Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210520 DOCKET: C68892

Juriansz, Huscroft and Jamal JJ.A.

BETWEEN

Maya Zakhour Applicant/Responding Party (Appellant)

and

Fady Nayel Respondent/Moving Party (Respondent)

Counsel: Maya Zakhour, acting in person Diane Condo, for the respondent

Heard: May 10, 2021 by videoconference

On appeal from the judgment of Justice Maria T. Linhares de Sousa of the Superior Court of Justice dated April 2, 2019.

Reasons for Decision

[1] This is an appeal from the summary judgment granted by the motion judge dismissing the appellant, former wife’s, application for spousal support, equalization of net family properties, and other relief under the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”).

[2] The appellant lived in Montréal before she married the respondent, former husband. The parties married in May 2015 in Lebanon and lived together there until December 2015. From December 2015 to January 2016, the parties lived as husband and wife in Ottawa. They separated in January 2016. The respondent then returned to Lebanon, and the appellant returned to Montréal.

[3] The respondent began marriage “annulment” proceedings in Lebanon, in which the appellant participated. In October 2016, the appellant began an application in the Ontario Superior Court of Justice for spousal support (including indexing), equalization of net family properties, exclusive possession of the matrimonial home and its contents, freezing of assets and sale of family property, and a restraining/non-harassment order, all under the FLA.

[4] In February 2018, the Maronite Unified Court of First Instance in Lebanon granted an “annulment” of the marriage, which was equivalent to a divorce. The parties are referred to in the annulment document as “divorced”. The Maronite Court of Appeal dismissed the appellant’s appeal of the annulment along with her claim for compensation. The annulment was registered in Lebanon in March 2019.

[5] On the respondent’s motion for summary judgment, the respondent argued that the appellant was not entitled to relief because she was not a “spouse” under the FLA. The motion judge found that the marriage had been annulled in Lebanon and dismissed the application because the court lacked jurisdiction under the FLA.

[6] In our view, the motion judge erred in law in concluding that the court lacked jurisdiction under the FLA.

[7] Section 7 of the FLA permits a “former spouse” to bring an application to determine their entitlement to equalization of net family properties. During oral argument before this court, counsel for the respondent conceded that the appellant is a “former spouse” under the FLA who entered into the marriage in good faith. It is also settled law that a “former spouse” is not restricted to a person divorced in Canada: Okmyansky v. Okmyansky (2007), 2007 ONCA 427, 86 O.R. (3d) 587 (C.A.), at paras. 43, 52. Therefore, the appellant is a “former spouse” under s. 7 of the FLA and the Ontario Superior Court of Justice has jurisdiction to consider her equalization claim under the FLA.

[8] The respondent contends that the Superior Court of Justice nevertheless lacks jurisdiction because the proceedings in Lebanon dealt with the appellant’s claim for financial compensation. We disagree. That a foreign court has addressed a former spouse’s corollary relief claims in the foreign divorce proceedings does not deprive the Superior Court of jurisdiction under s. 7 of the FLA: see Okmyansky, at paras. 7-8, 43.

[9] Finally, the appellant advised the court at the hearing of the appeal that she is no longer pursuing her claim for spousal support.

[10] The appeal is allowed and the matter remitted to the Superior Court of Justice to consider the appellant’s equalization claim under the FLA. The appellant is awarded her disbursements and filing fees for the appeal in the amount of $1,120, payable within 30 days.

“R.G. Juriansz J.A.”

“Grant Huscroft J.A.”

“M. Jamal J.A.”