minicounsel

COURT FILE NO.: FC-19-1211 DATE: 2020/02/24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hatem Zeineldin, Applicant AND Hoda Mahmoud Aly Elshikh, Respondent

BEFORE: Justice Engelking

COUNSEL: John E. Summers, Counsel for the Applicant Allan Hirsch, Counsel for the Respondent

HEARD: January 16, 2020

Endorsement

1This is a motion brought by the Respondent mother (“Hoda”) in which she is seeking temporary relief in the context of the application of the Applicant father (“Hatem”) to have this court decline jurisdiction of the matter and order that the children of the marriage return to Egypt in accordance with an Order from Egypt and for police assistance in locating and apprehending the children. The hearing of Hatem’s application has been, at his request, adjourned to the May 2020 Family Trial Sittings. As a result of the adjournment, to which Hoda consented, she seeks on a temporary without prejudice basis, child support, spousal support, and a payment to her of $10,000 by the father for an interim disbursement.

2The issues before me are, therefore, as follows:

Does the court have the authority to order interim, without prejudice, child support pursuant to the Family Law Act?
Does the court have authority to order interim, without prejudice, spousal support pursuant to either the Divorce Act or the Family Law Act?
If the court has authority to order interim, without prejudice, child or spousal support, what is the quantum of support payable?
Is an order for interim disbursement appropriate in the case?

3For the reasons that follow, I find that Hatem shall be required to pay child and spousal support to Hoda commencing December 1, 2019, and that he shall be required to pay her an interim disbursement of $4,000.

Background Facts

4The parties were married on November 20, 2004 in Egypt. Hatem has Canadian and Egyptian citizenship. Hoda has Qatari and Egyptian citizenship and is a permanent resident of Canada.

5Two children were born of the marriage, Rola on June 17, 2006 in Ontario and Mohammed on February 28, 2011 in the United Arab Emirates (“UAE”). The children have both Canadian and Egyptian citizenship.

6The parties lived in Ontario from September 2005 to August of 2007, and then Boston, Massachusetts until August of 2008. They relocated to Adu Dhabi, UAE, and resided there as a family from approximately August of 2008 to July of 2018, but for about eight months in 2012-13 when Hatem taught at Cairo University in Egypt.

7Hatem was a professor at the Masdar Institute, which became part of Khalifa University in Abu Dhabi. In August of 2016, he was appointed the Department Head of Electrical and Computer Engineering of the Masdar Institute.

8The parties went to Cairo for an annual summer vacation, as was their custom, in or about July of 2018. Hatem returned to work in the UAE while Hoda remained in Cairo with the children. Hatem returned to Egypt periodically. Hoda advised Hatem during this period that she wanted to divorce from him. Hatem was not prepared to consent to a divorce.

9Hatem withdrew the children from their school in the UAE on or about September 8, 2018. Hoda sent them to school briefly in Cairo, but left Egypt for Canada with the children on October 17, 2018. She settled with them in Ottawa, Ontario.

10On November 15, 2018, Hoda applied through her Egyptian lawyer for a “Khul” divorce in Egypt, through which she could obtain a divorce over the objection of Hatem, but for which she was required to give up any claim to spousal support and property entitlements and return her dowry to Hatem. Hoda returned to Egypt twice to deal with her divorce, once in early March and again in April of 2019. The divorce was granted by the Egyptian court on April 23, 2019. There was no provision for child support in the divorce.

11Although Hatem suspected the children were in Canada, he was only able to identify that they were in Ottawa in June of 2019. He filed an emergency motion seeking an order that police locate them and return them to his care, such that he could return to Egypt with them. A temporary without prejudice order was granted maintaining the children in the care of their mother with one in-person visit and further skype visits granted to their father. A trial was scheduled to take place in the late November/early December trial sittings to determine the issues of jurisdiction of the court in Ontario and return of the children. Hatem requested an adjournment of the trial on the basis that his work would not permit him to travel to Ottawa at that time. As I have indicated above, Hoda consented to the adjournment of the trial but seeks temporary relief because of the delay occasioned by it.

12The children and Hoda have been living in shelters since June of 2019. Hoda has been subsisting on an Ontario Student Assistance Program (“OSAP”) loan and grants for her attendance at Algonquin College, where she is studying English, and loans from her family members, most notably her parents.

13Hatem states that he gave notice to Khalifa University in January of 2019, for reasons which are, frankly, contradictory in his affidavit and unsatisfactory, and that he ceased working there as of August 2019, at which time he states he returned to Cairo University. He states that his current annual income is the equivalent of $8,688 CAD.

Issue #1 – Does this court have authority to grant interim child support?

14The Ontario Court of Appeal held in Cheng v. Liu, 2017 ONCA 104 at paragraph 30 that: “Simply put, there is no jurisdiction for an Ontario court to grant corollary relief under the Divorce Act after a foreign court has validly issued a divorce.” As in Cheng, Hoda does not submit that it is open to her to seek spousal support under the Family Law Act (“FLA”) if there is a valid foreign divorce. As Hourigan J.A. noted in Cheng, previous decisions of the Court of Appeal determined “that there is no provision in the FLA that entitles a former spouse to claim support under that Act.” [1] Rather, Hoda asserts that spousal support is available to her under the Divorce Act or the FLA if her Egyptian divorce is not “validly issued”, and child support is available to her either under the Divorce Act if her Egyptian divorce is not validly issued or under the FLA if her validly issued Egyptian divorce did not deal with it at first instance.

15With respect to the issue of child support, the Court of Appeal found in Cheng that there is no statutory prohibition against utilizing the FLA in circumstances where a foreign court grants a valid divorce, but does not deal with child support in it and that “the use of the FLA to provide a remedy is entirely consistent with the statuary objective of ensuring that parents provide support for their dependent children.” [2] Hatem submits that Cheng can be distinguished from the case at bar on the basis that the Chinese court in the former specifically held that the support issues could more properly be dealt with in Ontario. That is not, however, in my view, what Cheng stands for; rather, it stands for the proposition that where child support has not been dealt with in a validly issued foreign divorce, it can properly be sought by a party resident in Ontario under the FLA, whether the foreign court has prescribed that it can or not.

16The children are present in Ontario and have been so since October 17, 2018. Hatem submits that he has not attorned to the jurisdiction of the court in Ontario. However, Hatem brought his application in Ontario, seeking the assistance of the court in Ontario in ordering the return of the children to Egypt, and he obtained interim relief on June 26, 2019, that being one in-person access visit and regular on-going skype visits. In the case of Cawdrey v. Cawdrey, 2011 ONSC 669 it struck Justice Shaw as “anomalous that one would be able to seek the assistance of this court on one’s application, under the Hague Convention but be entitled to deny having submitted to the court on a claim brought in response to that application.” [3] I too find it anomalous that Hoda could not seek interim relief over the period of an adjournment sought by Hatem in a matter in which he has already been granted some interim relief, particularly when that relief pertains to the welfare of the children.

17Hatem submits that section 22(3) of the Children’s Law Reform Act applies, and that the Ontario court cannot exercise jurisdiction and order the interim relief requested because the children’s habitual residence has not been altered by their removal from Egypt. He submits further that support cannot or should not be dealt with separately from custody, and that pursuant to section 22(3) of the Act, this court precisely has no jurisdiction over custody. There are three difficulties with this argument: the first is that I am uncertain based on the record before me if the children’s habitual residence was in Egypt (that argument is for another day, namely the trial which was delayed by Hatem). The second is that section 22(2) permits the court to exercise jurisdiction over a child even where the child is not habitually resident in Ontario but is physically present in Ontario at the commencement of the application and the other criteria in the section are met. In this case, the children were present in Ontario at the commencement of the application, there is likely substantial evidence in Ontario at to their best interests, there is no application pending in a foreign jurisdiction (in that the divorce proceedings in Egypt are completed) and the children have a real and substantial connection with Ontario. Finally, the third difficulty with Hatem’s argument is that he had already obtained interim relief from this court. For all of the above reasons, I find that the court has jurisdiction to make an order for interim child support, whether or not the Egyptian divorce is valid, pursuant to sections 33 and 34 of the FLA.

Issue #2 – Does this court have authority to grant interim spousal support?

18With respect to the issue of spousal support, the only way that this court would have jurisdiction to make a temporary order is if the Egyptian divorce order is found not to be a valid one. Section 22 of the Divorce Act provides:

RECOGNITION OF A FOREIGN DIVORCE – (1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the martial status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for divorce.

IDEM – (2) A divorce granted, after July 1, 1968, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so, on the basis of the domicile of the wife in that country or subdivision determined as if she were unmarried and, if she was a minor, as if she attained the age of majority, shall be recognized for all purposes of determining the martial status in Canada of any person.

OTHER RECOGNITION RULES PRESERVED – (3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.

19Section 22(1) and (2) do not apply in this case. As I have indicated above, the proceedings for divorce in Egypt were commenced by Hoda in November of 2018. At that time, she was not ordinarily resident in Egypt. In fact, she had taken up residence in Canada in October. Prior to her removal to Canada, according to her evidence, Hoda was visiting both her parents (who own property in but are not residents of Egypt) and Hatem’s parents in Cairo, as they did every summer having gone there in July. She was not ordinarily resident in Egypt for at least one year at the commencement of the divorce proceedings.

20Similarly, Hatem was still teaching in the UAE in the fall of 2018. Indeed, according to his evidence, he did not resign or give notice of his resignation to Khalifa University until January of 2019. He also did not withdraw the children from school in Abu Dhabi until mid-September 2018. In the summer of 2018, Hatem was back and forth between Cairo and Abu Dhabi as part of the family visit; he too was clearly not ordinarily resident in Egypt for at least one year at the commencement of the divorce proceedings. The question becomes whether the Egyptian divorce should be recognized pursuant to section 22(3) of the Act. As Audet J. noted in Al Sabki v. Al Jajeh, 2019 ONSC 6394, at paragraph 13, section 22(3) of the Divorce Act “allows the court to recognize a foreign divorce based on the principles of conflicts of laws and rules of common law”. Justice Audet found further at paragraph 14 that:

14Canadian courts will recognize a foreign divorce in the following situations:

(i) Where jurisdiction was assumed on the basis of the domicile of the spouses;

(ii) Where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties;

(iii) Where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings;

(iv) Where the circumstances in the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada;

(v) Where the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted; or

(vi) Where the foreign divorce is recognised in another foreign jurisdiction with which the petitioner or respondent has a real and substantial connection.

A court may refuse to recognize a foreign divorce that would otherwise be valid, on the grounds of fraud, the denial of natural justice or public policy (Novikova; Powell; Orabi; Wilson v. Lovalev, 2016 ONSC 163; Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416; Kadri v. Kadri, 2015 ONSC 321, 59 R.F.L. (7th) 187 to name only a few).

21In this case, neither party provided evidence at the motion which would permit the court to conclude that the criteria outlined by Justice Audet in paragraph 14 of Al Sabki have been met. I received no evidence, for example, that the laws of Egypt or the UAE would have recognized a foreign divorce granted on a non-domiciliary jurisdictional basis. Similarly, no evidence was led as to whether the law of Egypt corresponds to the Canadian jurisdictional rules in divorce proceedings. At the time of the granting of the divorce, I cannot find that either party had a real and substantial connection to Egypt. As I have indicated, they lived in the UAE for nearly ten years prior to visiting Egypt in July, as they had done nearly every year abroad. The children were registered in school in Abu Dhabi until mid-September of 2018. Hatem was working in Abu Dhabi until August of 2019, and Hoda was in Canada after October 17, 2018. Hatem denies owning any property in Egypt or having any business interests there, though he did continue to have a relationship with Cairo University, the full extent of which remained unexplained by his failure to execute a release authorizing Khaifa University to provide information to Hoda. Like Justice Audet in Al Sabki, I do not find that “the mere fact that the parties’ extended families continue to reside in that country, and that the parties visit them once every year or ever second year, is sufficient to give rise to the “significant” connection necessary to ground jurisdiction”. [4]

22Hoda has submitted that as the criteria required in section 22 of the Divorce Act has not been fulfilled, the foreign divorce can not be recognized for the purposes of determining the parties’ marital status in Canada. She submits additionally, moreover, that the Egyptian divorce should not be recognized in any event for public policy reasons. Given that neither party was ordinarily resident in Egypt for at least one year at the time of the commencement of the divorce proceedings, and that no expert or other evidence was provided regarding the other criteria which may render an Egyptian divorce otherwise valid, I find that it cannot be so “recognized for all purposes of determining the martial status in Canada of” Hoda and Hatem. It is, thus, unnecessary for me to consider the public policy argument for the purposes of this motion. Hoda is, therefore, not barred from seeking nor is the court barred from ordering spousal support pursuant to the FLA.

Issue #3 – What is the appropriate quantum of support?

23Hoda submits that income should be imputed to Hatem for the purposes of support. Her evidence is that Hatem’s annual income while working as a professor in the UAE was approximately $220,000. He was also entitled to and received an annual housing allowance of approximately $100,000, making his total income over $300,000 annually. Hoda also submits that Hatem owns two properties in Cairo and has an interest of some description in two hospitals run by his brother(s). She additionally asserts being aware of Hatem receiving a large payment from Khalifa University relating to loss of his position at the Masdar Institute when it merged with Khalifa University in or about 2016. Hoda seeks to have income imputed to Hatem $250,000 per annum.

24Hatem does not dispute either Hoda’s description of his income or their family’s lifestyle in Abu Dhabi, but states that he resigned from Khaifa University in January of 2019 and returned to work at Cairo University at the completion of his six-month notice period. His evidence is that he is currently making approximately $8,688 per annum as a professor at Cairo University. Hatem submits that he was effectively on a leave of absence from Cairo University from around 2013 until August of 2019. In support of this, Hatem provided a letter from Cairo University dated December 15, 2019 which provided, in part, as follows:

Dr. Hatem Zeineldin approved leave of absence has ended on August 4, 2019.

For a period of 8 years and 10 months (which is equivalent to the period of previous approved years of leave of absences) from the date of resuming his duties, Dr. Hatem Zeineldin is not allowed to take any sabbatical leaves according to Egyptian Laws.

25This letter purports first to support that Hatem was on leave from closer to early 2011 (though his “Bio” with Khalifa University states he joined the Masdar Institute in 2007) [5], and second to state that having terminated his leave of absence, Hatem is not entitled to take another for 8 years and 10 months from August 4, 2019. It does not speak to the necessity of Hatem ending his previous leave of absence.

26Hoda’s evidence, additionally, included a statement that he was one of only 20 scientists to obtain a 10-year residency VISA for the UAE in or about 2018. Hatem did not dispute this fact in his evidence. He nevertheless purportedly gave his notice to Khaifa University in January of 2019.

27On December 11, 2019, I granted an order requiring Hatem to sign a Direction authorizing Khalifa University to release information to the parties’ lawyers regarding his status in the faculty, his income and benefits. Contrary to the order, Hatem never signed the Authorization, and Hoda was consequently unable to obtain any information from Khalifa University. At the time of swearing of her affidavit on January 10, 2020 for this motion, Hoda noted, as did her expert, Jeremy D. Morley, that Hatem was still listed as faculty on the website of Khalifa University. [6]

28Section 19 of the Federal Child Support Guidelines provides that the court may impute such amount of income to a spouse as it considers appropriate in the circumstances, including where it appears income has been diverted or a spouse has failed to provide income information when under a legal obligation to do so.

29In Smith v. Smith (2012), 2012 CarswellOnt 3113 Justice Chappel outlined the relevant factors for determining whether to impute income as follows:

(a) The onus is on the party seeking to impute income to establish an evidentiary basis upon which to establish that the other party is intentionally unemployed or underemployed;

(b) It is not necessary to establish bad faith or an attempt to thwart support obligations before imputing income. A payor is intentionally underemployed if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances. The factors that the court should consider include the age, education, skills and health of the party, the party’s past earning history and the amount of income the party could reasonably earn if they had worked to capacity;

(c) There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their dependents;

(d) The court will not excuse a party from their support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce support payments;

(e) If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances and may impute an income if it determines that the decision was not appropriate having regard for the parties’ support obligations;

(f) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them; and,

(g) The amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute. (See Meissner v. Meissner, 2013 ONSC 5621, paragraph 37).

30The onus is on Hoda to establish an evidentiary basis upon which the court can impute income to Hatem. She has, in my view, succeeded in doing so. Hatem’s return to Cairo University is not satisfactorily explained, particularly given his generous salary at Khalifa, his VISA extension (which would permit him to work in the UAE for a further nine or so years) and his refusal to permit Khalifa University to disclose information to Hoda. On the evidence before me, I can find only that Hatem’s return to Cairo University, at a much-reduced salary, was voluntary. He is, thus, voluntarily under-employed for support purposes. Hatem is required to earn the income he is capable of earning, and he is clearly capable of earning a significantly higher income than he is currently doing.

31Hoda seeks an order that the court impute income to Hatem of $250,000 per annum, which she submits is generously low, given his income at Khalifa University, his housing allowance there (much of which he was able to save and invest) and his assets in Egypt, which she submits include at least two real properties and interests in two his brothers’ hospitals. In my view, Hoda has set out a sufficient evidentiary basis to determine that amount of income to be imputed of $250,000 is reasonable.

32There shall be an order imputing an annual income of $250,000 to Hatem, upon which both temporary child and spousal support shall be based commencing December 1, 2019.

Issue #4 – Is an order for an interim disbursement appropriate in the case?

33Hoda seeks an order requiring Hatem to pay her an interim disbursement in the amount of $10,000 pursuant to Rule 25(18) of the Family Law Rules (“FLR”). She seeks this amount because she has had to engage an expert in international family law, Mr. Jeremy D. Morley, from New York State. Mr. Morley produced a report dated October 25, 2019 in relation to the laws of Egypt and the UAE, and Sharia Law pertinent to Hatem’s application. Mr. Morley’s report cost Hoda $6,000, which she attested was loaned to her by her parents. Hoda’s evidence is that she has exhausted any savings she had and is living off her student loans and grants. She has additionally had to sell some of her jewelry to provide for the children. Hoda had hoped to rely on Mr. Morley’s report without the necessity of him being called as an expert witness at the trial, but Hatem has indicated that he will be required to testify. This will cost an additional $4,000, which Hoda does not have.

34Rule 24(18) of the FLR’s provides that “the court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.”

35Hatem relies heavily on the case of Fontaine v. Canada, 2015 ONSC 7007 in support of the premise that an advance order for costs is an “extra-extra extraordinary order” and the three criteria of merit, impecuniosity and public interest must be met before such an order can be granted. The case, however, is not that helpful to Hatem because it was decided in the context of a “public law” case, itself heavily relying on two previous Supreme Court of Canada public interest cases, British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 317 and Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs & Revenue Agency), 2007 SCC 2. Indeed, in Fontaine, Justice Perell quoted from the Little Sisters case at paragraph 62, referencing Okanagan thus:

Okanagan was a step forward in the jurisprudence on advance costs – restricted until then to family, corporate and trust matters – as it made possible, in a public law case, to secure an advance costs order in special circumstances related to the public importance of the issues of the case (Okanagan, at para. 38). In other words, though now permissible, public interest advance costs orders are to remain special and, as a result, exceptional. (Emphasis added).

36More useful in a family law context are the cases of Stuart v. Stuart, 2001 CarswellOnt 4586 and Woodburn v. Woodburn, 2016 ONSC 6694, 2016 CarswellOnt 17658, both of which set out the following factors to be considered in the exercise of the court’s discretion to order advance costs pursuant to then Rule 24(12) (now Rule 24(18)):

Proof of necessity of the interim disbursement being critical to the successful claim; in particular, “if an expert is the subject of a requested disbursement, the claimant must demonstrate there is a clear need for the services of said expert”;
Incapacity to otherwise fund the requested amount; and,
The merit of the claim in so far as it can be determined on a balance of probabilities at the time of the request. [7]

37These cases also note that the exercise of the discretion under the former Rule 24(12) can be less stringent in a family law cases, “the award should be made to level the playing field”, the order should allow the case to go forward but should not be a licence to litigate and the order is not limited to cases where there is an equalization payment at stake. [8]

38Hoda has met the criteria in Stuart and Woodburn. First, as was noted by Justice Aitken in the case of Roberts v. Aasen, 1999 CarswellOnt 1674 at paragraph 14, Hoda is not the party initiating the proceedings. She “does not have any choice but to defend the claim initiated by [Hatem] if she believes [the children’s] best interests are served by [them] remaining in her care [in Canada]”. [9]

39Second, there is no doubt that there is a clear need in this case for Mr. Morley’s services. Indeed, the main issue for the court at trial will be the jurisdiction of the Ontario court, and the entire case may rest on the expert evidence as to the family law regimes in Egypt and the UAE versus that of Canada. Additionally, Hatem is requiring Hoda to produce Mr. Morley at trial for cross-examination, as he is entitled to do. The cost of him so appearing is thus unavoidable.

40Third, Hoda has demonstrated through her Financial Statement, as well as her affidavit evidence that she is incapable of otherwise funding the expert’s report and testimony at trial. She has already borrowed money from her parents to obtain the report at the cost of $6,000 and she will require a further $4,000 to produce Mr. Morley for cross-examination. Hoda, however, had an obligation to use all means available to her to fund her litigation before seeking an order for an interim disbursement. She has done so and can no longer do so. She may, however, recover the sum borrowed from her parents if she is successful in her defense of the application. I do not find that it needs to be paid today.

41Finally, Hoda has established prima facie merit to her claim that the children’s best interests will be served by remaining with her in Canada.

42For all of these reasons, I exercise my discretion and order that Hatem pay to Hoda an interim disbursement in the amount of $4,000 forthwith.

Order

43There shall be a temporary without prejudice order as follows:

Commencing December 1, 2019, the Applicant shall pay to the Respondent $3,277 per month in child support, being the table amount for two children on an imputed annual income of $250,000;
Commencing December 1, 2019, the Applicant shall pay to the Respondent $4,000 per month in spousal support being just below the low range of the SSAG’s on an imputed annual income for the Applicant of $250,000 and $14,000 for the Respondent; and,
The Applicant shall pay to the Respondent an interim disbursement of $4,000 forthwith.

Costs

44The Respondent is the successful party on this motion and is presumptively entitled to costs. If the parties are unable to agree on the quantum of costs payable by the Applicant to the Respondent by March 2, 2020, written submissions of no more than two double spaced pages on that issue may be provided, along with copies of bills of costs and offers to settle at ten day intervals from that date, and I will make a decision.

Justice Engelking Date: February 24, 2020

COURT FILE NO.: FC-19-1211 DATE: 2020/02/24 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Hatem Zeineldin, Applicant AND Hoda Mahmoud Aly Elshikh, Respondent

BEFORE: Justice Engelking

COUNSEL: John E. Summers, Counsel for the Applicant Allan Hirsch, Counsel for the Respondent

ENDORSEMENT Engelking J. Released: February 24, 2020

1 Okmyansky v. Okmyansky, 2007 ONCA 427, 86 O.R. (3rd) 587 at paragraph 42 and Rothgiesser v. Rothgiesser (2000), 46 O.R. (3rd) 577 (C.A.)

2Cheng, supra at paragraphs 44 and 45

3Cawdrey, supra at paragraph 6

4Al Sabki v. Al Jajeh, supra at paragraph 36

5Report of Jeremy D. Morley dated October 25, 2019, Exhibit “B”, CR Vol. 4, Tab 1

6Affidavit of Hoda Mahmoud Aly Elshikh sworn January 10, 2020, paragraph 7 and Report of Jeremy D. Morley dated October 25, 2019, Ibid., paragraph 20 and Exhibit “B”

7Stuart v. Stuart, supra at para. 8 and Woodburn v. Woodburn, supra at para. 16

8Ibid.

9 Roberts v. Aasen, 1999 CarswellOnt 1674 at paragraph 14

Endorsement

Background Facts