeks to rely on an Offer to Settle, shall serve and file a copy of any such Offer, together with proof of service of the Offer.
[142] If an appointment to argue the issue of costs is not requested from the office of the trial co-ordinator (Hamilton Family Court) within 21 days of today’s date, the parties will be deemed to have settled the issue of costs as between themselves and there will be no order as to costs.
Sheard J.
Released: July 22, 2019